Bill S-12

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

This enactment amends the Criminal Code , the Sex Offender Information Registration Act and the International Transfer of Offenders Act to, among other things,
(a) require compliance with the Sex Offender Information Registration Act for persons who are convicted of an offence of a sexual nature against a child and for persons who have been convicted on separate occasions of two or more offences of a sexual nature;
(b) require other persons who are convicted of, or receive a verdict of not criminally responsible on account of mental disorder for, an offence of a sexual nature to comply with that Act unless a court is satisfied that doing so would have no connection to the purposes of that Act or that the impact on the person of doing so would be grossly disproportionate to those purposes;
(c) provide that an order to comply with that Act as a result of convictions, or verdicts of not criminally responsible on account of mental disorder, for two or more offences of a sexual nature that are dealt with in the same proceeding — or an obligation to comply with that Act as a result of convictions, or such verdicts, for two or more offences of a sexual nature — does not apply for life if a court is satisfied that the offences do not demonstrate a pattern of behaviour showing that the person presents an increased risk of reoffending by committing such an offence;
(d) authorize a peace officer to obtain a warrant to arrest a person who has contravened any of sections 4 to 5.1 of that Act and bring them to a registration centre to remedy that contravention; and
(e) clarify the obligations in section 6 of that Act respecting the notice that sex offenders who plan to absent themselves from their residence must provide.
The enactment also amends the Criminal Code to, among other things, codify the process for modifying and revoking publication bans, and add a requirement for sentencing courts to inquire into whether the victim of an offence would like to receive information about the administration of the offender’s sentence and, in the affirmative, provide the Correctional Service of Canada with the victim’s contact information.

Criminal Code

[Larry Brock, Conservative, Brantford—Brant, ON]

Mr. Speaker, it is always an honour and a privilege to rise in the House to speak to a bill on behalf of the fine residents of Brantford—Brant.

I know there are many victim advocacy groups that are watching this particular debate, not necessarily me, but certainly the debate itself. I know one such passionate group, My Voice, My Choice, would also be watching this and taking an active interest.

After eight years of the NDP-Liberal government, sex-related crime has nearly doubled up to 82.5%. This so-called feminist government has dragged its heels on this issue, and this legislation may not be passed before the effective provisions expire, which is 24 days from now, on October 28, 2023. The impact of that is that sex offenders could escape registration because of the Liberal government's complete incompetence.

Canada's Conservatives are supportive of this legislation, and I will say that at the outset, that would protect the public from sexual offenders, but the bill does not go far enough. Conservatives believe that all sex offenders must be listed on the national sex offender registry, and we would amend the legislation to ensure this. We know that women and children are disproportionately victimized by sexual offenders, and this bill would make it harder for law enforcement to prevent and investigate sexual offences.

It is important that I give a brief historical overview of this particular legislation in this area. The legislation known as SOIRA was first passed by the Liberal government in 2004, with all parties supporting it. It introduced the idea that registered sex offenders were required to report annually to registration centres, as well as declare any changes of residence, travel plans or changes. However, the enrolment on the registry was at the discretion of the prosecution, and the registry's efficacy was compromised by the exclusion of nearly half of all convicted sex offenders.

As a result, the Harper government, in 2011, introduced and passed Bill S-2 with unanimous support, which made inclusion in the registry mandatory for those convicted of any sexual offence and made inclusion for life mandatory for those convicted of multiple offences.

All of this was changed by the Supreme Court of Canada on October 28, 2022, in the R. v. Ndhlovu decision, which struck down two key sections of the Criminal Code. By way of facts, the accused, the offender, was 19 when he sexually assaulted two women at a party, resulting in two separate sexual offences for which he served six months in jail. He was added to the sex offender registry for life.

Now, by a five-four split decision, the court struck down the provisions that anyone found guilty of a sexual offence would be automatically registered. By a nine-zero decision, they also struck down the mandatory registration for life for those who commit more than one such offence.

