BACK BACK | SHORT TITLE | |||
| 1. Short title - This Act may be cited as the Transfer of Offenders Act. | |||
| 1977-78, c. 9, s. 1. | |||
| INTERPRETATION | |||
| 2. Definitions - In this Act, | |||
"Canadian offender" means a Canadian citizen, within the meaning of the Citizenship Act, irrespective of age, who has been found guilty of an offence and is subject to supervision either in confinement or at large by reason of parole, probation or any other form of supervision without confinement, in a foreign state;
| |||
|
"criminal offence" means an offence against an Act of Parliament;
| |||
|
"foreign offender" means a citizen or a national of a foreign state, irrespective of age, who has been found guilty of a criminal offence and is subject to supervision either in confinement or at large by reason of parole, probation or any other form of supervision without confinement, in Canada;
| |||
|
"foreign state" means a state, the name of which is set out in the schedule, with which Canada has entered into a treaty on the transfer of offenders;
| |||
|
"Minister" means the Solicitor General of Canada;
| |||
|
"penitentiary" has the meaning assigned to that term by Part I of the Corrections and Conditional Release Act;
| |||
|
"prison" means a place of confinement other than a penitentiary;
| |||
|
"treaty" includes an international agreement, arrangement or convention.
| |||
| R.S., 1985, c. T-15, s. 2; 1992, c. 20, s. 216; 1993, c. 34, s. 121. | |||
| TRANSFER OF CANADIAN OFFENDERS TO CANADA | |||
| 3. Transfer - A Canadian offender who requests transfer to Canada pursuant to a treaty on the transfer of offenders entered into between Canada and the foreign state in which he was found guilty shall be dealt with in accordance with this Act. | |||
| 1977-78, c. 9, s. 3. | |||
| 4. Effect of transfer - Where a Canadian offender is transferred to Canada, his finding of guilt and sentence, if any, by a court of the foreign state from which he is transferred is deemed to be a finding of guilt and a sentence imposed by a court of competent jurisdiction in Canada for a criminal offence. | |||
| 1977-78, c. 9, s. 4. | |||
| Judicial Consideration - | |||
|
Re Dozois and The Queen
- (1981), 61 CCC (2d) 171,22 CR (3d) 213 (Ont CA)
|
|||
| - Similarly, time spent by an accused in custody in the United States by reason of offences committed there while unlawfully at large from a Canadian prison, does not count against the unserved portion of the sentence in Canada notwithstanding that the accused later transfers to Canada to continue serving his U.S. sentence pursuant to the Transfer of Offenders Act in Canada. Under the Transfer of Offenders Act, the U.S. sentence is treated as if it had been imposed by a Canadian court solely for purposes of calculating various eligibility dates under the Parole Act. The U.S. sentence is not integrated into the outstanding unserved Canadian sentence and section 14 of the Parole Act does not have that effect. | |||
|
Editorial
Note - Following Re Dozois, supra, and the judgment below of Jerome, J. it was held that the Transfer of Offenders Act provides that a Canadian offender may serve in Canada a sentence imposed by a court of a foreign country; the purpose of ss4 and 11 is to determine the time that a Canadian offender who was transferred to Canada will have to spend in confinement in Canada as the result of a sentence imposed by the foreign court. These provisions have no incidence on the computation of sentences previously pronounced by Canadian courts.
|
|||
|
See also Re McClarty -Unreported, September 2, 1988, No. T -964-88 (FCTD)
(Parole Act, s1 0(1) (e)). See this case as another example of a judgment
following Dozois (supra) and Leschenko (infra) as well as Re Morley
and The Queen (1981) 61 CCC (2d) 190 (Man CA).
