Criminal Code—Sex Offender Information Registration Act—International Transfer of Offenders Act
Bill to Amend--Second Reading--Debate Adjourned
May 9, 2023
Moved second reading of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.
She said: Honourable Senators, I am pleased to take the floor today to speak to Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.
I’m pleased because I believe — and I hope you agree — that the goals this bill seeks to achieve go to the issue of the protection of the most vulnerable, as well as the quest by the victims of crime to have their rights considered as we strive to find the elusive balance of rights in our living Constitution.
Bill S-12 has three main objectives: first, to respond to the decision of the Supreme Court of Canada last October in R. v. Ndhlovu, which struck down elements of the National Sex Offender Registry; second, to strengthen the effectiveness of the registry; and third, to empower victims and survivors of crime by changing the rules governing publication bans and a victim’s right to information.
The reforms relating to the National Sex Offender Registry proposed in this bill come to us with significant urgency. If Bill S-12 does not receive Royal Assent prior to October 28 of this year, courts will no longer be able to register convicted sex offenders to the National Sex Offender Registry, jeopardizing the police’s ability to investigate and prevent sexual offences.
This bill is of special interest to me as a retired police officer. Early in my career, as a female member of the RCMP, many, if not all, sexual offences in my area were referred to me for investigation and interview. Under these circumstances, one might think you would become accustomed to hearing these heartbreaking details of abuse, but you never do. Any legislation that helps to investigate and prevent these crimes and support the survivors is important.
The National Sex Offender Registry was created in 2004. It provides police with the ability to access current and reliable information on registered sex offenders, including their names, aliases, addresses and descriptions of any distinguishing physical features. Police use the registry as a key tool to identify potential suspects after a sexual offence has been committed and to monitor movements of offenders in order to prevent future sexual crimes.
The registry operates under several federal laws. The Criminal Code outlines the power of the courts to order individuals to register, determines the length of the registration period and the consequences of breaching registration requirements, among other things.
The Sex Offender Information Registration Act, or SOIRA, lays out obligations of all registered offenders, which include presenting themselves in person to a registration centre every year and providing information to the police on an ongoing basis, including, for example, their address, the make and model of their vehicle and their place of work.
The other place’s Standing Committee on Public Safety and National Security completed a review of SOIRA in 2009. The committee’s goal was to strengthen SOIRA as a tool for law enforcement in the face of low registration numbers due to the high degree of discretion accorded to judges and prosecutors.
In fact, many prosecutors did not bother to address the issue at all in proceedings. To remedy this, the committee recommended amending SOIRA to mandate automatic registration but allow judges to use their discretion to deviate from this rule when registration would be grossly disproportionate to the public interest. The committee recommended removing prosecutorial discretion altogether.
In 2011, the government of the day went quite a bit further than the committee’s recommendation by amending the Criminal Code to require automatic registration for all cases, without either prosecutorial or judicial discretion. This meant that registration was to occur in every case when someone was convicted of, or found not criminally responsible on account of mental disorder for, a designated sexual offence. These amendments allowed no exceptions in the application of the rule under any circumstances. This was one of the key issues that the Supreme Court of Canada considered in R. v. Ndhlovu. Ultimately, the court found that automatic registration in all cases was inconsistent with the Charter because it captured offenders who posed no risk of reoffending. The court concluded that this was disconnected from the purpose of the registry and thus unconstitutional.
The court suspended the effect of its decision with respect to automatic registration for one year to give Parliament an opportunity to craft a constitutionally compliant regime. Bill S-12 strives to do just that.
In the same decision, the court struck down the second element of the Criminal Code relating to the length of time for which an offender was required to register. Specifically, the court invalidated the provision requiring mandatory lifetime registration for all individuals convicted of more than one designated offence in the same proceeding. This provision was struck down immediately with retroactive effect to 2011, the date of its original inception.