What does Bill S-12 do to correct this? Bill S-12 would create judicial discretion to add offenders to the registry, one, in cases where child sex offenders are sentenced to two years or more in prison where the Crown proceeded by indictment, and, two, for any repeat offender who has previously been convicted of a sexual offence. The bill would allow judges the ability 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 reoffending, but that is with judicial discretion.

The bill focuses squarely on the offence of sexual assault. It is important that I spend a little time talking about the unique challenges of this offence. Sex assault is the most unreported violent crime in Canada. People with disabilities are at greater risk of victimization and are even less likely to engage with the criminal justice system. Class, ethnicity, religion, nation of origin, community, age, sexual orientation and gender identity may make reporting more difficult.

Sex assault usually occurs in private. It is a profound invasion of its victims' physical and psychological boundaries. In most cases, the perpetrator is known to the victim. The attack often leaves no outward injury, but can devastate its victims, who may suffer in isolation and often in silence.

Sex assault complainants and victims have long felt a lack of confidence in the criminal justice system's ability to protect them and to hold offenders accountable. Conviction rates have not improved, and the fear of revictimization during the course of the prosecution remains.

Reporting rates of sexual offences to police hover around 5%, with 41% of those cases resulting in a charge being laid. Data for the last 35 years suggests that there is a significant statistical decline in conviction rates during the last 15 years. In Canada alone, that conviction rate went from 26.5% to 14%.

Another key feature of the bill relates to the rights of victims. Specifically, I am going to draw upon some material that I received from the victims advocacy group My Voice, My Choice:

Victim-complainants of sexual offences have the right to request a publication ban under section 486.4 of the [current state of the law].

The purpose of this type of publication is to encourage reporting and has the effect of providing victim complainants with protection from being publicly identified. There are considerable issues with respect to how victims and complainants are informed of their pub bans under that section and whether they are provided the necessary information about how to comply with the terms of the ban and eventually have it removed should they desire.

The material continues:

In reality, many prosecutors [, such as myself during my time as a prosecutor,] ask the judge or justice for a section 486.4 publication ban upon the first appearance of the accused in court, long before a victim-complainant is involved and participates in proceedings.

I also want to share with the House the frustration many victims have with respect to this particular provision and also the penalties they are experiencing currently because of the publication ban.

In March 2021, a victim in Kitchener–Waterloo was charged, prosecuted and convicted of breaching the terms of her publication ban for emailing a court transcript to her close supporters. The conviction was later overturned on appeal due to a technicality, but this example shows how prosecutors do not understand the purpose of a section 486.4 ban.

Here is another case. In May of 2021, a victim in Ottawa asked her Crown attorney in court to remove the ban, but the prosecutor said that she was not sure of the process or policy, or if the Crown would consent to the removal. After asking the judge directly herself while in the sentencing hearing, the complainant was told that the judge was no longer functus and could not help. When a third Crown attorney eventually applied to have the publication ban removed, the defence attorney opposed the application and was permitted to make submissions as to why the ban should not be removed. She never consented to having a publication ban.

These are just a few examples of the frustrations victims have had across this country not only when trying to get advice and information from the Crown so they can participate in the process, but also when trying to remove the ban.

Lastly, I wish to talk about the dissenting opinion in the Supreme Court of Canada decision, because I think the language is really illustrative of the problem we have here. I am quoting from the dissent, which states that:

But the exercise of discretion was the very problem that prompted Parliament to amend the Criminal Code to provide for automatic registration of sex offenders...(“SOIRA”). Specifically.... The evidence is clear that even low risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence. It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.

It is in that particular wide net that we are asking for, by way of amendment, to include all those who are convicted of sex offences, particularly against children. There ought not to be a discretionary exercise by way of a justice.

Canada's Conservatives are supportive of legislation that will protect the public from sex offenders, but the bill does not go far enough. We believe all sex offenders must be listed on the registry and we would amend the legislation to ensure this. Conservatives would end the government's soft-on-crime approach and bring home safe streets for Canadians and particularly for the victims of sexual assault across this country.

