Van Vlymen v. Canada (Solicitor General)

Van Vlymen v. Canada (Solicitor General)

The Minister violated the Applicant's Charter rights by neglecting or deliberately failing to decide the transfer application between January 1991 and March 2000; the Applicant retained s.6 mobility rights while incarcerated abroad and the Minister was under a legal duty to consider those rights and to act fairly;...

Source-derived case information.

Citation
2004 FC 1054
Parties
Applicant: David Clare Van Vlymen; Respondent: Solicitor General of Canada
Court
Federal Court
Jurisdiction
Canada
Judgment Date
3 August 2004
Procedural Posture
Judicial Review / Decision (reasons for Order and Order)
Outcome
Application allowed in part: declarations that applicant had s.6 rights which were violated, breaches of s.7 and common law duty of fairness found; declaratory relief granted, disclosure ordered, solicitor/client costs awarded.
Legal Topics
Charter S.6 Mobility Rights, Charter S.7 Procedural Fairness, Transfer of Offenders Act and Regulations, Mootness, Remedies (declaratory Relief, Costs), Disclosure (rule 317)
Source Language
english
Constitutional Law Administrative Law Criminal Law International Law Charter S.6 Mobility Rights Charter S.7 Procedural Fairness Transfer of Offenders Act and Regulations Mootness +2 more

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Parties

David Clare Van Vlymen

Applicant

Solicitor General of Canada

Respondent

Procedural Posture

Judicial Review / Decision (reasons for Order and Order)

Legal Issues

  1. 1 Whether a Canadian citizen has a constitutional right under s.6(1) to enter Canada notwithstanding incarceration abroad
  2. 2 Whether the Minister was under a legal duty to approve a transfer under the Transfer of Offenders Act once citizenship and sending-state approval were verified
  3. 3 Whether Regulations 4(b)-(f) of the Transfer of Offenders Regulations are inconsistent with s.6(1) of the Charter

Ratio Decidendi

The Minister violated the Applicant's Charter rights by neglecting or deliberately failing to decide the transfer application between January 1991 and March 2000; the Applicant retained s.6 mobility rights while incarcerated abroad and the Minister was under a legal duty to consider those rights and to act fairly; the delay and non-disclosure also breached s.7 and the common law duty of fairness; appropriate relief is declaratory relief, completion of disclosure and solicitor/client costs (damages and conversion to action not ordered in judicial review).

Court Disposition

Application allowed in part: declarations that applicant had s.6 rights which were violated, breaches of s.7 and common law duty of fairness found; declaratory relief granted, disclosure ordered, solicitor/client costs awarded.

Orders

  • Declaration that Applicant as a Canadian citizen had a constitutional right under s.6(1) to enter Canada provided he remain incarcerated and subject to reasonable limits under s.1
  • Declaration that the Respondent Minister was under a legal duty to consider and apply the Applicant's s.6 Charter rights when considering transfer requests under the Transfer of Offenders Act and Regulations