Background

1. National Sex Offender Registry

The National Sex Offender Registry (NSOR) was created in December 2004 through the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA). It is a national database that provides police with access to current and reliable information on registered sex offenders in order to help them prevent or investigate sexual offences. As of April 18, 2023, there were 43,707 individuals required to register on the NSOR.

The Criminal Code (sections 490.011 to 490.032), in combination with SOIRA, create the legislative framework for the NSOR. The Criminal Code establishes the legislative scheme to require individuals to comply with an order to register on the NSOR, sets the duration of reporting obligations, and provides a process to apply for the termination of an order. The SOIRA sets out the reporting obligations of registered sex offenders, including the frequency of the reporting and the type of information required, such as their name, aliases, date of birth, gender, passport and driver’s licence information, addresses, place of work or volunteer activities, phone numbers, addresses of schools they are enrolled in, photos and physical description, and information on any vehicle they own or use regularly.

In addition to annual in-person reporting at a registration centre managed by law enforcement, offenders must also report any change in their address, name, employment or volunteer information, or the fact that they have received a driver’s licence or passport within seven days. In most jurisdictions, they may provide the latter information by electronic means or registered mail. Offenders must also report any absence from their main or secondary residence of seven days or more, and offenders convicted of a child sex offence must also report any international travel of any duration. Individuals who fail to comply with their obligations under the SOIRA can be charged with a criminal offence and, if convicted, sentenced to a maximum of two years of imprisonment.

Access to the information contained in the NSOR is strictly controlled. It is not publicly available and can only be accessed by members of law enforcement for the purposes of preventing or investigating a crime of a sexual nature.

There are multiple avenues through which a person can be required to register on the NSOR. The most common way a person is required to register is as a result of being convicted or found not criminally responsible on account of mental disorder (NCR) for a designated offence in Canada.

There are other mechanisms to require registration, including for offenders who have committed sexual offences abroad (referred to in this document as “international offenders”) and those who are being transferred to Canada for sexual offences through the International Transfer of Offenders Act (referred to in this document as “ITOA offenders”).

When the NSOR was created in 2004, a prosecutor could apply to the court for an order that an offender be required to register. The application would be made following sentencing or an NCR verdict for a designated offence. The judge would then decide whether to make the order and could decline to make an order if they were satisfied that the impact of an order on the offender, “including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, through the registration of information relating to sex offenders under the SOIRA” (former subsection 490.012(4)).

During a 2009 review of the NSOR by the House of Commons Standing Committee on Public Safety and National Security (SECU), evidence revealed that only 50% of sex offenders were being required to register. This was understood to primarily stem from the exercise of prosecutorial discretion to not seek a SOIRA order, including as part of a plea agreement. In light of this evidence, the Committee recommended law reform to provide for automatic registration for the majority of designated offences, but keeping limited judicial discretion for cases where registration would be grossly disproportionate to the purpose of registration. In 2011, Parliament enacted the Protecting Victims from Sex Offenders Act S.C. 2010, c. 17, which enacted reforms that removed discretion for both the prosecutor and the judge, meaning everyone who is convicted or found NCR of a designated offence has been automatically required to register on the NSOR since these amendments came into force on April 15, 2011.