Holmes v. Canada (Minister of Public Safety and Emergency Preparedness), (2011) 383 F.T.R. 185 (FC)

• Judge: Phelan, J.
• Court: Federal Court (Canada)
• Case Date: February 02, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 383 F.T.R. 185 (FC);2011 FC 112

Holmes v. Can. (2011), 383 F.T.R. 185 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. FE.014

Perley Holmes (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(T-1716-09; 2011 FC 112)

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

Federal Court

Phelan, J.

February 2, 2011.

Summary:

Holmes, a Canadian citizen and a prisoner in the United States, sought to be transferred to Canada to serve out the remainder of his United State's court's sentence (International Transfer of Offenders Act (ITOA)). The Minister of Public Safety and Emergency Preparedness denied the request. Holmes applied for judicial review, raising issues respecting whether s. 6 of the Charter was breached by the ITOA because it impeded a citizen's right to enter Canada, whether the Act was saved by s. 1 of the Charter, and whether the Minister's decision was reasonable.

The Federal Court dismissed the application. Section 6 was not engaged. The Minister's decision was reasonable.

Civil Rights - Topic 506

Mobility rights - General - Prisoner transfers - [See first Prisons - Topic 1026 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first Prisons - Topic 1026 ].

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - Holmes, a Canadian citizen and a prisoner in the United States, sought to be transferred to Canada to serve out the remainder of his sentence (International Transfer of Offenders Act) - The responsible minister denied the request - Holmes applied for judicial review, raising s. 6 of the Charter (mobility rights) - The Federal Court held that s. 6 was not engaged by the application for Ministerial consent - The court stated that in considering the applicability of the Charter, it was necessary to consider what the applicant was truly seeking - That request was the very antithesis of mobility rights - A transfer request was not a request to allow the citizen to come to Canada to exercise those mobility rights; indeed, it was a request to come to Canada to do the very opposite of exercise mobility (i.e., to remain imprisoned) - The court opined that even if s. 6 was infringed, any infringement would be saved by s. 1 - See paragraphs 15 to 41.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - Holmes, a Canadian citizen and a prisoner in the United States, sought to be transferred to Canada to serve out the remainder of his sentence (International Transfer of Offenders Act) - The responsible minister denied the request - Holmes applied for judicial review, claiming that the Minister's decision was unreasonable - The Federal Court dismissed the application - The court stated that there was nothing unreasonable in the Minister's decision - It took into consideration the relevant factors and imported no new and unknown factors, and it was intelligible and transparent as to how the Minister came to his conclusion - It therefore met the requirements of law and should not be disturbed - See paragraphs 42 to 64.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - Section 3 of the International Transfer of Offenders Act provided that one of the purposes of the Act was to contribute to the "administration of justice" - The Federal Court rejected the notion that the phrase "administration of justice" did not include the concept of public security and safety - The court stated that such a view of "administration of justice" was far too narrow given the context in which those words appeared - While the phrase might not cover the whole panoply of items considered "administration of justice", the term used in the context of persons who had committed crimes (some being violent) would include public safety and security considerations - See paragraphs 8 and 9.

Words and Phrases

Administration of justice - The Federal Court discussed the meaning of this phrase as it appeared in s. 3 of the International Transfer of Offenders Act, S.C. 2004, c. 21 - See paragraphs 7 to 9.

Cases Noticed:

Grant v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 373 F.T.R. 281; 2010 FC 958, refd to. [para. 13].

Van Vlymen v. Canada (Solicitor General) (2004), 258 F.T.R. 1; 2004 FC 1054, refd to. [para. 16].

Kozarov v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] 2 F.C.R. 377; 333 F.T.R. 27; 2007 FC 866, folld. [para. 17].

Getkate v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 3 F.C.R. 26; 333 F.T.R. 121; 2008 FC 965, folld. [para. 17].

Curtis v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 373 F.T.R. 267; 2010 FC 943, refd to. [para. 18].

Dudas v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 373 F.T.R. 253; 2010 FC 942, refd to. [para. 18].

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].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 31].

Vancouver International Airport Authority et al. v. Public Service Alliance of Canada (2010), 403 N.R. 363; 2010 FCA 158, refd to. [para. 43].

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. 45].

Statutes Noticed:

International Transfer of Offenders Act, S.C. 2004, c. 21, sect. 3 [para. 7]; sect. 10(1), sect. 10(2) [para. 11].

Counsel:

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

Curtis Workun, for the respondent.

Solicitors of Record:

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

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard in Vancouver, British Columbia, on October 27 and 28, 2010, before Phelan, J., of the Federal Court, who delivered the following decision on February 2, 2011.