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

Q1. What are the proposed changes to the Criminal Code and the National Sex Offender Registry that respond to the Supreme Court of Canada decision?

Under the proposed legislation:

Q2. What are the proposed changes to the publication bans provisions?

Publication bans are useful tools to shield the identity of victims and witnesses, and protect them from further harm. Some survivors wish to share their stories publicly and may be prevented from doing so on account of publication bans.

The proposed changes to publication bans would require judges to make sure that victims have been asked if they would like a publication ban before imposing one. The proposed reforms would also clarify the process for lifting a publication ban.

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

Q3. What are the proposed changes to victims’ right to information about their cases?

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 to the Criminal Code would increase victims’ access to information by requiring courts to ask if victims would like to receive information about the case after sentencing. The changes would also require courts to provide victim contact information to the Correctional Service of Canada so that victims can properly receive the information.

Q4. 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.

Q5. Why are these changes needed?

The proposed changes related to the National Sex Offender Registry respond to a binding decision by the Supreme Court of Canada that struck down two provisions of the Criminal Code governing the registration of sex offenders. 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.

Additionally, at the House of Commons Standing Committee on Justice and Human Rights, victims and advocates reiterated longstanding concerns regarding publication bans and victims’ right to information about their cases. This Bill would address these concerns.

Making changes to the law is necessary to ensure that the law governing the Registry is consistent with the Charter and will help people feel safe and promote confidence in our criminal justice system.

Q6. 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.

Q7. What would happen if the Bill does not pass before 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.

Q8. 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. After that, they must report every year, and may have additional reporting obligations if they travel or change residences, or make other life changes.

Q9. 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 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 Charter rights of sexual offenders who are required to comply with the Registry.

Q10. 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.

Q11. What about individuals found not criminally responsible on account of mental disorder?

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.

Q12. 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.

Provinces and territories may be able to issue public notifications regarding high-risk offenders in certain circumstances, but this is not through the National Sex Offender Registry.

Q13. 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 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 (CPIC) 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 for up to one year if certain conditions are met, including that there is a fear, based on reasonable grounds to believe, that an offence will be committed; 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 they are consistent with the objectives of the Sex Offender Information Registration Act, and in accordance with the Charter.

Q14. Will victims still have to go to court to have a publication ban modified or revoked? How would this new process be easier for them?

The common law already provides a process for a publication ban to be lifted or modified and the proposed legislation would codify and clarify that process to ensure that all justice participants understand how and why publication bans can be removed or modified. A court would be required to hear evidence that shows the reasons why the publication ban initially put in place is no longer wanted or needed to protect the person the ban was intended to benefit.

Additionally, judges would be required to ask prosecutors whether they have made best efforts to consult the victim prior to requesting a publication ban. This would give the victim greater agency in the process, while ensuring that prosecutors can still request publication bans to protect victims. Victims would also receive information on any publication ban, including how to amend or revoke one, making the process clearer and easier to navigate.

Q15. Why did you not respond to the other recommendations from the 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 the 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.

Q16. Is the Government considering amendments to the publication ban provisions given comments from some victims groups that the current proposals don’t go far enough?

The Government is always open to hearing the views of key criminal justice stakeholders and looks forward to the Parliamentary study to determine whether the proposals in Bill S-12 would meet its objectives.