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, I would like to thank the member for her intervention. I would be remiss to not acknowledge the great work that the member for Victoria did in addressing some of the issues in this bill.

Does the member agree that Bill S-12 balances the constitutional guaranteed rights of all Canadians and the need to maintain public safety?

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Mr. Speaker, I am pleased to have the opportunity to rise and 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 will be splitting my time.

This bill makes extensive changes to Canada's sexual assault legislation and the role of the national sex offender registry, or NSOR, particularly those sections of the Criminal Code that were struck down by the Supreme Court, which ruled that they were unconstitutional. These sections required the mandatory registration of anyone found guilty of a sexual offence on the sex offender registry and the registration for life of anyone who committed more than one sexual offence. The bill was introduced in the Senate, and it has made its way through to second reading here in this place.

After eight years under the Prime Minister, sex-related crime has nearly doubled. In 2021, under the current government, the rate of sexual assaults went up by 18% from the year prior. With this pressing public safety concern, it is more important than ever for Canadians to be safe and protected from sexual offenders.

The national sex offender registry plays a key role for law enforcement to stay up to date regarding convicted sex offenders across the country. It also allows proper tools of investigation if an offender reoffends.

Although this legislation is a step toward protecting victims and the public, it needs to be strengthened with amendments. We must consider the fundamental issue at the heart of this debate: the safety and security of our citizens. We believe that, to protect our most vulnerable people, all sex offenders, regardless of the specifics of their cases, must be listed on the national sex offender registry.

Historically, the Conservative Party has taken a strong position regarding sentencing and enforcement related to sexual crimes. Our previous Conservative government introduced and passed Bill S-2, making it mandatory for those convicted of any sexual offence to be placed on the registry and for those convicted of two or more sexual crimes to be registered on the offender's list for life.

This was a significant change from the Sex Offender Information Registration Act, or SOIRA, put in place by the Liberal government under Paul Martin, in that enrolment on the registry was no longer at the discretion of the judge. This change was made to address concerns at that time that the registry's effectiveness was being compromised, given that nearly half of all convicted sex offenders were excluded.

At that time, the bill garnered support from all parties, enhancing public safety across Canada. Last year, the Supreme Court struck down the law in the Ndhlovu case ruling, deeming it unconstitutional.

In 2015, Eugene Ndhlovu pleaded guilty to two counts of sexual assault against two women, which took place at a house party in Edmonton in 2011. Prior to the ruling, with Harper’s bill, Ndhlovu was automatically registered on the national sex offender registry for life.

After the Supreme Court deemed the ruling unconstitutional, he was dropped from the list. The courts gave the government one year to change the affected provisions. That was a year ago, and the deadline, which is the end of October, is fast approaching.

Sexual violence is a heinous and degrading form of violence that has devastating impacts on the victims. More specifically, we know that sexual assault is a gendered crime, with the majority of sexual crimes being committed against women and girls.

It seems to me that a so-called feminist government would have acted quickly in response to the Supreme Court's ruling. However, the Liberal government continued to drag its heels when protection for vulnerable victims was needed the most.

It no longer comes as a surprise, though, that we see the Liberal government repeatedly fail to act on measures of public safety. For example, and most notably, the Prime Minister did absolutely nothing to reverse the decision to transfer one of the worst serial killers in Canadian history, Paul Bernardo, to a lower-security prison.

If this legislation is not passed before the affected provisions expire, this could open the possibility of sex offenders escaping registration, all thanks to the Liberal government's incompetence. Unregistered sex offenders would not have to report annually to registration centres or declare changes in their residence, leaving the surrounding residents in the dark. Without proper identifiable provisions for previous sex offenders, they would be able to go back to life as normal. Survivors of these crimes would suffer as they live in fear, knowing their abusers are not being held accountable.

