Friday 27 September 2013


Does a nation really have to accept the transfer of a prisoner from another nation?

The transfer of prisoners is the international stratagem based on a bilateral agreement between nations. It came about by Canadian resolution 13 that was adopted by the 6th United Nation Congress on the Prevention of Crime and Treatment of Offenders held in Caracas, Venezuela in September 1980. While I was in attendance at that conference as one of the speakers, I discussed with other delegates from other nations why I supported the Canadian resolution.       
The purpose of the transfers is so that prisoners who are serving long periods of incarceration in the nation that incarcerated them can serve their sentences in their own countries so that they can communicate in their own language and be closer to their families.

Transfer of Offenders Treaties, enable offenders, with their explicit consent and with the discretionary approval of the sentencing country and of the country of citizenship, to serve their foreign imposed sentences in their own countries of citizenship. Once transferred, the offender's sentence is administered in accordance with the laws of the receiving country.

Correctional Service Canada is responsible for the implementation of the International Transfers of Offenders Act, related treaties, and the International Transfers of Offenders Program which includes the processing of applications for transfer, the actual transfer of the offenders, and their subsequent incarceration in Canada.

The transfer of prisoners to their own countries from the sentencing countries isn’t automatic. Their own country has the option of deciding that they don’t want their incarcerated citizens back in their own country to serve the rest of their sentences for two reasons. The first reason is that by serving their sentences in Canada, it means that the sentence will be shortened since an incarcerated person can be released after having served two thirds of the sentence in Canada. The exception of course is when the person is convicted of murder or the judge has specified how long the sentence must be served before applying for parole. The second reason is because Canada feels that the return of the prisoner will be a risk to Canada. This article is about the second reason.

Pierino Divito was born in Italy in 1937.  He immigrated to Canada when he was 16 and became a Canadian citizen in 1980. Since his arrival in Canada, 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.

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.                                                     

In June 2005, after serving almost two-thirds of his Canadian sentence, (in which he would be eligible for parole, Mr. Divito was extradited to the United States where he pleaded guilty in Florida to the American charges.   In sentencing Mr. Divito, the American court took his Canadian sentence into account and gave him credit for 145 months (12 years) of time served.  In March 2006, he was sentenced to an additional seven and a half years in prison.

In December 2006, Divito submitted a request under the International Transfer of Offenders Act, (ITOA) to be transferred to Canada to serve the remainder of his American sentence.  Under section 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.  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. 

A Canadian criminal has the right to return to Canada following his trial and acquittal or, if he has been convicted, after he has served his sentence in another country. The real issue in this case is whether or not he has an automatic right to be transferred to a Canadian prison from a foreign prison while he is still serving his sentence in the foreign prison.

Divito did not challenge the Minister’s refusal.  However, shortly after his first request was refused, he submitted a second transfer request.  The American authorities again agreed.  And again the Minister denied Divito’s request, relying on section 10(1)(a) of the ITOA because Divito was identified as an organized crime member and the offence involved a significant quantity of drugs. Based on Divito’s criminal history, the denial was quite legitimate. According to the Minister, the nature of his offence and his affiliations suggest that Divito’s return to Canada would constitute a potential threat to the safety of Canadians and the security of Canada.

Divito sought judicial review of the Minister’s second refusal on two grounds.  The first was that the decision was unreasonable.  The second refusal was essentially, that the existence of a discretion in sections. 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 section 6(1) of the Canadian Charter of Rights and Freedoms.  Divito’s lawyer argued that it was confirmed that Mr. Divito was a Canadian citizen, and for this reason, he had the right to enter Canada and the Minister was required to consent to his return.  

Section 6. (1) of the Mobility section of the Charter states; “Every citizen of Canada has the right to enter, remain in and leave Canada.”

In 2009, the Canadian Federal Court dismissed his application for judicial review. 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 section 6(1) of the Canadian Charter or Rights and Freedoms.

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 his appeal in 2011. The concurring judge found that the impugned provisions constituted prima facie (sufficient evidence) infringements of section 6(1) of the Charter but were justified under section 1 of the Charter. That section permits a judge to deny the benefit of the Charter to an applicant if the rejection is beneficial to Canadians per se and will not depreciate democratic principles in doing so.  

Divito’s lawyer claimed that once aforeign jurisdiction consents to a transfer, his client has an absolute right as a Canadian citizen to enter Canada.  His lawyer further argued that the Canadian government has no discretion to refuse the transfer of a Canadian citizen who is lawfully incarcerated by a foreign state.  However in the Federal Court of Appeal Court, he was not challenging the reasonableness of the Minister’s refusal.  Nor was there any suggestion that he was denied due process or that there were any human rights abuses in the foreign jurisdiction.  If those problems really occurred, he probably would have been transferred to a Canadian prison.

