Short Title

Marginal note:Short title

1 This Act may be cited as the International Transfer of Offenders Act.

Interpretation

Marginal note:Definitions

2 The following definitions apply in this Act.

Canadian offender

délinquant canadien

Canadian offender means a Canadian citizen within the meaning of the Citizenship Act who has been found guilty of an offence — and is detained, subject to supervision by reason of conditional release or probation or subject to any other form of supervision in a foreign entity — and whose verdict and sentence may no longer be appealed. (délinquant canadien)

criminal offence

infraction criminelle

criminal offence means an offence against an Act of Parliament. (infraction criminelle)

foreign entity

entité étrangère

foreign entity, other than in sections 31 and 32, means a foreign state — or a province, state or other political subdivision of a foreign state, a colony, dependency, possession, protectorate, condominium, trust territory or any territory falling under the jurisdiction of a foreign state or a territory or other entity, including an international criminal tribunal — with which Canada has entered into a treaty on the transfer of offenders or an administrative arrangement referred to in section 31 or 32. (entité étrangère)

foreign offender

délinquant étranger

foreign offender means a citizen or national of a foreign entity who has been found guilty of a criminal offence — and is detained, subject to supervision by reason of conditional release or probation or subject to any other form of supervision in Canada — and whose verdict and sentence may no longer be appealed. (délinquant étranger)

Minister

ministre

Minister means the Solicitor General of Canada. (ministre)

penitentiary

pénitencier

penitentiary has the same meaning as in subsection 2(1) of the Corrections and Conditional Release Act. (pénitencier)

prison

prison

prison means a place of confinement other than a penitentiary. (prison)

treaty

traité

treaty includes an international agreement or convention, but does not include an administrative arrangement entered into under section 31 or 32. (traité)

Purpose and Principles

Marginal note:Purpose

3 The purpose of this Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

Marginal note:Dual criminality

• 4 (1) Subject to subsection (3), a transfer is not available unless the Canadian offender’s conduct would have constituted a criminal offence if it had occurred in Canada at the time the Minister receives the request for a transfer.

• Marginal note:Conduct determinative

  (2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the foreign entity in the same way as it is in Canada.

• Marginal note:Exception — children

  (3) A transfer is available to a Canadian offender who, at the time the offence was committed, was a child within the meaning of the Youth Criminal Justice Act even if their conduct would not have constituted a criminal offence if it had occurred in Canada at that time. That offender may not be detained in Canada.

Marginal note:Effect of transfer

• 5 (1) A transfer may not have the effect of increasing a sentence imposed by a foreign entity or of invalidating a guilty verdict rendered, or a sentence imposed, by a foreign entity. The verdict and the sentence, if any, are not subject to any appeal or other form of review in Canada.

• Marginal note:Evidence

  (2) A document supplied by a foreign entity that sets out a finding of guilt and a sentence, if any, and purports to be signed by a judicial official or a director of a place of confinement in the foreign entity is proof of the facts alleged, in the absence of evidence to the contrary and without proof of the signature or official character of the person appearing to have signed it.

Minister

Marginal note:Administration of Act

• 6 (1) The Minister is responsible for the administration of this Act.

• Marginal note:Designation by Minister

  (2) The Minister may, in writing, designate, by name or position, a staff member within the meaning of subsection 2(1) of the Corrections and Conditional Release Act to act on the Minister’s behalf under section 8, 12, 15, 24, 30 or 37.

Marginal note:Request for transfer

7 A person may not be transferred under a treaty, or an administrative arrangement entered into under section 31 or 32, unless a request is made, in writing, to the Minister.

Consent

Marginal note:Consent of three parties

• 8 (1) The consent of the three parties to a transfer — the offender, the foreign entity and Canada — is required.

• Marginal note:Withdrawal of consent

  (2) A foreign offender — and, subject to the laws of the foreign entity, a Canadian offender — may withdraw their consent at any time before the transfer takes place.

• Marginal note:Information about treaties

  (3) The Minister or the relevant provincial authority, as the case may be, shall inform a foreign offender, and the Minister shall take all reasonable steps to inform a Canadian offender, of the substance of any treaty — or administrative arrangement entered into under section 31 or 32 — that applies to them.

• Marginal note:Information about sentence

  (4) The Minister shall, in writing, inform a Canadian offender as to how their foreign sentence is to be served in Canada and shall deliver to a foreign offender the information provided to the Minister by the foreign entity as to how their Canadian sentence is to be served.

