2. Opening Remarks

Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act

Standing Senate Committee on Legal and Constitutional Affairs

June 2023

Good day Madam Chair / Mr. Chair and honourable colleagues. Thank you for the opportunity to speak to you today about Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

This Bill is a priority for our Government for many reasons, in particular because the future functioning of the National Sex Offender Registry hangs in the balance. If this Bill does not receive Royal Assent before October 29, 2023, courts will no longer have the ability to require sex offenders to register on the National Registry. I am sure we can agree that this outcome is unacceptable, and I am seeking your cooperation in the swift passage of this legislation.

As you are aware, last October the Supreme Court of Canada struck down two provisions of the Criminal Code relating to the sex offender registry in a decision called R. v. Ndhlovu.

The first provision it invalidated was the provision requiring automatic registration for those convicted or found not criminally responsible on account of mental disorder (also known as NCR) for a sexual offence. The second provision was the one that requires mandatory lifetime registration for those convicted of, or found NCR for, multiple offences in the course of the same prosecution.

The Court found these provisions to be inconsistent with the Charter because they applied too broadly, and captured individuals who did not pose any risk of reoffending.

The Court invited Parliament to craft a legislative response, and gave us a year to put something in force before courts lose the ability to order individuals to register. Bill S-12 represents the Government’s proposed answer.

Our answer proposes to require mandatory registration for a small group of particularly serious cases and to presumptively require registration for all other individuals. In these presumptive cases, an individual would need to demonstrate that, in their particular case, registration would unduly affect their rights.

Specifically, they would need to demonstrate that registration would be grossly disproportionate to the public objective of registration, or that there would be no connection between their registration and the purpose of helping police services prevent and investigate sexual offences.

Madam Chair / Mr. Chair, as I mentioned, there are some types of sexual offending that are so unequivocally harmful to society that automatic registration remains appropriate. As such, Bill S-12 proposes to retain automatic registration on the sex offender registry for all those who commit sexual offences against a child that result in a prison sentence of two years or more when the Crown proceeds by indictment, and for all repeat sexual offenders.

The approach we are taking strikes the right balance between the need to protect the public and respecting the obligation that all governments have – be they federal or provincial – to ensure that legislation and government action is consistent with the Charter. Our government firmly believes that these two objectives are not in opposition and that responsible law reform can both ensure public safety and respect constitutional rights.

Bill S-12 proposes other changes to respond to the Supreme Court’s decision in relation to automatic lifetime registration. The proposed reforms would allow courts to order lifetime registration in cases where the pattern of offending indicates that the individual poses a risk of re-offending.

This ensures that courts can continue to order lifetime registration, while also addressing the concerns raised by the Supreme Court.

The need to respond to Ndhlovu has also presented us with the opportunity to strengthen the sex offender registration regime and make it more effective by enacting reforms that have been called for by those most familiar with its operation: namely, the provinces, territories, and law enforcement.

These much-needed reforms would include, among other things:

  1. The addition of more offences to the list of those eligible for a SOIRA Order – this change means more people could be registered when it is appropriate to do so;
  2. A requirement for individuals convicted of sexual offences abroad to provide more information to police when they arrive in Canada – this strengthens the ability of police to determine whether these individuals should be required to register in Canada; and
  3. A requirement for those who are already registered to provide 14 days’ notice of any travel as well as the specific address of their destination, when available – this provides the police with more time to assess potential risks, and if necessary, alert other police partners of the individual’s intended travel plans.

Finally, in response to the fact that over twenty percent of registered offenders are currently in breach of their reporting obligations under SOIRA, Bill S-12 would enact new mechanisms to facilitate enforcement and compliance.

These include a new warrant provision that would allow police to arrest an offender who is in breach of their reporting obligations and bring them to a registration centre to facilitate compliance.

Our proposed SOIRA changes make good sense and will keep our communities safe by ensuring that, if enacted, the new SOIRA framework is stronger and more effective than what we have now.

Bill S-12 also includes critical changes that address the needs of victims, including victims of sexual violence in Canada. These changes are intended to empower victims and take into account their views by modernizing the rules governing publication bans and giving fuller effect to a victim’s right to information, as contained in the Canadian Victims Bill of Rights.

The first change I would highlight in this area is one that would require a court to inquire whether a victim would like to obtain post-sentence information about their case. For offenders sentenced to two years’ imprisonment or more, it would require the court to provide the victim’s contact information to the Correctional Service of Canada (CSC) in order to facilitate the provision of information to victims by the CSC and the Parole Board of Canada (PBC).

With regard to publication bans, as you may know, the publication ban regime was originally enacted to allow victims and witnesses to participate in the justice system without suffering negative consequences associated with their identities being made public. Publication bans, and the certainty of them being issued, can also encourage the reporting of offences that are under-reported, such as sexual offences. However, some victims have expressed a desire for a greater voice in relation to publication bans being sought and, once in place, a greater voice in having them revoked or modified, including so that they can more freely share their experiences with others.

The proposed reforms would therefore require prosecutors to take reasonable steps to consult with victims before applying for a publication ban under section 486.4 of the Criminal Code and clarify the process for revoking or varying publication bans, including by providing that a court must hold a hearing on the issue when the victim requests that a publication ban be lifted.

Lastly, the Bill would ensure that the publication ban provisions apply to archived material on the Internet, in order to address issues relating to material published before the publication ban was in place.

I am aware that since the introduction of this Bill, there are some victims’ groups and advocates that have indicated that the proposed reforms around publication bans may not adequately respond to victims’ concerns. I want to say that I have heard those concerns and I am very open to finding ways to ensure that Bill S-12 hits the mark.

Thank you again for the opportunity to be here and I look forward to answering your questions.