2. Opening Remarks

Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act

House of Commons Standing Committee on Justice and Human Rights

Minister’s Remarks

September 2023

Mr./Madam Chair, thank you for the opportunity to appear before you to speak about Bill S-12, which proposes a series of reforms to the National Sex Offender Registration regime and to the publication ban provisions of the Criminal Code. The sex offender reforms would both strengthen the Registry and respond to the 2022 R. v. Ndhlovu Supreme Court of Canada decision.

The publication ban reforms would give victims of crime more agency and autonomy on the issue of publication bans and improve their ongoing rights to information.

Let me begin by talking about the proposed reforms to the sex offender registry. As you know, the sex offender registry is a national database of information about convicted sex offenders (and those found not criminally responsible on account of mental disorder for sexual offences). Its objective is to assist the police to prevent and investigate sexual offences.

The Criminal Code contains the power for judges to order individuals to register, and the Sex Offender Information Registration Act is the legislation that, among other things, sets out the rules and obligation for registered sex offenders.

In October 2022, the Supreme Court of Canada struck down two elements of the Criminal Code regime on sex offender registration as being inconsistent with the Charter of Rights and Freedoms. The first provision was the one that required automatic registration for anyone convicted of, or found not criminally responsible on account of mental disorder (NCR) for a designated sexual offence.

The Court held that automatic registration for all offenders violates the Charter, because it captures offenders who pose no risk of reoffending. This, in turn, was found to be inconsistent with the purpose of the Registry, because including these low-risk offenders does not help police investigate or prevent sexual offences.

The Court gave Parliament one year to develop a legislative response to the issue of automatic registration. This deadline will expire on October 28, 2023, after which courts will no longer be able to order offenders to register.

I’m sure you all recognize the urgency of this deadline, and I hope you agree with me that it is important to work diligently to ensure that there is no gap in the law, even for a short time, that would prevent the registration of potentially dangerous sex offenders.

The second provision that the Court struck down was the provision requiring mandatory lifetime registration for those convicted of more than one designated offence in the same proceeding. The Court found it was overbroad because not all individuals who commit multiple offences pose an increased risk of reoffending. The court struck this provision with immediate effect.

In response to the Court’s decision, Bill S-12 proposes to replace automatic registration with a presumption of registration, meaning that an order to comply with the Registry must be imposed in all cases involving a sexual offence, unless the offender can show that registration would be grossly disproportionate or overbroad.

However, the Bill would retain automatic registration for two categories of offenders. First, for repeat sexual offenders, and second, for those who commit sex offences against children and are sentenced to two years or more imprisonment, on indictment – even in the case of a first-time offender.

Restricting automatic registration to these situations reflects current social science evidence that these categories of individuals are at a higher risk to reoffend in a sexual manner. It is my view that including these individuals on the registry will always be related and proportionate to its objectives.

On the issue of mandatory lifetime registration, the Bill proposes to allow a court to order lifetime registration for individuals convicted of more than one designated offence in the same proceeding where the offences demonstrate a pattern of behaviour that shows an increased risk of sexual recidivism. This addresses the concerns of the Supreme Court while allowing lifetime registration in appropriate cases.

To complement the proposals that address the Ndhlovu decision, there are also amendments that are intended to strengthen the sex offender registration regime as a whole and make it more effective.

These amendments include a requirement for registered sex offenders to provide a minimum of 14 days’ notice of any travel as well as the specific address of their destination. This will provide the police with more time and information to assess potential risks, and if necessary, alert international law enforcement partners of an individual’s intended travel plans.

Other key amendments include the addition of more offences for which an individual could be required to register, including the non-consensual distribution of intimate images and extortion, and a new arrest warrant to address non-compliance with an offender’s registration obligations.

This brings me to the second part of the Bill that primarily deals with publication bans. Publication bans protect the privacy of certain people in the criminal justice system, including victims to, among other things, encourage the reporting of crime. They prohibit the publication, broadcasting, or transmission of any information that could identify the person who is the subject of the order.

They are often imposed early in the trial process before consultation may be possible. Many victims appreciate that a publication ban can be imposed in their case and the certainty of its imposition may be an important consideration in their reporting a crime in the first place.

However, as you also know, victims and their views are varied and many have expressed that they feel silenced because of the existence of a publication ban and if they had been asked, they would have rejected its imposition at the outset.

To respond to such concerns, Bill S-12 proposes a victim-centred approach that aims to give greater agency to victims by requiring that courts and prosecutors ascertain whether victims wish to be protected by a publication ban, and where one is ordered, to inform them of the effects of a publication ban and of their right to apply to revoke or vary it.

If a person who is subject to a publication ban requests that it be revoked or varied, the prosecutor will be required to bring an application on their behalf. The court will then be required to vary or revoke the order without holding a hearing, unless doing so would affect the privacy rights of another person, such as in cases involving multiple victims where the revocation of one person’s publication ban could identify another victim.

Finally, Bill S-12 aims to eliminate the threat of prosecution for individuals when they share their own identifying information by including a clear direction to prosecutors about the very limited circumstances where an individual whose identity is protected by a publication ban can be held criminally liable.

Upon further review of Bill S-12, the Senate made a number of amendments to the publication ban reforms to respond to the concerns it heard from witnesses during the bill’s study. While these have generally led to a more robust bill, I am concerned with some of the amendments and would like to draw your attention to two of them.

First, an amendment was made that would require the prosecutor to inform victims and witnesses who are the subjects of a publication ban, about the circumstances under which they could legitimately disclose information without facing legal consequences. While I appreciate the objective of this change, it does raise serious questions about prosecutorial independence and conflicts of interest. In fact, I have received correspondence from some provincial attorneys general raising this very concern, and I would ask you to review this issue closely.

I am also concerned with the amendment to clarify what is or is not captured by a publication ban. While it is true that clarity is almost always helpful, I am concerned about the proposed amendment that specifies that an individual who is protected by a publication ban may disclose information about themselves, as long as they do not otherwise intend to identify another person who is protected by the same publication ban. This proposed change to the legislation could have the effect of unintentionally compromising the privacy interests of individuals who may be protected by other publication bans. Again, this is an issue that I would invite you to explore in greater detail.

I will conclude by saying that I have every confidence that the reforms proposed in this Bill will strengthen the National Sex Offender Registry, respect the Charter of Rights and Freedoms, and make the criminal justice system more responsive to the needs of victims of crime.

I look forward to following your study of this Bill.