|
|||
| 5. (1) Section 690 of the Criminal Code not applicable - Section 690 of the Criminal Code does not apply in respect of the offence of which a Canadian offender has been found guilty in the foreign state from which he is transferred and the offender's finding of guilt and sentence, if any, are not subject to any appeal or to any other form of review in Canada. | |||
| (2) Evidence - On the transfer of a Canadian offender, documents supplied by the foreign state from which the offender is transferred setting out the finding of guilt and, where the offender has been sentenced, the sentence imposed are, if they purport to be signed by a judicial official or director of a place of confinement of the foreign state, in the absence of evidence to the contrary, evidence of the facts alleged therein without proof of the signature or official character of the person by whom they purport to be signed. | |||
| 1977-78, c. 9, s. 5. | |||
| 6. (1) Transfer - Where the Minister is informed on behalf of a foreign state that a Canadian offender has requested transfer to Canada and that the responsible authority in that state agrees to the transfer, the Minister shall cause the foreign state to be advised whether he approves or disapproves the transfer of the offender and, where he approves the transfer, he shall make the necessary arrangements therefor. | |||
| (2) Approval of a province - Notwithstanding any regulation made pursuant to paragraph 24(a.1), where a Canadian offender who has requested transfer to Canada has been sentenced to imprisonment for less than two years, the Minister shall not approve the transfer unless | |||
| (a) | the authority responsible for the administration of prisons in the province in which the Canadian offender would be detained agrees to the transfer; and | ||
| (b) | the Canadian offender completes the prescribed form. | ||
| R.S., 1985, c. T-15, s. 6; R.S., 1985, c. 31 (1st Supp.), s. 104. | |||
| Judicial Consideration - | |||
|
Korrol v Deputy AG of Canada et al
- (1985), 14 CCC (3d) 495 (FCTD)
|
|||
| - A prisoner who was sentenced to imprisonment in Florida and then transferred to Canada under the Treaty between Canada and the United States and the Transfer of Offenders Act sought a declaration to the effect that his transfer to Canada was not accomplished in accordance with the Treaty and the Act. After his application for transfer he obtained a copy of the Treaty, was subsequently interviewed by a Public Defender and when he appeared before the US Court was offered an adjournment to consult further with counsel, was informed that the sentence that he was then serving would be carried out in accordance with the laws of Canada and that there may be some changes to bring it into conformity with Canadian law and that the US law regarding eligibility for parole would have no application in Canada. The applicant did not request any further time after all of this was explained to him by the presiding Judge. The Judge also read to him a verification of consent form which he said he understood and he then signed. The plaintiff now claimed that at no time was he fully informed as to how the Canadian law regarding the computation of sentence differed from the laws of Florida. In the circumstances, the plaintiff's mandatory supervision date was two years later in Canada than it would have been in Florida. The plaintiff claimed that he had not given an informed consent to his transfer and would not have signed the consent had he been aware of the remission situation in Canada being less than that in Florida. The plaintiff was of normal intellect and suffered no defects of understanding. He claimed that the lawyer who had been appointed by the Court knew little more than he did about the workings of the Treaty and the Transfer of Offenders Act and that he went along with things because he simply wanted to get out of Florida because the time there was too hard. The question therefore, was whether or not the Transfer of Offenders Act required that Canadian offenders transferred to Canada consent to their transfer. The Court held (1) that the plaintiff had to find a remedy within the law which Parliament had enacted namely the Transfer of Offenders Act and not within the Treaty. The Treaty is not on the same footing as duly enacted legislation to be invoked in order to discern enforceable rights in our courts, except insofar as they have been expressed in Canadian law, that is, implementing legislation giving those rights legal effect in Canada. (2) That it was not the courts concern as to whether or not Parliament in implementing the Transfer of Offenders Act had effected perfect or imperfect compliance with the provisions of the Treaty. (3) The provisions of s3 and s6 of the Transfer of Offenders Act is based on the Canadian offender's request and makes no mention of consent. Consequently, the legislation only requires a request and not a consent. (4) On the other hand, the word "request" is not one-dimensional in time, but rather expresses the notion of a continuum of thought, appreciation and action enduring over a course of time from the first inquiries until the court hearing in the United States and therefore that word could necessarily and logically import the notion of consent. However, in the circumstances there were no risks as the law of Florida was known as was the law of Canada and the plaintiff being of normal under- standing had read and was told that the sentence which he was then serving would be carried out in accordance with the laws of Canada and that his sentence might be changed in conformity with Canadian law. He was offered more time to consult with counsel and obtain more information on Canadian law but he declined to accept that offer. Consequently, he declined to obtain the very information that he now complains about. On the facts the plaintiff freely accorded his truly informed consent to acceptance of whatever he would have to undergo pursuant to