Bill S-12: An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act
Tabled in the Senate, May 17, 2023
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, for any inconsistency with the Charter. This review involved consideration of the objectives and features of the bill.
What follows is a non-exhaustive discussion of the ways in which Bill S-12 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.
Bill S-12 would amend the Criminal Code, the Sex Offender Information Registration Act (SOIRA), and the International Transfer of Offenders Act (ITOA) to respond to the Supreme Court of Canada decision in R. v. Ndhlovu and to strengthen the operation and enforcement of the sex offender registration regime, as well as make the criminal justice system more responsive to the diverse needs of victims and survivors of sexual assault.
The sex offender registry is an important law enforcement tool that provides police with timely access to current and reliable information on registered sex offenders. The purpose of the regime is to help police prevent or investigate sexual offences. The legal framework for the registry is set out in the Criminal Code and in SOIRA. The Criminal Code creates the power to require individuals to comply with SOIRA, and to grant exemptions or termination orders. SOIRA sets out the specific obligations with which registered offenders must comply, such as providing up-to-date information about their place of residence or travel.
The Ndhlovu decision involved a section 7 Charter challenge to two provisions of the Criminal Code – the mandatory registration provision in section 490.012 and the mandatory lifetime registration provision in subsection 490.013(2.1), applicable to individuals convicted of, or found not criminally responsible for, multiple sexual offences in the same prosecution. The Court held that these provisions deprived these offenders of their s. 7 right to liberty in a way that did not comply with the principles of fundamental justice. Specifically, the Court held that requiring automatic registration for individuals who are not at an increased risk of reoffending had no connection with the objective of helping police prevent or investigate sexual crimes and was therefore unconstitutionally overbroad. The Court also struck down the mandatory lifetime registration provision in subsection 490.013(2.1). The Court found that this provision was also unconstitutionally overbroad because it could capture circumstances where the multiple offences were not associated with a higher risk of reoffending.
Bill S-12 would amend the provisions at issue in Ndhlovu – as well as the corresponding provisions that apply to historical convictions, foreign convictions, and obligations arising under the ITOA – to align the approach to registration and mandatory lifetime orders with the constitutional principles articulated by the Supreme Court. It would also make related amendments to the provisions governing exemption and termination orders.
Bill S-12 would also make a number of amendments to the Criminal Code and to SOIRA to improve the operation and effectiveness of the sex offender registration regime. Specifically, it would:
- add offences to the list of designated offences that can form the basis of an order under SOIRA, including the offence of non-consensual distribution of intimate images;
- amend the offence of providing misleading information under SOIRA to clarify that it applies to the enhanced notification obligations requiring child sex offenders to provide certain information to registry officials when they travel;
- enact a new arrest warrant scheme to facilitate compliance with reporting obligations under SOIRA;
- create a new summons power to compel a person who has been convicted or found not criminally responsible of a designated offence to appear at a hearing to determine whether a SOIRA order should be made;
- amend the Criminal Code to require offenders convicted of sexual offences outside of Canada to provide more information to police about their convictions and contact information;
- amend the provisions in SOIRA that require registered offenders to provide notice before they travel to include a requirement that notice be given at least 14 days before the travel period, and to specify in greater detail what information it must include; and
- amend SOIRA to permit disclosure of sex offender registration information in circumstances where it is necessary to verify a registered sex offender’s compliance with their reporting obligations or to obtain a compliance warrant.
Finally, the bill would amend the Criminal Code provisions governing publication bans and victims’ right to information, and would increase the maximum penalty for the offence of sexual exploitation of a person with a disability.
Sex offender registration – amendments to the Criminal Code and ITOA (section 7 of the Charter)
Orders and obligations to comply with SOIRA
Bill S-12 would amend the definition of “designated offence” in section 490.011 of the Criminal Code, in respect of which a SOIRA order may be made. The bill would amend the definition to distinguish between “primary offences”, which are inherently sexual in nature, and “secondary offences,” which are non-sexual offences but may be committed for a sexual purpose. The proposed amendments would add non-consensual distribution of intimate images to the list of primary designated offences and clarify that the offence of aggravated sexual assault against a person under 16 is captured. With respect to secondary offences, the bill proposes to add administering a noxious thing and overcoming resistance to an offence by choking. It would also add extortion to the list of secondary offences to capture cases of so-called “sextortion”.