• Marginal note:Person authorized to consent

  (5) In respect of the following persons, consent is given by whoever is authorized to consent in accordance with the laws of the province where the person is detained, is released on conditions or is to be transferred:

  • (a) a child or young person within the meaning of the Youth Criminal Justice Act;

  • (b) a person who is not able to consent and in respect of whom a verdict of not criminally responsible on account of mental disorder or of unfit to stand trial has been rendered; and

  • (c) an offender who is not able to consent.

Marginal note:Provincial authority

• 9 (1) If a foreign offender is — or a Canadian offender would, after their transfer, be — under the authority of a province or if a Canadian offender is a child within the meaning of the Youth Criminal Justice Act, the consent of the Minister and the relevant provincial authority is required.

• Marginal note:Purpose and principles

  (2) In determining whether to consent to a transfer, the provincial authority shall take into account the purpose and principles of this Act.

Marginal note:Factors — Canadian offenders

• 10 (1) In determining whether to consent to the transfer of a Canadian offender, the Minister shall consider the following factors:

  • (a) whether the offender’s return to Canada would constitute a threat to the security of Canada;

  • (b) whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;

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

  • (d) whether the foreign entity or its prison system presents a serious threat to the offender’s security or human rights.

• Marginal note:Factors — Canadian and foreign offenders

  (2) In determining whether to consent to the transfer of a Canadian or foreign offender, the Minister shall 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.

Marginal note:Writing

• 11 (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

12 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

13 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

14 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

15 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

16 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

• 17 (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

18 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

• 19 (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.

Marginal note:Placement

20 A Canadian offender who was from 12 to 17 years old at the time the offence was committed is to be detained

• (a) if the sentence imposed in the foreign entity could, if the offence had been committed in Canada, have been a youth sentence within the meaning of the Youth Criminal Justice Act,

  • (i) in the case of an offender who was less than 20 years old at the time of their transfer, in a youth custody facility within the meaning of that Act, and

  • (ii) in the case of an offender who was at least 20 years old at the time of their transfer, in a provincial correctional facility for adults; and

• (b) if the sentence imposed in the foreign entity could, if the offence had been committed in Canada, have been an adult sentence within the meaning of that Act,

  • (i) in the case of an offender who was less than 18 years old at the time of their transfer, in a youth custody facility within the meaning of that Act,

  • (ii) in the case of an offender who was at least 18 years old at the time of their transfer, in a provincial correctional facility for adults if their sentence is less than two years, and

  • (iii) in the case of an offender who was at least 18 years old at the time of their transfer, in a penitentiary if their sentence is at least two years.

Sentence Calculation

Marginal note:Where committed

21 Subject to section 20, a Canadian offender who was detained in a foreign entity is to be detained in Canada in

• (a) a prison if they were sentenced to imprisonment for less than two years; or

• (b) a penitentiary if they were sentenced to imprisonment for two years or more.

Marginal note:Credit towards completion of sentence

• 22 (1) The length of a Canadian offender’s sentence equals the length of the sentence imposed by the foreign entity minus any time that was, before their transfer, recognized by the foreign entity as a reduction, other than time spent in confinement after the sentence was imposed.

• Marginal note:Credit for time spent in confinement

  (2) The time that a Canadian offender spent in confinement, after the sentence was imposed and before their transfer, is subtracted from the length of the sentence determined in accordance with subsection (1). The resulting period constitutes the period that the offender is to serve on the sentence.

Marginal note:Eligibility for parole — general

23 Subject to sections 19 and 24, a Canadian offender who is transferred to Canada is eligible for full parole on the day on which they have served, commencing on the day on which they commenced serving their sentence, the lesser of seven years and one third of the length of the sentence as determined under subsection 22(1).

Marginal note:Eligibility for parole — murder

• 24 (1) Subject to subsections 17(2) and 19(1), if a Canadian offender was sentenced to imprisonment for life for an offence that, if it had been committed in Canada, would have constituted murder within the meaning of the Criminal Code, their full parole ineligibility period is 10 years. If, in the Minister’s opinion, the documents supplied by the foreign entity show that the circumstances in which the offence was committed were such that, if it had been committed in Canada after July 26, 1976, it would have been first degree murder within the meaning of section 231 of that Act, the full parole ineligibility period is 15 years.

• Marginal note:Multiple murders

  (2) Subject to subsection (3), if a Canadian offender who was subject to a sentence of imprisonment for life for a conviction for murder, or an offence that, if it had been committed in Canada, would have constituted murder, within the meaning of the Criminal Code, received an additional sentence of imprisonment for life — imposed by the foreign entity for a conviction for an offence that, if it had been committed in Canada, would have constituted murder within the meaning of that Act — the full parole ineligibility period in respect of the additional sentence is established under section 745 of that Act.