In order to meet the court’s one-year deadline, we must move quickly with our study and consideration of this bill. As I noted, if a new legislative framework is not in place before October 29, 2023, the courts will no longer have the power to require sex offenders to register. This would create a dangerous gap, leaving law enforcement unable to rely on the registry for critical information that is necessary to prevent or investigate sexual crimes. We cannot allow this to happen. In this case, unfortunately, the old adage that “your urgency does not create my emergency” does not apply.
The bill proposes to retain automatic registration in two important circumstances: first, for repeat offenders; second, for those who commit child sexual offences and are sentenced to two or more years by indictment. These are two situations in which the government believes the automatic registration is justifiable as being directly related to and proportionate with the objectives of SOIRA. In this respect, these changes reflect the guidance provided by the Supreme Court of Canada and will promote public confidence in the criminal justice system’s approach to sexual offences.
In all other cases, Bill S-12 provides that registration must be ordered unless an offender can demonstrate that registration would be overly broad and grossly disproportionate. This would create a presumption of registration or, in essence, a reverse onus on the offender, which would be displaced in certain narrow circumstances where it can be justified. I note that this new regime follows the Public Safety Committee’s recommendation from their review of SOIRA in 2009.
The proposed reforms would also allow a court to order lifetime registration for individuals convicted of more than one designated offence in the same proceeding where the offences demonstrate an increased risk of recidivism. This allows courts to continue to order lifetime registration in appropriate cases, while also addressing the concerns of overreach expressed by the Supreme Court decision.
Colleagues, this brings me to the second objective of this bill, which is to strengthen the National Sex Offender Registry regime. I would like to highlight some of these proposed reforms that aim to ensure that the registry continues to be effective and efficient in law enforcement.
Bill S-12 adds to the list of offences that qualify a convicted offender for registration. Of particular note, the bill would add the offence of non-consensual distribution of intimate images to the list. This is also called “revenge porn” or “cyberharassment” and can have devastating effects on those targeted by this crime. The bill would also target so-called sextortion by adding extortion to the list when shown that it has been committed with intent to commit a sexual crime. This is an important step towards helping police identify perpetrators of offences which are becoming more and more prevalent in the digital age.
The bill also proposes a new arrest power in the Criminal Code to address the issue of non-compliance with registration obligations. Currently, it is estimated that up to 20% of individuals with obligations related to the National Sex Offender Registry are not compliant. This is not acceptable. The only legislative mechanism to facilitate compliance with the registry under the current law is to arrest the individual and lay a charge under the Criminal Code. However, laying a charge does not necessarily result in compliance. This bill would create a compliance warrant and allow the police to seek an arrest warrant to bring a non-compliant sex offender to a registration centre to fulfill their obligations under the Sex Offender Information Registration Act, or SOIRA. If the offender provides the required information, they will not be charged. This will give police the tools to bring offenders into compliance more effectively.
Another important change that the bill would accomplish would be to require registered sex offenders to provide police with 14 days’ advance notice prior to travelling as well as a list of the specific addresses where they will be staying during the course of their travels. This would allow the police enough time to conduct a risk assessment and notify appropriate law enforcement partners if necessary and allow the Canadian authorities to better fulfill their obligations, both domestic and international, under SOIRA.
I must tell you all that on a very recent visit to the RCMP’s National Child Exploitation Crime Centre, I, along with colleagues from both the Senate and the other place, heard accounts of registered offenders calling from the airport, advising of their travel plans, technically fulfilling their requirement under SOIRA but leaving no time for the police to offer effective warning to their policing partners that this potentially dangerous individual was on the way to their jurisdiction. This issue was on their wish list of changes needed and would be a welcome change to the sex offender registry regime.
This brings me to the third and equally important objective of this bill, designed to empower survivors and victims of crime through changes to the rules that govern publication bans and their right to information.
Bill S-12 proposes publication ban reforms that respond directly to calls from survivors of sexual violence, who are disproportionately women and girls. Victims deserve more agency in the criminal justice process and the ability to tell their own stories if they so choose.
