The Federal Court of Appeal has ruled that Public Safety Minister Vic Toews didn’t give adequate reasons when he rejected a bid by a Montreal trucker jailed in the United States to serve the rest of his sentence back in Canada.
The April judgment is the 15th time a Canadian court has criticized Mr. Toews or his two Conservative predecessors, Peter Van Loan and Stockwell Day, for failing to provide a proper explanation why they wouldn’t allow a Canadian held in a foreign prison to be transferred to their country of citizenship.
The court ordered Mr. Toews to review again the application by Yves LeBon, saying that the minister's rejection was “neither transparent nor intelligible.”
In 14 previous occasions, the Federal Court found that either Mr. Toews, Mr. Van Loan or Mr. Day improperly rejected a transfer bid:
1. Jan. 19, 2011. Inmate: Richard Goulet, Quebec man serving time at a low-security penitentiary in Pennsylvania for smuggling marijuana.
Ruling by Mr. Justice Robert Barnes: “The minister left Mr. Goulet with a recitation of some of the relevant facts and a bare conclusion that ran contrary to the overwhelming weight of the evidence.”
2. Dec. 7, 2011. Inmate: Tomaso Villano, a property management company in Richmond Hill sentenced to four years and six months for conspiracy to import MDMA (known as ecstasy).
Ruling by Mr. Justice James O’Reilly: “The minister is free to disagree with CSC’s analysis, but he must explain why he disagrees.
“... It is entirely speculative to suggest that the minister was concerned about any gambling problem on Mr. Villano’s part, and it is unclear whether that would have been a reasonable basis for denying the transfer in any case.”
3. Dec. 7, 2011. Inmate: Franco Tangorra, sentenced to seven years and three months for conspiracy to possess and distribute ecstasy.
Ruling by Judge Reilly: “The minister’s decision must be set aside when it fails to explain why the transfer should be denied.
“… The minister’s decision did not accord with either the statutory parameters set down by Parliament or the applicable principles of justice.”
4. Oct. 5, 2011. Inmate: Nicola Del Vecchio, a Montrealer convicted on charges of conspiracy to distribute narcotics.
Ruling by Madam Justice Anne Mactavish: “[The minister]must also explain his reasoning in coming to the conclusion that a transfer is not warranted in a given case. He did not do so here.”
5. July 4, 2011. Inmate: Sunny Yu, a finance student at Hawaii Pacific University in Honolulu who was arrested him for his involvement with the import of 4 kilograms of methamphetamine from Canada to Hawaii.
Ruling by Madam Justice Danièle Tremblay-Lamer: “This is problematic. No reasons were provided to explain why the facts recited by the minister, which all related to the drug offence committed by the applicant in 2003, led the minister to conclude that, in the future, the applicant would commit a criminal organization offence.”
6. May 27, 2011. Inmate: Alexie Randhawa, sentenced to five years imprisonment in California on a guilty plea to the charge of conspiracy to traffic in narcotics.
Ruling by Mr. Justice Douglas Campbell: “I find that the Minister’s decision is not defensible in respect to the facts and law.”
7. March 31, 2011. Inmate: Gentian Balili, sentenced to seven years in connection with a conspiracy to smuggle cocaine from the Bahamas to the Chicago area.
Ruling by Mr. Justice Roger Hughes: “The minister has not adhered to the principles of natural justice. … The minister’s reasons are inadequate in that they fail to set out clearly what information was considered and how it was weighed.”
8. Feb. 2, 2011. Inmate: James Downey, sentenced to 14 years for conspiracy to import and distribute 100 kilos or more of marijuana and hash oil.
Ruling by Mr. Justice Michael Phelan: “It is difficult, if not impossible, to discern what the true basis of the minister’s decision is. The minister ‘notes’ a number of facts but does not tie these notations into relevant conclusions. The description of the crime and its possible impact on society tells one nothing about why a transfer to a Canadian prison is not warranted. This decision lacks logical reasons and does not adhere to the Dunsmuir v. New Brunswick, 2008 SCC 9, principles of transparency, intelligibility and acceptability.”
9. Feb. 2, 2011. Inmate: Medi Vatani, sentenced to 10 years after a search of his vehicle uncovered 48 kilos of cocaine.
Ruling by Judge Phelan: “There is no apparent logical connection articulated between those factors and the conclusion reached. There is even less support for the minister’s conclusion in view of the other facts reported by the department.”
10. Feb. 2, 2011. Inmate: Davinder Singh, sentenced to eight years after he was caught trying to enter the U.S. with 3.45 kilos of marijuana and 316 pounds of ecstasy hidden in his car trunk.
Ruling by Judge Phelan: “The minister had to explain how he was concerned that the applicant would continue his organized crime activities when the evidence was that the applicant had no links to organized crime.”
11. June 22, 2010. Inmate: Jimmy Wong, sentenced to five years for laundering of narcotics proceeds after he was caught in Texas transporting $370,000 in cash in the trunk of his car.
Ruling by Madam Justice Johanne Gauthier: “The extremely brief reasons given by the respondent were simply insufficient to meet the requirement of intelligibility and transparency.”
12. Sept. 21, 2010. Inmate: Michael Dudas, serving a five-year sentence for conspiracy to import marijuana.
Ruling by Mr. Justice John O’Keefe: “The minister applied the wrong legal test for which the standard of review is correctness.”
13. March 4, 2010. Inmate: Dwayne Grant, sentenced to seven year prison sentence in Costa Rica after he and five companions were intercepted at an airport with 34 kilograms of cocaine in their suitcases.
Ruling by Judge Barnes: “In a case such as this one where the minister decides not to follow the advice received, he has a duty to explain why and to clearly identify where his assessment differs from that of his advisors.”
14. August 25, 2008. Inmate: Arend Hendrik Getkate, sentenced to 30 years for aggravated child molestation.
Ruling by Mr. Judge Michael Kelen: “The reasons articulated by the minister are contrary to the evidence and to the assessment and recommendations by his own department. The court must conclude that the decision cannot be justified or made intelligible within the decision-making process.”