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Top court rejects mobster Pierino Divito’s appeal to return to Canada

The Supreme Court of Canada building in Ottawa.

DAVE CHAN/The Globe and Mail

Canadian citizens jailed in foreign countries may have a bone to pick with Montreal mobster Pierino Divito.

A lawyer for the 76-year-old went to the Supreme Court of Canada to argue that the right to enter Canada is virtually absolute for citizens, including those incarcerated abroad, if a foreign jurisdiction consents to transfer them back home.

Civil liberties advocates picked up the cause, arguing that rejections should be rare. Under the Conservative government, Canada approved just 27 per cent of transfer requests in 2009-10, down from 100 per cent between 1999 and 2005, the Canadian Civil Liberties Association told the Supreme Court.

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But Mr. Divito did not make for a sympathetic figure.

He was once convicted in an attempt to import $3-billion of cocaine into Nova Scotia and New Brunswick. His trail of offences stretches back to 1962. Four Canadian courts have found him to have been involved in organized crime. His criminal career was so prolific that he was extradited to Florida to serve seven years for cocaine trafficking while he was in the midst of an 18-year sentence in Canada. (Florida had no objection to sending him back to a Canadian prison.)

"It was a long shot," University of Montreal law professor Paul Daly said.

The Supreme Court of Canada was unanimous in rejecting Mr. Divito's claims on Thursday. It ruled that Canadian citizens have no automatic right to be transferred to a jail back home in Canada, even when foreign authorities don't stand in their way.

Justice Rosalie Abella said in her ruling that protections of citizens' mobility rights grew out of the cataclysmic events of the Second World War. She quoted philosopher Hannah Arendt's observation that the "right to have rights" flows from citizenship. The mobility rights in the Canadian Constitution have been defined as a protection against banishment and exile.

But Justice Abella, whose personal history is marked by banishment and cataclysm – she was born in a European displaced-persons camp to Holocaust survivors – found Mr. Divito's claim impossible to accept.

Mobility rights should be understood "generously, not literally," she wrote.

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Under Canadian law, the government has the discretion to reject a prisoner's request to be transferred to a Canadian jail, if the Public Safety Minister believes it would put national security at risk. Courts have on several occasions ordered the Conservative government to accept certain prison transfers, ruling that the rejections by former ministers Vic Toews, Peter Van Loan and Stockwell Day were unreasonable. (In some of these cases, Canadian corrections authorities regarded a prisoner as not a risk, but the government ignored that finding.)

Mr. Divito argued that a prisoner does not constitute a threat to security until he is released, but the court said that a prisoner may be a threat to jail guards and others while incarcerated.

"This decision leaves a lot of discretion for the Minister [of Public Safety]," Prof. Daly says.

As for Mr. Divito himself, the ruling won't matter much, unless there's a next time – his sentence ran out in late March.

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