The various publication ban provisions in the Criminal Code are intended to shield witnesses and victims from further harm by concealing their identity. On the one hand, a publication ban can encourage the testimony of witnesses and victims who may otherwise be fearful of coming forward and make them more likely to come forward. Some survivors and victims of crime, however, have found that publication bans have the effect of silencing or restricting them. I have been honoured to meet with victims of sexual offences who want to regain their own right to their own names. One group, called My Voice, My Choice, represented by Morrell Andrews and other survivors, put it this way:
Out of respect for the many victim-complainants who will go through the legal system to seek accountability for the harms committed against them, please remember that this is not a political issue.
We have an opportunity to be ambitious and create a better process that recognizes the inherent right of victims of sexual offences to share their stories without fear of being criminalized. It is their voice, and it should be their choice. These victims would seek consent rather than consultation in considering the publication ban, but this, I believe, is a focus for committee to consider.
Almost inconceivably, under the current system, we have seen victims charged with violating a publication ban intended for their sole protection and benefit — imagine! This is clearly unacceptable. These survivors deserve to be able to share their stories if they so choose. It’s important that it be their choice, and their choice alone. Their right to choose has been violated once by the crime itself and again by the ban, taking away their choice and their right to use their name.
In order to address this issue, Bill S-12 proposes that judges must ask prosecutors to confirm if reasonable steps have been taken to ensure that the victim has been consulted on whether or not a publication ban should be imposed. This proposal is in line with Recommendation 11 of the seventh report of the Standing Committee on Justice and Human Rights, entitled Improving Support for Victims of Crime.
In addition, Bill S-12 will clarify the process to modify or revoke a publication ban after one has been imposed by codifying a process that currently exists only in the common law. The bill will also ensure that publication bans are applicable to online material that may have been published before a ban was imposed. Both measures recognize that victims and survivors should benefit from their right to change their minds.
The choice to revoke or modify a publication ban should be dictated by the wishes of the victim or survivor. However, the bill imposes a residual discretion to be given to the judge to refuse such a request if it would, for example, possibly identify a second victim involved who wishes to remain anonymous. It is expected that these types of scenarios would be extremely rare and that, for the overwhelming majority of cases, a publication ban would be lifted in cases where the victim clearly does not want it in place.
There is no handbook on a good or right way to be a victim. The legislation recognizes the choice of victims and survivors and provides them with some decision-making power. Returning power to victims and survivors of sexual violence can be essential for the healing process. It can, in some victims’ minds, prevent retraumatizing these people in the criminal justice process. In others, taking control of their names and identities is essential to their path to empowerment.
It is important that we get this right. I suspect many of you have already heard from survivors working on this issue, as I have. Survivors are looking to us to fix the publication ban regime to better empower them and treat them with dignity and respect. I look forward to working with you all to ensure we achieve this delicate balance. This is an area I think we can review at committee in consultation with these survivors to see if the language can be strengthened.
I would like to take a moment to speak to you about a victim’s right to information about the case they are involved in and the offender who has harmed them. This right is enshrined in the Canadian Victims Bill of Rights in sections 6, 7 and 8. Bill S-12 will make it easier for victims to access information about their case after sentencing or after an accused has been found not criminally responsible on account of a mental disorder. This is incredibly important to victims and to the police who are responsible for protecting them.
To achieve this goal, the bill proposes several measures. First, it would require the judge to ask the prosecutor whether they have taken reasonable steps to determine whether the victim wishes to obtain this information. Second, the bill would allow victims to express an interest through their victim impact statement. Finally, the bill would require the court to provide Correctional Service Canada and the Parole Board with the victim’s name and information if they have expressed a desire to receive this type of information.
Once again, this approach is respectful of the needs of victims and seeks to provide the flexibility required to obtain information at the time of their choosing. Note that this proposal received particular attention and support from the Federal Ombudsperson for Victims of Crime.
To conclude, colleagues, the changes contemplated by this bill will meet an urgent need to make the laws governing the National Sex Offender Registry compliant with the Charter. At the same time, the bill will make the registry better able to accomplish its vital purpose of providing police with current and reliable information to investigate and prevent crimes of a sexual nature. It will also take the opportunity to make the criminal justice system more responsive to survivors and victims of sexual offences.
