Public Safety Minister Vic Toews acted unreasonably when he refused to allow two Canadians imprisoned in the United States to serve out their sentences in Canada, a Federal Court judge has ruled.

OTTAWA — Public Safety Minister Vic Toews acted unreasonably when he refused to allow two Canadians imprisoned in the United States to serve out their sentences in Canada, a Federal Court judge has ruled.



In two decisions posted to the Federal Court website Thursday, Justice James O’Reilly overturned Toews’ rejection of applications under the International Transfer of Offenders Act filed by Montreal native Franco Tangorra and Tomaso Villano, of Richmond Hill, Ont. Both men were arrested by American authorities for trying to traffic in or import large quantities of the drug Ecstasy.



Tangorra mailed 30,000 units of Ecstasy, concealed in motorcycle helmets, to an undercover agent. He was arrested in 2007 when he tried to collect payment and is now serving a sentence of seven years and three months in a U.S. prison. He is due for release in 2014.



Villano and an accomplice were caught in a New York State parking lot in 2006 with two garbage bags containing more than 100,000 Ecstasy pills. His sentence runs until October, 2012.



Tangorra had no previous criminal record, and Villano’s only other conviction was for failing to stop at the scene of an accident. Tangorra’s file included a supportive letter from his MP and a declaration from his wife that he was a good husband and father.



In rejecting the two applications, Toews disregarded evidence presented by the Correctional Service of Canada (CSC) that neither Tangorra nor Villano was likely to re-offend and that their transfers would pose no threat to Canada’s security.



According to O’Reilly’s written decisions, CSC said both men have social and family ties in Canada. If not transferred, CSC told Toews, they’d be deported to Canada at the end of their sentences and would not be subject to any supervision or control.



The rationale for transferring offenders is that it will aid in their rehabilitation and reintegration to society. “Our argument is that public safety is better served by the transfer,” said John Conroy, the Abbotsford, B.C. lawyer who represents both Tangorra and Villano.



“If a person isn’t transferred, then they’ll be deported free and clear, without any restriction,” Conroy said. “A gradual release we know is far more in the public interest in terms of public safety than having someone go to warrant expiry, then unlocking the door and kicking them out.”



O”Reilly’s intervention doesn’t clear the way for Tangorra and Villano to return to Canada, however. Instead, their cases will go back to Toews for reconsideration. Conroy said re-hearings — which typically occur within 60 days — are usually successful, but not always.



When Liberal governments were in power, they routinely approved transfer applications. But in a policy shift that has created a diplomatic flap with the United States, Conservative ministers have begun to reject a majority of them.



According to CSC data, the minister of public safety approved just 27 per cent of 89 transfer applications he considered in 2009-10, the latest year for which figures are publicly available. Nearly two-thirds of denials over the past decade involve people convicted of drug offences.



After judicial review, the Federal Court has been overturning a significant number of more recent ministerial denials. But the government’s omnibus crime bill, which received third reading in the House of Commons earlier this month, broadens the grounds under which the minister can deny transfer requests in future.



Until now, he could only reject applications on the basis of national security or if offenders were affiliated with organized crime. But the amended law says transfers can be denied if the minister believes offenders would endanger public safety or the safety of a child, or would continue to engage in criminal activity.



The Canadian Civil Liberties Association has argued that the amendments give the minister “an unconstitutional level of discretion” over whether Canadian citizens incarcerated abroad can return to Canada.



Irwin Cotler, the Liberal justice critic, said the changes raise the possibility of “untrammelled discretion” for the minister in approving or rejecting transfer requests. “It takes an objective assessment and makes it not only subjective, but he can actually, in an open-ended way, make a determination on any consideration whatsoever.”



Lisa Filipps, a spokeswoman for Public Safety Canada, said in an email that the government is “taking action to emphasize the protection of society as the paramount principle of our federal corrections system.”



It’s acting, she said, to ensure that Canadians “are safe and secure in their communities and, at the same time, that offenders are held accountable for their actions in Canada and abroad.”



In his review of Tangorra’s case, O’Reilly noted that Toews alluded to information that identified him as being linked to organized crime. According to CSC, those links were as a courier. Given the “unique facts and circumstances” of his case, Toews concluded, “a transfer would not achieve the purposes of the Act.”



But O’Reilly pointed out that the law requires him to intervene “where the decision does not include a conclusion that would justify the denial. A decision should also be quashed when it is based on information to which the applicant had no opportunity to respond. Both grounds apply here.”



In the case of Villano, Toews also cited the “unique facts and circumstances.” He noted that Villano’s offence involved a large quantity of drugs. Because he had an accomplice, Toews said others were probably involved who would have benefited financially had Villano been successful.



However, said O’Reilly, the minister didn’t actually conclude that Villano would commit an organized crime offence if transferred to Canada. “In fact, there was no evidence before him of any connection to organized crime.”



A spokesman for Toews said it would “not be appropriate” for the minister to comment on the cases.







Read more: http://www.ottawacitizen.com/news/Federal+judge+overturns+minister+attempt+convicts+jailed+from+serving+sentences+Canada/5867864/story.html#ixzz1gj6wcCD2