Kozarov v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 866

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: August 14, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FC 866;(2007), 333 F.T.R. 27 (FC)

Kozarov v. Can. (2007), 333 F.T.R. 27 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. SE.005

Plamen Kozarov (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(T-1846-06; 2007 FC 866)

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

Federal Court

Harrington, J.

August 29, 2007.

Summary:

Kozarov, a Canadian citizen incarcerated in the United States, applied to serve his prison sentence in Canada under the terms of the International Transfer of Offenders Act. The Minister of Public Safety and Emergency Preparedness denied the application on two occasions. Kozarov applied for judicial review, challenging the merits of the Minister's decisions and the constitutionality of the Act.

The Federal Court dismissed the application.

Civil Rights - Topic 506

Mobility rights - General - Prisoner transfers - Kozarov, a Canadian citizen incarcerated in the United States, applied to serve his prison sentence in Canada under the terms of the International Transfer of Offenders Act - The Minister of Public Safety and Emergency Preparedness denied the application on two occasions - Kozarov applied for judicial review, asserting that ss. 8, 10(1)(b) and 10(1)(c) violated his mobility rights under s. 6 of the Charter - The Federal Court dismissed the application - Neither s. 8 which required the consent of the offender, the foreign entity and Canada nor ss. 10(1)(b) and 10(1)(c) which called upon the Minister to consider whether Kozarov had social or family ties in Canada or whether he left or remained outside Canada with the intention of abandoning Canada as his place of permanent residence offended his mobility rights under the Charter - Moreover, it was Kozarov who chose to leave Canada and to commit a crime in the United States - He had the absolute mobility right, as a Canadian citizen, to return to Canada once his sentence was served - At the present time, the situation did not concern mobility rights but rather the transfer of supervision of a prison sentence - Had the Minister given his consent, Kozarov could not on his arrival here have immediately asserted his mobility right to leave the country - See paragraphs 27 to 36.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - Kozarov was born in Bulgaria - He came to Canada, married a Canadian citizen and became a Canadian citizen in 1982 - The same year, he moved to Florida, U.S.A., with his wife - For the next 25 years, Kozarov stayed in the USA notwithstanding that he had no legal status there - He visited Canada briefly and made a road trip across Canada in 2001 - In 2003, Kozarov pled guilty to conspiracy to possess with intent to distribute detectable amounts of cocaine, marijuana and ecstasy and was sentenced to five years and 10 months' imprisonment - Kozarov applied to serve his prison sentence in Canada under the terms of the International Transfer of Offenders Act - The Minister of Public Safety and Emergency Preparedness denied the application on two occasions on the grounds that Kozarov had spent at least the past ten years in the USA, file information suggested that Kozarov left Canada with no intention of returning and there did not appear sufficient ties in Canada to warrant a transfer - Kozarov applied for judicial review - The Federal Court dismissed the application - The Minister's findings were not unreasonable - See paragraphs 17 to 26.

Cases Noticed:

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 12].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 14].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 14].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 14].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 14].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, dist. [para. 20].

Catenacci v. Canada (Attorney General) et al. (2006), 291 F.T.R. 215; 144 C.R.R.(2d) 128; 2006 FC 539, refd to. [para. 27].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200, refd to. [para. 29].

Van Vlymen v. Canada (Solicitor General), [2005] 1 F.C.R. 617; 258 F.T.R. 1; 2004 FC 1054, dist. [para. 29].

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; 48 C.C.C.(3d) 193, refd to. [para. 30].

Statutes Noticed:

International Transfer of Offenders Act, S.C. 2004, c. 21, sect. 10(1)(b), sect. 10(1)(c) [para. 4].

Counsel:

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

Curtis Workun, for the respondent.

Solicitors of Record:

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

John H. Sims Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on August 14, 2007, at Vancouver, British Columbia, by Harrington, J., of the Federal Court, who delivered the following judgment on August 29, 2007.