These reforms are targeted, measured and sensible. They will make a tangible difference in the prevention and investigation of some of the most difficult offences under the law and will support the rights of victims who continue to struggle to recover from these life-changing crimes committed against them.
Some may suggest that the measures do not go far enough. Others will say that they go too far. However, I submit this bill will serve to help strike the balance between those two tensions and move the pendulum in a positive direction. I urge you, colleagues, to act with exigency in getting Bill S-12 to committee, where further study and survivor consultation can take place on the record. Thank you, meegwetch.
Would the senator agree to answer a question? Senator Busson, I have some experience with victims of sexual assault, particularly those who were murdered.
A few weeks ago, I was in Camrose, Alberta, where I met a family whose mother had been killed, as well as her four-year-old child, who was murdered a few hours later by a neighbour two doors down.
That neighbour was a criminal who had a lengthy record — he had already sexually assaulted and murdered a woman in the 1980s. He was in the system. He lived in an apartment building in town. In four and a half years, he changed locations four or five times; he never notified the authorities, which was part of his release conditions. What’s more, his neighbour was a police officer.
I understand that the bill will continue to add sex offenders to the registry, but does it include a mechanism to monitor these criminals once they are in the system? The problem is that, even if we add thousands of men to the registry, once they’re in the system and then released, if they aren’t monitored, they will continue to assault children and women.
Does the bill include a mechanism to monitor these dangerous men?
Thank you very much, senator. I heard that story on the news, and I was incredibly touched and offended by the fact that this was a repeat offender who victimized this woman and her child.
I believe that the new provisions of the sex offender registry will empower police to do more to make sure that they track these offenders. There is provision for stricter registration and powers that allow the police to track and register offenders who are non-compliant. I do believe this would be an impetus for police to spend more time making sure these offenders are complying with their restrictions and their conditions.
When the bill is studied in committee, you’ll no doubt come to defend it. Is the government open to making a major change, through which recidivists who leave a penitentiary are automatically tried and we can go after them in the community?
I’m not sure that I totally understand the question, but if you’re asking whether or not the proposals in this regime will better help the police to identify, track and make compliant these offenders, I believe that is taking place. It’s not my government, but I would hope there could be amendments that make this even more effective.
Honourable senators, I too rise today to speak to Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.
But I want to start at the beginning with how we got here, and a caution that some of these stories may be disturbing.
In March of 2011, 19-year-old Eugene Ndhlovu, an immigrant from Zimbabwe and a student at the Northern Alberta Institute of Technology, was invited by a female friend to a Jersey Shore-themed party in Edmonton. The party was billed online as a DTF event. That stands for “down to fraternize,” except the F-word used in the advertising was not “fraternize.” Ndhlovu said he didn’t want to go, that he had too much to do the next day. But the friend insisted on his attendance and told him he could stay overnight and that she would arrange a ride to work for him in the morning.
Once at the party, Ndhlovu started to drink with the woman who had invited him and with another mutual female friend. According to the agreed statement of facts, the teenager touched that second girl on her buttock and thighs. Later the next morning, the first girl, the one who had invited him to the party, woke up and found Ndhlovu was trying to put his fingers inside her. She told him no. He tried to convince her. She said no again, so he stopped and left.
He was subsequently charged with two counts of sexual assault, the first count for attempting to put his fingers inside the first woman’s vagina and the second count for touching the other friend’s bottom and leg without her permission. The young man, who had no criminal record, pleaded guilty to two counts of sexual assault and was sentenced to six months. Those convictions should have automatically put him on the sex offender registry for life, with all the onerous and humiliating consequences that would entail.
But the trial judge in Edmonton, Madam Justice Andrea Moen, exercised her common sense and determined that placing the young man on the registry in such circumstances was unwarranted, given that he had taken responsibility for his actions and shown great remorse. She also noted that placement on the registry might make him especially vulnerable to racial profiling.
Madam Justice Andrea Moen said:
The law as it stands will now place Mr. Ndhlovu on police radar for the rest of his life anytime a sexual offence is committed by a black man of average height in his neighbourhood.
