Federal Court

Administrative Law

Accused did not abandon Canada and circumstances had changed

Application by accused for judicial review of decision of Minister of Public Safety made under International Transfer of Offenders Act (Can.). Minister did not consent to accused’s request to be transferred from American prison to Canada. Minister concluded that accused abandoned Canada and he was involved in serious criminality and in organized crime. Accused had criminal record in Canada that dated back to 1971. In 1985 he was sentenced in Canada to over four years’ imprisonment for possession of narcotics for purpose of trafficking. While on day parole accused absconded to United States where he assumed false name and identity. While in United States accused worked and he established common law relationship with woman in Nevada which ended after several years. He was apprehended in United States in sting operation that involved substantial amount of cocaine. Accused was sentenced by American court to 30 years’ imprisonment, to be followed by five-year period of supervised release. He served 15 years of this term in American penitentiary. This case dealt with his sixth request for transfer to Canada to serve remainder of his term here. If he was returned to Canada he would be eligible to apply for parole. Application allowed. Standard of review was reasonableness. Minister held opinion that once party abandoned Canada they could not change their mind. He ignored evidence that showed that accused did not abandon Canada and that his circumstances changed. Decision in respect of abandonment was not reasonable. Minister’s decision regarding serious crime was unreasonable. Accused quit his past behaviour, he was remorseful and he wanted to pursue positive lifestyle. Minister failed to consider these changes and he also ignored the report of Director of International Transfer Unit of Corrections Canada. That report concluded that accused did not pose threat to Canadian security; he lived in Canada for certain periods of time to maintain contact with his children; he had social and familial ties in Canada; and he did not have ties to terrorism or to criminal organization. Minister’s entire decision was unreasonable and it had to be returned for full and proper assessment of all relevant factors and for decision that was clear, transparent and intelligible. This was to be done forthwith.

Carrera v. Canada (Minister of Public Safety) (Jul. 18, 2013, F.C., Roger T. Hughes J., File No. T-2198-12) 108 W.C.B. (2d) 406.

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