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

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

  • (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.

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.