She added that putting his name on the registry would bear “. . . no connection to the object of assisting police officers in the investigation or prevention of future sex crimes. . . .”
This seems to me to have been a logical use of judicial discretion.
The sexual assault on the one woman was serious — serious enough that it led to jail time. But the second charge, the one that involved touching the second young woman on the bum and leg, was surely less so.
Indeed, one might legitimately wonder if there was some pressure on the Crown to charge Ndhlovu with two separate offences simply for the sake of putting him on the registry, especially since inclusion on the registry only became automatic in April of 2011, less than a month after the assaults took place.
The Crown appealed and won a split decision at the Court of Appeal of Alberta. It was, let me note, though, Madam Justice Ritu Khullar, who is now Alberta’s Chief Justice, who dissented and supported the ruling of the original trial judge. This split decision helped to allow for a Supreme Court appeal, and in October of 2022, Canada’s Supreme Court, in its own split decision, upheld the trial judge’s original ruling and deemed the mandatory automatic placement of sex offenders on the national registry unconstitutional.
As we have heard, the court gave the government one year to come up with a response, so now we have Bill S-12 and the political imperative to pass the bill before the clock runs down.
Under the terms of the legislation, inclusion on the sex offender registry will still be automatic for repeat offenders or those who commit sex crimes against children. But in all other cases, the defendant will have the right to challenge the registration. If the offender can demonstrate that being put on the registry would be disproportionate to the offence, then the judge can opt not to include them. As Senator Busson has just explained, the onus is reversed, and the default is to be on the list unless you can make the case that you shouldn’t be there. Then the judge will decide whether being placed on the registry is warranted, paying attention to factors including the nature and seriousness of the crime, the victim’s age and other personal characteristics, the nature of the relationship between the victim and the perpetrator, the accused’s own circumstances, whether or not the perpetrator has a criminal history and the opinions of expert witnesses.
Under Bill S-12, judges will at least be given back some of the autonomy and responsibility for passing judgment. Having heard all the trial testimony, they will then decide whether placement on the registry makes sense in a particular case, whether it’s proportionate and whether such registration will protect public safety while respecting the rights of the defendant.
There are certainly those who would argue that the whole idea of a sex offender registry is counterproductive, that such a blacklist is a crude American import that has no place in Canadian society. One could certainly make an argument that these lists are a kind of security theatre that do little to protect the public or reduce recidivism, but that they stoke public fears and public hysteria while making it harder for those who have served their sentences to reintegrate into the community and stay out of trouble.
In the words of the Supreme Court itself on the topic of these lists:
Despite its long existence, there is little or no concrete evidence of the extent to which it assists police in the prevention and investigation of sex offences.
There are certainly those who would say that the reverse onus test puts an unfair burden on defendants, reversing the balance of our criminal justice system, which gives the state — the Crown — the legal burden of making its case.
Yet, from a political perspective, I can understand why the government might hesitate to abolish these problematic registries, and is instead taking this far more modest step to comply with the Supreme Court’s direction. Still, once this bill is in committee, I hope that hard questions will be asked regarding the value of sex offender registries, or whether they are merely counterproductive political show.
The legislation before us also represents a fundamental and long overdue shift in the way we disempower and shame victims of sexual assault.
For too long, Canadian courts have slapped automatic publication bans on the names of sexual assault victims, without considering whether such bans are always in the interests of individual victims. The practice, which began almost 40 years ago, started as a noble one. The idea of so-called rape-shield laws was to protect sexual assault victims from public shame and public scrutiny, as well as to encourage them to come forward with charges by protecting their identities.
But sometimes victims want to be known. They don’t necessarily want to be protected in perpetuity — in a way that infantilizes them and robs them of agency and self-determination.
Let me provide you with an example of what I mean — it’s a case I wrote about back in my own days as a journalist.
