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SUPREME
COURT OF CANADA
Between:
Pierino
Divito
Appellant
and
Minister
of Public Safety and Emergency Preparedness
Respondent
-
and -
Canadian
Civil Liberties Association, David Asper Centre for Constitutional Rights
and
British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 52)
Concurring
Reasons:
(paras. 53 to 88)
|
Abella J. (Rothstein, Cromwell, Moldaver,
Karakatsanis and Wagner JJ. concurring)
LeBel and Fish JJ. (McLachlin C.J.
concurring)
|
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Divito v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 47, [2013] 3 S.C.R. 157
Pierino Divito Appellant
v.
Minister of Public Safety and
Emergency Preparedness Respondent
and
Canadian Civil Liberties Association,
David Asper Centre for Constitutional
Rights and
British Columbia Civil
Liberties Association Interveners
Indexed as: Divito v. Canada (Public Safety and Emergency
Preparedness)
2013 SCC 47
File No.: 34128.
2013: February 18; 2013: September 19.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the federal court of appeal
Constitutional
law — Charter of Rights — Mobility rights — Right to enter Canada — Minister
refusing offender transfer request by Canadian citizen imprisoned abroad, on
basis of security concerns — Constitutional challenge of provisions governing
international transfer of offenders made by Canadian citizen imprisoned abroad
— Whether statutory provisions giving Minister discretion to grant or deny
transfer request violate right to enter Canada and, if so, whether violation is
justified — Canadian Charter of Rights and Freedoms, ss. 1 , 6(1) — International
Transfer of Offenders Act, S.C. 2004, c. 21, ss. 8(1) , 10(1) (a), (2) (a).
D, a
Canadian citizen, was extradited to the U.S. where he pleaded guilty to serious
drug offences and was sentenced to seven and a half years in prison. He
submitted a request under the International Transfer of Offenders Act,
S.C. 2004, c. 21 (“ITOA ”), to be transferred to Canada to serve the
remainder of his American sentence. Under the ITOA , the consent of both
the foreign state and the Canadian government are required before an offender
can be returned to Canada. Sections 8(1) , 10(1) (a) and 10(2) (a)
of the ITOA give the Canadian Minister of Public Safety a discretion
whether to consent to the transfer. D’s request was approved by the U.S. but
refused by the Minister on the basis that the nature of his offence and his
affiliations suggested that D’s return to Canada would constitute a potential
threat to the safety of Canadians and the security of Canada. D sought
judicial review of the Minister’s decision, arguing that the existence of
discretion under the ITOA to refuse to consent to the return of a
Canadian in a foreign prison violated his right to enter Canada protected by
s. 6(1) of the Canadian Charter of Rights and Freedoms . Once it
was confirmed that D was a Canadian citizen, he had the right to enter Canada
and the Minister was required to consent to his return. The Federal Court
dismissed D’s application for judicial review of the Minister’s refusal,
concluding that the decision of the Minister was reasonable and that ss. 8(1) ,
10(1) (a) and 10(2) (a) of the ITOA did not violate D’s
right as a Canadian citizen to enter Canada under s. 6(1) of the Charter .
D appealed only the issue of the constitutionality of the provisions, not the
reasonableness of the Minister’s decision. The Federal Court of Appeal
dismissed the appeal.
Held:
The appeal should be dismissed.
Per
Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.: Mobility
rights are protected by s. 6 of the Charter . These include the
right in s. 6(1) of every citizen to enter, remain in, and leave Canada.
The right of a Canadian citizen to enter and to remain in Canada is a
fundamental right associated with citizenship. Without the ability to enter
one’s country of citizenship, the “right to have rights” within that country
cannot be fully exercised. The right to enter should therefore be given a
generous interpretation consistent with its purpose, the interests it was
intended to protect and the broad construction of the right to enter in
international law.
However,
the mobility rights guaranteed by s. 6(1) of the Charter do not
give a Canadian citizen an automatic right to serve a sentence in Canada. The ITOA
and the treaties which it implements provide a statutory mechanism to transfer
the supervision of a prison sentence from a foreign jurisdiction to Canada,
since as a matter of international law, Canada has no legal authority to
require the return of a citizen who is lawfully incarcerated by a foreign
state. Independent of the ITOA , there is no right to serve a
foreign prison sentence in Canada. The ITOA was not intended to create
a right for Canadian citizens to require Canada to administer their foreign
sentence. Nor does it impose a duty on the Canadian government to permit all
such citizens to serve their foreign sentences in Canada. D’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. Although the ITOA contemplates a mechanism by
which a citizen may return to Canada in the limited context of continuing
incarceration for the purpose of serving their foreign sentence, s. 6(1)
does not confer a right on Canadian citizens to serve their foreign
sentences in Canada. The impugned provisions of the ITOA , which make a
transfer possible, do not, as a result, represent a breach of s. 6(1) .
Once a foreign jurisdiction consents to a transfer under s. 8(1) of the ITOA ,
however, the Minister’s discretion under ss. 10(1) (a) and 10(2) (a)
is fully engaged and must be exercised reasonably, including in compliance with
relevant Charter values. D’s argument that the Minister must
consent to the transfer of a Canadian citizen once a foreign state has provided
its consent, calls into constitutional question not the impugned provisions, but
the way the discretion is exercised. This calls for scrutiny of the
reasonableness of the exercise of discretion, an issue that has not been appealed
to this Court.
Per
McLachlin C.J. and LeBel and Fish JJ.: Section 6(1)
should be interpreted generously, in a manner that is consistent with the broad
protection of mobility rights under international law and gives full effect to
the provision’s expansive breadth. Effective exercise of the rights conferred
by s. 6(1) will often
require the state’s active cooperation, in part because of the extra‑territorial
application of the rights and the principle of sovereignty of nations. The ITOA was precisely designed to safeguard and facilitate
the exercise of these s. 6(1) rights. Under that regime, once the foreign
state has consented to the transfer, the sole impediment to the exercise of the
citizen’s s. 6(1) right is the Minister’s discretion under ss. 8(1) ,
10(1) (a) and 10(2) (a) of the ITOA . Hence the provisions
constitute a limitation on the rights protected by s. 6(1) of the Charter .
The
limitation is nonetheless justified under s. 1 of the Charter .
Ensuring the security of Canada and the prevention of offences related to
terrorism and organized crime are pressing and substantial objectives.
Properly understood, the factors set out in ss. 10(1) (a) and 10(2) (a)
of the ITOA relate to risks that arise upon the transfer of offenders
before their release. Given that, in some cases, the objectives of the ITOA
would be served by refusing a transfer based on those factors, the Minister’s
discretion to consider them on a case‑by‑case basis is rationally
connected to the objectives. In addition, at least in some cases, refusing a
transfer based on the factors will be the sole — and therefore the most
minimally impairing — alternative open to the Minister. In light of both the
binary nature of the Minister’s decision and the citizen’s continued
incarceration, it is difficult to conceive of a less drastic means of achieving
Parliament’s protective purpose. Finally, the impugned provisions are
proportionate in their effect. The beneficial effects of permitting the
Minister to consider threats to Canadian security in deciding whether to permit
a transfer are self‑evident, and the prejudicial effect of a refusal on
the mobility rights of Canadian citizens incarcerated abroad is palliated by
the fact that the citizens in question will be able to enter Canada after
serving their sentence in the foreign jurisdiction.