Conservatives believe all sex offenders must be listed on the NSOR and will work to ensure mandatory registration is in place for as many individuals convicted of sexual offences as possible. Four justices of the Supreme Court agree with our position, highlighting the pressing public safety concern that justifies this move.

In their dissent on the Ndhlovu case, they stated that the law was constitutional and accused the majority of cherry-picking examples to rationalize their flawed reasoning. In their minority written opinion, they stated, “The evidence is clear that even low risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence.”

The previous system of judicial discretion, which was brought in 2004, already showed it was tremendously flawed, with data resulting in up to 50% of sex offenders staying off the registry.

Based on these justices' expert opinion, we recognize this is a pressing public safety concern, but our concerns extend beyond mandatory registration. There are other aspects of Bill S-12 that require careful consideration and potential amendments.

As my colleague from Kildonan—St. Paul highlighted in her excellent speech, while there are some cases or circumstances where enrolment on the NSOR would be automatic, those that would be discretionary include, but are not limited to, sexual assault with a weapon, sexual exploitation of a person with a disability and aggravated sexual assault with the use of a firearm. Knowing there will be cases such as these that would not be automatically added, but would be discretionary, is deeply concerning given that the system, prior to 2011, resulted in up to half of sex offenders never being registered.

Furthermore, while the costs associated with increased sex offender registration may be negligible, we must also allocate the necessary resources to support law enforcement agencies in effectively monitoring and managing the registry.

In conclusion, Bill S-12 represents a significant step forward in responding to the Supreme Court's ruling and improving the criminal justice system's responsiveness to the needs of victims. However, it falls short on what is necessary to protect our communities adequately.

The Conservative Party of Canada believes all sex offenders must be listed on the national sex offender registry. The safety of our citizens, particularly women and children, who are disproportionately victimized by sexual offenders, must be our top priority.

I look forward to this bill going to committee, where I am sure all members will work together to strengthen Bill S-12 so victims of sexual crimes can have confidence in our justice system and to ensure the safety of our communities. Only through collective effort can we ensure our justice system serves the best interests of all Canadians.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Mr. Speaker, we are here today talking about a very uncomfortable topic: sexual crimes, the way we deal with offenders and the way we protect victims. We acknowledge as a society that sexual crimes are heinous or injurious and have long-lasting effects, sometimes for the rest of the life of the victim. We recognize that the majority of victims of sexual crimes are women and children. We also acknowledge as a society that, based on the data we have, many sexual offenders will reoffend.

The Liberal government under Prime Minister Martin back in 2004 brought in a new tool for law enforcement to give it investigative and preventative tools. The 2004 Sex Offender Information Registration Act created the national sex offender registry and gave the courts the power and authority to order that people convicted of a sexual crime have their name and further particulars added to this registry. It was intended to be an enforcement tool. It was not available to the public, only to police agencies. The bill passed through the House of Commons unanimously.

However, there was a problem with that legislation, as it left it to the discretion of judges to decide whether or not a person had to have their name added to the registry; it was not done automatically. Some more lenient judges felt that the sentence itself was enough punishment and that the offender did not have to have their name added to the registry. However, of course, the mistake there is that the registry was never intended as punishment but as an investigative and preventative tool. The result of leaving this to the discretion of the judges is that up to one-half of all convicted criminals did not have their names added to the national registry, which completely undermined the efficacy and usefulness of it as a tool. If half the data is missing, what good is the registry?

In 2011, the Harper government remedied that gap with legislation that would make registration to the national sex offender registry mandatory. The registration was to be tied to the duration of the sentence, and for people who were repeat offenders or who were charged with and convicted of more than one offence, it was a lifetime registration. That legislation passed unanimously.

Now fast-forward a decade to October 28, 2022, or 11 months and one week ago. In 2015, Eugene Ndhlovu was convicted of two counts of sexual assault and sentenced to six months in prison with three years of probation. His name was entered into the registry for life because of the two convictions. However, he challenged the validity of these two provisions of the Criminal Code, and the Alberta trial court agreed with him and declared those two provisions to be unconstitutional. The Alberta Court of Appeal reversed that decision, and it then went to the Supreme Court of Canada, which reinstated the original finding of the trial judge, with a declaration of invalidity.

