1 BETWEEN: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) File No PIERINO DIVITO Appellant - and - MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent - and - THE CANADIAN CIVIL LIBERTIES ASSOCIATION, DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS, AND BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION Interveners FACTUM OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) LORNE WALDMAN Waldman & Associates 28 1 Eglinton Avenue East Toronto, Ontario M4P 1L3 Tel: Fax: Counsel for the Intervener, The Canadian Civil Liberties Association HENRY S. BROWN, Q.C. Gowling Lafleur Henderson LLP Elgin Street P.O. Box 466, Station "D" Ottawa, Ontario, KIP 1C3 Tel: Fax: 6, Agent for the Intervener, The Canadian Civil Liberties Association
2 TO: THE REGISTRAR, SUPREME COURT OF CANADA AND TO: CLEMENTE MONTEROSSO Monterosso Giroux 1 160, rue Laurier Ouest Outremont, Quebec H2V 2L5 Tel: (5 14) Fax: (514) c1emente.monterooso~videotron.ca Counsel for the Appellant RICHARD GAUDREAU Bergeron, Gaudreau 167, rue Notre Dame di 1'Ile Gatineau, Quebec J8X 3T3 Tel: (819) Fax: (8 19) Agent for the Appellant AND TO: CLAUDE JOYAL SUSAN SHAUGNESSY Procureur gcncral du Canada Tour est, 5e Ctage, Complexe Guy-Favreau 200, boul. RenC-LCvesque ouest Montreal, Quebec H2Z 1x4 Tel: (514) Fax: (514) claude. joy Counsel for the Respondent CHRISTOPHER M. RUPAR Attorney General of Canada Bank of Canada Building - East Tower 234 Wellington Street, Room 1212 Ottawa, Ontario KIA OH8 Tel: (613) Fax: (61 3) Agent for the Respondent
3 CHERYL MILNE AUDREY MACKLIN University of Toronto 39 Queen's Park Cres. East Toronto, Ontario M5S 2C3 Tel: (416) Fax: (416) Counsel for the Intervener, David Asper Centre for Constitutional Rights MARTHA A. HEALEY Norton Rose Canada LLP 45 O'Connor Street Ottawa, Ontario KIP 1A4 Tel: (613) Fax: (613) Agent for the Intervener, David Asper Centre for Constitutional Rights GIB VAN ERT HEATHER COCHRAN Hunter Litigation Chambers West Georgia Street Vancouver, British Columbia V6E 4H1 Tel: (604) Fax: (604) pvanert~,litinationchambers.com Counsel for the Intervener, British Columbia Civil Liberties Association MICHAEL J. SOBKIN 90 blvd. de Lucerne, Unit #2 Gatineau, Quebec J9H 7K8 Tel: (8 19) Fax: (819) Agent for the Intervener, British Columbia Civil Liberties Association
4 TABLE OF CONTENTS... PART I. Statement of Facts 1... PART I1. Points in Issue 1... PART I11. Argument 1 A. Sections 8(1). 10(l)(a) and 10(2)(a) of the International Transfer of Oflenders Act Violate section 6 Mobility Rights i. The Right to Return is a Fundamental Human Right in International Law B The Provisions are only Saved by Section 1 in Exceptional Circumstances 6 PART IV- Costs PART V - Order Sought PART VI - Table of Authorities PART VII. Statutes
5 PART I - STATEMENT OF FACTS 1. The Canadian Civil Liberties Association ["the CCLA"] is a national organization formed in 1964 which is dedicated to the furtherance of civil liberties in Canada. The CCLA was constituted in order to promote respect for and observance of fundamental human rights and civil liberties, as well as to defend and foster the recognition of those rights and liberties. The CCLA was granted leave to intervene in this appeal by Order of Justice Fish, dated 24 January The CCLA submits that sections 10(l)(a) and 10(2)(a) of the International Transfer of Offenders Act ["ITOA"], read in conjunction with section 8(1) of the ITOA, constitute aprima facie infringement of a Canadian citizen's right to enter and remain in Canada, guaranteed under section 6(1) of the Canadian Charter of Rights and Freedoms ["~harter"].' In all cases, the Minister must justify a transfer denial under section 1 of the ~harter.~ Denial will be justified only in exceptional circumstances. 3. The CCLA takes no position on the facts as summarized by the parties. PART I1 - POINTS IN ISSUE 4. The CCLA agrees that this appeal raises the issues of whether or not sections 8(1), 10(l)(a) and 10(2)(a) of the ITOA violate section 6(1) of the Charter, and if so, whether the provisions are justified under s. 1 of the Charter. PART I11 - ARGUMENT A. Sections 8(1), 10(l)(a) and 10(2)(a) of the International Transfer of Offenders Act Violate section 6 Mobility Rights 5. Once a Canadian citizen imprisoned in a foreign jurisdiction requests a transfer and the foreign country consents to that transfer, section 6 mobility rights are engaged. At this point, the practical impediments to that individual's ability to exercise his or her section 6 Charter right to return and remain in Canada have been removed. A transfer can only be denied where it can be justified under section 1 of the Charter. 'international Transfer of Offenders Act (S.C. 2004, c. 21) ["ITOA"] at ss. 8(1), 10(l)(a), 10(2)(a); Charter of human rights andfreedoms, R.S.Q. c.c-12, ["Charter"] at s.6(1) Charter, at s. 1.
