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Divito v. Canada (Minister of Public Safety and Emergency Preparedness)

In this case, the Supreme Court of Canada will consider whether the government can reject the application of a Canadian citizen who is incarcerated abroad and seeks transfer to a prison in Canada to serve out the remainder of his sentence. At issue are the mobility rights guaranteed under Section 6 of the Canadian Charter of Rights and Freedoms and at international law.

The BCCLA was an intervener in this case. The BCCLA argued that mobility rights under section 6(1) of the Charter must be interpreted in light of Canada’s obligations under international law, which does not permit the exile of citizens. The BCCLA also argued that in reviewing a Canadian citizen’s request for a transfer to a Canadian prison, the Minister of Public Safety cannot take into account merely speculative concerns about that individual’s potential conduct.

The BCCLA’s argument in this case can be found here >>

On September 19, 2013, the Supreme Court of Canada released its judgment in this case. The Court unanimously dismissed Mr. Divito’s appeal, ruling that Mr. Divito’s mobility rights under the Charter were not violated. The Court split 6-3 on whether the appeal engaged section 6(1) of the Charter. The majority of the Court found that Mr. Divito’s section 6 rights were not engaged. The majority held that Canadian citizens imprisoned abroad do not have a right to enter Canada when the foreign jurisdiction consents to transfer Canadian citizens to a prison here. The majority also found that the government does not have a duty to permit citizens imprisoned abroad to serve foreign sentences in Canada.

A copy of the Supreme Court’s judgment can be found here >>

The BCCLA is represented by Gib van Ert and Heather Cochran of Hunter Litigation Chambers.

Supreme Court of Canada