The supreme court of Canada and the offender’s right to be transferred to serve his sentence in Canada: interpreting the international transfer of offenders act in light of Canada’s national and international human rights obligations

• Authors: Jamil Ddamulira Mujuzi
• Languages of publication: EN

Abstracts

EN

In September 2013 in the case of Divito v Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada dealt with the issue of whether section 6(1) of the Canadian Charter of Rights and Freedoms, the Charter, which grants Canadians the right to enter Canada was violated in a case where the Minister of Public Safety and Emergency Preparedness declined to consent to the transfer of a Canadian citizen to serve his sentence in Canada where the sentencing state had consented to the transfer. Another issue was whether sections 8(1) and 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act, which granted the Minister the discretion to consent or not to consent to the transfer, were contrary to section 6(1) of the Charter. In resolving the above issues, the Court referred to its earlier jurisprudence, academic publications and international law. Although the Court agreed with the government that the appeal was moot because the appellant had left the USA by the time it was heard, it held that it retained “a residual discretion to decide the merits of a moot appeal if the issues raised are of public importance” and that this case was one of public importance because “[t]he issues are likely to recur in the future and there is some uncertainty resulting from conflicting decisions in the Federal Court.” The purpose of this article is to highlight the interpretative tools invoked by the court and the implications of the judgement.

Keywords

EN

Supreme Court; Canada; transfer; offender; rights; rehabilitation

• Publisher: Sciendo
• Journal: Baltic Journal of Law & Politics
• Year: 2013
• Volume: 6
• Issue: 2
• Pages: 102-123

Dates

published

2013-12-01

online

2014-02-27

Contributors

author

Jamil Ddamulira Mujuzi

• Associate Professor; Research Fellow University of the Western Cape Faculty of Law (Republic of South Africa) University of the Western Cape Community Law Centre (Republic of South Africa)