6 6. Currently, the jurisprudence is split on whether the ITOA engages section 6 of the Charter. The CCLA submits that Justice Mainville's dissenting opinion in the Federal Court of Appeal's decision in the within appeal, and Justice Russell in Van Vlymen v Canada, correctly found that sections 8(1), 10(l )(a) and 10(2)(a) of the ITOA constitute prima facie infringements of section 6(1) of the charters3 This position is consistent with other section 6 jurisprudence, Charter jurisprudence and Canada's international law obligations. 7. In contrast with many rights protected under the Charter which are extended to 66 everyone," section 6 only affords protection to "citizens." As Justice Mainville recognized, "the right of a Canadian citizen to enter and to remain in Canada is one of the most fundamental rights associated with citi~enshi~."~ The fundamental nature of this right should guide a purposive interpretation of the scope and application of section 6, to ensure that all citizens have the full benefit of the protection afforded by section The right to enter and remain in Canada, as found in section 6 of the Charter, extends beyond protecting individuals from being expelled, banished or exiled. It also protects against exclusion from membership in the national community, even if the exclusion is only temporary.5 For instance, this Court has held that extradition, a temporary removal from Canada, is aprima facie violation of a Canadian citizen's section 6 right to remain in Canada6 9. Section 6 rights can place a positive duty on the Government to ensure protection of those rights. For instance, the Federal Court and Federal Court of Appeal have found that section 6 places a duty on the Government to issue a passport.7 In Kamel v Canada, the Federal Court of Appeal held that section 6 rights must be interpreted in line with present day political realities. In practice, a person cannot exercise their right to enter or leave Canada without a passport. The Court of Appeal held that the Minister of Foreign Affairs' refusal to issue Mr. Kamel a passport Divito v Canada (Minister of Public Safety and Emergency Preparedness) 2011 FCA 39 at paras. 3, 33,34,44,45 ["Divito"]; Yam Wmsn v Canndln wicifor General) 2004 FC 1054 at paras. 97 and 100 ["Van Vlymen"]. Divito, at para UnitedStntm ofamericov Cofroni, [I98911 S.C.R at paras. 16, 17, 18 ["Cotronr"]. 6 Cotorni, at para. 18; Unfred Stores v B~trns SCC 7 at para. 41. See also: Lake v Minister of Justice 2008 SCJ 23 at para. 28. ' Kamel v Canada (Attorney General), 2009 FCA 21 at paras. 15, 68 rlkamez"]; Abdelrazik v Canada (Minister of Foreign Affairs), 2009 FC 580 at paras. 152, 153 ["'Abdelrazih?'].
