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An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences (S.C. 2004, c. 21)

Assented to 2004-05-14

An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences

S.C. 2004, c. 21

Assented to 2004-05-14

An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences

SUMMARY

This enactment repeals and replaces the Transfer of Offenders Act, sets out the principles that govern the international transfer of offenders and authorizes Canada to enter into administrative agreements for the international transfer of offenders.

This enactment expands the class of offenders who may be transferred, expands the class of jurisdictions with which Canada may enter into those agreements, identifies who must consent to a transfer, sets out how the foreign sentences of transferred young persons are to be enforced in Canada and clarifies the sentence calculation rules that apply to transferred Canadian offenders and aligns them with those contained in other federal legislation. It also contains a transitional provision and makes consequential amendments to other texts.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

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

INTERPRETATION

Marginal note:Definitions

 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.

“criminal offence”

« infraction criminelle »

“criminal offence” means an offence against an Act of Parliament.

“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.

“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.

“Minister”

« ministre »

“Minister” means the Solicitor General of Canada.

“penitentiary”

« pénitencier »

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

“prison”

« prison »

“prison” means a place of confinement other than a penitentiary.

“treaty”

« traité »

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

PURPOSE AND PRINCIPLES

Marginal note:Purpose

 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
  •  (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
  •  (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
  •  (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

 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
  •  (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
  •  (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
  •  (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
  •  (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.

 

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