Public Safety Minister Vic Toews and his two Conservative predecessors have been criticized in a recent Federal Court decision for repeatedly failing to provide adequate reasons when refusing to let Canadians jailed abroad be transferred to a prison in Canada.
The ruling is the latest case to pit the government against judges who say the public safety minister has not used his discretionary powers in a transparent, reasonable way.
Critics say that it would be better to transfer applicants to the Canadian prison system, where they would be registered and eventually paroled under supervision, rather than have them serve their sentences abroad and be returned without notification to authorities in Canada.
As part of its omnibus crime bill, the Conservative government wants to amend the International Transfer of Offenders Act to give the public safety minister more discretion when dealing with transfer applications.
In the latest court case, Mr. Justice Robert Barnes ruled on Jan. 19 that Mr. Toews didn't provide proper grounds to explain why he turned down a bid by Richard Goulet, a Quebec man serving time at a low-security penitentiary in Pennsylvania for smuggling marijuana.
The judge noted that in 12 previous cases, Mr. Toews and his predecessors have failed to follow the requirement in the transfer of offenders act to justify their decision.
"This is the type of pro forma decision under the act that has been repeatedly found to be inadequate," Judge Barnes wrote.
He then cited the cases of Nicola Del Vecchio, Franco Tangorra, Dwayne Grant, Tomaso Villano, James Downey, Alexie Randhawa, Medi Vatani, Sunny Yu, Michael Dudas, Arend Hendrik Getkate, Davinder Singh and Jimmy Wong.
The cases, starting in 2008, were decided by Mr. Toews and his predecessors Peter Van Loan and Stockwell Day. In several of those files, the minister's decision went against assessments by Correctional Service of Canada that the applicants were at a low risk of reoffending.
In the case of Mr. Singh, for example, who was caught trying to enter the United States with 3.5 kilograms of marijuana and 316 pounds of ecstasy in his car trunk, the court said Mr. Van Loan wrongly cited organized-crime concerns "when the evidence was that the applicant had no links to organized crime."
Mr. Goulet, a bankrupt construction contractor who is serving a seven-year sentence, has no previous criminal record, and a Correctional Service Canada report given to the minister said the 42-year-old Quebecker is not likely to reoffend.
Mr. Toews's decision wasn't reasonable because it was "a recitation of some of the relevant facts and a bare conclusion that ran contrary to the overwhelming weight of the evidence [in the CSC report]" the judge noted. He ordered Mr. Toews to review the case again and provide more thorough reasons if he rejects it.
Transfers used to be almost automatically granted, but under the Harper government, about a third are systemically rejected, usually in drug cases, said Mr. Goulet's lawyer, John Conroy.
He said that the government is wrong to think it is protecting public safety by denying transfer bids because Canadian inmates in the United States who aren't transferred are deported to Canada after serving 85 per cent of their sentence "free and clean of any restrictions."
Yavar Hameed, an Ottawa lawyer for Mr. Del Vecchio, who successfully challenged Mr. Toews' rejection of his transfer application, said the ministers are trying to send a message despite repeatedly losing in the courts.
"On the political front, you can score points," he said.
A spokeswoman for Public Safety Canada said the court's decision will be appealed.