7 infringed section 6(1) of the Charter, but found the violation justified under section 1. * 10. In Abdelrazik v Canada, Justice Zinn followed the Federal Court of Appeal in Kamel) supra) and found that the Government had an obligation to issue Mr. Abdelrazik an emergency passport to enable his return to Canada, otherwise his section 6(1) Charter rights would be rendered illusory. Justice Zinn found that the government's refusal to issue the emergency passport was aprima facie breach of section 6(1).~ 11. In holding that section 6 of the Charter is not engaged by the ITOA, the majority decision of the Federal Court of Appeal in this appeal is inconsistent with the above jurisprudence. In the prison transfer system, once the foreign country approves a Canadian citizen's request for a transfer, the only barrier to that individual realizing their right to enter Canada is imposed by the Government of Canada. Once the foreign country approves the transfer request, the individual is physically and legally able to return to Canada - as long as they receive the Canadian government's approval. In these cases, the Government of Canada has a duty to approve the request unless the refusal can be justified under section 1 of the Charter. 12. In denying a Canadian citizen's request for a transfer under the ITOA, the Government of Canada is not merely refusing to administer that individual's sentence. In practical terms, refusing to administer the citizen's sentence prevents that citizen from exercising their right to enter Canada, rendering their rights under s. 6(1) illusory. This is analogous to the government's obligation to issue a passport for a Canadian citizen. Both actions, issuing the passport and administering the sentence, must be done in order for the Government to carry out its obligation to protect and ensure the realization of a citizen's mobility rights. 13. Contrary to the Federal Court of Appeal's majority decision in this appeal, there is a clear causal connection between the Government of Canada's actions and the infringement of the Appellant's rights under section 6(1).1 The ITOA creates an administrative regime which sets the procedural and substantive contours of the constitutional right to enter and remain in Canada "amel, at paras. 15,68. "bdefrazik, at para. 152 '' Divito, at paras
8 for a Canadian citizen incarcerated abroad. Where these procedures, or the decisions made pursuant to these, restrict that right, section 6 is infringed. 14. The case of Blencoe v British Columbia (Human Rights Commission) is distinguishable from the case at bar. In Blencoe, this Court found that there was an insufficient causal connection between the delay in the human rights proceedings against the respondent, Mr. Blencoe, and the prejudice he alleged to have suffered." In contrast, in the case at bar, the Government of Canada's refusal to allow the transfer request means that the Canadian citizen cannot return to Canada until they have served the duration of their sentence. The refusal is what prevents the citizen from entering Canada. Once the foreign country has approved the request, the only impediment to return is imposed by the Canadian government. There is a direct link between the government's refusal and the infringement of the citizen's right to return. 15. The fact that a person is serving a prison sentence as a result of their own conduct has no effect on the scope of this right. In Abdelrazik, Justice Zinn wrote that "Charter rights are not dependent on the wisdom of the choices Canadians make, nor their moral character or political beliefs. Foolish persons have no lesser right under the Charter than those who made wise choice or are considered to be morally and politically upstanding." Moreover, as Justice Russell held in Van Vlymen, a criminal conviction and incarceration do not result in the loss of citizenship.12 Incarceration does not suspend all fundamental rights or the government's duty to protect and respect constitutional rights, including mobility rights, the right to vote, and the right to be treated with dignity and fundamental justice.13 Nor does the fact that the person has engaged in criminal activity deprive the person of his right to protection under the Charter. 11 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at paras. 66, 67, 71. Specifically, this Court found that the prejudice began when the allegations against Mr. Blencoe were made public, which occurred before the human rights proceedings had even commenced, and not a result of the delay. Moreover, there was a pending civil suit against the respondent involving the same allegations, such that the respondent would continue to suffer prejudice from ongoing publicity regardless of the delay in the human rights proceedings l2 Van Vlymen, at para Sauve' v. Canada (Chief Electoral Oflcer), 2002 SCC 68 at paras. 37, 46; May v Ferndale Institution, 2005 SCC 82. See also: the Basic Principles for the Treatment of Prisoners, UN GAOR, 45' Sess., UN Doc. A/RES/45/111 (1990) at para. 5
