Top court to rule on right to serve sentence in Canada

Decision could make it tougher for government to deny prison transfers

OTTAWA — The Supreme Court of Canada will rule on Thursday in the case of convicted Montreal drug trafficker Pierino Divito, who was imprisoned abroad and wanted to serve his sentence in Canada.

Here’s why the case matters to Canadians: Who is involved in the case?

Divito was arrested in 1994 in connection with what was then considered the biggest drug bust in Canadian history. He was convicted and sentenced, after which the U.S. requested his extradition on separate drug charges. He was sent to the U.S. in 2005 and pleaded guilty, serving his U.S. and Canadian sentences concurrently.

Divito, now 76, has finished serving both sentences and is living in Montreal. Police have described him as having close ties to the Rizzuto mob organization, but his lawyer Clemente Monterosso denies those allegations.

“There is a total absence of evidence that he is related to any Mafia family,” he said. What’s this case about?

While in the U.S., Divito applied multiple times to serve his sentence in Canada. The requests were approved by U.S. authorities, but Canada’s then-public safety minister Vic Toews rejected them, on the grounds that Divito was “identified as an organized crime member” and his return would constitute “a potential threat to the safety of Canadians and the security of Canada.”

Divito, a Canadian citizen, argues that being barred from serving his sentence in Canada violated his mobility rights under the Charter of Rights and Freedoms. Under Section 6 of the Charter, “every citizen of Canada has the right to enter, remain in and leave Canada.”

“Hopefully, the Supreme Court’s ruling will be that every Canadian has the right to come back to his country,” Monterosso said. Why is it coming up now? He’s free, isn’t he?

There have been few opportunities for Canada’s top court to consider Section 6 of the Charter. That the case is coming up now is a reflection of the federal government’s tough-on-crime agenda, said Lorne Waldman, one of the country’s top immigration lawyers. “This has become a big issue since the Conserva- tives took power,” he said.

“They took the view that prison transfers shouldn’t be automatic. The acceptance rate went from very high to much lower.”

Legislation passed last year gave the government even more power in rejecting applications from Canadian prisoners abroad to return, said University of Toronto law professor Audrey Macklin, a chair in human rights law who intervened in the case on behalf of the David Asper Centre for Constitutional Rights. Could this affect other Canadians imprisoned abroad?

The court’s decision could make it more difficult for the public safety minister to reject applications from Canadians imprisoned abroad to return to Canada to serve their sentences, experts said.

“If the Charter is engaged and the minister has to justify it, then the case has to be subject to more scrutiny,” said Waldman, who worked on the case on behalf of the Canadian Civil Liberties Association. “It just shifts the burden a bit onto the minister to justify the decision (to keep Canadians out), and would make it easier for people to challenge.”

Current grounds the minister can take into account when ruling on the applications include the prisoner’s social or family ties in Canada, health, and a broad range of other criteria.

Macklin said if the court rules that a heavy burden of justification is needed when the minister refuses prisoners’ entry, it might knock out some of those grounds.

“I would expect that if this case finds that there is a Charter right and that the government’s breached it, it throws into question many of the criteria that have been identified in the legislation,” Macklin said.

She also pointed out that all Canadian citizens serving time abroad return to Canada eventually because the government incarcerating them deports them at the end of their sentences.

“This is all about when, and not if,” she said. “Sooner or later the offender is going to be returned to Canada, it’s just a question of whether it will be done under the auspices of a prison transfer, or whether they’ll just be deported and then walk off the plane free.

Divito’s lawyers and other interveners argued there’s no benefit to public safety or to the inmate to serve sentences abroad, and that being in the Canadian system gives inmates access to rehabilitation programs not available in foreign jails.

The ruling also could have important implications in a broad range of other cases on how Canadians’ right to return to Canada will be adjudicated, Waldman said.