Proposed changes to the Criminal Code and the Sex Offender Information Registration Act

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On April 26, 2023, government legislation was introduced in Senate. The aim of this legislation is to strengthen the National Sex Offender Registry and make the criminal justice system more responsive to the needs of victims.

The proposed changes focus on three elements:

1. Responding to a Supreme Court of Canada decision to ensure that the National Sex Offender Registry remains operational and can continue to be used as an effective tool to prevent and investigate sexual crimes, while respecting the Charter of Rights and Freedoms through changes to the automatic registration criteria for sexual offenders;
2. Empowering victims and improving the law on publication bans by requiring judges to:
   1. ask the prosecutor if victims want a publication ban
   2. clarify the process for modifying or revoking a ban
3. Requiring judges to ask the prosecutor if victims want to receive information about their case after sentencing.

Changes to the National Sex Offender Registry

On October 28, 2022, the Supreme Court of Canada issued its ruling in R. v. Ndhlovu. The Court found that two elements of the Criminal Code related to the National Sex Offender Registry were inconsistent with the Canadian Charter of Rights and Freedoms.

Specifically, the Court struck down the provisions that required automatic registration for everyone convicted of, or found not criminally responsible for, a designated sexual offence, as well as the provision requiring mandatory lifetime registration for some offenders. The Court found these provisions inconsistent with section 7 of the Charter, which guarantees everyone the right to life, liberty and security of the person.

The Court gave Parliament one year to respond to the decision on automatic registration. Without new legislation, the National Sex Offender Registry after October 28, 2023, will effectively cease to be operational, as it will not be possible for courts to order sexual offenders to register and comply with the Registry.

The proposed legislative changes respond to the Court’s decision by making the following changes to the criteria for automatic registration on the National Sex Offender Registry:

Automatic registration for:

• child sex offenders sentenced to two or more years in prison, when the Crown proceeds by indictment;
• any repeat offender who has previously been convicted of a sexual offence;
• any offender who has previously been ordered to register on the National Sex Offender Registry

All other sexual offenders would be required to register unless they can demonstrate to the court that registering would not meet the purpose of the Registry, which is to help police prevent or investigate sexual crimes, or that registering would have a grossly disproportionate impact on them.

Lifetime Orders:

• judges would be able to impose lifetime registration for sexual offenders who are found guilty of more than one offence at the same time, if the offender poses a risk of re-offending.

Other requirements:

• registered sex offenders who intend to travel will be required to provide 14 days’ advance notice prior to their travel departure;
• registered sex offenders must report every address at which they will be staying during their travels, and;
• those found not criminally responsible on account of mental disorder would be able to apply to be removed from the registry if they are deemed to not pose a significant risk to public safety, which includes their prospect of reoffending.

Addition of new offences for which registration with the National Sex Offender Registry may be required.

The courts would be able to order registration in additional circumstances:

• cases of non-consensual sharing of intimate images; 
• cases where the Crown proves that extortion was committed with the intention of committing a sexual offence (i.e., sextortion)

The proposed legislation would also ensure aggravated sexual assault against a person under 16 is no longer excluded from the list of offences for which registration may be required.

Changes to publication bans to respond to concerns of victims

Publication bans are a useful tool to shield the identity of victims and witnesses and protect them from further harm. For cases involving sexual offences, judges must on request, order a publication ban to prevent the publication of the name of victims or any information that could identify them.

Publication bans aim to protect victims and encourage them to come forward to report their cases. However, our Government recognizes that victims have diverse needs and that the criminal justice system must be flexible and ensure that victims are treated with dignity and respect. We have heard from some victims that publication bans do not go far enough to protect them, especially where information is online, before the publication ban is ordered. Other victims do not want a publication ban or do not want it in place indefinitely.  Some victims feel silenced by the inability to speak about their case publicly. We have heard that the process for lifting a publication ban is both unclear and difficult to navigate.

The proposed changes would:

• amend section 486.4 of the Criminal Code to require judges to ensure that reasonable steps have been made to ask victims if they would like a publication ban before ordering one;
• amend sections 486.4 and 486.5 of the Criminal Code to clarify the process for lifting a publication ban; and
• ensure that previously published and archived information is covered by publication bans.

These changes would respond to the concerns of victims who have asked for their views to be taken into consideration when seeking publication bans, while at the same time ensuring that publication bans continue to be available to those who want them.

Changes to victims’ right to information about their case

Under the Canadian Victims Bill of Rights, all victims in Canada have the right to information. The Government of Canada has heard concerns from victims and stakeholders about the difficulties victims can face when trying to access information through the criminal justice process.

Victims do not systematically receive information about the case unless they request it. Some victims will want certain types of information, others will not.

The proposed changes would:

• amend the Criminal Code to require judges to ensure that victims have been asked if they would like to receive information about the case post-sentencing;
• allow victims to indicate on their Victim Impact Statement whether they wish to receive information to which they are entitled post-sentence; and
• require courts to provide victims’ contact information to the Correctional Service of Canada to ensure victims properly receive the information they request.

Some victims wish to receive ongoing information about the offender who harmed them. This information could include the length of the offender’s sentence and its start date, when an offender might be eligible for parole, release conditions, and appeals of release decisions.

Empowering victims to make choices based on their particular needs and what will work for them is a trauma-informed practice. Victims would also be able to choose not to receive information if that is their preference. 

Related links

• News Release: Strengthening the National Sex Offender Registry and empowering victims of crime – Government of Canada introduces legislation
• Bill S-12: An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act