9 i. The Right to Return is a Fundamental Human Right in International Law 16. The interpretation of the ITOA should be informed by international law.14 A finding that the right to return is not engaged by the ITOA is inconsistent with international law and Canada's international obligations. The right to return to one's own country is a fundamental right in international law that should only be infringed in very limited circumstances. 17. The right to return to one's own country is a subset of the right to freedom of movement and is a fundamental right in international law. This right is found in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the International Convention of the Elimination of All Forms of Racial Discrimination (ICERD) and many regional treaties.15 Canada is signatory to the ICCPR and the ICERD. While Canada has not incorporated these treaties into Canadian law through statute, "values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review." The United Nations Human Rights Committee has affirmed the importance of this right and the limited ability with which a state may interfere with the recognition of this right. In its General Comment 27, the Committee explains that the enforcement of this right extends to all state action, including administrative action, and "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 circumstance^."^^ The Committee goes on to explain that a deprivation of this right will only be reasonable in very limited circumstances, stating that it "considers that there are few, if any, circumstances in which deprivation of the right to enter 14 Baker v. Canada (Minister of Citizenship and Immigration), [I S.C.R. 817 at paras ["Baker"]; R v Hape, 2007 SCC 26 at para Universal Declaration of Human Rights, GA Res. 217 (111), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A18 10 (1948) at art 13(2); International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 art. 12(4) (entered into force 23 March 1976, accession by Canada 19 May 1976); International Convention of the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. art. 5(d)(ii) (entered into force 4 January 1969); American Convention on Human Rights, July , OAS T.S. 36, 1144 U.N.T.S. 123, 9 ILM 99 at Art. 22(5); Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 4, 16 Sept. 1963,213 UNTS 221, Eur. T.S. 5, at Art. 3(2); Apican Charter on Hmma and People S Rights, 27 June 1981, CABlLEGl6713 rev. 5,21 I.L.M. 58 at art. 12(2). '"akcr, at para Human Rights Committee, General Comment 27: Freedom of Movement (Art. 12) UN HRC, 6th Sess., UN Doc. CCPR/C/2 1IRev. lladd.9 (1999) at para. 21 ["General Comment 27"].
10 one's own country could be rea~onable."'~ 19. The Human Rights Committee decisions have also interpreted the scope of Article 12(4) of the ICCPR, which sets out that "no one shall be arbitrarily deprived of the right to enter his own country." A dissenting opinion in Stewart v Canada, found that the determination of whether the deprivation is arbitrary is a weighing process. The grounds relied on to violate the right must be weighed against the circumstances "which make that country his 'own country."' In that case, the dissenting opinion found that deportation due to criminal activities could only be justified in narrow circumstances where there are compelling reasons of national security or public order.i9 20. A corollary to the right to return in international law is a state's obligation to accept the return of their national^.^' This obligation has been recognized by the General Assembly and is found in a number of United Nations General Assembly ~esolutions.~~ Under this obligation, when a national seeks to return through a prison transfer arrangement, the state must accept him or her. 21. Canadians may require access to a large range of programs upon their return to Canada. As this Court stated in Singh v. Canada, administrative costs cannot be used as a basis to justify a violation of a Charter right, although they may be relevant to the section 1 analysis.22 On a practical level, some citizens will only be able to return home as long as those programs, which are customarily available to Canadian citizens, are also guaranteed for them upon entry. B. The Provisions are only Saved by Section 1 in Exceptional Circumstances 22. The CCLA submits that sections 8(1), 10(l)(a) and 10(2)(a) of the ITOA can only 18 General Comment 27, at para. 21. l9 Human Rights Committee, Charles E. Stewart v Canada, Communication No , U.N. Doc. CCPR/C158/D/ (1996) Individual Opinion by Elizabeth Evatt and Cecilia Medina Quiroga, co-signed by Francisco Jose Aguilar Urbina at paras. 8,9. 20 Kay Hailbronner, "National in public international law and european law," in Rainer Baubbck, Eva Ersb011, Kees Groenendijk & Harald Waldrauch, eds, Acquisition and Loss of Nationality, Volume I: Comparative Analyses (Amsterdam: Amsterdam University Press, 2006); T Alexander Aleinikoff, International Dialogue on Migration, (Geneva: International Organization for Migration, 2002) 21 See: Resolution Adopted by the General Assembly: on the Report of the Third Committee, UN GAOR, 5oth Sess., UN Doc. AlRESl (1996) at para. 18; Resolution Adopted by the General Assembly: on the Report of the Third Commitlee, UN GAOR, 51" Sess., UN Doc. NRES151/75 (1997) at para. 17; Resolution Adopted by the General Assem&: on the Report of the Third Comrniltee, UN GAOR, 52nd Sess., UN Doc. AlRESl (1998) at para "~ngh v. Canada (Minister of Employment and immigration) [I SCR 177 at para 73. See also; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54
