3. Questions and Answers

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

General Questions:

Q1. What are the objectives of the Bill?

The Bill has three main objectives:

  1. to respond to the Supreme Court of Canada (SCC) decision in R v Ndhlovu in a timely manner to ensure that the National Sex Offender Registry remains an effective law enforcement tool (in that case the SCC struck down as inconsistent with the Charter, two elements of the Criminal Code sex offender registration regime);
  2. strengthen the sex offender registration regime; and,
  3. empower victims and improve the law on publication bans and victims’ rights to information.

Q2. What are the reforms being proposed in this Bill?

The Bill proposes to make a number of legislative amendments.

To respond to R v Ndhlovu it would:

To strengthen the Registry, it would:

To empower victims of crime with respect to publication bans, it would:

To improve victims’ rights to information, it would:

Q3. Why are changes needed to the National Sex Offender Registry?

A number of changes related to the National Sex Offender Registry respond to a decision by the Supreme Court of Canada that struck down two provisions of the Criminal Code governing the registration of sex offenders for being inconsistent with the Canadian Charter of Rights and Freedoms (the Charter). The first was the automatic registration of all individuals convicted, or found not criminally responsible on account of mental disorder, of designated sexual offences. The second was the mandatory lifetime registration for individuals convicted of more than one sexual offence in the same prosecution, no matter the nature or timing of the offence.

The court gave Parliament one year to respond to the decision relating to automatic registration. This means that without legislative action, no one can be added to the Registry after October 28, 2023.

Making changes to the law is necessary to ensure that the Registry remains operational and to bring it into compliance with the Charter. Ensuring the continued operation of the Registry will help people feel safe and promote confidence in our criminal justice system.

Q4. Why does the Bill propose changes to the publication bans provisions?

Publication bans are useful tools to shield the identity of victims, witnesses and justice system participants, and protect them from further harm. However, some survivors wish to share their stories publicly, and may want a publication ban lifted and find the process for revoking such bans confusing and cumbersome.

These provisions would give a greater voice and agency to victims in the criminal justice system, including survivors of sexual assault.

Q5. Why does the Bill propose changes to victims’ right to information?

Under the Canadian Victims Bill of Rights, all victims of crime in Canada have rights to information, protection, participation, and to seek restitution.

The Government has heard concerns from victims and stakeholders about the difficulties victims can face when trying to access information through the criminal justice process. Victims and stakeholders have also raised concerns about inconsistencies between the Criminal Code and the Canadian Victims Bill of Rights. The proposed changes respond to these concerns.

Q6. What amendments did the Senate make to the Bill, and is the Government supportive of these proposed changes?

The Senate made several amendments to the Bill, and the Government is generally supportive of many of these amendments as they further the goal of empowering victims of crime in the criminal justice process and better support its objectives.

Amendments included: clear requirements to engage with victims, witnesses and justice system participants to ensure that their wishes are respected as to whether a publication ban is imposed; an exemption from prosecution for victims who publish or broadcast their own identifying information, provided it does not impact upon the privacy interests of other victims and a warning would not be appropriate; and a clarified and simplified process for the revocation or modification of a publication ban.

Some Senate amendments raise concerns about prosecutorial independence and victim privacy and should be studied more closely.

The Senate also passed two amendments to the provisions of the Bill related to the National Sex Offender Registry to address technical oversights in the drafting process.

Reforms regarding the National Sex Offender Registry

Q7. What is the National Sex Offender Registry and what is its purpose?

The National Sex Offender Registry is a national database that was created in 2004 and contains up to date information about registered sex offenders, including their name, address, and employment.

It is an important law enforcement tool that provides police with timely access to current and reliable information on registered sex offenders to help them prevent or investigate crimes of a sexual nature.

The objective of the sex offender registry is to assist law enforcement in the investigation and prevention of sexual offences; it is not intended to form part of a sentence or be a type of punishment.

Q8. What did the Supreme Court of Canada decide in R v Ndhlovu?

The Court struck down the following two provisions of the Criminal Code relating to the court’s power to require offenders to register and comply with the national sex offender registry:

  1. (section 490.012) - the provision that requires automatic registration of all offenders regardless of their level of risk; and
  2. (section 490.013(2.1) - the provision requiring courts to impose lifetime orders for those convicted of more than one sexual offence in the same proceeding, regardless of the nature or timing of the offences.

The Court held that both provisions violated section 7 of the Charter (life, liberty and security of person) because they applied to individuals who may not pose a significant risk of reoffending. The requirement for these people to register, and to register for life in some cases, did not further the objective of helping police prevent or investigate sexual crimes.

The decision on the mandatory lifetime order was struck down immediately and retroactively. Only offenders who have prior convictions (or SOIRA orders), or who committed offences where the maximum penalty is life imprisonment can get lifetime orders at this time.

Q9. In what circumstances is an individual required to register on the NSOR and for how long?

