An Entry Point to the Charter: Is There a Constitutional Right to a Prison Transfer?
Section 6 of the Canadian Charter of Rights and Freedoms (the “Charter”) protects the mobility rights of Canadian citizens and, specifically, the right of every citizen to enter, reside in, and leave Canada. In essence, section 6 is “the right to have rights,” as it is only upon entering the country that Canadians enjoy the full protection of their constitutional rights. Mindful of the significance of denying entry to Canadian citizens, in Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, the Supreme Court of Canada considered the question of whether section 6 encompasses the right of Canadian citizens serving prison sentences abroad to serve the remaining years of their sentences in a domestic prison.
The International Transfer of Offenders Act, SC 2004, c 21 (“ITOA”) and the nexus of treaties it is embedded within creates a statutory mechanism for transferring prisoners serving sentences in a foreign jurisdiction to Canada. Under the statute, once the foreign jurisdiction consents to the transfer under subsection 8(1), the Minister of Public Safety and Emergency Preparedness retains discretion under subsections 10(1)(a) and 10(2)(a) to refuse entry. This discretion, of course, is subject to administrative legal principles, which require that the Minister acted reasonably and in compliance with Charter values.
In 1995, the Appellant, Pierino Divito, was convicted of conspiring to traffic over 5,400 kg of cocaine in Nova Scotia and New Brunswick for which he received a sentence of 18 years in prison. After serving over 10 years of this sentence, Divito was extradited to the United States on charges of conspiracy to possess over 300 kg of cocaine with intent to distribute. In December 2006, Divito submitted a request under the ITOA to serve the remainder of his American sentence in Canada—a request that was approved by the American authorities. Nevertheless, citing the nature of Divito’s offences and continuing links to organized crime, the Minister refused to consent on the basis that Divito represented a potential threat to the security of Canadian citizens.
Divito sought judicial review of the Minister’s decision on two grounds: (1) the decision was unreasonable; and (2) the mere existence of ministerial discretion to refuse entry under the ITOA was a violation of his rights under section 6(1) of the Charter. The Federal Court dismissed Divito’s application for judicial review on the basis that the Minister’s decision was reasonable and further held that the impugned provisions of the ITOA did not violate section 6(1) of the Charter. The Federal Court of Appeal upheld this ruling. In bringing his case to the Supreme Court of Canada, Divito dropped the first argument and restricted his appeal to the constitutionality of ministerial discretion under the ITOA.
Justice Abella: Section 6 Is Not Engaged:
Writing for the Court, Justice Abella upheld the rulings of the lower courts, finding that section 6(1) of the Charter does not give citizens an absolute right to enter the country and, specifically, that this section does not give a Canadian citizen the automatic right to serve a foreign sentence in Canada.
Drawing on the holding in Slaight Communications Inc. v. Davidson,  1 SCR 1038, Justice Abella looked to Canada’s international obligations and relevant principles of international law in interpreting section 6(1). The international law upon which section 6 was based is article 12 of the International Covenant on Civil and Political Rights, Can TS 1976 No 47 (“ICCPR”), which requires, among other things, that “no one shall be arbitrarily deprived of the right to enter his own country” (at para 25). In other words, the ICCPR does not create an absolute right of citizens to re-enter the country; on the contrary, it contemplates circumstances that could justify a state’s refusal. Further, in international law, requiring the return of an offender to his or her own state would infringe the doctrine of state sovereignty and the exclusive right of the state to administer criminal justice.
After finding no free-standing right of prisoners to re-enter Canada in international law, Justice Abella goes on to consider the scope and effect of section 6. This provision, argues Justice Abella, cannot be read literally and must be subject to internal limitations. As held by Justice La Forest in United States of America v Cotroni,  1 SCR 1469 [Cotroni]:
[T]he central thrust of s. 6(1) is against exile and banishment, the purpose of which is the exclusion of membership in the national community. While I do not wish to trivialize the effects of extradition on the individual, it is clear that extradition is not directed to the purpose (at p 1482).
If the extradition of a presumed innocent Canadian citizen was deemed by the Cotroni Court to be constitutional and touching only the outer edges of the values protected by section 6, then surely the refusal to allow a convicted Canadian citizen to serve his or her sentence domestically must necessarily be constitutional as well. If this is the case, and the right to a prison transfer is neither founded in Canada’s international legal obligations nor encompassed by section 6 of the Charter, then, writes Justice Abella, it must be a legislative creation of the ITOA and valid only to the extent provided by statute.
Taking Section 6 Seriously
While agreeing with the disposition of the appeal, Justices Fish, LeBel, and the Chief Justice preferred to look at the discretion of the Minister to refuse entry as a limitation on the rights protected by section 6, but one that could be justified under section 1.
In reaching this conclusion, the concurring justices similarly relied on the Cotroni case. However, they point out that Justice La Forest’s reason for holding that extradition lies far from the core values protected by section 6 is precisely because there remain prospects of returning to Canada through, inter alia, prison transfers. The justices further point out that this appeal is not about the right to a prisoner transfer, per se, but giving effect to incarcerated citizens’ broader mobility rights. These broader rights are put front and centre in the text of the ITOA:
The purpose of this Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country in which they are citizens or nationals (at s 3).
Once a foreign jurisdiction consents to the transfer under the ITOA, the only impediment between the citizen re-entering the country and remaining incarcerated abroad is the Minister’s discretion. There is no way to view this discretion other than as a a prima facie limit on the prisoner’s section 6 rights.
In this case, however, the limitation was justified. Not only is the prevention of terrorism and organized crime-related offences a pressing and substantial objective, but the Minister’s ability to make this decision on a contextual, case-by-case basis is rationally connected to those objectives. Finally, said the justices, the impugned provisions are proportionate, as the beneficial effects of enhancing Canadian security outweigh the prejudicial effect of temporarily denying a foreign-incarcerated Canadian citizen re-entry.
The concurring justices, I believe, get it right here; section 1 is the appropriate forum for the balancing of competing socio-political objectives. While it is true that international legal principles and Canada’s treaty obligations do not create an independent right to prisoner transfers, Justice Abella admits that these are minimal standards above which Canada can choose to protect its citizens.
Viewed generously, with regard to its purpose, section 6(1) itself creates such a free-standing right. In choosing to draft section 6 in very broad terms—“[e]very citizen of Canada has a right to enter, remain in and leave Canada”—the legislature consciously beefed up this right beyond what the ICCPR provided for. Once the American authorities consented to Mr. Divito’s request, the only thing standing between him and returning to Canada was the discretion of the Minister. It is hard to see how this is not a restriction of his rights, albeit a justifiable one. There’s no need to muddy the clear language of this provision with considerations of its core or penumbra–especially when we already have a well-tested doctrinal arena in which competing policy objectives can be reconciled.