11 withstand section 1 Charter scrutiny if they are given a restrictive interpretation. Every decision made pursuant to these provisions must be based on its own facts. A denial will only be justified in exceptional circumstances, where there is cogent evidence that the individual's return to a Canadian prison will threaten national security or public safety. In all cases, the evidentiary burden will lie with the Minister to justify the refusal. 23. The purposes of the ITOA are to ensure public safety and foster rehabilitation of offenders and their reintegration into the The CCLA submits that, in the vast majority of cases, approving prison transfers will further the stated goals of the ITOA. The goals of rehabilitation and reintegration through the prison transfer system are reflective of, and consistent with, international conventions to which Canada is a party that encourage the transfer of prisoners to achieve these aims Sections 10(l)(a) and 10(2)(a) of the ITOA focus on the issue of safety. In the vast majority of cases, approving prison transfers will further this goal. If an individual is transferred back to Canada to serve the remainder of their sentence, he or she will be subject to the rules, regulations and policies of Corrections Canada, whose paramount consideration is the protection of society.25 His or her release and reintegration into society will be monitored pursuant to Canadian law, thereby enhancing public safety.26 If the individual's transfer request is denied, when they eventually return to Canada, they do so without supervision or monitoring. This is counter-productive to the protection of Canadian society and, therefore, not rationally connected to the objective of protecting the public from persons considered a "threat" and/or preventing criminal organization offences. 25. The connection between rehabilitation and reintegration programs and public safety is explicitly recognized in the Corrections and Conditional Release Act. Section 3 sets out that rehabilitation and reintegration programs are one of the means of maintaining a peaceful and safe society. Section 3 provides: ITOA, at s See: Convention on the Transfer of Sentenced Persons, 21 March 1983, 1496 U.N.T.S. 91, Eur. T.S. 112; Inter- Americm Cormemtiow on Serving Criminal Sentences Abroad, 6 Sept. 1993, OAS, T.S Corrections and Conditiotral Rele~~se~r Act, S.C. 1992, c.20, s.3.1 ["Corrections and Conditional Releases Act3'] 26 COrrectio~s ar~dlbnditional Rel~nsesAct, ss. 3, 3.1,4(a), 5, 15.1, 76, 100, 100.1, 101, 133(3), 134.1(1), 134.1(2) 135(1).
12 3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peacefil and safe society by (a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community The significance of monitoring and supervision to the rehabilitation and reintegration of prisoners as well as public safety is also well recognized internationally. Article lo(3) of the ICCPR recognizes that reformation and social rehabilitation is the essential aim of the penitentiary system.28 The Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, emphasizes the importance of focusing on the individual's reintegration into society in order to achieve the purpose of protecting society from crime. The guiding principles emphasize the importance of individual release plans, with monitoring and supervision after release, in facilitating an individual's return to society and ensuring his or her compliance with the law At the United Nations Seventh Annual Congress on the Prevention of Crime and the Treatment of Offenders of 1985, the Secretariat adopted a Model Agreement on the Transfer of Foreign Prisoners. This agreement recognizes that social reintegration of prisoners can best be achieved by the transfer of prisoners to serve their sentences in their country of nationality In an article discussing the prisoner transfer program, the former head of the International Prison Transfer Program at the United States Department of Justice, Sylvia Royce, noted that the program ensures that prisoners are then monitored, supervised and receive necessary treatment when released into ~ociety.~' When an individual's transfer request is denied, they lose the ability to have their reintegration monitored and supervised. They then lose a safeguard towards ensuring their rehabilitation and ensuring they are able to reintegrate and become law abiding 27 Corrections and Conditional Releases Act, s.3. ICCPR art. 1'0(3$. 29 Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663C, Supp. No. 1, at 11, U.N. ESCOR, 24th Sess., U,N. Doc. E13048 (hug, 30, 1455) amended by E.S.C. Res. 2076, Supp. No. 1, at 35, U.N. ESCOR, 62d Sess., U.N. Doc. El5988 (May 13, 1 977) at paws , Seventh United Nations Congress on the Prevention qf Crime and the Treatment of OfSenders, Report prepared by (he,tecrer'uria/, Unircd Nutiom Documsnr A/CONF:. 121/22/Rev. I (new York, 1986) at p. 53. " Sylvis Royce, "Intematiai~al Prisoner Transfer" (2009) 21 :3 Federal Sentencing Reporter 186.
