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'A closed mind' on the bench?

Federal Court took Vic Toews to judicial woodshed

Vic Toews


Vic Toews

As Canada's public safety minister, Vic Toews was criticized over and over by Federal Court judges for sidestepping evidence, failing to offer detailed decisions and displaying close-minded intransigence when dealing with the charter rights of Canadian citizens incarcerated abroad.

In at least 11 cases heard in Federal Court, decisions made by Toews, Manitoba's newest Court of Queen's Bench justice, were overruled, found unreasonable and inconsistent with the facts.

"Given the rulings of the Federal Court, it raises serious concerns about his judicial temperament, certainly regarding offenders in criminal cases," said Ottawa lawyer Yavar Hameed, who challenged several of Toews' decisions.

Federal court slams Toews' decisions as public safety minister

  • The minister has not adhered to the principles of natural justice... The minster's reasons are inadequate in that they fail to set out clearly what information was considered and how it was weighed.

-- Federal Court Justice Roger Hughes, March 31, 2011 in the Balili case.

  • The minister's decision does not meet the requirements for transparency, intelligibility and acceptability required under Dunsmuir v. New Brunswick. The reasons are wholly inadequate, as they leave one guessing as to how the applicant could continue criminal-organization activities when he had no links to such organizations and where there is no finding that his drug- importation offence was a criminal-organization offence. In these circumstances and against the background of the advice received, there is a requirement for an articulation of how the minister reached his conclusion.

-- Federal Court Justice Michael Phelan, Feb. 2, 2011 in the Singh case

  • I find that the minister's... analysis provides no justification for his stated belief, because he has failed to comply with the requirements of [the act]. [Toews' decision] states known facts, and an assumed fact, about the applicant's act of criminal conduct resulting in his incarceration, but does not provide what is required: an opinion, supported by cogent evidence, as to whether the applicant, after the transfer, will commit a terrorism offence or criminal-organization offence. As a result, I find that the minister's decision is not defensible in respect to the facts and law.

-- Federal Court Justice Douglas Campbell, May 27, 2011 in the Randhawa case.


There is no factual substratum in this case which is in dispute. The minister made a conclusion based on speculation that cannot be rationally inferred from the facts. More than four years have elapsed since the request for transfer has been made. The minister has shown a bias and has ignored the clear evidence on record supporting a transfer.

-- Federal Court Justice Luc Martineau, Dec. 20, 2012 in the LeBon case.

  • In addition to the failure to address key evidence and advice which runs contrary to the minister's conclusions, those conclusions lack intelligibility, transparency and acceptability under the principles outlined in Dunsmuir v. New Brunswick. The minister may come to conclusions different from departmental advice but there must be a clear rationale stated; otherwise, the decision is arbitrary.

-- Federal Court Justice Michael Phelan, Feb. 2, 2011 in the Vatani case.

Last week, Toews was appointed to Manitoba's Court of Queen's Bench. Long rumoured to be eyeing a judicial appointment, he was Canada's public safety minister for more than three years before stepping down last summer.

While in the post, Toews was repeatedly asked to decide right-of-return cases, where Canadians in prison abroad sought to exercise their charter right to serve part of their sentence in Canada. Those cases typically involved major drug charges, and in many, Toews relied on suspicion -- often contradicted by evidence -- the offender was linked to organized crime as a reason to deny the right of return. Many prisoners appealed to Federal Court, where judges overruled Toews' decision in at least 11 cases reviewed by the Winnipeg Free Press.

Hameed was a lawyer involved in one of the most recent and most convoluted cases. It involved Yves LeBon, a Montreal man convicted in 2008 of drug charges after police in Illinois found 119 kilograms of cocaine in his vehicle. Shortly after his conviction, LeBon applied to serve the remainder of his 10-year sentence in Canada, a move Corrections Canada supported.

Toews rejected LeBon's request, even though LeBon met all the criteria in federal legislation. LeBon had a strong support network in Canada, admitted his guilt and posed no safety risk. The Federal Court of Appeal found Toews' decision was not "justified, transparent and intelligible" and ordered him to reconsider LeBon's application.

Toews did, and again denied the request, saying LeBon was likely to commit an organized-crime offence if he returned to Canada. LeBon again appealed to Federal Court, which again ruled Toews' decision was unreasonable.

In a biting decision, Justice Luc Martineau said Toews "only paid lip-service" to the court's previous findings and just reworded his original decision, "which falls woefully short of being reasonable."

"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," Martineau wrote. "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... I agree with the applicant that the considerations raised by the minister are spurious, illogical, speculative and not evidence-based."

In an unusual and precedent-setting move, Martineau ordered Toews to repatriate LeBon within 45 days. The Federal Court of Appeal upheld that order.

It took more than four years, but LeBon is now serving his sentence in Canada.

Hameed, who was involved in about 10 similar right-of-return appeals, called Toews' approach to the LeBon case and others "whimsical."

"He had an obligation to follow the law and follow the courts, but he did neither," Hameed said. "There was a pattern of unreasonable and close-minded decisions that glossed over evidence while he was minister."

For similar reasons, the Federal Court also overturned Toews' decision in the case of Sunny Yu, a Canadian student at Hawaii Pacific University, convicted in 2005 for importing four kilograms of methamphetamine into the United States. The Federal Court also overturned Toews' right-of-return decision in the case of Tomaso Villano, sentenced to four-and-a-half years for importing 100,000 ecstasy pills into the United States.

Vancouver lawyer John Conroy has represented roughly 20 right-of-return applicants in Federal Court in recent years, including Yu and Villano. He said Toews' decisions to deny applications were often found unreasonable by federal judges. Politics likely played a significant role in Toews' decisions, but Conroy said he's hopeful that will change when Toews takes his place on the bench.

"One hopes that, in his judicial persona, he finds a way to be judicial, to consider all sides and ensure fairness," said Conroy.

Toews declined to comment Wednesday.

"Judges are limited in their ability to respond to inquiries related to a number of subjects, including opinions on matters related to government, their work before becoming judges and on matters that could become the subject of legal challenge," a spokeswoman for Manitoba Courts said.

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