Positive and Negative Mobility Rights: Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47

In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, handed down yesterday, the Supreme Court of Canada was unanimous in upholding the International Transfer of Offenders Act against (a long-shot) constitutional challenge. But the judges mapped out two different routes to that conclusion, evidence I think of difficulty in tracing the contours of the right at issue. Understanding these two routes is important, because it will have an effect on how the Act is treated in future cases. Not all of what follows is in my core area of expertise, so I welcome comments.

First of all, why was the challenge a long shot? The statute allows Canadians (and others) incarcerated abroad to apply for a transfer to a Canadian prison to serve out their sentence(s). It sets out a list of relevant factors in s. 10, such as family ties in Canada, health and likelihood of rehabilitation. It is very difficult to argue that a scheme which grants the right to be considered for a transfer, subject to a list of evidently pertinent conditions is unconstitutional. At the very least, it must be saved under s. 1.

The Court was divided, however, on whether s. 6(1) of the Charter was engaged:

Every citizen of Canada has the right to enter, remain in and leave Canada.

Let us start with the position of the minority:

[64]                          Parliament has crafted a regime whereby once the foreign state has consented to a transfer — thus removing the practical restrictions on an incarcerated citizen’s ability to return to Canada — the sole impediment to the exercise of the citizen’s s. 6(1) right is the Minister’s discretion. A statutory regime that grants a Minister the discretion to determine whether or not citizens can exercise their Charter-protected right to enter Canada constitutes, prima facie, a limit on the s. 6(1) right of the citizens in question.

This position is very attractive. And yet, there seems to be something not quite right about it. No right to request a return existed before the statute was enacted. On the minority approach, it seems at first glance as if the statute created the mobility right.

I think this is what the majority was getting at in the following passage:

[48]                          The mobility rights in s. 6(1) should be construed generously, not literally, and, absent a literal interpretation, I am unable to see how s. 6(1) is breached in the circumstances of this case.  Canadian citizens undoubtedly have a right to enter Canada, but Canadian citizens who are lawfully incarcerated in a foreign jurisdiction cannot leave their prison, let alone leave to come to Canada. What makes the entry to Canada possible is the ITOA. But this possibility does not thereby create a constitutionally protected right to leave a foreign prison and enter Canada whenever a foreign jurisdiction consents to the transfer. Nor does it impose a duty on the Canadian government to permit all such citizens to serve their foreign sentences in Canada. The impugned provisions of the ITOA, which make a transfer possible, do not, as a result, represent a breach of s. 6(1).

I think the root of the difficulty here is the old (and troublesome) distinction between positive and negative rights. Common law courts have always demonstrated great reluctance to impose positive duties on individuals and government officials.

The applicant in this case was, in effect, claiming a positive right to be permitted to return to Canada. This was quite unlike the extradition cases in which s. 6(1) had previously been invoked. Those fall squarely under the "negative rights" rubric: "Hey, government, you cannot deport me". Here, Mr. Divito was saying: "Hey, government, you must let me come home".

In rejecting this claim (or, at least, the idea that the claim fell within s. 6(1)) I think the majority demonstrates the typical common-law reluctance to grant and enforce positive rights.

Yet, the following, puzzling passage also appears in the majority reasons:

[49]                          What is engaged by these provisions, however, is the discretion of the Minister. As this Court noted in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (CanLII), 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 114, “[i]f there is a Charter problem, it lies not in the statute but in the Minister’s exercise of the power the statute gives him. . .”. At its core, Mr. Divito’s argument that the Minister must consent to the transfer of a Canadian citizen once a foreign state has provided its consent calls into constitutional question not the impugned provisions, but the way the discretion is exercised.  This calls for scrutiny of the reasonableness of the exercise of discretion, an issue Mr. Divito has not appealed to this Court.  Notwithstanding that we have not been asked to review the reasonableness of the Minister’s decision in this case, there is no doubt that once a foreign jurisdiction consents to a transfer under s. 8(1) of the ITOA, the Minister’s discretion under ss. 10(1)(a) and 10(2)(a) is fully engaged and must be exercised reasonably, including in compliance with relevant Charter values: Lake v. Canada (Minister of Justice), 2008 SCC 23 (CanLII), 2008 SCC 23, [2008] 1 S.C.R. 761; Sriskandarajah v. United States of America, 2012 SCC 70 (CanLII), 2012 SCC 70, [2012] 3 S.C.R. 609; Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), 2012 SCC 12, [2012] 1 S.C.R. 395.  As this Court explained in Doré, “[o]n judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (para. 57). 

It seems from this passage that a refusal to consent to a transfer does engage the Charter (or, at least, Charter values). But if there is no positive right to return protected by s. 6, how can this be so? Strictly speaking, para. 49 is obiter, because Mr. Divito did not challenge the reasonableness of the Minister's decision (a great pity, because Audrey Macklin, for one of the interveners, produced a terrific factum on how to assess the "proportionate balancing" required post-Doré). It is nonetheless a strong indication that the Court accepts that s. 6(1) cannot simply be ignored.

I think the best answer here flows from a consideration of the positive/negative distinction. One can agree with the majority that s. 6(1) does not guarantee a free-standing right to return. If there were no Act, Mr. Divito could not demand that one be enacted. As such, he has no right to return to Canada.

But the exercise of the s. 6(1) mobility right always requires positive action on the part of the citizen. Take a Canadian citizen holidaying in the United States. It is only at the point of return that the citizen's s. 6(1) right is engaged. The citizen has to decide to return and to ask to be re-admitted before the right has any teeth. A refusal to permit re-entry will engage the right. This is much more firmly on the negative side of the positive/negative distinction.

Here, Mr. Divito's positive action in requesting a transfer engaged the Minister's discretion. And the Minister's exercise of discretion engaged the Charter. But the Act did not engage the Charter, because s. 6(1) does not protect a positive right to request a transfer. In future cases, I expect the courts will accept that s. 6(1) is engaged by ministerial refusals to accord transfers. That seems to be what the majority was driving at in para. 49. Winning such judicial reviews will be difficult post-Doré, but that is another story.

For the record, I think the minority's position is the correct one. If there were no statute, Mr. Divito would still be at liberty to request a transfer. Of course, he could not oblige the Minister to request consent from the transferring jurisdiction or to grant a transfer. But the Minister could not shut his ears to a request from a Canadian citizen. At the point of refusal, s. 6(1) would clearly be engaged, and there would clearly be government action subject to review (under the Charter and also pursuant to the common law principles of judicial review). Understood this way, there is nothing odd about the minority's position. It is not that the Act creates a mobility right; rather, it recognizes a right that already exists and provides an appropriate enforcement mechanism.

I am not sure, however, that minority adequately responded to the fear that recognizing a s. 6(1) right here would open the floodgates to Canadians requesting plane tickets to return home (see para. 65). It is clear in the present case there is very obvious state action in the form of the Act. But even in the case of a citizen asking for his or her plane fare (or an airlift), there is a refusal to exercise a power (either statutory or prerogative). Perhaps air fare cases are easier to categorize as (illegitimate) requests for positive rights. Or perhaps they simply demonstrate the dreadful slipperiness of the positive/negative distinction.