To respond to the Ndhlovu decision, Bill S-12 would modify the approach to mandatory registration and to mandatory lifetime SOIRA orders. The bill would limit mandatory SOIRA orders to two circumstances involving particularly serious or repeat sexual offences. First, registration under SOIRA would be required in relation to sexual offences against a child (a person under the age of 18) where the offence is prosecuted by indictment and for which a prison sentence of two years or more is imposed. Second, registration would be required for repeat sexual offenders who have been previously convicted of a designated offence or who were previously subject to a SOIRA order. In all other circumstances, there would be a presumption of registration, but the judge would retain discretion not to make a SOIRA order if the individual can establish that the order would be grossly disproportionate in its effects on them, or that making the order would have no connection to the purpose of helping police prevent or investigate sexual offences. The bill would set out factors to be considered by the court in exercising that discretion. These factors would include: the nature and seriousness of the offence; the age and personal characteristics of the victim; the relationship between the person and the victim; the personal characteristics and circumstances of the person along with their criminal history; and the opinions of any experts who have examined the person.
Also in response to the Ndhlovu decision, the bill would modify the approach to whether a mandatory SOIRA order would apply for life. For individuals convicted of or found not criminally responsible for a designated offence, the SOIRA order would apply for life if the individual had been previously convicted of a designated offence or was previously subject to a SOIRA order or obligation. In cases where a person is convicted or found not criminally responsible for more than one offence in the same proceeding, a lifetime order would be required if the court is satisfied that the offences demonstrate a pattern of behaviour showing that the person presents an increased risk of committing a crime of a sexual nature in the future. Where the court is not satisfied that the person presents an increased risk of reoffending, the duration of the SOIRA order would be based on the designated offence with the longest maximum term of imprisonment.
The bill would amend the provisions of the Criminal Code and ITOA that allow offenders to apply to have their SOIRA orders terminated to respond to the decisions of the Supreme Court of Canada and the Ontario Court of Appeal in Ontario (A.G.) v. G. The G. decision involved section 15 Charter challenges to Ontario’s and Canada’s sex offender registration legislation. The courts in that case held that accused found not criminally responsible on account of mental disorder were treated more harshly, as compared to offenders convicted of the same conduct, and that this violated the equality guarantee in section 15 of the Charter because it discriminated on the basis of mental disability. The harsher treatment arose from the fact that convicted offenders were eligible to apply to be relieved of their registration obligations upon receiving a pardon or record suspension. By contrast, there was no comparable mechanism available to individuals found not criminally responsible – who are not eligible for pardons or record suspensions – when they receive an absolute discharge from a Criminal Code Review Board. An absolute discharge is only available where the Review Board concludes that the person does not pose a significant threat to the safety of the public. To address the differential treatment, the bill would amend the termination order provisions to align the treatment of individuals found not criminally responsible with that of convicted offenders. Individuals found not criminally responsible would be able to apply to a court for a termination order when they receive an absolute discharge from the Review Board, in the same way that convicted offenders can apply for a termination order upon receiving a pardon or record suspension.
Bill S-12 would also amend the provisions that allow offenders to apply to have their SOIRA orders terminated after a specified period of time. Currently, a person seeking a termination order has to show that continued registration would be grossly disproportionate in its impact on them. The proposed amendments would align the test that applies to termination orders with the test that applies at the time of registration. The court would be authorized to grant the termination order if continued registration would be grossly disproportionate in its impact for the person, or if continued registration would not be connected to the objective of helping police investigate or prevent crimes of a sexual nature. In making that determination, the court would be required to consider the same factors that apply at the time of sentencing or verdict.