Individuals are required to register because they have been convicted or found not criminally responsible on account of mental disorder of a designated offence. Designated offences are listed in section 490.011 of the Criminal Code and are primarily sexual offences. Some designated offences are not sexual in nature, but if they are committed with the intent to commit a sexual offence, then that person can also be required to register. Registration periods can be 10 years, 20 years or life, depending primarily on the maximum penalty associated with the offence for which the person is required to register.

Q10. What happens when a person is required to register on the National Sex Offender Registry?

Once a court makes a decision that an individual should register on the National Sex Offender Registry, the individual has seven days to report in person to provide the information that is required under the Sex Offender Information Registration Act (SOIRA). After that, they must report every year, and may have additional reporting obligations if they travel or change residences or make other life changes, such as changing their name or obtaining a passport or driver’s license.

Q11. Does the Supreme Court of Canada decision mean that people can’t currently be added to the Registry and that the Registry will cease to exist?

The National Sex Offender Registry is still in operation. Following the Supreme Court of Canada decision in R v Ndhlovu, the Court gave Parliament one year to respond to the decision on automatic registration, meaning that without new legislation, it will not be possible to add sexual offenders to the National Sex Offender Registry after October 28, 2023.

The proposed Criminal Code amendments would respond to the decision and ensure that sexual offenders can continue to be registered, with discretion for judges to exempt offenders for whom registration would not be related to the purpose of registration, which is to help police prevent and investigate sex crimes or would have a grossly disproportionate impact on them.

Q12. What would happen if the Bill does not pass by the October 28 deadline?

We expect that all Parliamentarians will work with us to ensure that the Bill passes before the October 28, 2023, deadline. This legislation is important in order to strengthen the National Sex Offender Registry in Canada, empower victims of crime, and build confidence in the criminal justice system.

If it does not, and absent other action, there will be no ability to require newly convicted offenders to register and comply with the National Sex Offender Registry.

Q13. Why is the Government proposing automatic registration for some offenders when the Supreme Court of Canada declared automatic registration unconstitutional? Won’t this be struck down again?

We believe that the proposed legislation strikes the right balance between the need for a comprehensive National Sex Offender Registry to prevent and investigate sexual offences and the need to ensure Charter rights of sexual offenders who are required to comply with the Registry.

The proposed legislation would retain automatic registration only in two narrow situations – situations involving repeat offenders, and situations involving serious offences against children. The Government is of the view that these situations involve a higher risk of recidivism, and that mandatory registration in these circumstances is consistent with the Charter.

Q14. Why isn’t Bill S-12 also proposing automatic registration for other cases (i.e., intimate partner violence, sexual assault)?

The Supreme Court of Canada (SCC) was very clear in R v Ndhlovu, that automatic registration in all cases was overbroad. The SCC held that the current regime cast too wide a net, and captured individuals whose registration was not related to the purpose of registration.

As a response, the Government is proposing to re-enact automatic registration in two, very narrow situations where the Government is of the view that the risk of sexual recidivism is higher and automatic registration is therefore appropriate. These situations include: automatic registration for repeat offenders and cases involving sexual offences against a child where the Crown proceeds by indictment and the sentence imposed is 2 years or more.

Extending automatic registration to cases that are not as clearly linked with higher risks of sexual offence recidivism would raise Charter concerns.

Q15. How effective is the National Sex Offender Registry at assisting police in preventing and investigating sexual offences?

The National Sex Offender Registry is a helpful tool that law enforcement agencies use to prevent and investigate sexual offences. The Government is confident that it is effective, based on feedback from law enforcement agencies, and will be engaging in a comprehensive analysis in the coming years to help bolster the evidence of its effectiveness.

Q16. Does the Bill provide accused persons found not criminally responsible on account of mental disorder an opportunity to be removed from the Registry?

The proposed changes would provide accused persons found not criminally responsible on account of mental disorder with an opportunity to apply to be removed from the Registry when they are found to no longer present a significant threat to the safety of the public by a court or Review Board.

This proposed change is in direct response to the 2020 decision of the Supreme Court in G v. Ontario (Attorney General), which held that not providing avenues for these individuals to be relieved from their reporting obligations violated their equality rights (section 15 of the Charter), as it resulted in them being treated more harshly than convicted offenders who had received a pardon.

Q17. Does Bill S-12 propose to make the sex offender registry public?

Bill S-12 does not propose to make the information in the sex offender registry available to the public. Information held in the National Sex Offender Registry is tightly controlled and can only be accessed by law enforcement for the purpose of investigating or preventing a crime of a sexual nature. Any misuse of the database information is prohibited and can result in criminal charges.

Some provinces and territories issue public notifications regarding high-risk offenders in certain circumstances, but this is not done through the National Sex Offender Registry.

Q18. Does Bill S-12 include a mechanism to monitor dangerous sex offenders? Would the Government be willing to support an amendment that would authorize closer monitoring and more oversight of sex offenders?

Bill S-12 contains proposals to allow police to more effectively monitor registered sex offenders, including: an arrest warrant for offenders who are non-compliant with their registration obligations; and stricter notice obligations for registered offenders travelling away from their residence. In addition, under the current legal framework, police conduct compliance checks on registered sex offenders to ensure, among other things, that their address is correct, and that they are in compliance with their other obligations. Bill S-12 proposes to more clearly articulate this power at proposed subparagraph 16(4)(c)(i.1) in Clause 44.

