Rights of Canadians detained abroad argued at Supreme Court

Millions of Canadians travel abroad. Each year, some are charged and convicted of crimes in foreign countries.  These individuals are often detained for long periods of time in foreign prisons, far from their families.  Many will be surrounded by a foreign bureaucracy, culture and language, and may be subject to conditions that fall far below what Canadians would view as acceptable. Over thirty years ago we realized that there was little to be gained by forcing people to serve their prison sentences abroad.  Both for the rehabilitation of offenders, the interest of their family and public safety in general, a sentence in a prison of the country of citizenship is often preferable.  Language barriers, isolation, difficulties in contacting families and friends, and, in some countries, prison conditions may make the sentence particularly harsh or undermine any possibility of rehabilitation and reintegration. For Canadian families, the difficulty and costs of maintaining contact with a loved one may be significant. And since citizens have a right to return to their country of citizenship after their sentence is completed, there is an interest in ensuring that they have access to rehabilitation programs while in prison.  It is for these reasons that most countries have entered into multi-state conventions of bilateral arrangements to provide for such transfers. It is indeed viewed as enhancing public security and not diminishing it to ensure proper rehabilitation to offenders who are more than likely to come back in the country.

In Canada, the International Transfer of Offenders Act was put into place to facilitate precisely this return and rehabilitation.  Once an offender and the foreign detaining country have given their approval, a person can ask the Canadian government to approve the transfer to a Canadian institution.  In recent years, however, the federal Minister vetting these applications has drastically decreased the approval rates – from 100% approval of all recommended transfers between 1999 and 2005, to just 27% approved in 2009-2010.  And in numerous court cases, time after time, judges have reprimanded the Canadian government for improper decision-making and failing to articulate why they are refusing to allow people to complete their sentences in Canada.

Now the question has come to the Supreme Court of Canada: if a Canadian wants to transfer to a prison in Canada, and the foreign government agrees to the transfer, when can the Canadian government refuse to take a citizen back?  And if they do, does it engage a citizen’s constitutionally-protected right to enter Canada?

On February 18, 2013 CCLA appeared before the Supreme Court of Canada to argue that the government’s decisions in these cases does engage Canadians’ mobility rights, which are constitutionally protected under s. 6 of the Charter.  And although there may be a few exceptional situations where transferring a person to a Canadian prison would actually increase immediate safety risks, in the vast majority of cases public safety will be served by allowing a Canadian citizen to be near their family, to access programs, and be subject to appropriate Canadian supervision.

To read CCLA’s factum click here.