Additional orders for individuals currently subject to mandatory orders or obligations
In Ndhlovu, the Supreme Court indicated that individuals who are currently subject to SOIRA orders as a result of the unconstitutional provisions should be able to apply to a court to seek relief. Bill S-12 would respond to this aspect of the Court’s decision by providing a statutory framework for such applications. Individuals who were placed on the registry between April 15, 2011 (the date that the mandatory registration provision came into force) and the date on which Bill S-12 comes into force would be able to apply for an exemption from the registry. The test for an exemption would be the same test that applies at the time of registration. Exemptions would not be available in circumstances that give rise to mandatory registration under the new regime – that is, in cases involving serious sexual offences involving children and those involving repeat sexual offenders. Outside these circumstances, there would be a presumption of continued registration but the court would be authorized to grant the exemption if it is satisfied that there was, at the time the original order was made, no connection between the order or obligation and the purposes of SOIRA, or that the impact of the order or obligation was grossly disproportionate in its effects on the individual. In determining whether to grant the exemption, the court would have to consider the same factors that apply at the time of registration (the nature and seriousness of the offence, the age and personal characteristics of the victim, the relationship between the person and the victim, the personal characteristics and circumstances of the person along with their criminal history, and the opinions of any experts who have examined the person). Where the court makes the exemption order, it would also be required to order that all information relating to the individual in the registry as a result of the original registration order or obligation be permanently removed.
Also in response to the court’s decision in Ndhlovu, individuals subject to mandatory lifetime registration as a result of having been convicted of multiple offences in the same proceeding would be eligible to apply to have the length of their order varied. The court would be authorized to vary the order if it is satisfied that the offences that gave rise to the lifetime order do not demonstrate an increased risk of reoffending.
Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
A SOIRA order involves a range of obligations that affect liberty interests under section 7. These obligations include the requirement to attend annually at a particular place and time, as well as the requirement to provide specified information to registry authorities on an ongoing basis. Failure to comply with these obligations can result in imprisonment. Accordingly, the amendments outlined above, which create the authority to make SOIRA orders and set out the availability of exemption and termination orders, must comply with the principles of fundamental justice. The following considerations support the consistency of these amendments with section 7.
The additions and clarifications to the definition of “designated offence” all involve conduct that is related to the objectives of SOIRA. As explained above, the definition of “designated offence” includes both primary offences, which are inherently sexual in nature, and secondary offences, which are non-sexual offences but may be committed for a sexual purpose. A SOIRA order can only be made in respect of a secondary offence where the prosecutor establishes beyond reasonable doubt that the person committed the offence with the intent to commit a primary offence. Adding the proposed offences to the definition of designated offence is connected to the objective of helping police prevent or investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.
Mandatory registration would be limited to two circumstances involving particularly serious conduct that is associated with a heightened risk of reoffending – serious sexual offending against children and repeat sexual offending. In all other cases, the court would have the discretion not to make the SOIRA order where the person establishes that the order would not be connected to the objectives of SOIRA or would be grossly disproportionate in its effects.
The imposition of mandatory lifetime orders on individuals who have previously been convicted of a designated offence, or who have previously been subject to obligations under SOIRA, is connected to the legislative objectives. A person who has committed designated offences on separate occasions has, through their conduct, demonstrated a heightened risk of reoffending. For offenders convicted of multiple designated offences in the same proceedings, the court would be required to impose the lifetime order if it is satisfied that the offences demonstrate a pattern of behaviour that is consistent with a heightened risk of reoffending. This would respond to the Ndhlovu decision by preserving the court’s discretion not to make the lifetime order where the pattern of behaviour does not demonstrate such a heightened risk.
The bill would respond to the holding in Ndhlovu that individuals who are currently subject to SOIRA orders as a result of the unconstitutional provisions should be able to apply to a court to seek a personal remedy. Specifically, it would provide a statutory framework for such applications and would harmonize the test that applies to current and historical offences. Offenders could not receive exemptions if the conduct that gave rise to their SOIRA orders involved serious sexual offending against children or repeat offending. In other circumstances, offenders could seek an exemption order – and the removal of their information from the registry – on the basis that the order was unconnected to the objectives of SOIRA or grossly disproportionate in its effects. Similarly, offenders subject to mandatory lifetime registration could apply to have the duration of their SOIRA order shortened if they have not previously applied for a variation order and if they can establish that the offences giving rise to the lifetime order do not demonstrate a pattern of behaviour showing that the person presents an increased risk of sexual reoffending.
Offence of providing false or misleading information (Section 7 of the Charter)
Bill S-12 would amend the offence of knowingly providing false or misleading information under SOIRA to clarify that it applies to the enhanced notification obligations on child sex offenders under section 6(1.01) of that Act. The punishment for this hybrid offence, which includes a maximum term of two years’ imprisonment on indictment, would not change.
