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2nd Session, 37th Parliament,
51-52 Elizabeth II, 2002-2003
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House of Commons of Canada
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BILL C-33
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An Act to implement treaties and
administrative arrangements on the
international transfer of persons found
guilty of criminal offences
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Her Majesty, by and with the advice and
consent of the Senate and House of Commons
of Canada, enacts as follows:
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| Short title
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1. This Act may be cited as the
International Transfer of Offenders Act.
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| Definitions
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2. The following definitions apply in this
Act.
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``Canadian
offender''
« délinquant
canadien »
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``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.
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``criminal
offence''
« infraction
criminelle »
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``criminal offence'' means an offence against
an Act of Parliament.
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``foreign
offender''
« délinquant
étranger »
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``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.
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``foreign
entity''
« entité
étrangère »
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``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.
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``Minister''
« ministre »
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``Minister'' means the Solicitor General of
Canada.
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``penitentiary'
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« pénitencier
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``penitentiary'' has the same meaning as in
subsection 2(1) of the Corrections and
Conditional Release Act.
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``prison''
« prison »
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``prison'' means a place of confinement other
than a penitentiary.
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``treaty''
« traité »
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``treaty'' includes an international agreement
or convention, but does not include an
administrative arrangement entered into
under section 31 or 32.
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| Purpose
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3. 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.
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| Dual
criminality
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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.
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| Conduct
determinative
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(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.
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| Exception -
children
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(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.
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| Effect of
transfer
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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.
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| Evidence
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(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.
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| Administratio
n of Act
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6. (1) The Minister is responsible for the
administration of this Act.
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| Designation
by Minister
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(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.
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| Request for
transfer
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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.
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| Consent of
three parties
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8. (1) The consent of the three parties to a
transfer - the offender, the foreign entity and
Canada - is required.
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| Withdrawal of
consent
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(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.
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| Information
about treaties
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(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.
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| Information
about
sentence
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(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.
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| Person
authorized to
consent
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(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:
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(a) a child or young person within the
meaning of the Youth Criminal Justice Act;
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(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
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(c) an offender who is not able to consent.
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| Provincial
authority
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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.
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| Purpose and
principles
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(2) In determining whether to consent to a
transfer, the provincial authority shall take
into account the purpose and principles of this
Act.
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| Factors -
Canadian
offenders
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10. (1) In determining whether to consent to
the transfer of a Canadian offender, the
Minister shall consider the following factors:
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(a) whether the offender's return to Canada
would constitute a threat to the security of
Canada;
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(b) whether the offender left or remained
outside Canada with the intention of
abandoning Canada as their place of
permanent residence; and
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(c) whether the offender has social or family
ties in Canada.
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| Factors -
Canadian and
foreign
offenders
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(2) In determining whether to consent to the
transfer of a Canadian or foreign offender, the
Minister shall consider the following factors:
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(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
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(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.
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| Additional
factor -
Canadian
young persons
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(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.
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| Primary
consideration
- Canadian
children
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(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.
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| Writing
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11. (1) A consent, a refusal of consent or a
withdrawal of consent is to be given in
writing.
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| Reasons
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(2) If the Minister does not consent to a
transfer, the Minister shall give reasons.
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| Consent
voluntary
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12. The Minister shall take all reasonable
steps to determine whether an offender's
consent has been given voluntarily.
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| Continued
enforcement
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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.
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| Adaptation
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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.
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| Equivalent
offence
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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.
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| Deemed
probation
order
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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.
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| Transfer of
young
person - 12
or 13 years
old
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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:
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(a) the Canadian offender was, at the time
the offence was committed, 12 or 13 years
old; and
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(b) their sentence is longer than the
maximum youth sentence that could have
been imposed under that Act for an
equivalent offence.
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| Sentence for
young person
convicted of
murder - 12
or 13 years
old
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(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
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(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
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(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.
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| Transfer of
young
person - 14
to 17 years
old
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18. A Canadian offender is deemed to be
serving an adult sentence within the meaning
of the Youth Criminal Justice Act if
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(a) the Canadian offender was, at the time
the offence was committed, from 14 to 17
years old; and
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(b) their sentence is longer than the
maximum youth sentence that could have
been imposed under that Act for an
equivalent offence.
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| Parole
eligibility for
young person
convicted of
murder - 14
to 17 years
old
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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
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(a) the period of ineligibility imposed by
the foreign entity, and
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(i) five years, if they were 14 or 15 years
old at the time the offence was
committed, or
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(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.
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| Deemed to
have received
adult sentence
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(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.
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| Deemed to
have received
youth
sentence
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(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.
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| Placement
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20. A Canadian offender who was from 12
to 17 years old at the time the offence was
committed is to be detained
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(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,
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(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
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(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
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(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,
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(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,
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(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
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(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.
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