Vic ToewsFRED CHARTRAND/The Canadian Press
Public Safety Minister Vic Toews has been ordered to reconsider the Harper government's refusal to allow a Canadian citizen to return home to serve out his prison sentence.
In an unprecedented federal court ruling, the minister was given 45 days to explain and justify or reconsider the decision. It seems "inconsistent and arbitrary, and therefore it lacks transparency," ruled Mr. Justice Robert Barnes of the Federal Court.
Yavar Hameed, the lawyer representing Dwayne Grant, the Canadian black man denied permission to return home, said he believed bias played a role in the Harper's government's decision. Mr. Grant, 26, is currently serving a seven-year prison sentence in Costa Rica where he was convicted, along with three others, of attempting to smuggle cocaine into Canada. He application to transfer home was rejected last July by then public safety minister Peter Van Loan. Two of those convicted with him - both women and also black - were allowed to return to Canada by Mr. Van Loan and are now free.
Mr. Van Loan rejected the unanimous advice of senior government officials who recommended last March that Mr. Grant be allowed to return to Canada to serve out his sentence.
"He's a black man; maybe that's why the treatment is different," Mr. Grant's fiancée, Felecia Douglas, said in an interview prior to the judge's ruling last Thursday.
In that ruling, Judge Barnes raised the same issues of double standards. "Mr. Grant's two female accomplices were accepted for transfer by the minister," he said, adding: "There may well be a valid explanation for this differential treatment that is not gender-based, but Mr. Grant should not be left to guess about it."
In some high-profile cases, the Harper government has acted quite differently. Amid a public outcry, Prime Minister Stephen Harper sent a cabinet member to Mexico in May of 2008 to sort out the release of Brenda Martin, a white woman.
The government then chartered an executive jet for $82,000 and flew Ms. Martin, who had been convicted of fraud in connection with a pyramid scheme that bilked more than 15,000 people $60-million and sentenced to five years in prison, back to Canada. She was released from prison eight days later.
Canadians imprisoned abroad are entitled under Canadian law to apply to serve their sentences in Canada. Officials review each application, but ministers must approve repatriations.
The whirlwind speed and tough wording of the ruling in the Grant case - coming only three days after the judge heard the case - strongly suggests Mr. Justice Barnes was unimpressed with ministerial handling of this situation. The reasons given by Mr. Van Loan "are entirely insufficient to meet the requirement of transparency and intelligibility," the judge ruled, adding Mr. Grant is entitled to know the reasons Mr. van Loan overruled the advice of officials and blocked his return home. The minister rejected the application and checked off as his reason that Mr. Grant might be engage in organized crime. The assessment prepared for the minister had concluded the opposite and similarly found no reasons to believe Mr. Grant would engage in terrorism or post a threat to Canada.
In May, 2007, Mr. Grant, then a third-year University of Toronto student and guard on the varsity basketball team, was arrested with three other black Canadians with 34 kilograms of nearly pure cocaine hidden in luggage as they tried to board a flight back to Toronto after a week-long stay in Costa Rica.
Mr. Grant, interviewed by telephone in prison in Costa Rica, admitted he made what he called "a terrible mistake" but said he wanted only to return to university and be a good father to his now-two-year-old daughter who was born to Ms. Douglas after the failed drug smuggling venture.
"We're hopeful that the new minister will make a quick decision," Mr. Hameed said.
Having served more than one-third of his sentence, Mr. Grant would be eligible for immediate parole under Canadian law if he was allowed to return to Canada. He had no previous criminal record.
Ms. Douglas, a nursing student who will graduate in June, has taken their daughter to visit Mr. Grant in the Costa Rican prison. "I think there's a gender or racial [element]to these decisions," on transfers, she said. "They tend to be harder on black males."
Mr. Hameed who has been involved in a number of cases where the government has blocked the return of Canadian citizens who were not white or imposed extraordinary requirements - including DNA testing - to prove they were Canadian, agrees.
"The evidence suggests racial profiling by the minister," he said.
In January, Mr. Van Loan was shuffled out of the Public Safety Ministry and given the International Trade portfolio by Mr. Harper.
David Charbonneau, a Public Safety spokesman, said "as this matter is before the courts, it would be inappropriate to comment."