Annual Report on the International Transfer of Offenders 2009-2010

Preface

The following report provides a statistical overview on the International Transfer of Offenders program's activities over the last ten years.

The data is from the Correctional Service Canada's (CSC) International Transfers Database and the Department of Foreign Affairs and International Trade. The source of the statistics is indicated under each chart, table or figure. The data is reported by fiscal year (from April 1 to March 31 of the following year).

Readers are advised that, in some instances, figures have been revised from earlier annual reports.

The report is prepared by the International Transfers Unit of the Correctional Service Canada.

Introduction

At any given time, there are over 1800 Canadian citizens incarcerated throughout the world. Canadians serving a sentence of imprisonment abroad are faced with serious problems such as isolation, culture shock, language barriers and have no means to address the root of their problems because of the lack of programs available to foreign nationals. To contribute to the administration of justice, the rehabilitation of offenders and their reintegration into the community, Canada has entered into international transfer agreements with over 111 countries and territories through 16 bilateral treaties, and three multi-lateral schemes; the Convention on the Transfer of Sentenced Persons, the Scheme for the Transfer of Convicted Offenders within the Commonwealth and the Inter-American Convention on Serving Criminal Sentences Abroad. These agreements enable persons who have been convicted abroad and sentenced to imprisonment, a term of conditional release or any other form of community supervision in the territory of the other party to serve their foreign imposed sentence in their country of citizenship, with their explicit consent. Along with Canada's implementing legislation International Transfers of Offenders Act (ITOA), these agreements are the legal basis for effecting international transfers. Without the benefit of transfers, offenders are deported at the end of their sentence to their country of citizenship, often after having spent years in confinement and being totally unprepared for a safe, secure and successful reintegration into society. Transfers provide offenders with the possibility of becoming productive members of the community, by contributing to the administration of justice and the rehabilitation of offender and their reintegration into society as law abiding citizens.

The International Transfers of Offenders Act

The International Transfer of Offenders Act (ITOA) is an Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences. The ITOA was enacted in 2004 and replaced the Transfer of Offenders Act (TOA), which had been in force since 1978.

The Minister of Public Safety is responsible for the administration of the Act and is the sole authority for decisions. The Director Institutional Reintegration Operations has the delegated authority from the Minister to administer the Act.

Eligibility for transfer is based on citizenship and dual criminality in the receiving country. Decisions based on criteria enounced in the ITOA and consent from the three (3) parties, i.e. receiving country (country of citizenship), sentencing country and the offender, must be obtained prior to effecting a transfer. Special transfers or administrative arrangements can be made for mentally disordered persons or with a country where there is no treaty in force. To date, no transfers have been made under an administrative arrangement.

Purpose of the International Transfers Program

The purpose of this program is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling them to serve their sentence in their country of citizenship. It also alleviates undue hardships borne by offenders and their families. Once transferred, the offender's sentence is administered in accordance with the laws and the procedures of the country of citizenship. With very few exceptions, if offenders are not transferred, they will ultimately be deported to their country of citizenship, without correctional supervision/jurisdiction and without the benefit of programming.

International Transfers History

The first transfer of offenders took place in 1978 shortly after the implementation of a bilateral treaty between Canada and the United States of America on the transfer of offenders. This first transfer included the return to Canada of twenty nine (29) Canadian citizens and the repatriation of forty (40) American citizens.

Section A Transfers from 1978 to 2010

Since the first transfer that occurred in 1978, until March 31, 2010, 1658 offenders were transferred pursuant to an agreement on the International Transfer of Offenders. Of these, 1531 Canadians were transferred to Canada, whereas the remaining 127 consisted of foreign nationals who were repatriated to their country of citizenship.

Transfers to Canada from Foreign Countries

The majority of the 1531 Canadian citizens transferred to Canada were effected from the United States, specifically 78.6% (1203 offenders). Consequently, Canada and the United States have agreed to four (4) set transfers per year. The second largest number of repatriations is from Mexico with 3.98% (61 offenders), followed by the United Kingdom at 2.35% (36 offenders), Peru 2.16% (33 offenders), and Trinidad and Tobago at 1.44% (22 offenders).

The following chart illustrates the number of international transfers to Canada effected over the last ten fiscal years. For detailed information regarding which countries are involved in the international transfers, refer to Annex A.

Source: International Transfers Database

Transfers from Canada to Foreign Countries

The following chart illustrates the number of international transfers from Canada to Foreign Countries since 1978 by receiving country.

Of the 127 offenders transferred from Canada to foreign countries since 1978, 85% (108) were American citizens. Transfers to other foreign countries are as follows: Netherlands 6.3% (8), the United Kingdom and France 2.4% (3) and to other countries 4% (5). Annex B details all transfers from Canada to foreign countries from 1978‑1979 to 2009‑2010.