Canadian law and all without having to assume any unknown or unknowable risks. Therefore the consent inherent in the plaintiff's request was a genuine and as fully informed as he alone permitted it to be at the material time. The choice was crystal clear: learn now and then decide on transfer; or transfer now and learn later. There was no coercion, no deception and no wilful attempt or negligent failure to deny him any of the information which he could have, had he so desired, predicated his request. (5) Furthermore, declaratory relief is discretionary and because the plaintiff's claim was essentially one of ignorance of the law the court's discretion would not be exercised in his favour in granting a declaration. Furthermore, it was not clear that a declaration would settle the question at issue between the parties and it was a remedy of doubtful efficacy. In addition, it would serve neither public convenience nor public policy to declare the Treaty's provisions as paramount so that transfer proceedings could be obviated on the grounds advanced. The application was dismissed. | |||
| TRANSFER OF CANADIAN OFFENDERS UNDERGOING IMPRISONMENT | |||
| 7. Where committed - A Canadian offender transferred to Canada while undergoing imprisonment shall be detained in a penitentiary if he has been sentenced to imprisonment for two years or more or in a prison in any other case. | |||
| 1977-78, c. 9, s. 7. | |||
| 8. Eligibility for parole -- general - Subject to section 9, a Canadian offender transferred to Canada becomes eligible for parole at a date determined pursuant to the Corrections and Conditional Release Act as being the date at which the offender would have been eligible for parole had the offender been convicted and the sentence imposed by a court in Canada. | |||
| R.S., 1985, c. T-15, s. 8; 1992, c. 20, s. 208; 1995, c. 42, s. 83. | |||
| 9. Eligibility for parole, murder cases - A Canadian offender who has been sentenced to imprisonment for life for the conviction of an offence that, if it had been committed in Canada, would have constituted murder within the meaning of section 229 or 230 of the Criminal Code and who is transferred to Canada becomes eligible for parole when ten years have elapsed after his conviction unless the documents supplied by the foreign state in which the offender was convicted and sentenced show to the satisfaction of the Minister 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 the Criminal Code, in which case the offender becomes eligible for parole when fifteen years have elapsed after his conviction. | |||
| 1977-78, c. 9, s. 9; 1980-81-82-83, c. 47, s. 47. | |||
| 10. Temporary absence and day parole for murderers - A Canadian offender transferred to Canada who was convicted of an offence that, if it had been committed in Canada, would have constituted murder within the meaning of section 229 or 230 of the Criminal Code may not be granted | |||
| (a) | day parole under the Corrections and Conditional Release Act, | ||
| (b) | an absence without escort under that Act or the Prisons and Reformatories Act, or | ||
| (c) | an absence with escort for other than medical reasons under either of those Acts that has not been approved by the National Parole Board, | ||
| until the expiration of all but three years of the period during which the offender is ineligible for parole. | |||
| R.S., 1985, c. T-15, s. 10; 1992, c. 20, s. 209; 1995, c. 42, ss. 71(F), 72(F). | |||
| 11. Crediting for time toward completion - A Canadian offender transferred to Canada shall, at the date of the transfer, be credited with any time toward completion of a sentence imposed by a court of a foreign state that, at that date, had actually been spent in confinement in the foreign state or that was credited, by the foreign state, towards completion of the sentence. | |||
| R.S., 1985, c. T-15, s. 11; 1992, c. 20, s. 210; 1995, c. 42, s. 84. | |||
| 11.1 (1) Calculation of statutory release - Where a Canadian offender transferred to Canada is detained in a penitentiary, the offender is entitled to be released on statutory release on the day on which the offender has served the portion of the sentence that remains to be served after deducting the portion of the sentence with which the offender was credited in accordance with section 11 less | |||
| (a) | any credits, given by the foreign state, towards release before the expiration of the sentence; and | ||
| (b) | one third of the portion of the sentence that remains to be served after deducting the portion referred to in paragraph (a). | ||
| (2) Idem - Where a Canadian offender transferred to Canada is detained in a prison, the offender is entitled to be released on the day on which the offender has served the portion of the sentence that remains to be served after deducting the portion with which the offender was credited in accordance with section 11 less | |||
| (a) | any credits, given by the foreign state, towards release before the expiration of the sentence; | ||
| (b) | the amount of any remission granted, pursuant to the Prisons and Reformatories Act, on the portion of the sentence that remains to be served after deducting the portion referred to in paragraph (a). | ||
| 1995, c. 42, s. 84. | |||
| 12. Application - Subject to sections 11 and 11.1, a Canadian offender transferred to Canada is subject to the Corrections and Conditional Release Act or the Prisons and Reformatories Act, as the case may be, as if the offender had been convicted and the sentence imposed by a court in Canada. | |||
| R.S., 1985, c. T-15, s. 12; 1992, c. 20, s. 211; 1995, c. 42, s. 84. | |||
| TRANSFER OF CANADIAN OFFENDERS ON PAROLE | |||
| 13. Jurisdiction of National Parole Board - Subject to section 15, the National Parole Board has jurisdiction over Canadian offenders transferred to Canada. | |||
| 1977-78, c. 9, s. 13. | |||