Since
D no longer challenges the reasonableness of the Minister’s decision, it is
unnecessary to consider whether the Minister’s discretion under the ITOA
was properly exercised in this case. However, while the Minister’s discretion
is broad and flexible and entitled to a large measure of deference given the
complex social and political problems being tackled, it must be exercised with
due regard for the s. 6(1) Charter rights at stake.
Cases Cited
By Abella J.
Applied:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. McNeil, 2009 SCC 3, [2009] 1
S.C.R. 66; distinguished: United States of
America v. Cotroni, [1989] 1 S.C.R. 1469; referred
to: Divito v. Canada (Ministre de la Justice), 2004 CanLII 39111;
États‑Unis d’Amérique v. Divito (2004), 194 C.C.C. (3d) 148; R. v.
Gauvin (1997), 187 N.B.R. (2d) 262; R. v. Rumbaut, 1998
CanLII 9816; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985]
1 S.C.R. 295; Eldridge v. British Columbia (Attorney General), [1997]
3 S.C.R. 624; Slaight Communications Inc. v. Davidson, [1989] 1
S.C.R. 1038; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
2004 SCC 4, [2004] 1 S.C.R. 76; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R.
292; Reference re Public Service Employee Relations Act (Alta.), [1987]
1 S.C.R. 313; Health Services and Support – Facilities Subsector Bargaining
Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Sauvé v.
Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; Canada
(Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3
S.C.R. 134; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1
S.C.R. 761; Sriskandarajah v. United States of America, 2012 SCC 70,
[2012] 3 S.C.R. 609; Doré v. Barreau du Québec, 2012 SCC 12, [2012]
1 S.C.R. 395.
By LeBel and Fish JJ.
Applied:
United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Sriskandarajah v. United States of
America, 2012 SCC 70, [2012] 3 S.C.R. 609; R. v. Oakes, [1986] 1
S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835;
referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Hunter v.
Southam Inc., [1984] 2 S.C.R. 145; Kamel
v. Canada (Attorney General), 2008 FC 338, [2009] 1 F.C.R. 59, aff’d 2009
FCA 21, [2009] 4 F.C.R. 449; Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; McKay v. The Queen, [1965]
S.C.R. 798; M & D Farm Ltd. v. Manitoba Agricultural
Credit Corp., [1999] 2 S.C.R. 961; R. v. Edwards
Books and Art Ltd., [1986] 2 S.C.R. 713; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 1 , 6 , 32 , 33 .
International Transfer of Offenders Act,
S.C. 2004, c. 21, ss. 3 , 8 , 10(1) , (2) , 11(2) , 31 .
Safe Streets and Communities Act, S.C. 2012,
c. 1, ss. 135 , 136 .
Transfer
of Offenders Act, S.C. 1977‑78, c. 9.
Treaties and Other International
Instruments
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, arts. 12, 21.
Treaty Between Canada and the United States of America on the
Execution of Penal Sentences, Can. T.S. 1978 No. 12,
arts. II, III, IV.
Authors Cited
Arendt, Hannah. The Origins of Totalitarianism, new ed.
London: George Allen and Unwin, 1967.
Hogg, Peter W. Constitutional Law of Canada, 5th ed.
Supp., vol. 2. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2011,
release 1).
Kesby, Alison. The Right to Have Rights: Citizenship, Humanity,
and International Law. Oxford: Oxford University Press, 2012.
Laskin, John B. “Mobility Rights under the Charter ” (1982),
4 S.C.L.R. 89.
Maxwell on the Interpretation of Statutes, 11th ed. by Roy Wilson and Brian Galpin. London: Sweet & Maxwell,
1962.
Plachta, Michal. Transfer of Prisoners under International
Instruments and Domestic Legislation. Freiburg im Breisgau, Germany:
Eigenverlag Max‑Planck‑Institut, 1993.
Royce, Sylvia. “International Prisoner Transfer” (2009), 21 Federal
Sentencing Reporter 186.
Sharpe, Robert J., and Kent Roach. The Charter of Rights
and Freedoms, 4th ed. Toronto: Irwin Law, 2009.
Sullivan, Ruth. Sullivan on the Construction of Statutes,
5th ed. Markham: LexisNexis, 2008.
United Nations. Human Rights Committee. “General Comments Adopted
by the Human Rights Committee under Article 40, Paragraph 4, of the International
Covenant on Civil and Political Rights”, General Comment No. 27 (67),
CCPR/C/21, Rev. 1, Add. 9, November 2, 1999.
United Nations Office on Drugs and Crime. Handbook on the
International Transfer of Sentenced Persons. Vienna: United Nations,
2012.
APPEAL
from a judgment of the Federal Court of Appeal (Nadon, Trudel and
Mainville JJ.A.), 2011 FCA 39, [2012] 4 F.C.R. 31, 413 N.R. 134, 267
C.C.C. (3d) 370, 229 C.R.R. (2d) 142, 96 Imm. L.R. (3d) 85, [2011] F.C.J. No. 100
(QL), 2011 CarswellNat 238, affirming a decision of Harrington J., 2009 FC
983, [2009] F.C.J. No. 1158 (QL), 2009 CarswellNat 5283. Appeal
dismissed.
Clemente Monterosso and
Laurent Carignan, for the appellant.
Ginette Gobeil and Claude
Joyal, for the respondent.
Lorne Waldman, Clarisa
Waldman and Tamara Morgenthau, for the intervener the Canadian Civil
Liberties Association.
Audrey Macklin and
Cheryl Milne, for the intervener the David Asper Centre for Constitutional
Rights.
Gib van Ert,
Michael Sobkin and Heather E. Cochran, for the intervener the
British Columbia Civil Liberties Association.
The
judgment of Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
was delivered by
[1]
ABELLA J. — Mobility
rights are protected by s. 6 of the Canadian Charter of Rights and Freedoms .
These include the right in s. 6(1) of every citizen to enter, remain in, and
leave Canada. They are among the most cherished rights of citizenship.
[2]
Pierino Divito, a Canadian citizen, was
extradited to the United States where he pleaded guilty to serious drug
offences and was sentenced to seven and a half years in prison. A few months
later, he applied to the Canadian government to let him serve his American
sentence in Canada. The Canadian government refused. This refusal, Mr. Divito
argued, was a violation of his right as a Canadian citizen to enter Canada.
