Curtis v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 943

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: March 24, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 943;(2010), 373 F.T.R. 267 (FC)

Curtis v. Can. (2010), 373 F.T.R. 267 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. SE.029

Brent James Curtis (applicant) v. Minister of Public Safety and Emergency Preparedness (respondent)

(T-984-09; 2010 FC 943)

Indexed As: Curtis v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

O'Keefe, J.

September 21, 2010.

Summary:

The applicant was a Canadian citizen incarcerated in the United States. The Minister of Public Safety and Emergency Preparedness denied an application to transfer the applicant to Canada pursuant to s. 10(2)(a) of the International Transfer of Offenders Act (ITOA) and under the terms of the Treaty Agreements between the two countries, on the grounds that, in the Minister's opinion, the applicant would after the transfer, commit terrorism or an organized criminal offence within the meaning of s. 2 of the Criminal Code. The applicant applied for judicial review. The applicant submitted that as a Canadian citizen, he had a constitutional right to enter Canada once the United States approved his leave and the provisions of the ITOA which purported to allow the Minister to prevent him from doing so violated the applicant's constitutional rights under s. 6 of the Charter and were not saved by s. 1. In the alternative, the applicant submitted that the Minister erred in fact and law in concluding that the applicant would, after the transfer, commit a criminal organization offence.

The Federal Court held that the impugned provisions of the ITOA were constitutional. However, the court allowed the application on the basis that the Minister's decision was unreasonable.

Civil Rights - Topic 506

Mobility rights - General - Prisoner transfers - The applicant was a Canadian citizen incarcerated in the United States - The Minister of Public Safety and Emergency Preparedness denied an application to transfer the applicant to Canada pursuant to s. 10(2)(a) of the International Transfer of Offenders Act (ITOA) and under the terms of the Treaty Agreements between the two countries, on the grounds that, in the Minister's opinion, the applicant would after the transfer, commit terrorism or an organized criminal offence within the meaning of s. 2 of the Criminal Code - The applicant applied for judicial review - The applicant submitted that as a Canadian citizen, he had a constitutional right to enter Canada once the United States approved his leave and the provisions of the ITOA which purported to allow the Minister to prevent him from doing so violated the applicant's constitutional rights under s. 6 of the Charter and were not saved by s. 1 - The Federal Court held that the impugned provisions of the ITOA were constitutional - The court stated that "this is not a new argument raised before this Court. In fact, this is at least the fourth time that this precise argument has been raised, all on very similar circumstances. Although there has been a degree of inconsistency in the answers this Court has given, the more recent and more numerous decisions, most notably Kozarov and Getkate above, have answered the applicant's constitutional question in the negative. The principles of judicial comity require me to follow those more recent precedents unless they are shown to be manifestly wrong or made without regard to a statute or an authority that ought to have been followed ... The applicant has not convinced me that the decisions in Kozarov and Getkate above, are manifestly wrong, nor has the applicant provided me with convincing reasons not to follow them" - See paragraphs 30 to 34.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Appeals or judicial review - The applicant was a Canadian citizen incarcerated in the United States - The Minister of Public Safety and Emergency Preparedness denied an application to transfer the applicant to Canada pursuant to s. 10(2)(a) of the International Transfer of Offenders Act (ITOA) and under the terms of the Treaty Agreements between the two countries, on the grounds that, in the Minister's opinion, the applicant would, after the transfer, commit terrorism or an organized criminal offence within the meaning of s. 2 of the Criminal Code - The applicant applied for judicial review - The applicant submitted that as a Canadian citizen, he had a constitutional right to enter Canada once the United States approved his leave - He submitted that the provisions of the ITOA which purported to allow the Minister to prevent him from doing so violated the applicant's constitutional rights under s. 6 of the Charter and were not saved by s. 1 - In the alternative, the applicant submitted that the Minister erred in fact and law in concluding that the applicant would, after the transfer, commit a criminal organization offence - The Federal Court stated that the Minister's ultimate decision was entitled to significant deference and would be reviewed on the reasonableness standard - With respect to the constitutional question, the applicable standard of review was correctness - See paragraphs 27 to 29.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - [See Civil Rights - Topic 506 ].

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The applicant was a Canadian citizen who was incarcerated in the United States for an offence of conspiring to possess with intent to distribute cocaine - The Minister of Public Safety and Emergency Preparedness denied an application to transfer the applicant to Canada pursuant to s. 10(2)(a) of the International Transfer of Offenders Act (ITOA) and under the terms of the Treaty Agreements between the two countries, on the grounds that, in the Minister's opinion, the applicant would after the transfer, commit terrorism or an organized criminal offence within the meaning of s. 2 of the Criminal Code - The applicant applied for judicial review - The Federal Court allowed the application, holding that the Minister's decision was unreasonable - The court stated that "the apparent reason for the Minister's final conclusion that the applicant may commit a criminal organization offence, was the nature of the offence for which the applicant was arrested and the applicant's role in that offence. Yet, there is a key error in coming to this conclusion. The Minister believed that the file information suggested that the applicant was the money man" - It appeared that the error likely went directly to the Minister's appreciation of the applicant's role in the offence, which in turn heavily influenced his ultimate conclusion - After removing the error from the decision, there was little else in the way of evidence to support the Minister's conclusion - See paragraphs 35 to 42.

Cases Noticed:

Van Vlymen v. Canada (Solicitor General), [2005] 1 F.C.R. 617; 258 F.T.R. 1; 2004 FC 1054, refd to. [para. 10].

Kozarov v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] 2 F.C.R. 377; 333 F.T.R. 27; 2007 FC 866, refd to. [para. 10].

Getkate v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 3 F.C.R. 26; 333 F.T.R. 121; 2008 FC 965, refd to. [para. 10].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 22].

Dudas v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 373 F.T.R. 253; 2010 FC 942, refd to. [para. 27].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Glaxo Group Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1995), 103 F.T.R. 1; 64 C.P.R.(3d) 65 (T.D.), refd to. [para. 30].

Haque v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 451; 2010 FC 703, refd to. [para. 40].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 6 [para. 2].

International Transfer of Offenders Act, S.C. 2004, c. 21, sect. 8, sect. 10 [Annex].

Counsel:

John W. Conroy, Q.C., for the applicant;

Curtis Workun and Keitha Elvin-Jensen, for the respondent.

Solicitors of Record:

Conroy & Company, Abbotsford, British Columbia, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on March 24, 2010, at Vancouver, B.C., before O'Keefe, J., of the Federal Court, who delivered the following decision on September 21, 2010.