• Marginal note:Exception — second degree murder

  (3) If the additional sentence referred to in subsection (2) is in respect of a conviction for an offence that, if it had been committed in Canada, would have constituted second degree murder within the meaning of section 231 of the Criminal Code — and if the offence was committed before all of the Canadian offender’s convictions for murder, or for offences that, if they had been committed in Canada, would have constituted murder, within the meaning of that Act — the full parole ineligibility period in respect of the additional sentence is 10 years.

• Marginal note:Credit for time spent in custody

  (4) In calculating the period of imprisonment for the purpose of this section, the time served by an offender includes any time spent in custody between the day on which they were arrested and taken into custody for the offence for which they were sentenced and the day on which the sentence was imposed.

Marginal note:Temporary absence and day parole — persons convicted of murder

25 Subject to section 746.1 of the Criminal Code,

• (a) a Canadian offender who is transferred to Canada — and was sentenced to imprisonment for life for an offence that, if it had been committed in Canada, would have constituted murder within the meaning of that Act — is eligible for day parole in accordance with the Corrections and Conditional Release Act and for an absence without escort in accordance with the Corrections and Conditional Release Act or the Prisons and Reformatories Act; and

• (b) their absence with escort may be authorized in accordance with the Corrections and Conditional Release Act or the Prisons and Reformatories Act.

Marginal note:Statutory release — penitentiary

• 26 (1) If a Canadian offender is detained in a penitentiary, they are entitled to be released on statutory release on the day on which they have served, commencing on the day of their transfer, two thirds of the period determined in accordance with subsection 22(2).

• Marginal note:Release — prison

  (2) If a Canadian offender is detained in a prison, they are entitled to be released on the day on which they have served, commencing on the day of their transfer, the period determined in accordance with subsection 22(2) less the amount of any remission earned under the Prisons and Reformatories Act on that period.

Marginal note:If eligible for parole, etc., before transfer

27 If, under the Corrections and Conditional Release Act or the Criminal Code, the day on which a Canadian offender is eligible for a temporary absence, day parole or full parole is before the day of their transfer, the day of their transfer is deemed to be their day of eligibility.

Marginal note:Review by Board

28 Despite sections 122 and 123 of the Corrections and Conditional Release Act, the National Parole Board is not required to review the case of a Canadian offender until six months after the day of their transfer.

Marginal note:Application

• 29 (1) Subject to this Act, a Canadian offender who is transferred to Canada is subject to the Corrections and Conditional Release Act, the Prisons and Reformatories Act and the Youth Criminal Justice Act as if they had been convicted and their sentence imposed by a court in Canada.

• Marginal note:Canadian sentence

  (2) If, before the transfer, a Canadian offender is subject to a Canadian sentence of imprisonment, they are

  • (a) eligible for full parole on the later of

    • (i) the day established in accordance with section 19, 23 or 24, as the case may be, and

    • (ii) the full parole eligibility date established under the Corrections and Conditional Release Act; and

  • (b) entitled to statutory release on the later of

    • (i) the day established in accordance with section 26, and

    • (ii) the statutory release date established under that Act.

Compassionate Measures

Marginal note:Canadian offender

• 30 (1) A Canadian offender shall benefit from any compassionate measures — including a cancellation of their conviction or shortening of their sentence — taken by a foreign entity after the transfer.

• Marginal note:Foreign offender

  (2) The Minister shall take all reasonable steps to inform the foreign entity and the foreign offender of any compassionate measures taken by Canada after the transfer.

Administrative Arrangements

Marginal note:Administrative arrangements — offenders

31 If no treaty is in force between Canada and a foreign entity on the transfer of offenders, the Minister of Foreign Affairs may, with the consent of the Minister, enter into an administrative arrangement with the foreign entity for the transfer of an offender in accordance with this Act.

Marginal note:Administrative arrangements — mentally disordered persons

• 32 (1) If the relevant provincial authority consents to the transfer, the Minister of Foreign Affairs may, with the consent of the Minister, enter into an administrative arrangement with a foreign entity for the transfer, in accordance with this Act, of a person in respect of whom a verdict of unfit to stand trial or not criminally responsible on account of mental disorder was rendered and may no longer be appealed.

• Marginal note:Consent — provincial authority

  (2) The consent of a provincial authority to a transfer under this section shall take into account the purpose and principles of this Act. Consent to the transfer of a person in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered — or of a citizen or national of a foreign entity in respect of whom a verdict of unfit to stand trial has been rendered — is given by the attorney general of a province or, in the case of a territory, the Attorney General of Canada, on the recommendation of the relevant Review Board established under section 672.38 of the Criminal Code. Consent to the transfer of a Canadian citizen in respect of whom a verdict of unfit to stand trial has been rendered in a foreign entity is given by the relevant provincial authority.

