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

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

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

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

foreign entity

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

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

Minister means the Minister of Public Safety and Emergency Preparedness. (ministre)

penitentiary

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

prison

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

treaty

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 enhance public safety and 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 and other obligations

  (4) The Minister

  • (a) shall inform a Canadian offender, in writing, as to how their foreign sentence is to be served in Canada and, in the case of an offender who is required to comply with the Sex Offender Information Registration Act,

    • (i) inform them, in writing, of that obligation and of sections 4 to 7.1 of that Act and sections 490.031 and 490.0311 of the Criminal Code, and

    • (ii) on the day of the transfer at the earliest, deliver a copy of Form 1 of the schedule to

      • (A) the offender,

      • (B) the Attorney General of the province, or the minister of justice of the territory, in which the person is to be detained in custody, and

      • (C) the person in charge of the place in which the person is to be detained in custody; and

  • (b) shall deliver to a foreign offender the information with which the Minister was provided 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 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.

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.