[3]
With respect, I do not share his view that the
mobility rights guaranteed by s. 6(1) of the Charter give a Canadian
citizen in his circumstances an automatic right to serve a sentence in Canada.
Background
[4]
Pierino Divito was born in Italy in 1937. He
immigrated to Canada when he was 16 and became a Canadian citizen in 1980.
[5]
Since his arrival in Canada, Mr. Divito has been
convicted of various offences dating back to 1962. In addition, a number of
courts have found that Mr. Divito was involved in organized crime: Divito v.
Canada (Ministre de la Justice), 2004 CanLII 39111 (Que. C.A.), at
para. 32; États-Unis d’Amérique v. Divito (2004),
194 C.C.C. (3d) 148 (Que. C.A), at para. 5; R. v. Gauvin (1997), 187
N.B.R. (2d) 262 (C.A.), at paras. 4-5; R. v. Rumbaut,
1998 CanLII 9816 (N.B.Q.B.), at pp. 9-10.
[6]
In March 1995, a Canadian court convicted Mr.
Divito of conspiring to import and traffic over 5,400 kg of cocaine in Nova
Scotia and New Brunswick. The court sentenced Mr. Divito to 18 years in
prison. While he was serving his sentence, the United States requested his
extradition from Canada on charges of conspiracy to possess over 300 kg of
cocaine with the intent to distribute in the state of Florida.
[7]
In June 2005, after serving almost two-thirds of
his Canadian sentence, Mr. Divito was extradited to the United States where he pleaded
guilty in Florida to the American charges. In March 2006, he was sentenced to
seven and a half years in prison. In sentencing Mr. Divito, the American court
took his Canadian sentence into account and gave him credit for 145 months of
time served.
[8]
In December 2006, Mr. Divito submitted a request
under the International Transfer of Offenders Act, S.C. 2004, c.
21 (“ITOA ”), to be transferred to Canada to serve the remainder of his
American sentence. Under s. 8 of the ITOA , the consent of both the foreign
state and the Canadian government are required before an offender can be
returned to Canada. Mr. Divito’s request was approved by the United States,
but was refused by the Canadian Minister of Public Safety and Emergency
Preparedness in October 2007.
[9]
Mr. Divito did not challenge the Minister’s
refusal. Instead, shortly after the first request was refused, he submitted a
second transfer request. The American authorities again agreed. And
again the Minister denied Mr. Divito’s request, relying on s. 10(1) (a)
of the ITOA because Mr. Divito was identified as an organized crime
member and the offence involved a significant quantity of drugs:
The nature of his offence and his
affiliations suggest that the offender’s return to Canada would constitute a potential
threat to the safety of Canadians and the security of Canada.
[10]
Mr. Divito sought judicial review of the
Minister’s second refusal on two grounds. The first was that the decision was
unreasonable. The second was, essentially, that the existence of a discretion
in ss. 8(1) , 10(1) (a) and 10(2) (a) of the ITOA to refuse
to consent to the return of a Canadian in a foreign prison violated his right
to enter Canada protected by s. 6(1) of the Charter . Once it was
confirmed that Mr. Divito was a Canadian citizen, he had the right to enter
Canada and the Minister was required to consent to his return.
[11]
The Federal Court dismissed the application for
judicial review (2009 FC 983 (CanLII)).
Applying a reasonableness standard of review, the court concluded that, in
light of Mr. Divito’s history of criminal activity, the decision of the
Minister to deny a transfer in this case was reasonable. The court also held
that the impugned provisions of the ITOA did not violate s. 6(1) .
[12]
Mr. Divito
appealed only the issue of the constitutionality of the
provisions of the ITOA , not the reasonableness of the Minister’s
decision. The Federal Court of
Appeal dismissed the appeal (2011 FCA 39, [2012] 4 F.C.R. 31). The
majority held that ss. 8(1) , 10(1) (a) and 10(2) (a) of the ITOA
did not infringe s. 6(1) of the Charter . The concurring judge found
that the impugned provisions constituted prima facie infringements of s.
6(1) of the Charter but were justified under s. 1 .
[13]
On appeal to this Court, the Chief Justice
stated the following constitutional questions:
(1) Do
ss. 10(1)(a) and 10(2)(a), read in conjunction with s. 8(1) , of
the International Transfer of Offenders Act, S.C. 2004, c. 21 , infringe
the right guaranteed by s. 6(1) of the Canadian Charter of Rights and Freedoms ?
(2) If
so, is the infringement a reasonable limit prescribed by law that can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
Analysis
[14]
Mr. Divito claims that once a foreign jurisdiction
consents to a transfer, he has an absolute right as a citizen to enter Canada.
The Canadian government has no discretion to refuse the transfer of a Canadian
citizen who is lawfully incarcerated by a foreign state. In this Court, he is
not challenging the reasonableness of the Minister’s refusal. Nor is there any
suggestion that he was denied due process or that there were any human rights
abuses in the foreign jurisdiction.
[15]
It is helpful to start with the context of the
provisions at issue under both the Charter and the ITOA .
[16]
Section 6 of the Charter states:
MOBILITY RIGHTS
Mobility of citizens
6. (1) Every citizen of Canada has the
right to enter, remain in and leave Canada.
Rights to move and gain
livelihood
(2)
Every citizen of Canada and every person who has the status of a permanent
resident of Canada has the right
(a)
to move to and take up residence in any province; and
(b)
to pursue the gaining of a livelihood in any province.
Limitation
(3)
The rights specified in subsection (2) are subject to
(a)
any laws or practices of general application in force in a province other than
those that discriminate among persons primarily on the basis of province of
present or previous residence; and
(b)
any laws providing for reasonable residency requirements as a qualification for
the receipt of publicly provided social services.
Affirmative action
programs
(4)
Subsections (2) and (3) do not preclude any law, program or activity that has
as its object the amelioration in a province of conditions of individuals in
that province who are socially or economically disadvantaged if the rate of
employment in that province is below the rate of employment in Canada.
[17]
There are therefore two sets of mobility
rights. The first set, found in s. 6(1) , is the right of every Canadian
citizen to enter, remain in, and leave Canada. The second set, outlined in s.
6(2) to (4), gives citizens and permanent residents the right to move
to, live in, and work in any province subject to certain limitations.
[18]
The focus of this appeal is on s. 6(1) . There
are three rights found in s. 6(1) : the right to enter, remain in, and leave
Canada. Only the right to enter is at issue in this appeal.
[19]
We must first consider the scope of the s. 6(1)
right. We start with this Court’s primordial direction that rights be defined
generously in light of the interests the Charter was intended to
protect: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156; R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344; Eldridge v.
British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para.
53. In Big M Drug Mart Ltd., Dickson J. summarized the requisite
approach as follows:
In Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to
the definition of the rights and freedoms guaranteed by the Charter was
a purposive one. The meaning of a right or freedom guaranteed by the Charter
was to be ascertained by an analysis of the purpose of such a guarantee; it
was to be understood, in other words, in the light of the interests it was
meant to protect.
