Newberry v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 1261

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: November 01, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 1261;(2011), 399 F.T.R. 97 (FC)

Newberry v. Can. (2011), 399 F.T.R. 97 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. NO.028

Scott Newberry (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(T-1649-10; 2011 FC 1261)

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

Federal Court

Shore, J.

November 3, 2011.

Summary:

Newberry, a Canadian citizen, was sentenced and incarcerated in the U.S. on conviction for conspiracy to distribute more than 5 kilograms of cocaine. He requested, pursuant to the provisions of the International Transfer of Offenders Act, that he be transferred to Canada to serve the remainder of the sentence. The Minister of Public Safety and Emergency Preparedness refused to approve the transfer application. Newberry applied for judicial review.

The Federal Court dismissed the application.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Appeals or judicial review - [See first Prisons - Topic 1026 ].

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The Minister of Public Safety and Emergency Preparedness refused to approve the applicant's transfer application upon taking into account all relevant considerations, including the factors under s. 10 of the International Transfer of Offenders Act - The Minister concluded that approval of the transfer request would not assist in achieving the objectives of the international transfer of offenders system, namely, those of protecting society and rehabilitation - On judicial review, the Federal Court stated that "[t]he Minister's discretion is not circumscribed by any of the factors contained within section 10. It is in the purview of the Respondent to base his decision to refuse or approve a transfer request on any other relevant consideration in the context. The process necessarily involves a weighing of the factors. It is not, as the Applicant would have it, an all or nothing proposition. The presence or absence of a particular factor does not dictate or compel a result" - See paragraph 22.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers (incl. international transfers) - The applicant, a Canadian citizen, was sentenced and incarcerated in the U.S. on conviction for conspiracy to distribute more than 5 kilograms of cocaine - He requested, pursuant to the provisions of the International Transfer of Offenders Act (ITOA), that he be transferred to Canada to serve the remainder of the sentence - The Minister of Public Safety and Emergency Preparedness refused to approve the transfer application on the basis that the objectives of the international transfer of offenders system, those of protecting society and rehabilitation, could not be as effectively achieved through transfer of the applicant - The applicant sought judicial review - At issue was whether the Minister acted improperly, or in an unreasonable manner, in exercising his discretion under the ITOA - The Federal Court dismissed the application - The Minister weighed the purposes of the ITOA, the positive and negative circumstances of the applicant and the relevant factors - A factual foundation existed for the decision and the Minister was entitled to act as he did - As a result, the court deferred to the decision as taken - See paragraphs 42 to 44.

Cases Noticed:

Divito v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2011), 413 N.R. 134; 2011 FCA 39, refd to. [para. 8].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, 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, affd. (2008), 384 N.R. 160; 2008 FCA 185, 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].

Grant v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 373 F.T.R. 281; 2010 FC 958, refd to. [para. 10].

Holmes v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 383 F.T.R. 185; 2011 FC 112, refd to. [paras. 10, 15].

Duarte v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 390 F.T.R. 193; 2011 FC 602, refd to. [para. 10].

Dudas v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 373 F.T.R. 253; 2010 FC 942, refd to. [para. 14].

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

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. 24].

Vancouver International Airport Authority et al. v. Public Service Alliance of Canada (2010), 403 N.R. 363; 2010 FCA 158, refd to. [para. 31].

Grant v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] F.C.J. No. 386 (F.C.), refd to. [para. 33].

Markevich v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 63; 2011 FC 113, refd to. [para. 36].

Balili v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 237; 2011 FC 396, refd to. [para. 40].

Singh (Davinder) v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 65; 2011 FC 115, refd to. [para. 40].

Counsel:

John W. Conroy, 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 for judicial review was heard at Vancouver, British Columbia, on November 1, 2011, before Shore, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated November 3, 2011.