Further, there are other tools available to law enforcement and Crown prosecutors to permit dangerous offenders to be effectively monitored, including:

  1. The Dangerous and Long-Term Offender provisions of the Criminal Code that permit detention for an indeterminate duration in certain circumstances;
  2. The National Flagging System for High-Risk Violent Offenders, which consists of a database and a network of provincial and territorial officials that are responsible for identifying and flagging high-risk offenders. Records relating to these offenders are shared through the Canadian Police Information Centre and provide prosecutors with full background materials about these offenders in order to proceed appropriately (e.g., by pursuing a Dangerous Offender application) if they re-offend anywhere in Canada;
  3. Criminal Code peace bond provisions (sections 810 to 810.2) that permit a judge to require an individual to enter into a recognizance to keep the peace as a means of preventing the commission of an offence in the future; and,
  4. The authority in the Criminal Code that permits judges to order electronic monitoring as a condition of probation (paragraph 732.1(3)(h)) or a conditional sentence order (paragraph 742.3(2)(f)), and the authority in section 57.1 of the Corrections and Conditional Release Act that enables the Correctional Service of Canada to impose electronic monitoring requirements on federally sentenced offenders in certain circumstances.

Any proposals to further amend Bill S-12 to increase monitoring and tracking of sex offenders would need to be carefully examined to ensure that they are consistent with the objectives of the SOIRA, and in accordance with the Charter.

Q19. What are the current penalties for failing to notify the Registry of a move, or failing to comply with obligations to register?

Registered sex offenders who do not comply with their obligations may be charged with a criminal offence. Sections 490.031 and 490.0311 of the Criminal Code outline the offences of failing to comply with reporting obligations and providing false or misleading information to the Registry.

These are both hybrid offences, punishable by a maximum fine of $10,000 or not more than 2 years if prosecuted by indictment.

Failing to notify the registry of a change in address within 7 days, for example, could result in a criminal charge under these provisions.

Questions regarding Publication Bans

Q20. What is a publication ban and why do the provisions need to be modified?

A publication ban is an order, issued by the court, that prohibits anyone from publishing, broadcasting or transmitting any information that could identify a victim, a witness, or other justice system participant.

Although publication bans aim to protect victims’ privacy and encourage the reporting of crime, some victims have found that they can prevent them from sharing their experience with others. Victims have long advocated for more consultation and consideration of their views before a publication ban is sought and a clear process around how a publication ban can be removed or amended.

Q21. What would be the process by which a victim could have their publication ban modified or revoked under Bill S-12?

The Bill proposes that if an individual requests to have a publication lifted or modified, the court must grant the request unless there is a risk that another person’s privacy, other than the accused, could be impacted. If another persons’ privacy is impacted, the court must hold a hearing to consider the issue.

Q22. Why doesn’t Bill S-12 propose that the victim’s consent must be obtained before a publication ban can be ordered?

The proposals in Bill S-12 aim to empower victims with respect to seeking and obtaining a publication ban, but it does not propose to go as far as requiring the consent of victims before a publication ban can be issued.

This is to account for situations where it may be difficult to obtain such consent in time before the first appearance. In such circumstances, prosecutors err on the side of caution and the protection of privacy to ensure that the publication ban is in place as soon as possible.

Additionally, there may be situations where a victim is unable to give consent, including for example, situations where: a victim has a mental disability; and a victim is hospitalized and unable to be seen or is otherwise unable to make a decision at the time of the consultation.

Finally, putting pressure on some victims to make a choice about a publication ban early in the process is in direct contrast to the goal of respecting the autonomy of victims and allowing them to make choices at their own pace.

Questions regarding Victims’ Rights to Information

Q23. How does this Bill recognize the right of victims to receive information about their case?

The Canadian Victims Bill of Rights provides victims with the right to request that information relevant to their case be shared with them. The Bill would recognize their right to receive information about the sentence imposed and steps that will follow in cases involving a finding of not criminally responsible on account of mental disorder.

The changes would also require a court to advise the Correctional Service of Canada of the victim’s wish to obtain information on how the sentence is being served.

Q24. Why does the Bill not respond to the other recommendations from the 7th Report of the House of Commons Standing Committee on Justice and Human Rights?

The proposed changes to publications bans and victims’ right to access information about their case respond directly to calls from victims and stakeholders, as well as recommendations 4 and 11 of the Report of the House of Commons Standing Committee on Justice and Human Rights titled “Improving Support for Victims of Crime”. The Government Response was tabled on April 17, 2023.

The Response reiterates the Government’s commitment to strengthening efforts to implement and strengthen victims’ rights under the Canadian Victims Bill of Rights and other federal legislation. The Government will continue to work in partnership with all levels of government, Indigenous partners, and non-governmental organizations to improve awareness about the experiences of victims in the criminal justice system, as well as increase access to services and supports.