Because this offence can result in a term of imprisonment, it engages the right to liberty and must be consistent with the principles of fundamental justice. The Minister has not identified any potential inconsistencies between this proposed amendment and the principles of fundamental justice under section 7. The amended offence is tailored to the objectives of SOIRA, which are undermined when registered offenders provide false or misleading information to the registry. The offence preserves the discretion of trial judges to impose a fit and appropriate sentence in all cases.
Powers to compel the appearance of the accused (section 7 of the Charter)
Bill S-12 would create a new warrant scheme for individuals who are not complying with reporting and notification obligations under SOIRA. On application by a police officer, a justice who has reasonable grounds to believe that the person is not complying with their SOIRA obligations would be able to issue a warrant authorizing the police officer to arrest the person and bring them to a reporting centre in order to remedy the non-compliance. In circumstances where the person complies with their SOIRA obligations after the warrant is issued, the legislation would prevent the laying of charges in respect of any breaches that had been remedied, whether or not they were listed in the warrant.
The bill would also create a new summons power applicable in circumstances where the issue of SOIRA obligations was not considered at the time of sentencing or verdict. In such circumstances, the court would be required to set a date for a hearing on this issue and would be authorized to issue a summons compelling the person to attend.
Because the warrant and summons powers have the potential to deprive persons of their liberty, they engage section 7 of the Charter. In reviewing these provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The new arrest warrant would require prior judicial authorization, and would only be available where the justice is satisfied that there are reasonable grounds to believe that a person is contravening their reporting obligations under SOIRA. The purpose of the warrant would be to facilitate compliance and to provide an alternative to laying charges for failure to comply with SOIRA. The summons provision would apply in circumstances where the court is required to consider whether a SOIRA order should be made, but where this did not happen at the time of sentencing or verdict. Requiring the appearance of the person who would be subject to the order – and who may reasonably be expected to have information relevant to the court’s determination – is connected and proportionate to the objectives of the provisions.
Collection and disclosure of information – amendments to the Criminal Code and SOIRA (sections 7 and 8 of the Charter)
Bill S-12 would amend SOIRA to require offenders convicted of sexual offences outside of Canada to provide more information to police, including details about their convictions, to ensure that there is sufficient information to determine whether these individuals should be required to register. Specifically, such individuals would be required to provide their name, date of birth, gender, address and telephone number in Canada. They would also be required to provide, to the best of their knowledge: the offence for which they were convicted or found not criminally responsible; the country and province, state, territory or municipality, as applicable; the date of the offence; the date of conviction or verdict; and the date on which the sentence was imposed.
The bill would also amend the provisions in SOIRA that require registered offenders to provide notice before they travel. These notice obligations apply when registered sex offenders will be away from their primary or secondary residence for more than seven days, and when registered child sex offenders leave Canada for any period of time. The amendments would require such notice to be provided at least fourteen days before the person’s date of departure from their primary or secondary residence. This requirement would be subject to an exception for circumstances in which the person has a reasonable excuse for not providing fourteen days’ notice, in which case they would have to provide the notice as soon as possible before their date of departure. The amendments would also require registered offenders to provide the specific addresses where they will be staying during their travel by default, with the option to provide a more general destination location only where the specific address is unavailable.
Finally, the bill would amend section 16(4) of SOIRA, which sets out the circumstances in which sex offender registration information may be disclosed. The bill would provide that information collected under SOIRA may be disclosed to a police service where it is necessary to enable them to verify the sex offender’s compliance with their reporting obligations under the Act or to seek or execute a compliance warrant.
Section 8 of the Charter protects against “unreasonable” searches and seizures. The purpose of section 8 is to protect individuals against unreasonable intrusions upon their privacy. A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and it is carried out in a reasonable manner. Because the amendments authorizing the collection and disclosure of information about registered offenders have the potential to interfere with privacy interests, they may engage section 8.
The requirement for registered offenders to structure their travel on an ongoing basis in order to remain in compliance with SOIRA – under threat of prosecution and imprisonment – also has the potential to engage liberty interests under section 7. The following considerations support the consistency of these powers with the Charter.
The additional information that offenders would have to provide regarding foreign convictions is limited to basic identifying and contact information, along with information that would generally form part of the public record in Canadian criminal proceedings. This is information in which individuals would have a limited, if any, expectation of privacy. Requiring individuals to provide this information strikes an appropriate balance between privacy and the objectives of SOIRA because this information is necessary to determine whether the foreign offence was equivalent to a Canadian offence and whether the individual should be required to register.