In 2006, the kidnapping of a 10-year-old Saskatchewan boy shocked and horrified the country. The child had been snatched from his parents’ home in Whitewood, Saskatchewan, by notorious serial sexual predator Peter Whitmore. Whitmore took the boy to an abandoned farmhouse near Kipling, where he’d been holding another prisoner: a 14-year-old boy he’d abducted weeks earlier.
The 10-year-old was rescued after two days — thanks to an alert farmer who noticed signs that someone was living in the abandoned house. The boy had been chained to a bed, and forced to walk around naked while wearing a dog leash. Even after Whitmore was convicted, the boy’s trials didn’t end. He was so bullied in his small-town school — where the other children called him horrible homophobic names because of the sexual assault — that his parents finally had to withdraw him to homeschool him.
At the time of his abduction, his name and photograph were everywhere. But once the trial began, the court imposed a publication ban on his identity, and it became a criminal offence for any media outlet to print his name or picture. A decade later, it was still illegal for him to blog or post to Facebook about what he’d endured. The whole country knew the ghoulish details of his abduction, yet he was forbidden to talk about how he had survived, to share his story and to work through his pain.
Then, in late 2015, a Regina court finally gave Zachary Miller his name and his voice. Justice Catherine Dawson of the Saskatchewan Court of Queen’s Bench granted Miller’s application to lift the ban. Miller had argued that he wanted to be known as a survivor, not a victim, and that he wanted his story to help others coping with the aftermath of abuse.
Miller, who was 20 at the time, testified:
I feel a victim under this court’s publication ban, because it has refused me the right to use my name in any form of media, which in a way has refused my rights of freedom of speech.
You may ask, “If victims can challenge bans, even if it’s expensive and time-consuming, why do we need Bill S-12?”
Well, it’s because victory isn’t assured. Take another case I wrote about: It’s the story of a young man, from the St. Paul area of Alberta, who had a sexual relationship with a female teacher when he was just 17. The teacher, who had insisted the sex was consensual, was eventually acquitted of sexual exploitation. In 2007, seven years after the trial, the young man, who was then 26, applied to have the publication ban lifted so he could finally speak out about the lasting psychological pain of being victimized by an adult he had trusted.
The Crown, to its credit, did not oppose the application, so you’d think this would have been easy. But the justice in the case refused to lift the ban, ruling that doing so — years later — would not be in the public interest. The man’s only option was an appeal to the Supreme Court of Canada. He did so, but the court declined to hear his case.
Thus, when misapplied, the almost unliftable publication ban revictimizes victims in the name of protecting their privacy. It’s patronizing and paternalistic. Even worse, it sends sexual assault survivors the explicit message that they have been so shamed and dishonoured — that what has happened to them is so peculiarly and uniquely disgraceful — that they must be hidden away from public view. It’s a medieval attitude to rape, informed by misogyny and homophobia, and it belongs in our past.
Bill S-12 goes some way to righting the balance. It states that a victim must be consulted before a publication ban is imposed. It also states that a court must hold a hearing for any sexual assault victim who wishes to revoke or vary their own publication ban.
But this is, again, a compromise. The request is not granted automatically. The bill states that the court must consider any material change in circumstances including the victim’s wishes. But ultimately, the court must rule not based on what the victim wants, but on whether lifting or varying the ban is “in the interests of justice.”
While the bill goes some way to re-empowering those victims who choose to speak, it also includes broader provisions to protect the privacy of those who do not wish to have their identities known. The existing law bans the publication or broadcasting of any information that would serve to identify a sexual assault victim. In this social media age, Bill S-12 widens that provision to include anyone who transmits, or otherwise makes available, information about any victim, witness or justice system participant whose identity is protected by a publication ban — a provision that would seem to cover tweets, toots, Facebook posts and even group chat gossip. I’m sure this too will be an issue of much debate in committee, as it would potentially open up to sanction not just newspaper publishers and television stations, but also lots of ordinary citizens.
Due to the Supreme Court deadline, we are under some pressure to pass this law quickly. And yet, I hope that we will allow ourselves the necessary time to study its complexities and contradictions — because these are vitally important issues that speak to our civil liberties and the safety of our communities. Thank you. Hiy hiy.
