Divito v Canada (Public Safety and Emergency Preparedness)
Canadian citizens convicted of offences outside of Canada do not have an automatic right to serve their sentences here even when the country they are imprisoned in is willing to let them, our highest court ruled last week.
In s 6(1), the Charter gives all Canadian citizens the right to enter Canada. The International Transfer of Offenders Act (theITOA) provides the framework under which Canada realizes its treaty obligations to other states respecting the transfer of Canadian citizens convicted of offences abroad and the transfer of foreign nationals convicted of offences in Canada.
Before a transfer can take place, the ITOA requires that the prisoner, the state they are being held in, and Canada consent to it. In s 10, the ITOA provides the Minister of Public Safety and Emergency Preparedness discretion in deciding whether to consent to a transfer and sets out a number of considerations that the Minister may refer to.
In Divito v Canada (Public Safety and Emergency Preparedness), Pieroni Divito applied under the ITAO to be transferred from the United States to Canada. The Americans consented, but the Minister did not. The Supreme Court of Canada had to decide whether the Minister’s ability to refuse to consent to Mr. Divito’s transfer where the Americans had already given their consent amounted to an infringement of Mr. Divito’s Charter right to enter Canada under s 6(1).
The discretionary provisions in question—ss 10(1)(a) and 10(2)(b) of the ITOA as they stood at the time—allowed the Minister to evaluate the risk that a prisoner could pose during their incarceration in Canada should the Minister give consent to the transfer.
Notably, the provisions of the ITOA before the Court in Divito have since been amended. Under the version before the Court, the Minister’s discretion in evaluating risk and deciding whether to consent to a transfer was fettered more extensively than it is today.
THE MAJORITY JUDGMENT
Abella J., in writing for the majority of the Court, held that the Minister’s ability to refuse consent did not infringe Mr. Divito’s Charter right to enter Canada. Though the ITOA creates a route for Canadian citizens imprisoned abroad to enter Canada, it does not bestow a constitutionally protected right to do so “whenever a foreign jurisdiction consents to the transfer.”
The majority unpacked the function of the ITOA and that of the Charter in s 6(1). Section 6(1) bestows Canadian citizens with a right to enter Canada, but it does not guarantee that they will be able to do so when they are lawfully imprisoned in another country. Section 6(1) “does not confer a right on Canadian citizens to serve their foreign sentences in Canada.” The ITOA makes a transfer—and thus entry to Canada—possible but it does not impose a duty on the Canadian government to allow all applicants to serve their foreign sentences in Canada.
As such, s 6(1) of the Charter does not require the Minister to consent to all transfer applications under the ITOA, even where the foreign state has consented.
Though the Minister retains discretion in deciding whether to consent to a transfer, they must exercise that discretion reasonably and consider the prisoner’s s 6(1) Charter interests in making a decision.
In Divito, the reasonableness of the Minister’s decision was not in issue as it was not advanced as a ground of appeal by Mr. Divito.
Abella J. dismissed the appeal.
THE CONCURRING JUDGMENT
McLachlin C.J. wrote the concurring reasons for herself and Lebel and Fish JJ. Departing from Abella J. and the majority, the concurring justices found that the IATO constituted an infringement of the mobility rights guaranteed by the Charter. For this camp, “when the Minister's refusal of consent constitutes the sole impediment to a Canadian citizen's entry into Canada, this refusal limits the citizen's right to enter Canada guaranteed by s. 6(1).”
The Minister’s exercise of discretion under the ITOA can infringe a prisoner’s rights under s 6(1), as it lends the Minister discretion in deciding whether or not the prisoner will be able to exercise those rights.
This infringement is saved by s 1 of the Charter, as the public safety and crime prevention purposes of the ITOA amounted to a pressing and substantial purpose that was rationally connected to the discretionary framework set up by the ITOAand proportionate in its effects.
Though the provisions of the ITOA at issue in Divito have since been amended, the majority held that s 6(1) of the Charteris not infringed where the Minister of Public Safety and Emergency Preparedness has the final say in deciding whether a Canadian citizen can serve a foreign sentence in Canada. Under the current version of the ITOA, the Minister retains this discretion and may refuse to give consent even when the country in which the prisoner is held has given it. The Minister must make this decision with attention to the prisoner’s Charter rights, but the decision remains discretionary.
The statutory framework governing whether a Canadian citizen will be allowed to serve their foreign sentence in Canada thus remains beyond the reach of s 1, at least with respect to rights under s 6(1) of the Charter.
International Transfer of Offenders Act, SC 2004, c 21. [hereinafter ITOA]
 ITOA, s 8(1).
Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47. [hereinafter Divito]
 Divito at para 48.
ibid. [Divito at para 48]
Divito at para 45.
Supra note 4. [Divito at para 48.]
Divito at para 49.
Divito at para 54.
Divito at para 64.
Divito at paras 72, 75, 78.