It was a split five-four decision of the nine judges sitting on the Supreme Court of Canada. The majority had this to say about section 7 violations: “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.” In other words, if even one person who was not a threat to public safety ended up on the registry because it was automatic, the whole regime was unconstitutional.

The minority of four judges took quite an opposite view. They said that the mandatory registration in the 2011 legislation “is appropriately tailored to its purpose of helping the police prevent and investigate sexual crimes”. They noted that the evidence before the trial judge was clear and that even low-risk sexual offenders, compared to the general prison population, posed a heightened risk of reoffending, at five to eight times more likely.

That was the data the SCC had. Based on that, the minority said this: “It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.” I am thankful to the Supreme Court minority for respecting and deferring to Parliament and the hard work we do in response to what we hear from the public.

It is often said that judicial review of legislation under the Canadian Charter of Rights and Freedoms is not undemocratic, in that it does not attack parliamentary supremacy. Rather, academic scholars say that the judicial review process is better viewed as a dialogue between Parliament, which makes the law, and the courts, which review the law. Sometimes, as in this recent Supreme Court of Canada case, it feels very much like one-way dialogue, with the courts speaking and Parliament listening and obeying.

It is unfortunate that the four judges in the minority could not have convinced at least one more to come over to pay deference to Parliament. However, here we are having to deal with the majority decision, and we need to respond to that. We need to fix the law. We have been given one year to do it.

That brings me to the bill that is before us, Bill S-12, which has already been through the Senate. The Minister of Justice presented this bill to the House last week, saying it is Parliament's response to that court's decision. In reply to a speech given by my colleague, the member for Kildonan—St. Paul, the Minister of Justice said, “we are enacting what we believe would be the strongest possible regime against sex offenders in compliance with the Supreme Court's [decision]”. In other words, our hands our tied and this is the best that we can do.

He might be right, but that leads me to another issue and that is the rush with which this is being pushed through Parliament. We have a deadline of October 28, which is 24 days from now or three and a half weeks, one week of which will be a constituency week. We will not even be here in Ottawa. How are we going to deal with such an important issue in that amount of time? It is urgent, of course, but we also have to get things right.

At committee yesterday, the Minister of Justice told us that social science supports the legislative intention of the drafters of this legislation. He might be right, but I would very much like to see that social science data. I would like to hear from experts in the field. I would ask the experts whether those convicted of a sexual offence are indeed five to eight times more likely to reoffend, as the minority had said in the Supreme Court decision.

Will there be time? This is important legislation, but it is also important that we get it right. We cannot miss the October 28 deadline, or the police will lose a very important investigative and preventative tool. If we are serious about being charter dialogue partners with the courts, this should have been before Parliament months ago. I blame the Liberal government for dragging its feet on this. It put us in this very difficult position.

[Luc Desilets, Bloc, Rivière-des-Mille-Îles, QC]

Mr. Speaker, the Bloc Québécois is very pleased with Bill S‑12. We are pleased with it because it puts the victims front and centre.

Does my Conservative colleague think that the government can and must interfere in parole decisions to move an inmate from a maximum security institution to a medium security institution? I am referring to the Paul Bernardo case, among others.

Is my colleague in favour of the government interfering in parole decisions?

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, I will take this opportunity to congratulate you on your election as Speaker. I would also like to say that I will be splitting my time with the member for Langley—Aldergrove.

The last eight years have not been kind to Canadians, since the Liberal government took power, when it comes to safe streets, safe communities and crime. One only needs to look at the recent StatsCan release to see the drastic increase in crime in this country since 2015. The numbers are absolutely staggering. Total violent crimes are up 39%; homicides are up 43%, up for the fourth year in a row; gang-related homicides are up 108%; violent gun crimes are up 101%, up for the eighth year in a row; aggravated assaults are up 24%; assaults with a weapon are up 61%; sexual assaults are up 71%; and sex crimes against children are up 126%.

