SCC Rules that the Right to Mobility is not Engaged in Divito v Canada

In a decision released last month, the Supreme Court of Canada unanimously dismissed Pierino Divito’s appeal to serve his American prison sentence in Canada. Divito, an infamous mobster linked to organized crime in Montreal has had his fair share of legal trouble. In fact, the Supreme Court decision itself cites convictions going as far back as 1962. Here, well into his eighteen year Canadian sentence for conspiring to traffic 5400 kg of cocaine, Divito also pled guilty to drug offences in the United States and was sentenced to seven and a half years in prison. Following this, Divito applied to serve his American sentence in Canada under ss. 8(1), 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act (ITOA). For a transfer to occur, the statute requires consent of the inmate, the foreign jurisdiction and the Canadian government. While the American government agreed to Divito’s transfer, the Canadian Minister of Public Safety and Emergency Preparedness did not. In both the Federal Court and the Federal Court of Appeal, Divito also challenged the Minister’s decision as unreasonable in administrative law. However the only issue litigated at the Supreme Court was the constitutionality of the impugned provisions of the ITOA. It is interesting to note that the Court decided this case despite Divito finishing his American sentence. While the Court unanimously dismissed this appeal, it was divided on whether Divito’s s. 6(1) Charter rights to mobility are engaged.

Writing for the majority, Justice Abella holds that the appellant’s s. 6(1) right to enter Canada is not engaged. She begins by noting that rights should be “defined generously in light of the interests the Charter was intended to protect.” All in all, she disagrees with the assertion that a prisoner is entitled to a transfer as soon as the foreign jurisdiction agrees to a one. In her view, “the ability of prisoners to serve their sentence in Canada is therefore a creation of legislation” and  “s. 6(1) does not confer a right on Canadian citizens to serve their foreign sentences in Canada.” The majority dismisses the appeal accordingly.

While agreeing in result, Justices LeBel and Fish (with Chief Justice McLachlin concurring), hold that Divito’s s. 6(1) Charter rights are engaged as “[a] statutory regime that grants a Minister the discretion to determine whether or not citizens can exercise their Charter-protected right to enter Canada constitutes, prima facie, a limit on the s. 6(1) right of the citizens”. However, in their s. 1 analysis, Justices LeBel and Fish rule that the impugned provisions of the ITOA “constitute a reasonable limit” on Divito’s right to enter Canada. All in all, the minority similarly dismisses the appeal.

While the Court unanimously disposes of this appeal, there are some curious things to note. First, at a state in which Charter jurisprudence is quite well developed, it is noteworthy that the majority of the Court finds that s. 6(1) is not engaged. In my view, this is striking considering that the text of s. 6(1) itself states that citizens have the “right to enter” Canada. The majority’s decision reminds me of a recent article in the Globe and Mail in which Kirk Makin argues that the Supreme Court has become “Charter averse.” Martin’s argument stems from the fact that only 10 out of the 70 cases the Court heard in 2012 involved the Charter. While a Charter argument does present itself in this appeal, the majority ultimately disposes of it without truly grappling with s. 6(1). Finally, the three most senior judges form the minority opinion in this case, while the next six form the majority. While, Justice Abella spearheads the group of six in this case, it will be interesting to see the continuing influence that the more recently appointed justices will have on the Supreme Court’s jurisprudence (I make references to Stephen Harper’s potential influence on the Court here).

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