He appealed the decision of the Federal Court of Appeal an subsequently  the matter ended up in the Supreme Court of Canada.

His lawyer argued that article 12(4) of the International Covenant on Civil and Political Rights 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 section 6(1) of the Canadian Charter should therefore be interpreted in a way that is consistent with the broad protection under international law. 

In Canadian law, there is no situation in which a person can 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.         

In the Divito case, it does seem inconsistent to find that an international prisoner transfer has constitutional significance with respect to his right to remain in Canada, but the prisoner on the other hand cannot always benefit from the constitutional right to enter Canada from another country.

In Divito’s case, there is reason for this anomaly. 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 up to the Minister’s discretion. A statutory regime that grants a Minister the discretion to determine whether or not Canadian citizens can exercise their Charter-protected right to enter Canada constitutes a legitimate limit on the section 6(1) right of the citizen in question. That limit is based on one main factor—will it be to Canada’s detriment to permit the transfer of Divito from a United States correctional facility to a Canadian facility? If the answer to that question is that it will be such a detriment, then the Minister has the right to refuse the transfer.

But this placed the Minister into interesting quandary. The issue facing the Minister was whether or not the offender’s return to Canada would constitute a threat to the security of Canada.

In other words; the issue is whether or not in the Minister’s opinion, Divito will, after the transfer, commit a terrorism offence or participate again in criminal organization ativities. If the prospect of either of those two possibilities is real, then it definitely would not be to Canada’s best interests for Divito to be permitted to come back to Canada as a transferred prisoner.

However, I am forced to ask these two rhetorical questions. Since Divito is a Canadian citizen and he has a constitutional right to return to Canada eventually after he has served his full sentence in the U.S., wouldn’t it be better if he served the remainder of his sentence in Canada where the authorities can keep an eye on him? Alternatively, will he be a better person because he will have served his full sentence in the U.S. than if he served the balance of his sentence in a Canadian prison?

There is no way in which that second question can be answered because even Divito doesn’t know how he will conduct himself after he is finally released from prison, be it an American prison or a Canadian prison so it follows that the Minister won’t know the answer to that question either.           

The Supreme Court deal with this problem when it said in part;

“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.” unquote

This must mean that the Minister was concerned about Divito causing problems in a Canadian prison if he is transferred to one after re-entering Canada from the U.S. If that is so, I am not convinced that is a reasonable conclusion on his part. It was merely supposition on his part and nothing more.

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.

However, I do not find t wrong 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 while in a Canadian prison. These are clear cases were the Minister could properly refuse the transfer of a Canadian to a Canadian prison.

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 self-evident.       

The court in its final remarks said in part;

“As we indicated above, the appellant (Divito) 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.” unquote   

Divito and his lawyer in my opinion, made a big mistake in not challenging the reasonableness of the Minister’s decision. If they had, the issues I raised could have been raised by them and that may have caused the Supreme Court to rule in Divito’s favour.

The court asked itself the following two rhetorical questions;

(1)            Do sections 10(1)(a) and 10(2)(a), of the ITOA read in conjunction with s. 8(1), of the International Transfer of Offenders Act,  infringe the right guaranteed by section 6(1) (Mobility section) 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?


What the answer to Question (2) means that although Divito’s Constitutional rights were infringed, it was in the best interests of Canada that his request for a transfer be denied.

My personal opinion is that it would have been better if Divito was transferred to a Canadian prison because he might then be eligible for parole and while on parole, there could be some control over him by Canadian parole authorities. But since his request for a transfer was denied, once he finishes his sentence in the American prison, he could be deported to Canada as a free man and be under no control of anyone when he crosses into Canada. 

However, this isn’t what happened in Divito’s case. He served his full seven- year sentence in Florida and then in 2013, he was deported to Canada where he was then arrested and re-incarcerated in a Canadian prison to finish the remaining six years of his eighteen-year sentence. This could mean that he will be finally released from prison in 2019 at the age of eighty-two. 

Divito will have spent a quarter of a century in prison for his illicit drug offences. That is a terrible way for anyone who imports and traffics in illicit drugs to spend one’s final years. But then, who cares if illicit drug importers and traffickers spend their final years that way?

Is this what the Minister had in mind when he refused Divito’s request for a transfer? It makes sense when you consider it. Why should Canadian taxpayers be saddled with the costs of the incarceration of Canadians who commit crimes in foreign countries if they are transferred to Canada to finish their foreign sentences, and then are going to serve Canadian the rest of their sentences after they finish their foreign sentences?


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