13 citizens. This is contrary to the purposes of ITOA. 29. Due to the close and mutually-reinforcing link between international prison transfers and public safety, the CCLA submits that in the vast majority of cases, denying a transfer request will not be rationally connected to the goals of public safety, rehabilitation and reintegration. In a small subset of cases, the government may bring sufficient evidence to fulfil the rational connection requirement. The CCLA submits that, in order to be rationally connected to this stated objective, the government must prove that there are specific, identifiable threats to Canadian society that would result from the individual serving his or her sentence in a Canadian correctional institution. This danger may not simply be inferred from the nature of the individual's conviction, or the circumstances surrounding his or her crime. 30. In his dissenting opinion, Justice Mainville cites examples where, in the CCLA's view, there would be a rational connection between the transfer and threats to Canadian society. For instance, where there is cogent evidence that the transfer of an individual convicted of terrorist offences may result in a retaliatory terrorist attack on Canadian citizens; or where there is cogent evidence that the transfer of an international drug cartel kingpin would result in attacks on Canadian prison guards or facilitate the ongoing criminal operations of the offender Even in the above circumstances, however, a denial will not always minimally impair the individual's rights. Corrections Canada may be able to take reasonable measures to ensure that a transferred individual does not present an ongoing safety risk. A person's Charter right is not minimally impaired when there is an alternative which satisfies the public safety objectives of the ITOA and protects the Charter right Finally, the deleterious effects of the refusal may, in some cases, outweigh the benefits of ensuring public safety. A range of factors, including the impact of a refusal on family reunification, rehabilitation, the individual's ongoing conditions of detention, and unjustified deprivations of rights in the foreign country, must be considered at this stage. In considering 32 Divito, at para. 56 This view is consistent with the dissenting opinion in Stewart v Canada, which as noted above, found that the right can only be violated if there is compelling reasons of national security or public order. It is also consistent with the opinion of the Human Rights Committee in its General Comment where it noted that there, "are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable." 33 See: Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9 at paras 85-87
14 these factors, the possible benefits gained by temporarily mitigating a specific safety concern may be disproportionate to the harm and suffering that would be imposed on an individual and his or her family if the transfer request was denied. 33. In sum, in most cases denying a transfer request will undermine the government's pressing and substantial concerns of public safety, rehabilitation and reintegration. This is a result of the negative consequences of preventing the offender from serving his sentence in his home country, surrounded by his community and family, and of preventing the offender from participating in the Canada Corrections program. In most cases, due to these consequences, there will be no rational connection between the stated goal and the decision to deny a transfer request. The denial would be an unjustified violation of Charter rights. In order to show a rational connection, the government must bring evidence of a specified, proven risk to public safety that would result from an individual's detention in Canada as opposed to continued detention abroad. Finally, even where this evidence exists, there will be cases where the deleterious effects of denying a transfer request will outweigh any benefits to public safety. A wide range of considerations must be taken into account in the final proportionality analysis. PART IV - COSTS 34. The CCLA seek no costs and respectfully ask that no costs are awarded against them. PART V - ORDER SOUGHT 35. The CCLA takes no position on the disposition of the appeal, but respectfully requests that it be determined in light of the submissions set out above. 36. The CCLA respectfully requests leave to present oral arguments of no more than 10 minutes at the hearing of the appeal. All of which is respectfully submitted this 8th day of February, 2013 at Toronto. LORNE WALDMAN Of counsel for the Intervener, The Canadian Civil Liberties Association
