6. Technical Briefing Deck
Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act
April 2023
Purpose and Objectives
- To strengthen the National Sex Offender Registry (NSOR) regime and respond to the recent Supreme Court of Canada decision in R. v. Ndhlovu.
- To promote clarity and victim confidence in the provisions on publication bans and enhance victims’ right to information.
Background – National Sex Offender Registry (NSOR) Regime
- NSOR provides police with up-to-date information on registered sex offenders to help them prevent and investigate sexual offences.
- Enacted in 2004 – with both prosecutorial and judicial discretion as to whether to seek or impose an NSOR order.
- Amendments in 2011 did two main things:
- Removed both prosecutorial and judicial discretion, meaning everyone who qualified was automatically required to register;
- Created mandatory lifetime registration for those convicted of, or found Not Criminally Responsible (NCR) for, multiple sexual offences as part of the same prosecution.
Context – National Sex Offender Registry (NSOR) Regime
- In Ndhlovu, the SCC invalidated the 2011 amendments with respect to:
- Automatic registration (section 490.012) because the law captured people who posed no risk of reoffending (takes effect on October 29, 2023);
- Mandatory lifetime order (subsection 490.013(2.1)) because it applied without consideration of timing or nature of offences and captured people who posed no increased risk (had immediate effect).
- If new legislation is not in place by October 29, 2023, courts will no longer be able to order individuals to comply with the NSOR.
Overview of Bill – National Sex Offender Registry (NSOR) Regime
- Would reinstate automatic registration in some circumstances:
- Child sex offenders sentenced to two or more years in prison (on indictment); and
- Cases involving repeat offenders.
- For all others - presumption of registration unless the individual can demonstrate registration would be grossly disproportionate or overbroad.
- Judges will have a list of factors to guide their discretion.
- Discretion to order lifetime registration for those who are convicted of multiple offences in the same trial if there is a pattern of behaviour that demonstrates an increased risk of reoffending.
Other proposed reforms would strengthen the NSOR regime by:
- Updating the list of designated offences - including the non-consensual distribution of intimate images, and extortion;
- Creating a compliance warrant;
- Creating a summons provision;
- Requiring offenders convicted of sexual offences outside of Canada to provide more information to police;
- Requiring registered offenders to provide 14 days notice before travelling;
- Requiring registered offenders to provide specific address of travel destination when available.
Background: Empowering Victims
Publication Bans:
- Prevent dissemination of names and identifying information about victims, witnesses and sometimes accused.
- For most sexual offences, judge must order on application.
- Often sought early in the trial process before information is disseminated.
- Can be revoked on application, if there is a material change in circumstances.
Right to Information:
- Provided in the Canadian Victims Bill of Rights.
- All victims have the right to obtain, upon request, information about their case, from the investigation to the end of the sentence.
Context: Empowering Victims of Crime
- Victims have expressed following concerns:
- No requirement for prosecutors to consult them before seeking publication ban;
- Process to revoke a publication ban is unclear;
- Having to register in order to receive information about offender.
- JUST report recommended following reforms:
- Allow publication bans to be lifted at victim’s request;
- Victims be consulted before imposing a publication ban;
- Information about the offender be provided automatically to victim.
Overview of Bill: Empowering Victims of Crime
Publication Bans:
- Require judges to inquire whether the prosecutor has made reasonable steps to consult with victims before seeking a publication ban;
- Codify and clarify the process for revoking and modifying publications bans and making the hearing mandatory if requested by the victim;
- Modernize the publication ban regime so that it applies to archived information that was published prior to the issuance of the publication ban;
- Ensure that publication bans can be issued in cases of non-consensual distribution of intimate images.
Victims’ Right to Information:
- Require the sentencing judge to ask whether the victim would like to receive post-sentence information about the case;
- Facilitate the provision of information to victims by the Correctional Service of Canada and the Parole Board of Canada.
Annex: Broader Government Responses to Sexual Offending
Law Reforms:
- 2021 Judges Act amendments to improve judicial training and understanding of the social context surrounding sexual violence (C-3);
- 2018 Criminal Code amendments to expand “rape shield” provisions and help ensure sexual assault matters are decided fairly and without the influence of myths or stereotypes (C-51);
- 2019 Criminal Code amendments including to better protect victims from intimate partner violence at bail and sentencing (C-75);
- 2022 Criminal Code amendments to respond to SCC decision in Chan and Sullivan on extreme intoxication (C-28).
Program Funding:
- Annual funding to provinces/territories and non-governmental organizations to support increased access to justice for victims and survivors through the Justice Canada Victims Fund;
- Budget 2021 committed $601.3 million over five years “to advance towards a new National Action Plan to End Gender-Based Violence”. Of that, Justice Canada was allocated $48.75M over five years to support independent legal advice and independent legal representation programs for victims of sexual assault and intimate partner violence;
- Budget 2022 provided $539.3M over five years, starting in 2022-23, to Women and Gender Equality Canada to enable provinces and territories to supplement and enhance supports to prevent gender-based violence and support survivors, as a part of the National Action Plan to End Gender-Based Violence.
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