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

Act current to 2019-11-19 and last amended on 2014-12-06. Previous Versions

Consent (continued)

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.

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).

 
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