Federal Appeal

Extraordinary Measures

Mandamus available to prevent further delay and harm to inmate

Court overturned Minister’s decision denying inmate, Canadian citizen in low security jail in United States transferred to serve sentence in Canada. Minister found inmate was at risk to commit criminal organization offence; court quashed the Minister’s refusal because in his reasons he did not demonstrate weighing of s. 10 of International Transfer of Offenders Act (Can.) factors, as he was required to do. Matter had been returned to Minister, who once again declined transfer; court found Minister paid lip service to appeal judgment, simply reasserted his earlier reasoning, was operating with closed, intransigent mind, and ordered Minister within 45 days to accept inmate’s transfer request and confirm in writing to inmate that all reasonable steps had been taken for his prompt transfer to correctional facility in Canada. Court found Federal Court’s findings that Minister displayed closed mind and intransigency in his re-decision and paid lip service to court’s earlier decision were factual findings supportable on basis of record; only live issue was whether, as matter of law, it was open to Federal Court to make mandatory order, rather than sending matter back for another re-decision. Appeal dismissed with costs. Court did not accept Federal Court restrained as suggested by Minister. Federal Court found Minister’s conclusion that there was significant risk that inmate would commit criminal organization offence to be unsupported by evidence, and Crown did not contest this. With that factor off table, all that remained were factors supporting transfer. In circumstances, it was open to Federal Court to conclude on evidence that only lawful exercise of discretion was granting of transfer: in such circumstances, mandamus lies. In unusual circumstances of case, mandamus was also available to prevent further delay and harm that would be caused to inmate if Minister were given third chance to decide this matter in accordance with law. In circumstances where Minister did not follow court’s earlier decision, paid “lip service” to it, and displayed “closed mind” and “intransigency”. Federal Court’s exercise of discretion in favour of making mandatory order against Minister had foundation in evidentiary record.

Lebon v. Canada (Minister of Public Safety and Emergency Preparedness) (Feb. 25, 2013, F.C.A., David Stratas J.A., Sharlow J.A., and Webb J.A., File No. A-39-13) Decision at 104 W.C.B. (2d) 769 was reversed in part.  105 W.C.B. (2d) 166.

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