In my view this analysis
is to be undertaken, and the purpose of the right or freedom in question is to
be sought by reference to the character and the larger objects of the Charter
itself, to the language chosen to articulate the specific right or freedom, to
the historical origins of the concepts enshrined, and where applicable, to the
meaning and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter . The interpretation should be,
as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and securing
for individuals the full benefit of the Charter ’s protection. At the
same time it is important not to overshoot the actual purpose of the right or
freedom in question, but to recall that the Charter was not enacted
in a vacuum, and must therefore, as this Court’s decision in Law Society of
Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in
its proper linguistic, philosophic and historical contexts. [Emphasis added;
emphasis in original deleted; p. 344.]
[20]
Accordingly, the inquiry necessarily begins with
an analysis of the purpose of the guarantee in s. 6(1) and a consideration of
what the right of citizens to enter Canada was intended to protect.
[21]
The protection for citizens in s. 6(1) , like
most modern human rights protections, had its origins in the cataclysmic rights
violations of WWII. Writing in the aftermath of that war about her own
experience, Hannah Arendt observed that a “right to have rights” flows from
citizenship and belonging to a distinct national community: The Origins of
Totalitarianism (new ed. 1967), at p. 296; Alison Kesby, The Right to
Have Rights: Citizenship, Humanity, and International Law (2012), at p. 5.
Without the ability to enter one’s country of citizenship, the “right to have
rights” cannot be fully exercised. The right of a Canadian citizen to enter
and to remain in Canada is therefore a fundamental right associated with
citizenship.
[22]
Canada’s international obligations and relevant
principles of international law are also instructive in defining the right: Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; United
States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
2004 SCC 4, [2004] 1 S.C.R. 76; R. v. Hape, 2007 SCC 26, [2007]
2 S.C.R. 292. In Reference re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313, Dickson C.J., dissenting, described the template for
considering the international legal context as follows:
The content of Canada’s international
human rights obligations is, in my view, an important indicia of the meaning of
“the full benefit of the Charter ’s protection”. I believe that
the Charter should generally be presumed to provide protection at least
as great as that afforded by similar provisions in international human rights
documents which Canada has ratified. [p. 349]
[23]
More recently, in Health Services and Support
– Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,
[2007] 2 S.C.R. 391, McLachlin C.J. and LeBel J. confirmed that, “the Charter
should be presumed to provide at least as great a level of protection as is
found in the international human rights documents that Canada has ratified”
(para. 70). This helps frame the interpretive scope of s. 6(1) .
[24]
The international law inspiration for s. 6(1) of
the Charter is generally considered to be art. 12 of the International
Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47
(“ICCPR”), which has been ratified by 167 states, including Canada: John
B. Laskin, “Mobility Rights under the Charter ” (1982), 4 S.C.L.R.
89, at p. 89; Robert J. Sharpe and Kent Roach, The Charter of Rights and
Freedoms (4th ed. 2009), at p. 212.
[25]
As a treaty to which Canada is a signatory, the
ICCPR is binding. As a result, the rights protected by the ICCPR provide a
minimum level of protection in interpreting the mobility rights under the Charter .
Article 12 of the ICCPR states:
1. Everyone lawfully within
the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to
leave any country, including his own.
3. The above-mentioned rights
shall not be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (ordre public),
public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.
4. No one shall be
arbitrarily deprived of the right to enter his own country.
[26]
In 1999, the U.N. Human Rights Committee issued
guidelines for the interpretation of art. 12 of the ICCPR in its “General
Comment No. 27: Freedom of Movement”. Paragraph 19 of the General Comment
states, in part, that “[t]he right of a person to enter his or her own country
recognizes the special relationship of a person to that country”. The General
Comment also provides some guidance on the interpretation of “arbitrarily” in
art. 12(4):
In no case may a person be arbitrarily
deprived of the right to enter his or her own country. The reference to the
concept of arbitrariness in this context is intended to emphasize that it
applies to all State action, legislative, administrative and judicial; it
guarantees that even interference provided for by law should be in
accordance with the provisions, aims and objectives of the Covenant and should
be, in any event, reasonable in the particular circumstances. The Committee
considers that there are few, if any, circumstances in which deprivation of the
right to enter one’s own country could be reasonable. A State party must
not, by stripping a person of nationality or by expelling an individual to a
third country, arbitrarily prevent this person from returning to his or her own
country. [Emphasis added; para. 21.]
[27]
Although art. 12(4) protects against arbitrary
interference with the right to enter, the U.N. Human Rights Committee’s
interpretation of the scope of the right suggests that there are in fact “few,
if any” limitations on the right to enter that would be considered reasonable.
The right to enter protected by s. 6(1) of the Charter should therefore
be interpreted in a way that is consistent with the broad protection under
international law.
[28]
The expansive breadth of the protection is also
consistent with the fact that s. 6(1) of the Charter is exempt from the
legislative override in s. 33 : Sauvé v. Canada (Chief Electoral Officer),
2002 SCC 68, [2002] 3 S.C.R. 519, at para. 11. Moreover, the other
rights conferred by s. 6 of the Charter in s. 6(2) are subject to express
limitations within the provision itself in ss. 6(3) and 6(4) . The fact that s.
6(1) is not subject to such limitations also confirms its plenitude.
[29]
And, finally in United States of America v.
Cotroni, [1989] 1 S.C.R. 1469, a case involving extradition,
this Court recognized that the “intimate relation between a citizen and his
country” invited a generous interpretation of a related right in s. 6(1) ,
namely the right to remain in Canada (p. 1480).
[30]
This brings us to the provisions dealing with the
international transfer of prisoners.
[31]
In 1977, Canada and the United States signed the
Treaty Between Canada and the United States of America on the Execution of
Penal Sentences, Can. T.S. 1978 No. 12, a bilateral treaty to
facilitate international prisoner transfer between Canada and the United
States. Under the treaty, offenders sentenced to imprisonment in either
country may be transferred to the country of which they are a citizen if the
sending state, the receiving state, and the offender all provide their
consent.
[32]
The application of the treaty is subject to a
number of conditions set out in art. II: that the offence for which the
offender was convicted and sentenced is one which would also be punishable as a
crime in the receiving state; that the offender is a citizen of the receiving
state; that the offence is not an offence under immigration laws or military
laws; that there is at least six months of the offender’s sentence remaining to
be served; and that no proceeding by way of an appeal or collateral attack upon
the conviction or sentence is pending in the sending state and the prescribed
time for an appeal has expired.
[33]
Under art. IV of the
treaty, the completion of a transferred offender’s sentence is to be carried
out according to the laws and procedures of the receiving country, including the
application of any provisions for reduction of the term of imprisonment by
parole, conditional release, or otherwise.