The amendments to the notification obligations that apply when registered sex offenders travel involve the same essential information that is already required to be provided in such circumstances, with a greater degree of specificity in relation to the places where the individual will be staying. Requiring registered sex offenders to provide this information strikes a reasonable balance between privacy and the objectives of SOIRA by ensuring that police have accurate and up-to-date information about the individual’s location. Specifying that the notice must be provided 14 days in advance is connected to SOIRA’s objectives because it provides the necessary time for police to conduct a risk assessment and to notify other police forces, as appropriate. The inclusion of an exception for situations in which a registered offender has a reasonable excuse allows for emergency or important but unanticipated travel, limiting any impact on the individual’s liberty to what is reasonably necessary in light of SOIRA’s objectives.
Finally, permitting the disclosure of sex offender registration information to a police service where it is necessary to obtain a warrant or verify a registered sex offender’s compliance with their reporting obligations is consistent with the other disclosure provisions included in section 16(4) and strikes a reasonable balance between privacy and the objectives of SOIRA.
Increased penalty for sexual exploitation of a person with a disability (section 7 of the Charter)
Bill S-12 would increase the penalty for the offence of sexual exploitation of a person with a disability. In circumstances where the prosecutor proceeds by indictment, the maximum term of imprisonment would be increased from five to ten years.
Offences that are punishable by imprisonment engage the right to liberty and must accord with the principles of fundamental justice. The Minister has not identified any potential inconsistencies between this proposed amendment and the principles of fundamental justice under section 7. The higher maximum penalty reflects the seriousness of this offence while preserving the discretion of trial judges to impose a fit and appropriate sentence.
Publication bans (section 2(b) of the Charter)
Publication bans prevent the dissemination of identifying information about victims, witnesses, or, in certain circumstances, the accused. They aim to allow victims and witnesses to participate in the justice system without suffering negative consequences associated with their identities being made public, and to encourage the reporting of offences that are under-reported, such as sexual offences. Publication bans are discretionary in many circumstances, but mandatory in circumstances involving victims of sexual offences and witnesses of such offences under the age of 18.
Bill S-12 would make a number of amendments to the Criminal Code provisions governing publication bans. First, it would add the offence of publishing an intimate image without consent to the list of offences in respect of which a publication ban may be ordered. Second, it would update the language of the provisions to ensure that they capture material that was published before the publication ban was in place, but that remains available on the Internet. Third, it would require that reasonable steps be taken to consult victims before the Crown applies for a publication ban, while still requiring Crowns to seek a publication ban in the absence of victim direction not to do so. Finally, it would clarify the process by which individuals can apply to have publication bans revoked or modified. Specifically, it would provide that a hearing to determine if the publication ban should be varied or revoked must be held if the request is made on behalf of the victim protected by the publication ban.
Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It includes the “open court principle” whereby members of the public have a right to receive information pertaining to judicial proceedings.
Because publication bans limit access to information pertaining to judicial proceedings, such as the names of victims and witnesses, they engage the open court principle under section 2(b). The following considerations support the consistency of the publication ban provisions with the Charter. The Criminal Code publication ban provisions are intended to strike a balance between the privacy of victims and complainants on one hand and the open court principle on the other. Specifically, they aim to allow victims and witnesses to participate in the justice system without suffering negative consequences associated with their identities being made public, and to encourage the reporting of offences that are under-reported, such as sexual offences. Clarifying that publication bans can apply to material that remains available on the Internet, even where it was published prior to the ban being in place, furthers that objective and strikes a reasonable balance with the open court principle. Except in cases involving child pornography, where publication bans are mandatory, courts retain discretion as to whether the order should be made and what its scope should be. The proposed amendments requiring that best efforts be made to ascertain victim wishes, and clarifying the process by which a publication ban can be varied or revoked would adjust the balance struck by the existing provisions in a way that respects the autonomy of victims and complainants and that tempers any interference with the open court principle. It would do so by creating mechanisms to permit access to information about judicial proceedings – through the avoidance, variance or lifting of publication bans – in circumstances where the individuals that the publication ban is intended to protect do not wish it to apply.
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