YVES LEBON, a Canadian man who is incarcerated in the United States, wanted to come home.  Vic Toews, the Minister of Public Safety and Emergency Preparedness, thought that was a bad idea.  Does a recent decision of the Federal Court of Appeal end the long battle between the two men?  What does their saga tell us about the value of Canadian citizenship for Mr. LeBon, who has been seeking for years to return to his home and native land and, by extension, about the value of citizenship for us all?

On August 22, 2007 Mr. Yves LeBon, a Canadian citizen, was stopped for a traffic violation by an Illinois state trooper.  His vehicle was searched and the officer found 119 individual 1KG packages of cocaine inside.  Thereafter Mr. LeBon pleaded guilty to possession with intent to distribute cocaine and improper entry by an alien.  On July 18, 2008 he was sentenced to ten years in jail followed by five years of supervised release.

The Canadian Charter of Rights and Freedoms provides in section six that “Every citizen of Canada has the right to enter, remain in and leave Canada”.  However, if one is in jail south of the border, of course, one cannot freely cross back into Canada except by arrangement pursuant to the terms of international treaties and domestic law.

The International Transfer of Offenders Act (the IOTA) allows Canadians to be returned to Canada to serve their sentence here where for them to do so would meet the objectives of the Act.  These objectives include:

• contributing to the administration of justice;
• the rehabilitation of offenders; and
• the reintegration of offenders into the community.

Also to be considered in determining whether or not there should be a transfer, among other factors, is “whether the offender’s return to Canada would constitute a threat to the security of Canada”.

SHORTLY AFTER BEING SENTENCED, Mr. LeBon petitioned the Minister of Public Safety to be allowed to return to Canada pursuant to the terms of the ITOA.  It is important to note that any offender returned to Canada is not released into the community.  Rather, the transferee is delivered to a penitentiary where he must continue to serve the sentence imposed abroad, subject to the right to apply for parole when he meets the criteria, just as any other federal inmate must.  In making his application to return to Canada Mr. LeBon was not asking to be let free: just to continue his incarceration in Canada, closer to his family.

There were many positive factors supporting Mr. LeBon’s petition, including his admission of guilt, evidence of his rehabilitation, and the existence of strong ties to his family and a very supportive network in Canada.  Still, on August 16, 2010, despite the positive recommendation of the Correctional Service of Canada, the Minister refused to allow the transfer of Mr. LeBon back to Canada.  He reasoned that, as a lot of drugs were involved in Mr. LeBon’s crime, and as the Minister felt Mr. LeBon could have been more co-operative with the American authorities, Mr. LeBon must have been involved in a criminal organization and therefore, the Minister seemed to suggest, might continue his involvement with that organization in Canada and commit another crime here.

The Minister’s decision was taken to the Federal Court for review and there, on August 26, 2011 Mr. Justice Shore found in the Minister’s favour, concluding that the ITOA does not create or recognize a “right” of Canadian offenders to return to Canada.  The Minister prevailed, but his triumph turned out to be only a first-match victory.  The Federal Court (Trial Division)’s decision was overturned by the Federal Court of Appeal, which concluded in April 2012 that the Minister’s decision was unreasonable, as it was not “justified, transparent and intelligible”, primarily because the Minister did not give reasons why he rejected the Correctional Service of Canada’s advice in balancing the factors he was to consider.  The matter was sent back to the Minister to review within 60 days in accordance with the Court’s reasons.  Advantage LeBon.

AS THE FEDERAL COURT OF APPEAL had determined he should, the Minister reconsidered whether or not Mr. LeBon could be allowed to return to Canada.  He looked again at the pros and cons of the case and balanced them, as he was required to do.  On June 22, 2012, after doing so, the Minister refused the transfer again.  Again this decision was taken to the Federal Court for review.  This time Mr. Justice Martineau quashed the Minister’s re-determination decision, indicating that the Minister had showed a “closed mind” to the Court’s previous ruling and that the Minister “only paid lip service to the reasons and directions” of the Federal Court of Appeal, essentially rendering the same decision on the same basis as he had before.

In his decision, Justice Martineau was direct.  He indicated that, again, as was the case the first time around, it was not possible to understand on what rational basis the Minister disagreed with the expert opinions of the Correctional Service of Canada.  The court stated:

A reasonably informed person would have the clear impression that the Minister, in denying the applicant’s transfer request, simply wanted to punish him because he was caught transporting a large quantity of drugs and did not provide the names of his accomplices. This illustrates an intransigency which is symptomatic of a closed mind and leads to the conclusion that a reasonable apprehension of bias existed on the part of the Minister.

The Court continued: “I agree with the applicant that the considerations raised by the Minister are spurious, illogical, speculative and not evidence-based” and concluded that “The inferences made by the Minister are not supported by the evidence on record”, and “I also agree with the applicant that the Minister’s reasoning regarding what he believes to be the applicant’s lack of frankness in the transfer application is a more longwinded version of the Minister’s first decision and falls woefully short of being reasonable”.  Game and set for Mr. LeBon.

The Court quashed the decision of the Minister, but it went further, providing that, because “The Minister has shown a bias and has ignored the clear evidence on record supporting a transfer” the Court should issue a mandatory order requiring the Minister to accept the transfer within 45 days.

The Minister did not concede defeat.  He appealed again to the Federal Court of Appeal, requesting a stay of the obligation to accept the transfer, which request was granted.  He challenged the Federal Court’s jurisdiction to have made a mandatory order, rather than returning the matter to him to consider the transfer request a third time.

He was not successful.  The Federal Court of Appeal upheld the lower court, with the exceptions only that now the Minister was required to comply with its judgment “forthwith”, “to do everything in his power to affect the transfer of the applicant to a correctional facility in Canada”, and to pay costs fixed in the amount of just under $9,000.00.  Game, set and match for Mr. LeBon.

It is difficult to know whether the Minister will move on, as there is still an appeal to the Supreme Court of Canada available.  Assuming that, as on the last occasion, the Minister does not file an appeal to that forum, perhaps Mr. LeBon will return to Canada soon. His is a Pyrrhic victory however, as the battle to return to Canada has continued over five years at what must certainly have been great emotional and financial cost.  On the other side, although he was successful in preventing Mr. LeBon’s return to Canada for five years, the Minister is not unbruised.  It cannot have been pleasant to have been described as “closed minded” in open court, in the published decision and in the press, nor to know that, in the end, Mr. LeBon prevailed.

One hopes that in future, when a decision is made as to whether a Canadian is to be transferred home, the facts will be carefully reviewed and objectively considered, and the decision will be clear and well-reasoned.   That would be a victory not only for fairness, but also for the rule of law as no man, not even a Minister of the Crown, is above the law.

The LeBon decisions may be found here:

• the first Trial Division case;
• the first Federal Court of Appeal case;
• the second Trial Division case;
• the stay decision of the Federal Court of Appeal; and
• the second Federal Court of Appeal case.