[34]
Pursuant to art. III of the treaty, both Canada and the United
States made a commitment to giving legal effect
to the treaty within their territory. Accordingly, in 1978, Parliament adopted
the Transfer of Offenders Act, S.C. 1977-78, c. 9, which
implemented the treaty with the United States as well as a similar treaty with
Mexico. Under this legislation, the Minister was granted an unfettered
discretion to approve or refuse the transfer of a Canadian citizen. Canada has
since concluded numerous bilateral and multilateral treaties dealing with
international prisoner transfers.
[35]
In 2004, the Transfer of Offenders Act was
replaced by the ITOA . The purpose of the ITOA was set out
in s. 3 as being:
. . . 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 of which they are citizens or nationals.
[36]
The ITOA included several important
modifications of the legislative scheme, namely new provisions setting out the
purposes of the legislation and a requirement that reasons be provided when the
Minister’s consent is refused (s. 11(2) ). Notably, a section was added that
listed the factors which the Minister must consider in determining whether to
consent to the transfer of Canadian and foreign offenders.
[37]
The relevant provisions of the ITOA are
ss. 8(1) and 10(1) and (2) . At the time of Mr. Divito’s request, they stated:
8. (1) The consent of the
three parties to a transfer — the offender, the foreign entity and Canada — is
required.
.
. .
10. (1) In determining
whether to consent to the transfer of a Canadian offender, the Minister shall
consider the following factors:
(a)
whether the offender’s return to Canada would constitute a threat to the
security of Canada;
(b)
whether the offender left or remained outside Canada with the intention of
abandoning Canada as their place of permanent residence;
(c)
whether the offender has social or family ties in Canada; and
(d)
whether the foreign entity or its prison system presents a serious threat to
the offender’s security or human rights.
(2) In determining
whether to consent to the transfer of a Canadian or foreign offender, the
Minister shall consider the following factors:
(a)
whether, in the Minister’s opinion, the offender will, after the transfer,
commit a terrorism offence or criminal organization offence within the meaning
of section 2 of the Criminal Code ; and
(b)
whether the offender was previously transferred under this Act or the Transfer
of Offenders Act , chapter T-15 of the Revised Statutes of Canada, 1985.
[38]
Only ss. 8(1), 10(1)(a) and 10(2)(a),
which have been italicized for ease of reference, have been challenged by Mr.
Divito. The essence of the challenge is that these provisions operate in a way
that violates Mr. Divito’s right to enter Canada under s. 6(1) of the Charter ,
a right he says is automatic once the foreign jurisdiction consents to the
transfer.
[39]
These provisions provide the Minister with a
discretion whether to consent to the transfer of a Canadian offender. Mr.
Divito argues that there should be no discretion — once an incarcerated
citizen’s transfer is consented to by a foreign jurisdiction, the citizen’s
right to enter under s. 6(1) of the Charter requires that the Minister
consent. In essence, Mr. Divito argues that s. 6(1) includes an automatic
right to serve a foreign prison sentence in Canada if the foreign state
consents. His submission would result in a positive obligation on Canada to
administer the sentences imposed upon Canadian citizens by foreign
jurisdictions. This, in my respectful view, misconstrues what s. 6(1)
protects.
[40]
In international law, requiring the return of an
offender to his or her home state infringes the doctrine of state sovereignty:
it violates the territoriality of the criminal law and the exclusive right of
the state to administer criminal justice: Michal Plachta, Transfer of
Prisoners under International Instruments and Domestic Legislation (1993),
at pp. 134-49; United Nations Office on Drugs and Crime, Handbook on the
International Transfer of Sentenced Persons (2012), at pp. 14 and 17.
Accordingly, prior to the implementation of bilateral and multilateral treaties
for the transfer of prisoners, “[i]t was firmly believed that States had the
authority to enforce the criminal sentences of their own courts only, making it
impossible for them to enforce the sentences of other States” (p. 17). In
other words, as a matter of international law, Canada has no legal authority to
require the return of a citizen who is lawfully incarcerated by a
foreign state.
[41]
The question then becomes what effect the Treaty
Between Canada and the United States of America on the Execution of Penal
Sentences and the ITOA have on an imprisoned citizen’s ability to
enter Canada for the purpose of serving his or her sentence in Canada.
[42]
The Treaty Between Canada and the United
States of America on the Execution of Penal Sentences and other similar
treaties were entered into to facilitate the return of offenders serving a
penal sentence in a foreign country in order to permit them to serve the
remainder of their sentence in their home country. The purpose of these
treaties was to promote the social rehabilitation and reintegration of
prisoners by permitting offenders imprisoned in a foreign jurisdiction to serve
their sentence in their home country closer to their families and where the
culture, language and customs would be more familiar: United Nations Office on
Drugs and Crime, at pp. 9-15; Sylvia Royce, “International Prisoner
Transfer” (2009), 21 Federal Sentencing Reporter 186, at p. 186.
[43]
Underlying the creation of these treaties was
the understanding that, absent a treaty, Canada was without a meaningful legal
mechanism to administer the sentences imposed upon Canadian citizens who are
lawfully incarcerated in a foreign state.
The ITOA and the treaties it implements provide a statutory mechanism to
transfer the supervision of a prison sentence from a foreign jurisdiction to
Canada.
[44]
The ITOA requires the consent of the
foreign jurisdiction since, as a matter of international law, Canada has no
meaningful legal authority to require the return of an imprisoned
citizen. As the provisions of the treaty make clear, the consent of the
foreign state to transfer an offender is premised on Canada undertaking to
administer the offender’s foreign sentence. The ITOA and the treaties
which it implements therefore provide an exception to the doctrine of
state sovereignty in international law: a statutory mechanism under which
Canada may, in certain circumstances, assume legal obligations towards a
foreign state. The ITOA was not intended to create a right for Canadian
citizens to require Canada to administer their foreign sentence.
[45]
The ability of prisoners to serve their sentence
in Canada is therefore a creation of legislation. Independent of the ITOA ,
there is no right to serve a foreign prison sentence in Canada. In my view,
although the ITOA contemplates a mechanism by which a citizen may return
to Canada in the limited context of continuing incarceration for the purpose of
serving their foreign sentence, s. 6(1) does not confer a right on Canadian
citizens to serve their foreign sentences in Canada.
[46]
Nor is Cotroni of assistance. La Forest J. noted for the majority that “the 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 would not wish to
trivialize the effects of extradition on the individual, it is clear that
extradition is not directed to the purpose” (p. 1482). Notably, he also made
the following particularly relevant concession:
. . . it
seems to me . . . that the infringement to s. 6(1) that results from
extradition lies at the outer edges of the core values sought to be
protected by that provision. European authorities . . . make a sharp
distinction between expulsion and extradition . . . . [Emphasis added; p.
1481.]
