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

Act current to 2022-09-22 and last amended on 2014-12-06. Previous Versions

Young Persons (continued)

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.

Marginal note:Placement

 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

 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

  •  (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

 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

  •  (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

    • (a) 15 years, if the offence was committed before the day on which paragraph 745.6(1)(a.1) of the Criminal Code comes into force; or

    • (b) 25 years, if the offence was committed on or after that day.

  • 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.

  • 2004, c. 21, s. 24
  • 2011, c. 2, s. 6

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

 Subject to section 746.1 of the Criminal Code,

Marginal note:Statutory release — penitentiary

  •  (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

 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

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

  • 2004, c. 21, s. 28
  • 2012, c. 1, s. 160

Marginal note:Application

  •  (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

    • (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

  •  (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

 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

  •  (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

 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

  •  (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.

 
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