Federal Appeal


Minister paid lip service to reasoning of court

Minister appealed court issued mandatory order requiring him within 45 days to accept prisoner’s transfer request and confirm in writing to prisoner that all reasonable steps had been taken for his prompt transfer to correctional facility in Canada. Prisoner, Canadian serving sentence in United States, appealed decision of Minister refusing such transfer. Minister found risk of commission of “criminal organization offence” in future was present. All other factors raised by evidence were in favour of transfer. On appeal, decision was quashed on grounds decision lacked in reasoning, was not transparent, and was intelligible. Decision was remitted back to Minister who again refused transfer; on appeal of that decision court found Minister paid lip service to reasoning of court, basically reasserted his previous reasoning, showed closed mind and intransigency. Order in question was then made. Minister alleged court was constrained and could only send matter back for reconsideration by Minister. Appeal dismissed. Order altered to compel Minister to accept transfer forthwith (45 days had elapsed). Costs of $8,900 granted. Courts below had found there was no evidence prisoner was at risk to commit criminal organization offence in future. Minister conceded this; with that factor off table all other factors pointed to granting transfer. In circumstances it was open to court to conclude on this evidence that only lawful exercise of discretion was granting of transfer; mandamus was appropriate. In circumstances mandamus was also available to prevent further delay and harm that would be caused to prisoner if Minister were given third chance to decide matter.

Lebon v. Canada (Minister of Public Safety and Emergency Preparedness) (Feb. 25, 2013, F.C.A., Sharlow J.A., David Stratas J.A., and Webb J.A., File No. A-39-13) Decision at 104 W.C.B. (2d) 769 was affirmed.  107 W.C.B. (2d) 396.    LT

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