[47]
In the case of
extradition, the Canadian government permits the removal from Canada of a
Canadian citizen who has not been convicted, to face charges in a foreign
jurisdiction. Yet Cotroni found this to be only at the outer edges of
the s. 6(1) right. In the case of a prisoner transfer, the Canadian citizen
has been convicted in a foreign jurisdiction, is lawfully incarcerated there,
and is seeking the Canadian government’s permission to serve his or her foreign
sentence in Canada. If
the forcible removal of a presumed innocent Canadian citizen by extradition is
at the outer edges of the core values sought to be protected by s. 6(1) ,
the request of a convicted one to serve a foreign sentence in Canada falls off
the edge. I have difficulty seeing how legislative provisions which facilitate
the possibility of re-entry for a Canadian citizen lawfully convicted in a
foreign jurisdiction, are analogous to the forced removal of a Canadian citizen
by the state.
[48]
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.
Canadian citizens undoubtedly have a right to enter Canada, but Canadian
citizens who are lawfully incarcerated in a foreign jurisdiction cannot leave
their prison, let alone leave to come to Canada. What makes the entry to Canada
possible is the ITOA . But this possibility does not thereby create a
constitutionally protected right to leave a foreign prison and enter Canada
whenever a foreign jurisdiction consents to the transfer. Nor does it impose a
duty on the Canadian government to permit all such citizens to serve their
foreign sentences in Canada. The impugned provisions of the ITOA , which
make a transfer possible do not, as a result, represent a breach of s.
6(1) .
[49]
What is engaged by these provisions,
however, is the discretion of the Minister. As this Court noted in Canada
(Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3
S.C.R. 134, at para. 114, “[i]f there is a Charter problem, it lies not
in the statute but in the Minister’s exercise of the power the statute gives
him”. At its core, Mr. Divito’s argument that the Minister must consent
to the transfer of a Canadian citizen once a foreign state has provided its
consent calls into constitutional question not the impugned provisions, but the
way the discretion is exercised. This calls for scrutiny of the reasonableness
of the exercise of discretion, an issue Mr. Divito has not appealed to this
Court. Notwithstanding that we have not been asked to review the
reasonableness of the Minister’s decision in this case, there is no doubt that
once a foreign jurisdiction consents to a transfer under s. 8(1) of the ITOA ,
the Minister’s discretion under ss. 10(1) (a) and 10(2) (a) is
fully engaged and must be exercised reasonably, including in compliance with
relevant Charter values: Lake v. Canada (Minister of Justice),
2008 SCC 23, [2008] 1 S.C.R. 761; Sriskandarajah v. United States of America,
2012 SCC 70, [2012] 3 S.C.R. 609; Doré v. Barreau du Québec,
2012 SCC 12, [2012] 1 S.C.R. 395. As this Court explained
in Doré, “[o]n judicial review, the question
becomes whether, in assessing the impact of the relevant Charter protection
and given the nature of the decision and the statutory and factual contexts,
the decision reflects a proportionate balancing of the Charter protections
at play” (para. 57).
[50]
A final issue: the Crown argued that the appeal
was moot because Mr. Divito completed his American sentence. He has now
returned to Canada and completed the balance of his Canadian sentence.
[51]
The Court nonetheless retains a residual
discretion to decide the merits of a moot appeal if the issues raised are of
public importance: Borowski v. Canada (Attorney General), [1989] 1
S.C.R. 342; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at
para. 2. In my view, this is such a case. The issues are likely to recur in
the future and there is some uncertainty resulting from conflicting decisions
in the Federal Court.
[52]
I would therefore dismiss the appeal and answer
the constitutional questions as follows:
(1) Do ss. 10(1)(a)
and 10(2)(a), read in conjunction with s. 8(1) , of the International
Transfer of Offenders Act, S.C. 2004, c. 21 , infringe the right guaranteed
by s. 6(1) of the Canadian Charter of Rights and Freedoms ?
No.
(2) If so, is the
infringement a reasonable limit prescribed by law that can be demonstrably
justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is unnecessary to answer this
question.
The reasons of McLachlin C.J.
and LeBel and Fish JJ. were delivered by
LeBel and Fish JJ. —
I. Introduction
[53]
We have had the benefit of reading the reasons
of our colleague, Justice Abella, and agree with her proposed disposition of
this appeal. With respect, however, we cannot share her conclusion that the
appellant’s mobility rights are not engaged in the case at bar.
[54]
In our view, 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) of the Canadian Charter of Rights and Freedoms . For that reason
and the reasons that follow, we find that ss. 8(1) , 10(1) (a) and 10(2) (a)
of the International Transfer of Offenders Act, S.C. 2004, c. 21 (“ITOA ”),
constitute a limitation on the rights protected by s. 6(1) of the Charter .
We are satisfied, however, that this limitation is justified under s. 1 .
[55]
We adopt our colleague’s summary of the facts
and thorough review of the legislative history of the ITOA and the
treaties it implements. We also subscribe to her conclusion in respect of the
mootness argument raised by the Crown. Finally, we share our colleague’s view
(at paras. 27-29) that s. 6(1) should be interpreted generously, in a manner
that is consistent with the broad protection of mobility rights under
international law and which gives full effect to the provision’s “expansive
breadth” and “plenitude”. In this regard, see United States of America v.
Cotroni, [1989] 1 S.C.R. 1469, at p. 1480; R. v. Big M Drug Mart Ltd., [1985]
1 S.C.R. 295, at p. 344; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156.
[56]
In the two leading cases on s. 6(1) of
the Charter — Cotroni and Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 — this Court found the “core” of s. 6(1) to be a protection
against exile and banishment, or “exclusion of membership in the national
community”: Cotroni, at pp.
1481-82; Sriskandarajah, at para. 9.
II. Section 6(1) of the Charter : Its Core
[57]
The Court thus read the s. 6(1) rights to “enter” and “remain in”
Canada together. Indeed, in considering the extent to which s.
6(1) mobility rights are infringed by extradition, the Court specifically
contemplated the prospect of an international prisoner transfer. For
instance, in Cotroni, at p. 1482, La Forest J. stated:
An accused
may return to Canada following his trial and acquittal or, if he has been
convicted, after he has served his sentence. The impact of extradition on
the rights of a citizen to remain in Canada appears to me to be of secondary
importance. In fact, so far as Canada and the United States are
concerned, a person convicted may, in some cases, be permitted to serve his
sentence in Canada; see Transfer of Offenders Act, S.C. 1977-78, c. 9.
See also Sriskandarajah,
at para. 20.
[58]
It is inconsistent to
find that an international prisoner transfer has constitutional significance
with respect to the right to remain in Canada, but does not engage the
constitutional right to enter Canada. Our colleague suggests (at para. 47) that
if — as was held in Cotroni — extradition lies at the outer edges of the
core values protected by s. 6(1) , an international prisoner transfer request
“falls off the edge”. With respect, Cotroni supports the opposite
conclusion. The only reason extradition lies so far from the “central
thrust of s. 6(1) . . . against exile and banishment” (Cotroni, at p.
