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

As passed by the Senate

September, 2023

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

NSOR provides police with up to date information on registered sex offenders to help 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

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

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

Prevent dissemination of names and identifying information about victims, witnesses
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

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

Improved consultation with victims about whether a publication ban should be imposed
Exemption from prosecution for victims who publish or broadcast their own identifying information
Clear process for revocation or modification of a publication ban

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