Source: International Transfers Database

Section B Applications for transfers

At any given time, there are over 300 applications being processed by the International Transfers Unit with an additional average of 250 new applications received each year.

The following table identifies the total caseload in the given fiscal year. The statistics include the number of new applications received per fiscal year in addition to the number of applications carried over from the previous fiscal year, for which a final decision had not yet been rendered.

Source: International Transfers Database

Source: International Transfers Database

As of January 2010, there were approximately 1808 Canadian offenders known to be incarcerated abroad, of whom 1616 were eligible for transfer to Canada. Moreover, there were 901 foreign national offenders under the jurisdiction of CSC, 304 who were eligible for transfer to their country of citizenship. As of March 31, 2010, only four (4) foreign national offenders had submitted an application for transfer to their country of citizenship and 209 Canadian citizens applied to transfer to Canada.

Section C Processing Timeframes

Time between Receipt of Sentencing Documentation and the Minister's Decision

The International Transfers Unit is committed to processing international transfer applications within a reasonable timeframe from the date of receipt of the sentencing documentation (i.e. judgment, summary of facts and sentencing documentation) from the foreign country to obtaining the Minister's decision. With the advent of new countries signing agreements, the complexity of the cases and the increasing number of applications being received, these timeframes may fluctuate greatly. Factors such as incomplete documentation, complex cases and translation of documents have a direct impact on timeframes.

The following chart illustrates the average processing time in months from the time the sentencing documentation is received until a Canadian decision is rendered.

Source: International Transfers Database

Of the 1260 cases for which the sentencing documentation was received between April 1, 1999 and March 31, 2010, 51.03% (643 cases) were processed in less than six months time. These processing timeframes are from the time the sentencing documentation is received until a Minister's decision is rendered.

In 16.83% of the cases (212 cases), the processing was completed between six (6) to (9) months.

In approximately 32.14% of the cases (405 cases), the processing took more than nine months due to a number of issues such as complexity of the application, incomplete sentencing documentation, etc.

Source: International Transfers Database

Timeframe between Decisions and the Transfer

Once an offender's request to transfer is approved by the Minister of Public Safety and the foreign country, the International Transfers Unit initiates the coordination of the offender's repatriation. It should be noted that this timeframe is dependant upon receipt of the foreign country's approval, the offender's consent and the time required to organize the transfer. With the advent of new countries signing agreements, these timeframes may fluctuate.

The following chart illustrates the average time (in months) required to effect a transfer from the time both countries have approved. The chart illustrates the data by fiscal year.

Source: International Transfers Database

Section D Outcome of applications

Results of Applications Processed

During the last five years, from 2005-2006 to 2009-2010, 1290 new applications for transfer were received for analysis and processing. Of those 1290 applications, to date, 17.75% (229) have resulted in a transfer, while 46.35% (598) were denied. Only 6.03% (65) offenders have withdrawn their application during that same period. The remainder of the applications are still in process or have been closed for a variety of reasons (release from institution, ineligibility).

The tables below indicate the number of applications received during a fiscal year which resulted in a transfer, a denial or a withdrawal. The results of applications will fluctuate as decisions and transfers do not necessarily take place the same year that applications were received.

Source: International Transfers Database

Source: International Transfers Database

Source: International Transfers Database

Applications Denied

Of the applications received during the last ten (10) fiscal years, 1167 applications resulted in a denial by either the Foreign Country or by Canada. As demonstrated in table D4 below, a small percentage of cases were denied by Canada.

Source: International Transfers Database

Denials by the foreign countries were based on a series of factors such as dual citizenship, law enforcement concerns, lack of a removal order (for deportation), unpaid restitution, divergence of parole eligibility.

The following chart illustrates in percentage the denials by Canada vs Foreign Countries between April 1, 1999 and March 31, 2010.

Source: International Transfers Database

Section E Canadian Decisions Rendered by the Minister

In determining whether to consent to the transfer of a Canadian offender, the Minister of Public Safety must take into consideration a number of factors listed in section 10 of the International Transfer of Offenders Act:

10.1(a) whether the offender's return to Canada would constitute a threat to the security of Canada;
10.1(b) whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;
10.1(c) whether the offender has social or family ties in Canada;
10.1(d) whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights;
10.2(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
10.2(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.

** During the last 10 years, CSC has sent an average of 115 applications per year to the Minister's office for decision. Not all files returned with a decision, as some offenders withdraw their application prior to a decision being rendered, the foreign country may deny the application, and/or the offender may have been released.

