International Transfer of Offenders Act (S.C. 2004, c. 21)

Act current to 2017-07-03 and last amended on 2014-12-06. Previous Versions

Marginal note:Factors — Canadian offenders
  •  (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;

    • (b) whether, in the Minister’s opinion, the offender’s return to Canada will endanger public safety, including

      • (i) the safety of any person in Canada who is a victim, as defined in subsection 2(1) of the Corrections and Conditional Release Act, of an offence committed by the offender,

      • (ii) the safety of any member of the offender’s family, in the case of an offender who has been convicted of an offence against a family member, or

      • (iii) the safety of any child, in the case of an offender who has been convicted of a sexual offence involving a child;

    • (c) whether, in the Minister’s opinion, the offender is likely to continue to engage in criminal activity after the transfer;

    • (d) whether, in the Minister’s opinion, the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;

    • (e) whether, in the Minister’s opinion, the foreign entity or its prison system presents a serious threat to the offender’s security or human rights;

    • (f) whether the offender has social or family ties in Canada;

    • (g) the offender’s health;

    • (h) whether the offender has refused to participate in a rehabilitation or reintegration program;

    • (i) whether the offender has accepted responsibility for the offence for which they have been convicted, including by acknowledging the harm done to victims and to the community;

    • (j) the manner in which the offender will be supervised, after the transfer, while they are serving their sentence;

    • (k) whether the offender has cooperated, or has undertaken to cooperate, with a law enforcement agency; or

    • (l) any other factor that the Minister considers relevant.

  • Marginal note:Factors — Canadian and foreign offenders

    (2) In determining whether to consent to 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

    • (b) whether the offender was previously transferred under this Act or the Transfer of Offenders Act, chapter T-15 of the Revised Statutes of Canada, 1985.

  • Marginal note:Additional factor — Canadian young persons

    (3) In determining whether to consent to the transfer of a Canadian offender who is a young person within the meaning of the Youth Criminal Justice Act, the Minister and the relevant provincial authority shall consider the best interests of the young person.

  • Marginal note:Primary consideration — Canadian children

    (4) In determining whether to consent to the transfer of a Canadian offender who is a child within the meaning of the Youth Criminal Justice Act, the primary consideration of the Minister and the relevant provincial authority is to be the best interests of the child.

  • 2004, c. 21, s. 10;
  • 2012, c. 1, s. 136.
Marginal note:Writing
  •  (1) A consent, a refusal of consent or a withdrawal of consent is to be given in writing.

  • Marginal note:Reasons

    (2) If the Minister does not consent to a transfer, the Minister shall give reasons.

Marginal note:Consent voluntary

 The Minister shall take all reasonable steps to determine whether an offender’s consent has been given voluntarily.

Continued Enforcement and Adaptation

Marginal note:Continued enforcement

 The enforcement of a Canadian offender’s sentence is to be continued in accordance with the laws of Canada as if the offender had been convicted and their sentence imposed by a court in Canada.

Marginal note:Adaptation

 Subject to subsection 17(1) and section 18, if, at the time the Minister receives a request for the transfer of a Canadian offender, the sentence imposed by the foreign entity is longer than the maximum sentence provided for in Canadian law for the equivalent offence, the Canadian offender is to serve only the shorter sentence.

Marginal note:Equivalent offence

 For the purposes of the application of any Act of Parliament to a Canadian offender, the Minister shall identify the criminal offence that, at the time the Minister receives their request for a transfer, is equivalent to the offence of which the Canadian offender was convicted.

Probation

Marginal note:Deemed probation order

 A foreign sentence that consists of a period of supervision, other than by reason of conditional release — or a period of supervision that is, other than by reason of a conditional release, an element of a foreign sentence of imprisonment of less than two years — is deemed to be a probation order under section 731 of the Criminal Code, to a maximum of three years, or under paragraph 42(2)(k) of the Youth Criminal Justice Act, to a maximum of two years.

Young Persons

Marginal note:Transfer of young person — 12 or 13 years old
  •  (1) Subject to subsection (2), and if the following conditions are met, the maximum sentence to be enforced in Canada is the maximum youth sentence that could have been imposed under the Youth Criminal Justice Act:

    • (a) the Canadian offender was, at the time the offence was committed, 12 or 13 years old; and

    • (b) their sentence is longer than the maximum youth sentence that could have been imposed under that Act for an equivalent offence.

  • Marginal note:Sentence for young person convicted of murder — 12 or 13 years old

    (2) A Canadian offender who was 12 or 13 years old at the time the offence was committed and whose conduct, if it had occurred in Canada, would have constituted first or second degree murder within the meaning of section 231 of the Criminal Code is required to serve

    • (a) the sentence imposed by the foreign entity — if less than ten years, in the case of first degree murder, or less than seven years, in the case of second degree murder — consisting, in the same proportion as in paragraph 42(2)(q) of the Youth Criminal Justice Act, of a committal to custody and a placement under conditional supervision to be served in the community; or

    • (b) the maximum sentence that could be imposed under paragraph 42(2)(q) of that Act if the sentence imposed by the foreign entity was ten years or more in the case of first degree murder or seven years or more in the case of second degree murder.

Marginal note:Transfer of young person — 14 to 17 years old

 A Canadian offender is deemed to be serving an adult sentence within the meaning of the Youth Criminal Justice Act if

  • (a) the Canadian offender was, at the time the offence was committed, from 14 to 17 years old; and

  • (b) their sentence is longer than the maximum youth sentence that could have been imposed under that Act for an equivalent offence.

Marginal note:Parole eligibility for young person convicted of murder — 14 to 17 years old
  •  (1) A Canadian offender who was from 14 to 17 years old at the time the offence was committed, and who was sentenced to imprisonment for life for conduct that, if it had occurred in Canada, would have constituted first or second degree murder within the meaning of section 231 of the Criminal Code, is deemed to be serving an adult sentence within the meaning of the Youth Criminal Justice Act. They are eligible for full parole on the day on which they have served the shorter of

    • (a) the period of ineligibility imposed by the foreign entity, and

    • (b) either

      • (i) five years, if they were 14 or 15 years old at the time the offence was committed, or

      • (ii) ten years, in the case of first degree murder, or seven years, in the case of second degree murder, if they were 16 or 17 years old at the time the offence was committed.

  • Marginal note:Deemed to have received adult sentence

    (2) A Canadian offender who was from 14 to 17 years old at the time the offence was committed and who received a sentence for a determinate period of more than ten years for conduct that, if it had occurred in Canada, would have constituted first degree murder within the meaning of section 231 of the Criminal Code — or of more than seven years for conduct that, if it had occurred in Canada, would have constituted second degree murder within the meaning of that section — is deemed to have received an adult sentence within the meaning of the Youth Criminal Justice Act.

  • Marginal note:Deemed to have received youth sentence

    (3) A Canadian offender who was from 14 to 17 years old at the time the offence was committed and who received a sentence for a determinate period of ten years or less for conduct that, if it had occurred in Canada, would have constituted first degree murder within the meaning of section 231 of the Criminal Code — or of seven years or less for conduct that, if it had occurred in Canada, would have constituted second degree murder within the meaning of that section — is deemed to have received a youth sentence within the meaning of the Youth Criminal Justice Act.

 
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