That is the context when we look at Bill S-12, an act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. That is the context by which we, as parliamentarians, addressing the fear in our communities around crime, around keeping Canadians safe, around protecting victims, look at Bill S-12.

Bill S-12 is due to be passed at all stages by October 28. This is a deadline that was put in place by the Supreme Court, when it gave the government 365 days to get this done, in response to a Supreme Court decision. Yet, here we are, with just 24 days left, to make sure that the national sex offender registry continues to be a critical resource for police to investigate and to prevent crime.

The last time the Liberal government had a court-imposed deadline to respond to decisions, around medical assistance in dying, we ended up, tragically, with a bill that would expand medical assistance in dying to Canadians living with mental illness. The government waited too long and rushed through legislation. That is, again, what is happening here.

I am going to focus my speech on amendments to the Sex Offender Information Registration Act as opposed to changes in the publication bans that were brought forward by our Conservative-led justice committee study on the federal government's obligation to victims of crime.

What is the sex offender registry? Conservatives will always stand up for victims and victims' rights. That leads me to these amendments to the Sex Offender Information Registration Act. The act was established in 2004 to help Canadian police authorities investigate crimes of a sexual nature by requiring the registration of certain information on sex offenders. To help police services investigate crimes of a sexual nature, the sex offender registry contains information such as the address and telephone numbers of offenders, a description of their physical appearance, the nature of the offence committed, and the age and gender of victims, and their relationship to the offender.

At the time, enrolment on the registry was up to the discretion of a judge. That discretion led to significant problems. The public safety committee review of the implementation of the sex offender registry in 2009 found glaring issues. The committee found that only 50% of sex offenders were required to register their information. This was happening for a number of reasons. An official from the Department of Public Safety told the committee at the time that with the pressure of time or workload, Crown attorneys would forget to ask for the order. The committee was also told that the order application rate varies widely by province and by territory. One witness stated that the absence of an automatic inclusion on the registry for all offenders convicted of sexual crimes has led to the inconsistent application of the law across the country.

The committee recommended to the government that the automatic registration of sex offenders would fix these holes in the legislation. In order to be effective, the national registry must be enforced consistently across the country.

I was proud to be part of the Conservative government that passed the Protecting Victims From Sex Offenders Act, introduced in 2010. That legislation passed with the support of all parties. The bill broadened the purpose of the sex offender registry by adding the purpose of helping police prevent crimes of a sexual nature in addition to enabling them to investigate those crimes.

We made sensible changes to strengthen the sex offender registry. For instance, we made registration automatic for convicted sex offenders. Our legislation also added the obligation to report any person ordered to serve an intermittent or conditional sentence. This is even more important today than it was then, because Liberal Bill C-5 now allows conditional sentences for crimes like sexual assault and Liberal Bill C-75 now allows bail to become more easily obtained by individuals charged with serious offences.

Conservatives also brought in the requirement of registered sex offenders to report the name of their employer or the person who engages them on a volunteer basis or retains them, and the type of work they do. Police should be aware if a sex offender is spending any amount of time with or in proximity to potential victims. We made these sensible amendments to the Sex Offender Information Registration Act to protect victims and to prevent crime.

On October 28, 2022, a split decision, five to four, of the Supreme Court found that the mandatory and lifetime registration on the sex offender registry was unconstitutional. The Liberals have simply accepted this decision. We have urged them to respond as forcefully as possible, and Bill S-12 does fall short of that.

I want to read from the dissenting judgment. It was a very strong dissent, in which it says:

...the exercise of discretion was the very problem that prompted Parliament to amend the Criminal Code to provide for automatic registration of sex offenders under the Sex Offender Information Registration Act... The evidence is clear that even low risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence.