1482) is the prospect of returning to Canada by means of, inter alia,
an international prison transfer. In other words, if the prospect of a prisoner
transfer mitigates the violence done by extradition to the right to remain
in Canada, this must be because it enables citizens to exercise their right to enter
Canada once the country demanding the extradition consents to their
repatriation.
[59]
In our colleague’s view, the issue on this
appeal is whether the mobility rights guaranteed by s. 6(1) of the Charter give
Canadian citizens incarcerated abroad the right to require Canada to administer
their foreign prison sentences whenever the foreign jurisdiction consents to
the transfer (paras. 3, 44, 45 and 48).
[60]
With respect, framing the issue this way unduly
constricts the breadth of the mobility rights guaranteed under the Charter .
A correct interpretation of the right to enter Canada — one informed by the
“intimate relation between a citizen and his country” (Cotroni, at p. 1480)
— demands an acknowledgment that effective exercise of the rights conferred by
s. 6(1) will often require the state’s active cooperation. This is due, in
part, to the rights’ extraterritorial application and the principle of
sovereignty of nations: P. W. Hogg, Constitutional Law of Canada (5th
ed. Supp.), vol. 2, at p. 37-41.
[61]
Indeed, Canadian courts have recognized that s.
6(1) obliges the state to give effect to its citizens’ mobility rights. For
instance, in Kamel v. Canada (Attorney General), 2009 FCA 21, [2009] 4
F.C.R. 449, at para. 14, the Federal Court of Appeal affirmed Noël J.’s finding
that s. 6(1) imposes a duty on the state to issue a citizen a Canadian passport
(2008 FC 338, [2009] 1 F.C.R. 59). At paras. 103-4 of his Federal Court
decision, Noël J. explained the basis of that duty:
In
order for mobility rights respecting travel outside Canada to be truly
meaningful, it seems to me that more is needed than the right to enter or
leave, because entering means coming back from somewhere, and leaving means
going to a foreign destination. In both cases, returning and leaving imply a
foreign destination where a passport is required. This mobility right cannot be
exercised without a passport.
That
is not all, however. By its own actions, the Canadian government recognizes and
encourages the use of passports for travel abroad.
[62]
Similarly, in Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, at
para. 152, Zinn J. held that
where a citizen is outside Canada, the
Government of Canada has a positive obligation to issue an emergency passport
to that citizen to permit him or her to enter Canada; otherwise, the right
guaranteed by the Government of Canada in subsection 6(1) of the Charter is
illusory. Where the Government refuses to issue that emergency passport, it
is a prima facie breach of the citizen’s Charter rights unless the
Government justifies its refusal pursuant to section 1 of the Charter .
[Emphasis added.]
[63]
Just as neither Kamel nor Abdelrazik were
about a constitutional right to a passport per se, this appeal is not
about the right to a prisoner transfer. By its enactment of the ITOA and
signature of the treaties the ITOA implements, Parliament and the
Canadian government have recognized and encouraged the use of international
prisoner transfers as a means of enabling Canadian citizens incarcerated abroad
to enter and remain in Canada. The ITOA was precisely designed to
safeguard and facilitate the exercise of these s. 6(1) rights. As stated in s.
3 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 of which they are citizens or nationals.
[64]
Parliament has crafted a regime whereby once the
foreign state has consented to a transfer — thus removing the practical
restrictions on an incarcerated citizen’s ability to return to Canada — the
sole impediment to the exercise of the citizen’s s. 6(1) right is the
Minister’s discretion. 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 in question.
[65]
We hasten to add that, in the absence of the ITOA
and the treaties that it implements, the minimum of state action required
by s. 32 of the Charter for the Charter to apply would not be
met. Clearly, all citizens abroad cannot rely on their Charter -guaranteed
right to enter Canada in order to demand that the Canadian government actively facilitate their repatriation by, for instance, paying for
their airline tickets.
[66]
Moreover, the greater administrative and
financial costs occasioned by a prisoner transfer, as compared to the issuance
of a passport, may be relevant at the s. 1 justification stage but are
irrelevant to the s. 6(1) inquiry. “[T]he guarantees of the Charter would
be illusory if they could be ignored because it was administratively convenient
to do so”: Singh v. Minister of Employment and Immigration, [1985] 1
S.C.R. 177, at p. 218 (per Wilson J.).
[67]
Accordingly, we find that ss. 8(1) , 10(1) (a)
and 10(2) (a) of the ITOA constitute a limitation on the rights
protected by s. 6(1) of the Charter . We turn now to consider whether
this limitation is nonetheless justified under s. 1 of the Charter .
III. Justification Under Section 1
[68]
To pass constitutional
muster under s. 1, the impugned provisions must
constitute “reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society”. This will be the case where the
party invoking s. 1 demonstrates (1) that the infringing provisions relate to a
pressing and substantial objective, (2) that there is a rational connection
between the objective and the infringement of the right, (3) that the chosen
means interfere as little as possible with the protected right, and (4) that
the salutary effects of the measures outweigh their deleterious effects: R.
v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835, at p. 889; Hogg, at pp. 38-17 and 38-18.
[69]
For the following reasons, we believe that ss. 8(1) , 10(1) (a)
and 10(2) (a) of the ITOA satisfy this standard of justification.
[70]
It is important to note, at the outset, that the
issue here is not whether the respondent Minister’s discretion was
reasonably exercised in this case in light of the appellant’s Charter
rights. The appellant expressly abandoned his argument on the
reasonableness of the Minister’s decision before the Court of Appeal and did
not raise it before this Court: 2011 FCA 39, [2012] 4 F.C.R. 31, at paras. 14
and 71 (per Mainville J.A.); para. 74 (per Nadon J.A.).
[71]
At the time of the Minister’s decision in the
present case, ss. 10(1) (a) and 10(2) (a) of the ITOA provided:
10. (1) In determining whether to consent to the transfer of a Canadian
offender, the Minister shall consider the following factors:
(a)
whether the offender’s return to Canada would constitute a threat to the
security of Canada;
. . .
(2)
In determining whether to consent to the transfer of a Canadian or foreign
offender, the Minister shall consider the following factors:
(a)
whether, in the Minister’s opinion, the offender will, after the transfer,
commit a terrorism offence or criminal organization offence within the meaning
of section 2 of the Criminal Code ;
[72]
There is no dispute that ensuring the security
of Canada and the prevention of offences related to terrorism and organized
crime are pressing and substantial objectives.
[73]
The appellant contends, however, that there is no rational link between
the Minister’s discretion to refuse a transfer on the basis of the factors set
out in ss. 10(1) (a) and 10(2) (a) of the ITOA
and the pressing and substantial objectives of the impugned provisions. He
submits two arguments to this end: first, that the Minister’s discretionary
power does no more than delay the citizen’s return to Canadian soil; second,
that the legislation’s pressing
and substantial objectives would be better served by Canada taking charge of
the sentence. In our view, neither argument can succeed.
