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‘No right to serve a foreign prison sentence in Canada’

|Written By Heather Gardiner

Mobility rights under the Charter of Rights and Freedoms do not give a Canadian citizen the automatic right to serve his or her prison sentence in Canada, the Supreme Court of Canada ruled today.

The Supreme Court of Canada has ruled a Canadian citizen doesn’t have an automatic right to serve his or her foreign sentence in Canada.

In Divito v. Canada (Public Safety and Emergency Preparedness), the top court dismissed an appeal from Pierino Divito who argued his mobility rights were violated when then-Public Safety minister Vic Toews rejected his attempts to serve the remainder of his U.S. prison sentence in Canada. Toews claimed Divito’s connections to organized crime could pose a threat to Canadians.

Divito was sentenced on drug charges in connection with a massive Canadian drug bust in 1994. After serving two-thirds of his sentence in Canada, he was extradited to the United States on separate drug charges. He filed two applications to be transferred back to a Canadian prison, but to no avail. Divito, 76, has since finished serving his sentence and is now living in Montreal.

The SCC unanimously dismissed the appeal but was split on whether there was a technical violation of s. 6 of the Charter.

Aaron Harnett, a criminal defence lawyer in Toronto, calls Divito’s argument “a stretch.”

“All justices of the Supreme Court found that a Canadian serving a sentence abroad has no right to demand the Canadian government allow him to come back and serve his sentence in Canada. It didn’t even come close,” he tells Legal Feeds.

In the decision, Justice Rosalie Abella wrote: “The ability of prisoners to serve their sentence in Canada is therefore a creation of legislation. Independent of the [International Transfer of Offenders Act], 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.

“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,” she added.

Harnett says he doesn’t expect the ruling to have much effect on other cases.

“It is unlikely to have a widespread, negative impact on Canadians who are seeking to transfer their sentences to Canada. The reason is the mechanism that is in place for the exercise of discretion is one that is subject to judicial review and the minister’s discretion still has to be exercised taking into account Charter values,” he says.


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