Vol. 146, No. 11 — May 23, 2012
SI/2012-31 May 23, 2012
SAFE STREETS AND COMMUNITIES ACT
Order Fixing May 3, 2012 as the Day on which Certain Sections of the Act Come into Force
P.C. 2012-559 May 3, 2012
His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 166(2) of the Safe Streets and Communities Act, chapter 1 of the Statutes of Canada, 2012, hereby fixes May 3, 2012 as the day on which sections 135 and 136 of that Act come into force.
(This note is not part of the Order.)
Pursuant to subsection 166(2) of the Safe Streets and Communities Act, assented to on March 13, 2012, that sections 135 and 136 of the Act come into force on May 3, 2012. These sections amend the International Transfer of Offenders Act (ITOA).
To seek the approval of the Governor in Council to fix May 3, 2012, as the coming into force date of sections 135 and 136 of the Safe Streets and Communities Act (Bill C-10). The purpose of the ITOA is to contribute to the rehabilitation of offenders and the administration of justice by allowing offenders to serve their sentences in the countries in which they are citizens or nationals. Further, the ITOA is also the mechanism of implementing international treaties and administrative arrangements for the international transfer of persons found guilty of criminal offences, where, respectively, no treaty is in place and where an offender has been found unfit to stand trial or not criminally responsible by reason of mental disorder.
The International Transfer of Offenders Act (ITOA), which came into force on October 29, 2004, is a modernization of the Transfer of Offenders Act, which was proclaimed in 1978. The legislated purpose of the 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.” The Minister of Public Safety is responsible for the administration of the Act.
To be considered for a transfer under the ITOA, the offender must be a citizen of Canada, who has been convicted and sentenced in the foreign jurisdiction. The judgement must be final; there cannot be any outstanding judicial proceedings (e.g. appeals). The offence must be punishable as a “crime” under the laws of Canada at the time that Canada receives the request for transfer. Further, the sentence must be one that can be administered under the laws of Canada or adjusted accordingly. Examples of exclusions include death sentences, hard labour or indeterminate sentences. Written consent of the offender is required, as well as the approval of the sentencing country and receiving country. Once transferred, the sentence will be administered according to the laws of Canada, including provisions for conditional release.
Section 10 of the ITOA outlines the factors that the Minister must consider when making a decision related to the transfer of an offender.
Sections 135 and 136 of the Safe Streets and Communities Act will make amendments to the ITOA. Section 135 will amend the purpose section of the ITOA to include public safety as one of the principles of the Act. Section 136 will add a number of factors for the Minister’s consideration when exercising his authority to approve or deny a request for transfer.
The list of legislative criteria as amended by Bill C-10 includes whether, in the Minister’s opinion,
- the offender’s return will constitute a threat to the security of Canada;
- the offender’s return will endanger public safety, including the safety of victims, the safety of any member of the offender’s family, or the safety of a child;
- the offender is likely to continue to engage in criminal activity after the transfer;
- the offender left, or remained outside of Canada with the intention of abandoning Canada as a place of permanent residence; or
- the foreign entity or its prison system presents a threat to the offender’s security or human rights.
The Minister may also consider
- if the offender has family or social ties in Canada;
- the offender’s health;
- if the offender has refused to participate in a rehabilitation or reintegration program;
- if the offender has accepted responsibility for the offence, including acknowledging harm done to victims and the community;
- the manner in which the offender will be supervised, after the transfer, while they are serving their sentence;
- if the offender has cooperated or undertaken to cooperate with law enforcement; or
- any other factor that the Minister considers relevant.
Pursuant to an election commitment to re-introduce criminal justice legislation that was not passed in the last Parliament, Bill C-10 (Safe Streets and Communities Act) is comprised of nine former criminal justice bills. The Safe Streets and Communities Act was assented to on March 13, 2012. The ITOA amendments are included in Part 3 of Bill C-10.
There is no new investment required for these amendments. In the rarer case of an offender who is serving a sentence of less than two years who applies for transfer, the consent of the relevant province or territory is required. No amendments were made to this section of the ITOA.
The amendments to the ITOA will highlight the concept of public safety and an express purpose of the Act and introduce a number of additional factors for the Minister to consider when making decisions related to the transfer of an offender. These amendments create a broader decision-making framework and will allow for additional precision in the decision-making process (i.e. the Act requires the Minister to articulate his or her reasons for denial in writing to the offender).
Witnesses who appeared before the House of Commons Standing Committee on Justice and Human Rights did not raise any specific concerns related to the ITOA.
However, the witnesses who appeared before the Senate Standing Committee on Legal and Constitutional Affairs raised several concerns related to the ITOA amendments. Academics noted that the discretionary nature of the changes could be problematic. It should be noted that recent litigation has affirmed that the Minister has broad residual discretion under the Act to consider any other factor that is consistent with the purpose of the ITOA when making decisions related to transfers under the ITOA.
Further, there was some criticism that including public safety in the principles is not necessary as it is already included in the notion of administration of justice. However, highlighting the concept of public safety as a stand-alone principle is a way of acknowledging the importance of this consideration in the decision-making process.
A legal practitioner commented that if an offender is not transferred, at some point the offender is likely to be deported, which is not in the interest of public safety. However, it is also important to assess whether a transfer will contribute to public safety, the rehabilitation of the offender and the administration of justice using a robust decision-making framework.
For more information, please contact
Ms. Mary Campbell
Corrections and Criminal Justice Directorate
Public Safety Canada