• Marginal note:Factors — provincial authority

  (3) A Review Board, in deciding whether to recommend to the attorney general that a person be transferred — and the relevant provincial authority, in deciding whether to consent to a transfer under subsection (2) — shall consider the following factors:

  • (a) the best interests of the person, including their mental condition, the likelihood of their reintegration into society and their treatment and other needs; and

  • (b) the need to protect society from dangerous persons.

• Marginal note:Additional factor — unfit to stand trial

  (4) The attorney general, in deciding whether to consent to the transfer to a foreign entity of a person in respect of whom a verdict of unfit to stand trial has been rendered, shall consider their ability to effectively prosecute the case in the event that the person becomes fit to stand trial.

Definition of foreign entity

33 In sections 31 and 32, foreign entity means a foreign state, a province, state or other political subdivision of a foreign state, a colony, dependency, possession, protectorate, condominium, trust territory or any territory falling under the jurisdiction of a foreign state or a territory or other entity, including an international criminal tribunal.

Marginal note:Part XX.1 of Criminal Code

• 34 (1) Subject to the other provisions of this Act — and, in the case of a young person, section 141 of the Youth Criminal Justice Act — Part XX.1 of the Criminal Code applies to a person who is transferred to Canada under an administrative arrangement that was entered into under section 32. The verdict of the foreign court is deemed to be a verdict of not criminally responsible on account of mental disorder and to have been made on the day of their transfer.

• Marginal note:Presumption

  (2) The person is deemed to be the subject of an order under paragraph 672.54(c) of the Criminal Code and a warrant of committal under section 672.57 of that Act until the Review Board of the province to which the person is transferred makes a disposition under section 672.47 of that Act. The Review Board shall, within 45 days after the day of the person’s transfer, hold a hearing and make a disposition.

• Marginal note:Extension of time period

  (3) If the Review Board is of the opinion that there are exceptional circumstances that warrant it, it may take a maximum of 90 days to hold a hearing and make a disposition.

Marginal note:Transportation for transfer

• 35 (1) A person who is discharged under paragraph 672.54(b) of the Criminal Code or detained under paragraph 672.54(c) of that Act may — with the consent of the attorney general of the province from which they are to be transported and, if applicable, the attorney general of the province to which they are to be transported — be transported to any other place in Canada in order to expedite their transfer to a foreign entity.

• Marginal note:Warrant

  (2) If a person is to be transported in order to expedite their transfer, an officer authorized by the attorney general of the province from which they are to be transported shall sign a warrant specifying the place in Canada to which they are to be transported, the terms of their transfer and, if applicable, the place of detention.

• Marginal note:Territories

  (3) For the purpose of this section, in respect of a territory, the relevant attorney general is the Attorney General of Canada.

Marginal note:Transportation and detention

36 A warrant referred to in subsection 35(2) is sufficient authority for

• (a) the person who is responsible for the custody and transportation of the person being transferred to convey them to the place in Canada to which they are to be transported and, if applicable, deliver them to the person in charge of the place of detention;

• (b) the person in charge of the place of detention to detain the person being transferred; and

• (c) the person who is responsible for the custody and transportation of the person being transferred to deliver them to the person from the foreign entity who is responsible for the transfer.

General Provision

Marginal note:Transfer to Canada not valid

• 37 (1) The foreign sentence of a person transferred to Canada under this Act is enforceable in Canada unless a court determines that, because the person is not a Canadian citizen, the transfer is not valid.

• Marginal note:Minister to notify foreign entity and other ministers

  (2) If the court declares that the transfer of the person to Canada is not valid, the Minister shall notify the foreign entity, the minister responsible for the Immigration and Refugee Protection Act and the minister responsible for the Extradition Act that the transfer is not valid.

• Marginal note:Transfer to foreign entity not valid

  (3) If a foreign entity declares that the transfer of a foreign offender is not valid, the Canadian sentence that they were serving before the transfer is enforceable in Canada.

Transitional Provision

Marginal note:Application to pending cases

38 This Act applies in respect of all requests for transfer that are pending on the day that this section comes into force.

Consequential Amendment

Corrections and Conditional Release Act

39 [Amendment]

References

40 [Amendments]

Coordinating Amendment

41 [Amendments]

Repeal

42 [Repeal]

Coming into Force

Marginal note:Coming into force

Footnote ^*43 This Act, other than section 41, comes into force on a day to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Section 41 in force on assent May 14, 2004; Act, other than section 41, in force October 29, 2004, see SI/2004-140.]