Bill C-33

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	2nd Session, 37th Parliament, 51-52 Elizabeth II, 2002-2003
	House of Commons of Canada
	BILL C-33
	An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences
	Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
	SHORT TITLE
Short title	1. This Act may be cited as the International Transfer of Offenders Act.
	INTERPRETATION
Definitions	2. 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 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.
``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.
``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
Purpose	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.
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.
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.
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.
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.
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
Administra- tion of Act	6. (1) The Minister is responsible for the administration of this Act.
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.
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
Consent of three parties	8. (1) The consent of the three parties to a transfer - the offender, the foreign entity and Canada - is required.
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.
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.
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.
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.
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.
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.
Factors - Canadian offenders	10. (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.
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.
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.
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.
Writing	11. (1) A consent, a refusal of consent or a withdrawal of consent is to be given in writing.
Reasons	(2) If the Minister does not consent to a transfer, the Minister shall give reasons.
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
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.

Bill C-33

BILL C-33