THE SUPREME COURT OF CANADA AND THE OFFENDER’S RIGHT TO BE TRANSFERRED TO SERVE HIS SENTENCE IN CANADA: INTERPRETING THE INTERNATIONAL TRANSFER OF OFFENDERS ACT IN LIGHT OF CANADA’S NATIONAL AND INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

Abstract

In September 2013 in the case of Divito v Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada dealt with the issue of whether section 6(1) of the Canadian Charter of Rights and Freedoms, the Charter, which grants Canadians the right to enter Canada was violated in a case where the Minister of Public Safety and Emergency Preparedness declined to consent to the transfer of a Canadian citizen to serve his sentence in Canada where the sentencing state had consented to the transfer. Another issue was whether sections 8(1) and 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act, which granted the Minister the discretion to consent or not to consent to the transfer, were contrary to section 6(1) of the Charter. In resolving the above issues, the Court referred to its earlier jurisprudence, academic publications and international law. Although the Court agreed with the government that the appeal was moot because the appellant had left the USA by the time it was heard, it held that it retained “a residual discretion to decide the merits of a moot appeal if the issues raised are of public importance” and that this case was one of public importance because “[t]he issues are likely to recur in the future and there is some uncertainty resulting from conflicting decisions in the Federal Court.” The purpose of this article is to highlight the interpretative tools invoked by the court and the implications of the judgement.