The following table indicates the number of decisions rendered by the Minister during the past 10 fiscal years. The numbers include both offender requesting a transfer to Canada, and those requesting a transfer from Canada.

Source: International Transfers Database

Of the decisions rendered between April 1, 1999 and March 31, 2010, 157 denials were handed down by the Minister of Public Safety.

Note : Not all applications approved by Canada for any given reporting year resulted in an actual transfer for several possible reasons. Among them, the foreign country did not approve the transfer, the transfer took place the subsequent reporting year, the offender withdrew the transfer application following an approval by Canada, the offender died, and or the offender was released from custody by the foreign country.

The following chart illustrates the reasons of the denials (in percentage) handed down by the Minister of Public Safety between April 1, 1999 and March 31, 2010. These are based on factors listed in section 10 of the International Transfer of Offenders Act:

Source: International Transfers Database

The majority of these denials were based either on section 10.2(a) of the ITOA, "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/or section 10.1(a) of the ITOA, "whether the offender's return to Canada would constitute a threat to the security of Canada".

There were no denials based on 10.2(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."

Figure E3: Denials – by offence type

The following chart illustrates the denials by Canada by types of offences.

Drug: includes possession, trafficking, attempt to possess, import, export

Person: includes homicide, attempted murder, murder, manslaughter, sexual assault, sexual offences, uttering threats

Property: includes theft, break & enter, fraud, mischief, and possession of stolen property

Other: impaired driving, fail to appear, breach

Source: International Transfers Database

Section F Transfers

Transfers to Canada

The following table represents the breakdown of offenders who have transferred to Canada, those that were transferred to Federal custody vs those transferred to provincial jurisdiction**.

** Provincial jurisdiction means those offenders sentenced to a term of imprisonment of 2 years less 1 day. They can include sentences of probations, and juvenile delinquents.

Source: International Transfers Database

Source: International Transfers Database

Source: International Transfers Database

The following table represents the number of offenders, by gender, and by age at the time of transfer. Data is gathered from the transfers occurred over the last 10 fiscal years, from 1999‑2000 to 2009‑2010.

Source: International Transfers Database

Source: International Transfers Database

The following table represents the number of offenders and their length of sentence of imprisonment and probation orders that were transferred. These numbers reflect the length of the foreign imposed sentence – some have had their sentence adapted to Canadian laws.

Source: International Transfers Database

** Numbers may be different from number of provincial cases transferred – as some sentences may have originally been greater than 2 years, but due to legislation, sentence was subsequently reduced once transferred to Canada – therefore having the offender transferred to provincial jurisdiction.

Transfer Operations

The frequency of transfer operations are determined by the needs of the receiving and sending countries and of the offender. CSC's International Transfers Unit, in conjunction with the respective country, sets the transfer dates, plans, and implements the ensuing transfer operations. Transfer operations can occur in groups or individually. Over the past 10 years (from 1999‑2000 to 2009-2010), 253 transfer operations were effected for 844 offenders.

The following chart illustrates the number of operations by fiscal year and the number of offenders transferring to and from Canada. These numbers include both Federal and Provincial offenders.

Source: International Transfers Database

When applying for a transfer to Canada, offenders are asked to indicate their region of choice. In the last ten fiscal years, 785 were transferred to the Federal system in Canada. The remainder were provincial offenders. Of those 785, 41% were transferred to the Ontario Region, followed by the Pacific Region at 29%; 24% to the Quebec region; 4% to the Prairies and 2% to the Atlantic Region. The following table demonstrates the breakdown of offenders' region of choice.

Source: International Transfers Database

Conclusion

In the 32 years since the first international transfer took place with the United States, there has been a steady increase in the number of agreements in place with foreign countries, thereby increasing the number of applications received for processing and of the number of offenders transferred to and from Canada.

An analysis of the information contained in this report demonstrates that the purpose and the principles of the International Transfer of Offenders Act have been fulfilled, and that the International Transfer of Offenders program is consistent with the mandate of the Correctional Service of Canada (CSC) and it's Mission Statement in that the program contributes to public safety by actively encouraging and assisting offenders to become law‑abiding citizens, while exercising reasonable, safe, secure and humane control. It ensures that offenders are gradually returned to society and that they have the opportunity to participate in programming that targets the factors that may have led to their offence.

CSC is part of a large public safety continuum that aims at keeping Canadians safe through delivering programs and services in areas such as law enforcement, border security, emergency management, national security, crime prevention and conditional release.

Furthermore, CSC has set specific priorities for 2009-2010 and beyond, which includes the safe transition of offenders into the community. The International Transfer of Offenders program is a meaningful example of CSC's progress in meeting its objectives.