References

• 1. Bassan, Daniela. “The Canadian Charter and Public International Law: Redefining the State’s Power to Deport Aliens.” Osgoode Hall Law Journal 34:3 (1996): 584-625.
• 2. Bossuyt, Marc J. Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights. Dordrecht: Martinus Nijhoff Publishers, 1987.
• 3. Claydon, John. “Use of International Human Rights Law to Interpret Canada's Charter of Rights and Freedoms.” Connecticut Journal of International Law 2 (1986-1987): 349-360.
• 4. Concluding Observations of the Human Rights Committee on Croatia’s Initial Report. CCPR/CO/71/HRV (April 30, 2001).
• 5. Hayward, M. Ann. “International Law and the Interpretation of the Canadian Charter of Rights and Freedoms: Uses and Justifications.” University of Western Ontario Law Review 23 (1985): 9-20.
• 6. Mujuzi, Jamil D. “Analysing the Agreements (Treaties) on the Transfer of Sentenced Persons (Offenders/Prisoners) between the United Kingdom and Asian, African and Latin American Countries.” European Journal of Crime, Criminal Law and Criminal Justice 20 (2012): 377 - 414.
• 7. Mujuzi, Jamil D. “The Transfer of Offenders from Other Countries to Canada: Analysing the Theory and Practice.” The Chinese Journal of Comparative Law (2013): 1-35 // doi:10.1093/cjcl/cxt019.[Crossref]
• 8. Nowak, Manfred. U.N. Covenant on Civil and Political Rights: CCPR Commentary. Kehl: N.P. Engel, 1993.
• 9. Plachta, Michael. “Human Rights Aspects of the Prisoner Transfer in a Comparative Perspective.” Louisiana Law Review 53 (1993): 1043-1089.
• 10. Plachta, Michael. Transfer of Prisoners under International Instruments and Domestic Legislation: A Comparative Study. Freiburg: Max Planck Institute for Foreign and International Criminal Law, 1993.
• 11. Report of the Working Group on Arbitrary Detention, Mission to Italy.A/HRC/10/21/Add.5 (January 26, 2009).
• 12. United Nations Human Rights Committee. Concluding Observations: Kuwait.CCPR/CO/69/KWT (July 27, 2000).
• 13. United Nations Office on Drugs and Crime. Handbook on the International Transfer of Sentenced Persons. New York, 2012
• 1. A.S., on her own behalf and on behalf of her daughter and grandson v.Canada. Human Rights Committee Case. 068/1980.
• 2. Agreement between Canada and France on the Transfer of Inmates and the Supervision of Persons under Sentence. E102458-CTS 1984, No. 32.
• 3. Agreement between the Government of Canada and the Government of Barbados on the Transfer of Offenders. E104967, Canada Treaty Series, 2003/8.
• 4. Agreement between the Government of Canada and the Government of the Arab Republic of Egypt on the Transfer of Sentenced Persons. E102464-CTS 2000, No. 9.
• 5. Agreement of Co-Operation Regarding the Transfer of Persons Incarcerated Under Sentence between the Government of Canada and the Government of the Kingdom of Morocco. E102460-CTS 1996, No. 32.
• 6. Albert Womah Mukong v. Cameroon. Human Rights Committee Case. 458/1991.
• 7. Ati Antoine Randolph v. Togo. Human Rights Committee Case. 910/2000.
• 8. Catenacci v. Canada (Attorney General). 2006 CarswellNat 1364, 2006 FC 539, 144 C.R.R. (2d) 128, 291 F.T.R. 215.
• 9. Charles E. Stewart v. Canada. Human Rights Committee Case. 538/1993.
• 10. Divito v. Canada (Public Safety and Emergency Preparedness). 2013 SCC 47 (September 19, 2013).
• 11. Francesco and Anna Madafferi and their children v. Australia. Human Rights Committee Case. 1011/2001.
• 12. Giosue Canepa v. Canada. Human Rights Committee Case. 558/1993.
• 13. Jama Warsame v. Canada. Human Rights Committee Case. 1959/2010.
• 14. Luis Asdrúbal Jiménez Vaca v. Colombia. Human Rights Committee Case. 859/1999.
• 15. Plepi v. Albania and Greece. 51 EHRR 3, 53 (2010).
• 16. Ruediger Schlosser v. Czech Republic. Human Rights Committee Case. 670/1995.
• 17. Simalae Toala et al. v. New Zealand. Human Rights Committee Case. 675/1995.
• 18. Treaty between Canada and Bolivia on the Transfer of Inmates and the Supervision of Persons under Sentence. E102457-CTS 1985, No. 4.
• 19. Treaty between Canada and the United Mexican States on the Execution of Penal Sentences. E102459-CTS 1979, No. 3.
• 20. Treaty between Canada and the United States of America on the Execution of Penal Sentences. E102461-CTS 1978, No. 12.
• 21. Treaty between the Government of Canada and the Government of Mongolia on the Transfer of Offenders. E105008, Canada Treaty Series 2005/2.
• 22. Treaty between the Government of Canada and the Government of the Argentine Republic on the Transfer of Offenders. E104972, Canada Treaty Series, 2008/14.
• 23. Treaty between the Government of Canada and the Government of the Republic of Cuba on the Serving of Penal Sentences. E103276-CTS 1999, No.24.
• 24. Treaty between the Government of Canada and the Government of the Dominican Republic on the Transfer of Offenders. E105031, Canada Treaty Series 2007/4.
• 25. Treaty between the Government of Canada and the Government of the Republic of Peru on the Execution of Penal Sentences. E102465-CTS 1980, No. 15.
• 26. Treaty on Cooperation in the Execution of Penal Sentences between the Government of Canada and the Government of the Kingdom of Thailand.E103412-CTS 1988, No. 24.
• 27. Treaty on Transfer of Offenders between Canada and the Federative Republic of Brazil. E102462-CTS 1998, No. 8.

Identifiers

DOI

10.2478/bjlp-2013-0013