15 PART VI - TABLE OF AUTHORITIES Abdelrazik v Canada (Minister of Foreign ASfairs), 2009 FC 580 9, 10 CITED AT PARAGRAPH(S) izenship and Immigration), [I S.C.R. 16 Blencoe v British Columbia (Human Rights Commission), 2000 SCC Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC Divito v Canada (Minister of Public Safty and Emergency Preparedness), Kame1 v Canada (Attorney General), 2009 FCA 21 Lake v Minister of Justice, 2008 SCJ 23 May v Ferndale Institution, 2005 SCC 82 Nova Scotia (Workers' Compensation Board) v Martin, 2003 SCC 54 R v Hape, 2007 SCC 26 Sauve' v Canada (Chief Electoral OfJicer), 2002 SCC 68 Singh v Canada (Minister of Employment and Immigration) [I SCR 177 United States v Burns, SCC 7 United States of America v Cotroni, [I S.C.R , 7, 13, Van Vlymen v Canada (Solicitor General), 2004 FC , 15
16 - SECONDARY SOURCES - INTERNATIONAL INSTRUMENTS AND RESOLUTIONS African Charter on Human and People's Rights, 27 June 1981, CABlLEGl6713 rev. 5,21 I.L.M. 58 CITED AT PARAGRAPH(S) 17 American Convention on Human Rights, July , OAS T.S. 36, U.N.T.S. 123,9 ILM 99 UN Doc. A/RES/45/111 (1 990) Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 4, 16 Sept. 1963,2 13 UNTS 22 1, Eur. T.S. 5 Convention on the Transfer of Sentenced Persons, 21 March 1983,1496 U.N.T.S. 91, Eur. T.S. 112 Inter-American Convention on Serving Criminal Sentences Abroad, 6 Sept International Convention of the Elimination of All Forms of Racial Discrimination, 2 1 December 1965,660 U.N.T. S. art. 5(d)(ii) (entered 17 into force 4 January 1969); 999 U.N.T.S. 171 art. 12(4) (entered into force 23 March 1976, accession 17 by Canada 1 9 May 1 976) Resolution Adopted by the General Assembly: on the Report of the Third Committee, UN GAOR, 51" Sess., UN Doc. A/RES/51/75 (1997) 20 Treatment of Offenders, Report prepared by the Secretariat, UN Doc. AICONF lRev. 1 (New York, 1986) Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663C, Supp. No. 1, at 11, U.N. ESCOR, 24th Sess., U.N. Doc. El3048 (Aug. 30,1955) amended by E.S.C. Res. 2076, Supp. No. 1, at 35, U.N. ESCOR, 62d Sess., U.N. Doc. El5988 (May 13,1977) 27 26
17 Universal Declaration of Human Rights, GA Res (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A1810 (1948) ADDITIONAL SECONDARY SOURCES Human Rights Committee, Charles E. Stewart v Canada, Communication No , U.N. Doc. CCPR/Cl58/D/ (1996) Human Rights Committee, General Comment 27: Freedom of Movement (Art. 12) UN HRC, 6th Sess., UN Doc. CCPR/C/21/Rev.llAdd.9 (1999) Kay Hailbronner, "National in public international law and european law," in Rainer Baubock, Eva Ersb011, Kees Groenendijk & Harald Waldrauch, eds, Acquisition and Loss of Nationality, Volume 1: Comparative Analyses (Amsterdam: Amsterdam University Press, 2006); Sylvia Royce, "International Prisoner Transfer" (2009) 2 1 :3 Federal Sentencing Reporter 186 T Alexander Aleinikoff, International Dialogue on Migration, (Geneva: International Organization for Migration, 2002) CITED AT PARAGRAPH(S) 19,30 18,
18 PART VII - STATUTES AND RULES RELIED ON CONSTITUTIONACT, 1982, c. 11 (U.K.), Schedule B, PART I, CANADIAN CHARTER OF RIGHTS AND FREEDOMS The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 1. La Charte canadienne des droits et liberte's garantit les droits et libertcs qui y sont CnoncCs. 11s ne peuvent Ctre restreints que par une rkgle de droit, dans des limites qui soient raisonnables et dont la justification puisse se ddmontrer dans le cadre d'une socictc libre et dkmocratique. 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. 6. (1) Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en sortir. INTERNATIONAL TRANSFER OF OFFENDERSACT, S.C. 2004, c The purpose of this Act is to enhance public safety and to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals. 3. La prcsente loi a pour objet de renforcer la sccuritc publique et de faciliter l'administration de la justice et la readaptation et la reinsertion sociale des dclinquants en permettant a ceux-ci de purger leur peine dans le pays dont ils sont citoyens ou nationaux. 8. (1) The consent of the three parties to a transfer - the offender, the foreign entity and Canada - is required. 8. (1) Le transfkrement ndcessite le consentement des trois parties en cause, soit le ddlinquant, ltentitc Ctrangkre et le Canada. 10. (1) In determining whether to consent to the transfer of a Canadian offender, the Minister may consider the following factors: (a) whether, in the Minister's opinion, the offender's return to Canada will constitute a threat to the security of Canada; 10. (1) Le ministre peut tenir compte des facteurs ci-aprks pour d6cider s'il consent au transfkrement du dclinquant canadien: a) le fait que, a son avis, le retour au Canada du dclinquant constituera une menace pour la sccuritc du Canada;