| 14. Effect of revocation - Where the parole granted by a foreign state to a Canadian offender who is transferred to Canada is revoked, he is entitled to count toward completion of his sentence any time spent on parole after October 14, 1977 and immediately prior to his transfer to Canada, in the foreign state from which he was transferred. | |||
| 1977-78, c. 9, s. 14. | |||
| 15. Jurisdiction of provincial parole boards - A provincial parole board has jurisdiction over a Canadian offender transferred to Canada | |||
| (a) | who is not on parole at the time of his transfer; and | ||
| (b) | who is detained in a provincial institution where that parole board has jurisdiction over other prisoners. | ||
| 1977-78, c. 9, s. 15. | |||
| TRANSFER OF CANADIAN OFFENDERS ON PROBATION OR EQUIVALENT | |||
| 16. (1) Probation order - Where a Canadian offender is transferred to Canada while at large under conditions equivalent to those that would prevail if he had been found guilty in Canada and released on conditions prescribed in a probation order, | |||
| (a) | a provincial court judge, within the meaning of that term for the purposes of Part XIX of the Criminal Code, may, on application of the Canadian offender or of the Attorney General of the province in which the offender resides, modify the conditions on which the offender is entitled to be at large in Canada in any manner provided by subsection 732.2(3) of the Criminal Code as if he were subject to a probation order; and | ||
| (b) | a wilful contravention of the conditions on which he is entitled to be at large is an offence under subsection 733.1(1) of the Criminal Code. | ||
| (2) Powers of the court - On conviction of a Canadian offender of an offence under subsection 733.1(1) of the Criminal Code, the convicting court may, if the offender was transferred to Canada while at large under circumstances equivalent to those that would prevail if he had been found guilty in Canada and released on conditions prescribed in a probation order, | |||
| (a) | if it imposes imprisonment, revoke the entitlement of the Canadian offender to be at large, or | ||
| (b) | make changes in or additions to the conditions on which the offender is entitled to be at large or extend the application of those conditions for a further period not exceeding one year, | ||
| and shall inform the offender of its decision. | |||
| (3) Limitation - Subsection 732.2(5) of the Criminal Code does not apply to a Canadian offender transferred to Canada while at large under conditions equivalent to those that would prevail if the offender had been found guilty in Canada and released on conditions prescribed in a probation order. | |||
| R.S., 1985, c. T-15, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 203; 1995, c. 22, s. 17. | |||
| YOUNG OFFENDERS | |||
| 17. Committal of young offenders - Where a Canadian offender transferred to Canada | |||
| (a) | is committed to a prison in a province, and | ||
| (b) | was, at the time of the commission of the offence of which he or she was convicted, a young person within the meaning of the Young Offenders Act, | ||
| an official designated for the purpose by the lieutenant governor in council of the province where the offender is detained may transfer the offender to a place or facility in which a young person may be committed to open custody or secure custody, within the meaning of section 24 of the Young Offenders Act, but no person so transferred shall be detained by reason only of the sentence imposed by the foreign court beyond the date on which that sentence would terminate. | |||
| R.S., 1985, c. T-15, s. 17; 1993, c. 34, s. 122. | |||
| PARDON | |||
| 18. Pardon - Where a foreign state has exercised the power to pardon a Canadian offender transferred to Canada, that offender shall no longer be subject to incarceration or other form of supervision by reason only of the sentence imposed for the offence in respect of which the pardon was granted. | |||
| 1977-78, c. 9, s. 18. | |||
| TRANSFER OF FOREIGN OFFENDERS FROM CANADA | |||
| 19. Transfer - A foreign offender may request transfer to a foreign state by applying to the Minister and may be transferred if the conditions set out in this Act are met. | |||
| 1977-78, c. 9, s. 19. | |||
| 20. Obligation to provide information - The Minister shall, on request by a foreign offender, provide him with a copy of the treaty on the transfer of offenders entered into between Canada and a foreign state designated in the request. | |||
| 1977-78, c. 9, s. 20. | |||
| 21. Delivery - Where the transfer of a foreign offender to a foreign state has been approved by the parties concerned, he shall be delivered to the responsible authority designated by that foreign state. | |||
| 1977-78, c. 9, s. 21. | |||
| 22. Transfer from prisons - No foreign offender may be transferred from a prison in a province to a foreign state without the approval of the authority responsible in the province for the administration of prisons. | |||
| 1977-78, c. 9, s. 22. | |||
| 23. Schedule - The Governor in Council may, by order, amend the schedule by adding to it or deleting from it the name of any foreign state that has entered into a treaty with Canada on the transfer of offenders or with respect to which such a treaty has been terminated. | |||
| R.S., 1985, c. T-15, s. 23; 1993, c. 34, s. 123. | |||
| REGULATIONS | |||
| 24. Regulations - The Governor in Council may make regulations | |||
| (a) | prescribing the form and manner in which a foreign offender may apply to the Minister for transfer to a foreign state; | ||
| (a.1) | prescribing the considerations that the Minister must take into account in deciding to approve or disapprove the transfer of a Canadian offender to Canada; | ||
| (b) | prescribing the form to be completed by a Canadian offender who, if transferred to Canada, will be detained in a prison; and | ||
| (c) | generally, for the carrying out of the purposes of this Act. | ||
| R.S., 1985, c. T-15, s. 24; R.S., 1985, c. 31 (1st Supp.), s. 105. | |||
| 25. [Repealed, 1993, c. 34, s. 124] | |||
|
TOP
| |||