On April 26, Sen. Marc Gold, a former constitutional law professor and the Liberal government’s representative in the Senate, introduced Bill S-12, a two-pronged bill whose provisions relate mainly to sex-related offences.
At a Parliament Hill press conference afterward, Justice Minister David Lametti described sexual offences as among “the most heinous and degrading forms of violence.”
Justice Minister David Lametti
Lametti added that “S-12 proposes targeted and strategic measures that will help keep our communities safer and strike the right balance between public safety and Charter rights. ... Taken together, these proposed amendments today will strengthen our justice system by helping ensure victims and survivors are protected, that their rights are respected and that their voices are heard.”
According to the government, Bill S-12 would amend the Criminal Code to, among other things, codify and clarify the process for modifying and revoking publication bans, including: making a hearing mandatory if requested by the victim; requiring judges to ask the prosecutor if victims want a publication ban; making the publication ban regime applicable “to archived information that was published prior to the issuance of the publication ban”; and providing that publication bans can be issued in cases of non-consensual distribution of intimate images.
The bill would also change victims’ right to information about their cases, adding a requirement for sentencing courts to ask the prosecutor whether the victim of an offence would like to receive information about the administration of the offender’s sentence and, if so, provide the Correctional Service of Canada with the victim’s contact information.
The second prong of Bill S-12 would, among other things, add the non-consensual distribution of intimate images and extortion (when the Crown proves it was committed with the intention of committing a sexual offence) to the list of designated offences attracting registration in the national sex offender registry. It would as well ensure aggravated sexual assault against a person under 16 is no longer excluded from the list of offences for which registration may be required, a government backgrounder states.
Bill S-12 is also the federal government’s response to the Supreme Court of Canada’s Oct. 28, 2022 decision in R. v. Ndhlovu, 2022 SCC 38.
In Ndhlovu, the top court declared invalid — as an unjustified violation of the Charter’s s. 7 liberty guarantee — two Criminal Code provisions enacted by the predecessor Conservative government that eliminated any judicial discretion with respect to who is added to the sex offender registry.
The judges divided 5-4 to strike down Criminal Code s. 490.012 (mandatory automatic registration of all sex offenders, even for people who posed no risk of reoffending) — which declaration of invalidity applies prospectively, but is suspended for one year.
The federal government said if Parliament fails to pass the proposed legislation by Oct. 28, 2023, no new names could be added to the registry.
In a separate declaration, the Supreme Court 9-0 declared in Ndhlovu that requiring lifetime registration of everyone convicted of two or more designated sex crimes (s. 490.013(2.1)) was unconstitutional immediately (retroactive to 2011 when the provision came into force) because it applied without consideration of the timing or the nature of the offences and captured people who posed no increased risk.
According to the government, Bill S-12 would reinstate automatic registration in cases involving repeat offenders previously convicted of a sexual offence; child sex offenders sentenced to two or more years in prison (prosecuted by way of indictment); and any offender previously ordered to register on the National Sex Offender Registry
All other eligible offenders, would face a rebuttable presumption that they must register, unless the offender could demonstrate, on a balance of probabilities, that registration would be grossly disproportionate or overbroad. The proposed legislation lists discretion-structuring factors to guide judges.
Bill S-12 would also give the judge discretion to order lifetime registration of 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.
The bill also proposes to create a “compliance” warrant and a summons provision. As well offenders convicted of sexual offences outside Canada would be required to provide more information to police. Registered offenders would also be required to provide 14 days’ notice before travelling and to provide the specific address at their destination, when available.
For the majority in Ndhlovu, Justices Andromache Karakatsanis and Sheilah Martin ruled that both impugned provisions infringed on the s. 7 Charter right to liberty “because registration has a serious impact on the freedom of movement and of fundamental choices of people who are not at an increased risk of re‑offending.”
Registering offenders who are not at risk of committing a future sex offence is disconnected from the purpose of the registry, which is to capture offenders’ information with a view to helping police prevent and investigate sex offences, the majority reasoned.
When first enacted in 2004, the enabling legislation contained prosecutorial discretion and judicial discretion as to whether to seek or impose a national sex offender registry order. But the 2011 amendments removed both discretions, such that everyone who qualified was automatically required to register. The 2011 amendments also created mandatory lifetime registration for those convictied of, or found not criminally responsible for, multiple sexual offences as part of the same prosecution.
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