19 the transfer of a Canadian or foreign offender, the Minister may consider the following factors: (a) whether, in the Minister's opinion, the offender will, after the transfer, commit a terrorism offence or criminal organization offence within the meaning of section 2 of the Criminal Code; and aprks pour dccider s'il consent transfkrement du dklinquant canadien ou Ctranger : a) a son avis, le dclinquant comrnettra, aprks son transfkrement, une infraction de terrorisme ou une infraction d'organisation criminelle, au sens de l'article 2 du Code criminel; CORRECTIONS AND CONDITIONAL RELEASES ACT, S.C. 1992, c The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by (a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community. 3. Le systkme correctionnel vise & contribuer au maintien d'une socictc juste, vivant en paix et en sccuritc, d'une part, en assurant 1'exCcution des peines par des mesures de garde et de surveillance skcuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropries dans les pknitenciers ou dans la collectivitc, a la rkadaptation des dklinquants et 9 leur reinsertion sociale 9 titre de citoyens respectueux des lois. 3.1 The protection of society is the paramount consideration for the Service in the corrections process. 3.1 La protection de la socictc est le critkre prcpondcrant applique par le Service dans le cadre du processus correctionnel. 4. The principles that guide the Service in achieving the purpose referred to in section 3 are as follows: (a) the sentence is carried out having regard to all relevant available information, including the stated 4. Le Service est guide, dans l'execution du mandat vise i l'article 3, par les principes suivants: a) l'execution de la peine tient compte de toute information pertinente dont le Service dispose,
20 ment les motifs et the sentencing judge, the nature recommandations donncs par le and gravity of the offence, the juge qui l'a prononcee, la nature et degree of responsibility of the la gravitk de l'infraction, le degrc offender, information from the trial de responsabilitk du dclinquant, or sentencing process, the release les renseignements obtenus au policies of and comments from the cours du procbs ou de la I National Parole Board and dbtermination de la peine ou information obtained from victims, fournis par les victimes, les offenders and other components of dklinquants ou d'autres Clkments the criminal justice system; du systbme de justice pcnale, ainsi que les directives ou observations de la Commission nationale des libkrations conditionnelles en ce qui touche la IibCration; I 5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for (a) the care and custody of inmates; 5. Est maintenu le Service correctionnel du Canada, auquel incombent les tiiches suivantes: (a) la prise en charge et la garde des dctenus; (b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community; (b) la mise sur pied de programmes contribuant A la dadaptation des dclinquants et a leur rkinsertion sociale; (c) the preparation of inmates for release; (c) la prkparation des dktenus IibCration; leur (d) parole, statutory release supervision and long-term supervision of offenders; and (e) maintaining a program of public education about the operations of the Service. (4 la supervision a 1'Cgard des mises en libertc conditionnelle ou d'office et la surveillance de longue durce de dclinquants; (e) la mise en oeuvre d'un programme d'dducation publique sur ses activitks (1) The institutional head shall cause a correctional plan to be developed in consultation with the offender as soon as practicable after their reception in a 15.1 (1) Le directeur du pcnitencier veille a ce qu'un plan correctionnel soit Clabork avec le dklinquant le plus t6t possible aprbs son admission au pcnitencier. Le plan comprend