Amendments to the Criminal Code and the Sex Offender Information Registration Act

On October 26, 2023, Bill S-12 received Royal Assent and became law. The aim of this legislation is to give victims a greater voice in our justice system and to strengthen the National Sex Offender Registry.

The amendments focus on three elements:

• to empower victims by improving the law on publication bans and victims’ right to information;
• to strengthen the sex offender registration regime; and,
• to respond to the Supreme Court of Canada (SCC) decision in R. v. Ndhlovu to ensure the National Sex Offender Registry remains an effective law enforcement tool that is consistent with the Charter of Rights and Freedoms.

Amendments to publication bans to respond to concerns of victims

Publication bans can be a useful tool to shield the identity of victims, witnesses and justice system participants and protect them from further harm. For cases involving sexual offences, judges must, on request, order a publication ban to prevent the publication of the name of victims or any information that could identify them.

Publication bans aim to protect victims and encourage them to come forward to report their cases. However, we know that victims, witnesses and justice system participants have diverse needs and that the criminal justice system must be flexible and ensure that they are treated with compassion, respect, and dignity. Some do not want a publication ban. Some feel silenced by the inability to speak about their case publicly. Some have said that the process for lifting a publication ban is both unclear and difficult to navigate.

The amendments:

• require more direct conversations with victims about whether a publication ban should be imposed;
• simplify and streamline the process for amending and revoking publication bans;
• make clear that a person protected by a publication ban can share information about themselves in certain circumstances, including in private conversations and support groups; and,
• clarify when a prosecution for a breach of a publication ban shall not occur

These amendments respond to the concerns of victims who have asked for their views to be taken into consideration when seeking publication bans, while at the same time ensuring that publication bans continue to be available to those who want them.

Amendments to victims’ right to information about their case

Under the Canadian Victims Bill of Rights, all victims in Canada have the right to information. The Government of Canada has heard concerns from victims and stakeholders about the difficulties victims can face when trying to access information through the criminal justice process.

Victims do not systematically receive information about the case unless they request it.

The law now:

• requires judges to ensure that victims have been asked if they would like to receive ongoing information;
• provides victims with an easy and quick way to indicate on their Victim Impact Statement whether they wish to receive ongoing information; and,
• requires courts, with the consent of the victim, to share preferences and contact information with the Correctional Service of Canada so that victims receive information to which they are entitled.

Victims are entitled to receive ongoing information about the offender who harmed them. This information could include the length of the offender’s sentence and its start date, when an offender might be eligible for parole, release conditions, and appeals of release decisions. Some victims want to receive this information, others do not. We believe that it should be their choice. The law now makes it easier and quicker to communicate their preference.

Empowering victims to make choices based on their particular needs and what will work for them is a trauma-informed practice.

Amendments to the National Sex Offender Registry

On October 28, 2022, the Supreme Court of Canada issued its ruling in R. v. Ndhlovu. The Court found that two elements of the Criminal Code related to the National Sex Offender Registry were inconsistent with the Canadian Charter of Rights and Freedoms.

Specifically, the Court struck down the provisions that required automatic registration for those found guilty or that were not found criminally responsible on account of mental disorder for a designated offence. The Court also struck down the provision requiring mandatory lifetime registration for who were convicted of more than one sexual offence at the same time. The Court found these provisions inconsistent with section 7 of the Charter, which guarantees everyone the right to life, liberty and security of the person.

These legislative amendments respond to the Court’s decision by making the following changes to the criteria for automatic registration on the National Sex Offender Registry:

Automatic registration for:

• child sex offenders sentenced to two or more years in prison;
• repeat sexual offenders; and,
• any offender who has previously been ordered to register on the National Sex Offender Registry because of a conviction for a designated offence.

All other offenders are required to register, unless they can demonstrate that they pose no risk to the community.

Lifetime Orders:

• judges are able to impose lifetime registration for sexual offenders who are found guilty of more than one offence at the same time, if the offender poses a risk of re-offending.

Other requirements:

• registered sex offenders who intend to travel are required to provide 14 days advance notice prior to their travel departure; and,
• registered sex offenders must report every address at which they will be staying during their travels.

Addition of new offences for which registration with the National Sex Offender Registry may be required:

The courts can now order registration in additional circumstances, including:

• cases of non-consensual sharing of intimate images; and
• cases of “sextortion” (where the Crown proves that extortion was committed with the intention of committing a sexual offence).

The legislation also ensures aggravated sexual assault against a person under 16 is now explicitly included in the list of offences for registration.