Don’t Come Back!

Yesterday, the Supreme Court of Canada delivered a judgment considering the constitutionality of the provisions of the International Transfer of Offenders Act (ITOA) which allow the Canadian government to refuse the application of a Canadian imprisoned abroad to serve his sentence in Canada, despite the agreement of the state where he is currently imprisoned to hand him over to the Canadian authorities. In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, the Court held these provisions are constitutional. Justice Abella, writing for a six-judge majority, found that they do not infringe the right of “[e]very citizen of Canada … to enter … Canada,” protected by s. 6(1) of the Canadian Charter of Rights and Freedoms. Justices Lebel and Fish, for a three-judge concurrence, would have found an infringement of s. 6(1), but held that it was justified under s. 1 of the Charter.

Mr. Divito, the appellant, was serving a lengthy sentence in the United States for drug trafficking. He applied to serve it in Canada, and his application was accepted by the U.S. authorities. The Canadian government, however, did not want him back in the country, considering that he was too dangerous. Mr. Divito challenged both the reasonableness of that decision and the constitutionality of the legislative scheme which made it possible. On appeal, however, only the constitutional question remained. Mr. Divito argued that the government’s discretionary power not to allow him to serve his sentence in Canada breached his Charter right to enter Canada. In his view, once the government which imprisoned him consented to his transfer to Canada, Canada had a duty to let him serve his sentence there.

Justice Abella considers that Mr. Divito’s “submission would result in a positive obligation on Canada to administer the sentences imposed upon Canadian citizens by foreign jurisdictions.  This … misconstrues what s. 6(1) protects” (par. 39). Canada couldn’t force a foreign state to hand over an imprisoned Canadian; the possibility of returning to Canada to serve the rest of an imprisonment sentence imposed by a foreign state is entirely a creature of statute, and “s. 6(1) [of the Charter] does not confer a right on Canadian citizens to serve their foreign sentences in Canada” (par. 45). Furthermore, extradition ― that is, a forced hand-over of a Canadian to foreign authorities to stand trial abroad ― has been held to concern only “the outer edges” of the s. 6(1) right to remain in Canada. An alleged right to re-enter Canada to serve a foreign criminal sentence “falls off the edge” (par. 47).  The ITOA creates the very possibility for a Canadian imprisoned abroad to serve part of his or her sentence in Canada; it cannot possibly create a constitutional right to do so, or be taken to impose on the government a duty to make it possible for any Canadian to serve a foreign sentence in Canada. “The mobility rights in s. 6(1) should be construed generously, not literally, and, absent a literal interpretation, I am unable to see how s. 6(1) is breached in the circumstances of this case” (par. 48). Ministerial discretion, of course, must be exercised in conformity with the Charter, and must take s. 6(1) into account, but its existence is not, in itself, unconstitutional.

For Justices Lebel and Fish, however, “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” (par. 54). If extradition engages a citizen’s right to remain in Canada, then international transfer must, logically, be taken to engage his or her right to (re-)enter the country. “The only reason extradition lies” at the “outer edge” of the s. 6(1) right  “is the prospect of returning to Canada by means of, inter alia, an international prison transfer” (par. 58; emphasis in the original). Giving effect to s. 6(1) rights to enter and leave Canada “require[s] the state’s active cooperation” (par. 60) ― for example, issuing a passport to a Canadian citizen stranded abroad. Making it possible for a citizen to serve a foreign prison sentence in Canada is just another consequence of that principle. Of course, in the absence of the ITOA, Canadian citizens could not return to serve their sentences in Canada; nor can they require the government’s more active assistance (such as asking that the government pay them plane tickets to return home). But insofar as it is the power given the government to deny a request for a transfer that prevents a Canadian from getting back into the country, the existence of that power infringes s. 6(1) of the Charter.

However, this infringement is justified under s. 1 of the Charter. The power to refuse a Canadian the right to serve his sentence in Canada serves to protect the safety of Canada and Canadians from the mischief that person might do or be the cause of while imprisoned (what he or she might do afterwards, when he or she would have an absolute right to return to Canada, is an irrelevant consideration). Sometimes, refusing a transfer will be the only way to prevent that mischief, and the positive effects of accomplishing that will outweigh the infringement of the s. 6(1) right.

The two opinions thus end up in the same place. Furthermore, given the rather unique context of prisoner transfer, it may well be that the differences between them will have no real impact in any other cases. Still, I think that, analytically at least, the concurrent opinion of Justices Lebel and Fish is the better one. Justice Abella is right of course that it is legislation that creates the possibility of a Canadian returning to serve a foreign prison sentence in Canada. But like any other benefit or privilege, though the state has no obligation to grant it, once it chooses to do so, it is not entitled to violate Charter rights in the process. The ITOA is what makes it possible for foreign states to consent to transfer the Canadians they imprison to Canada. But once this consent has been given, it is the decision of the Canadian government that becomes the obstacle to that Canadian’s re-entry into the country. And Justice Abella’s comment that Charter rights are meant to be read “generously, not literally” is simply disingenuous. Appeals to generosity justify expansive readings of rights, those that go beyond the letter of the constitutional text. It is perverse to invoke them to justify a construction narrower than that text. Be that as it may, the bottom line is clear: the government can constitutionally keep Canadians out of the country until they have completed their prison terms abroad.

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