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Summary

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Charter of rights Constitutional law Mobility rights Whether s. 10(1)(a) and (2)(a), read in conjunction with s. 8(1), of International Transfer of Offenders Act, S.C. 2004, c. 21, infringe right guaranteed by s. 6(1) of Canadian Charter of Rights and Freedoms If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s. 1 of Charter.

The appellant Mr. Divito has been a Canadian citizen since 1980. In 1995, a Canadian court convicted him of serious drug related offences. While he was serving his sentence, the American authorities requested his extradition to the United States to face drug related charges. Canada extradited Mr. Divito in June 2005 after he had served his sentence in Canada. In the United States, Mr. Divito pleaded guilty. In December 2006, he made a request for a transfer under the International Transfer of Offenders Act so he could be authorized to serve the rest of his prison sentence in Canada. The request was approved by the American authorities but refused by the Canadian minister. A short time later, Mr. Divito made a second request, which was refused again on the following grounds:

The offender has been identified as an organized crime member, convicted for an offence involving a significant quantity of drugs. The nature of his offence and his affiliations suggest that the offender’s return to Canada would constitute a potential threat to the safety of Canadians and the security of Canada.

Mr. Divito argues that the sections of the Act on which the refusal was based infringe his mobility rights guaranteed by s. 6 of the Canadian Charter of Rights and Freedoms and that the infringement cannot be justified under s. 1.

Lower Court Rulings