[74]
We agree that considering security risks that may arise only upon
an offender’s release is not rationally connected to the objectives of
the impugned provisions since, once liberated abroad, Canadian
citizens can enter Canada simply by proving their status at the border. But
considering risks that could arise during incarceration is not
“arbitrary, unfair or based on irrational considerations”: Oakes, at p.
139. This distinction was highlighted by the respondent, at para. 94 of its
factum:
[translation] The Minister’s decision
relates to the management of the sentence and to the place where it will be
served, bearing in mind that the offender will be able to return to Canada once
his sentence has been served. It is therefore perfectly logical that what
the Minister must consider relates to the risks the offender’s return to Canada
would entail at the time of the transfer request rather than to those it would
entail, if any remain, once the sentence has been served. [Emphasis
added.]
[75]
The challenged factors must be interpreted contextually and in a
manner consistent with the purpose of the ITOA . Phrases such as “whether
the offender’s return” (s. 10(1) (a)) and “after
the transfer” (s. 10(2) (a)) may be wide in the
abstract, but they “are more or less elastic, and admit of restriction or
expansion to suit the subject-matter. . . . [I]t is necessary to give them the
meaning which best suits the scope and object of the statute without extending
to ground foreign to the intention”: R. Wilson and B. Galpin, eds., Maxwell
on the Interpretation of Statutes (11th ed. 1962), at pp. 58-59, quoted in McKay
v. The Queen, [1965] S.C.R. 798, at p. 803. See also M
& D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R.
961, at para 25; R. Sullivan, Sullivan on the Construction of Statutes
(5th ed. 2008), at pp. 284-87.
[76]
Manifestly, the factors set out in ss. 10(1) (a) and 10(2) (a)
relate to risks that arise upon the transfer of offenders, before their
release. Denying a prisoner transfer request based on security risks that may
arise only after an offender’s release would be an unreasonable exercise
of discretion grounded in an erroneous interpretation of the ITOA . A
Minister’s exercise of discretion in such an unreasonable manner, however, does
not render the factors themselves irrational. Properly understood, the factors
and the Minister’s discretion are rationally connected to Parliament’s pressing
and substantial objectives.
[77]
Moreover, the pressing and substantial objectives of the impugned
provisions would not be better served in all cases by Canada taking
charge of the sentence. As Mainville J.A. explained in his concurring reasons
in the court below:
. . . I do
not find it irrational for Parliament to empower the Minister to refuse the
transfer of a convicted terrorist if it is reasonable to believe that the
incarceration of that terrorist in Canada would result in retaliatory terrorist
attacks on Canadian citizens. Likewise, I do not find it irrational for
Parliament to empower the Minister to refuse the transfer of an international
drug cartel kingpin if it is reasonable to believe that such a transfer would
result in attacks on Canadian prison guards or would facilitate the criminal
operations of that offender or of his criminal organization. These are clear
cases [where] the Minister could properly refuse a transfer to Canada. [para.
56]
[78]
Given that in some cases the objectives of the ITOA
would be served by refusing a transfer based on the factors set out
in ss. 10(1) (a) and 10(2) (a), the Minister’s
discretion to consider these factors on a case-by-case basis is rationally
connected to the pressing and substantial objectives of these provisions.
[79]
In addition, at least in some cases, refusing a transfer based on the
challenged factors will be the sole — and therefore the most minimally impairing
— alternative open to the Minister. In light of both the binary nature of the
Minister’s decision and the citizen’s continued incarceration, it is difficult
to conceive of a less drastic means of achieving Parliament’s protective
purpose.
[80]
Finally, in our view, the impugned provisions are proportionate
in their effect — that is, their effects do “not so severely trench on
individual or group rights that the legislative objective, albeit important, is
nevertheless outweighed by the abridgment of rights”: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 768.
[81]
The beneficial effects of permitting the
Minister to consider threats to Canadian security and threats of terrorism or
organized crime in deciding whether to permit a transfer are, as the respondent
asserts, [translation]
“self-evident” (R.F., at para. 106).
[82]
To the extent that the impugned provisions
engage the rights guaranteed by s. 6(1) of the Charter , they — like
extradition — “li[e] at the outer edges of the core values [being] protected by
[s. 6(1) ]”: Cotroni, at p. 1481. Again, as Mainville J.A.
put it:
These offenders have
committed offences in foreign jurisdictions. Barring exceptional circumstances,
there is nothing unfair or unreasonable in the fact that these offenders are
subject to the incarceration systems of the foreign jurisdictions in which they
committed their offences. Canada’s entire extradition system is in fact based
on this premise. [para. 63]
[83]
The prejudicial effect of a transfer refusal on the
mobility rights of Canadian citizens incarcerated abroad is further palliated
by the fact that the citizens in question will be able to enter Canada after
serving their sentences in the foreign jurisdiction.
[84]
We conclude that ss. 8(1) , 10(1) (a) and 10(2) (a)
of the ITOA constitute a reasonable limit on the mobility rights of Canadian citizens incarcerated
abroad.
IV. Ministerial Discretion
[85]
The Minister’s discretion to grant or refuse prisoner transfer requests under the ITOA is broad and flexible. A large measure of deference is appropriate in the
circumstances, given the complex social and political problems being tackled,
such as security and terrorism: Kamel (F.C.A.), at paras. 57-59; Cotroni,
at p. 1489; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1
S.C.R. 761, at paras. 37-39.
[86]
Each individual decision by the
Minister must nonetheless respect the governing principles of administrative
law and, of course, remains subject to judicial review.
Moreover, the Minister’s discretion must be exercised with due regard for the s. 6(1)
Charter rights at stake: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
[87]
But, as we indicated above, the appellant no longer challenges
the reasonableness of the Minister’s decision in this case. In these
circumstances, we need not consider whether the Minister’s discretion was
properly exercised.
V. Conclusion
[88]
Accordingly, we would dismiss the appeal and answer the constitutional
questions as follows:
(1) Do ss. 10(1)(a) and 10(2)(a), read in
conjunction with s. 8(1) , of the International Transfer of Offenders Act,
S.C. 2004, c. 21 , infringe the right guaranteed by s. 6(1) of the Canadian
Charter of Rights and Freedoms ?
Yes.
(2) If so, is the infringement a reasonable limit prescribed by
law that can be demonstrably justified in a free and democratic society under
s. 1 of the Canadian Charter of Rights and Freedoms ?
Yes.
Appeal
dismissed.
Solicitors
for the appellant: Monterosso Giroux, Outremont.
Solicitor
for the respondent: Attorney General of Canada, Montréal.
Solicitors for the intervener the Canadian Civil Liberties
Association: Waldman & Associates, Toronto.
Solicitor
for the intervener the David Asper Centre for Constitutional Rights: University
of Toronto, Toronto.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Hunter
Litigation Chambers Law Corporation, Vancouver; Michael Sobkin, Ottawa.