That heightened risk is, by some counts, eight times the likelihood of someone with a prior conviction to reoffend. That is why incorporating and improving as many offenders as possible in the sex offender registry is so very important. We have seen how this has played out before. When it was left simply to the judges to decide who needs to register with the registry, nearly 50% of offenders were never required to register. This is before we brought in mandatory registration.

Insanity is doing the same thing over and over and expecting different results. We can expect that individuals who certainly should be listed in the registry, even after the passage of Bill S-12, would be left out. We have to take every step to protect Canadians, to protect victims and to ensure that sex offenders are not given the opportunity to revictimize our communities.

After eight years of the Liberal government, the rate of violent crime is up 39%, police-reported sexual assaults are up 71% and sex crimes against children are up 126%. Canadians deserve so much better than this. I can think of no greater obligation for us as members of Parliament to enact laws that protect our communities and protect the safety of the most vulnerable. With legislation like Bill C-75 that has made bail so easy to get, legislation like Bill C-5 that has allowed for house arrest for sex offenders, Conservatives do not trust the government to take the necessary steps to protect Canadians. It has proven an inability to do that.

It is important that we pass Bill S-12, it is important that we respond to the Supreme Court decision and it is important that we go as far as possible to protect the most vulnerable. We look forward to the quick passage of this legislation. It is unfortunate that the government took so long to bring us to this point, but it is also important that we act expeditiously to protect Canadians.

The House resumed from September 20 consideration of the motion that Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, be read the second time and referred to a committee.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I would say to you, Mr. Housefather, it's duly noted. I think it's important to take a close reading of the legislation.

I share a concern if there's any ambiguity insofar as the target of this regime under Bill S-12 is meant to be the victims or witnesses, but to the exclusion of the accused. We are not concerned with the privacy interests of the accused here. Any Senate amendment that would purport to raise that issue is unnecessary ambiguity that doesn't conform to the objectives of the bill.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair.

Welcome to your new role, Minister, and congratulations on your new role.

Minister, you said at the outset that sex offences against children are despicable and you condemn them in the strongest terms. I think we all would at this point. You've also spoken about Bill S-12 and its role in the protection of children.

I take it that you would support the elimination of house arrest as a sentencing option for those who are convicted of sexual offences against children.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair. I'd certainly like to welcome you to your role as chair in our first public meeting.

Of course, I'll echo the comments about welcoming the minister here today. With his previous experience on the committee, I'm sure he'll be willing to come back and speak to us many more times. As he's a new minister, there are several things I'd like to talk to him about, such as decriminalizing HIV non-disclosure, decriminalizing sex work, reforming our extradition laws and the bill that's before the House, Bill C-40, on the miscarriage of justice. However, I do accept the urgency with which we're dealing with Bill S-12, so I will limit my comments and questions to Bill S-12 today.

I fully accept the urgency of maintaining the sex offender registry, but I thank you, Minister, for emphasizing that Bill S-12 not only preserves the registry but also improves the registry. We have had some cases in my riding where people have been added to the sex offender registry and no one in the community would reasonably believe that they should have been added. Sometimes those are people who are neurodiverse or who have intellectual disabilities and have ended up in the sex offender registry. I have spoken with advocates and those people. This bill will provide an opportunity, or that's the way I see it, for a judge to decide whether all those people should automatically be added.

I just wondered if you were aware of those kinds of cases.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

Good afternoon, Minister. I too would like to congratulate you on your appointment as Minister of Justice. The members of the Standing Committee on Justice and Human Rights will be pleased to work with you.

As you mentioned, we are at the pre-study phase with Bill S‑12, because it has not yet been referred back to us. I agree that it's a good idea to proceed in this manner. You were right to point out that the end-of-the-month deadline set by the Supreme Court of Canada would mean that it would no longer be possible to add sex offenders to the national sex offender registry, and that this would be problematic. We agree.

However, can you explain why the bill was only introduced in the Senate on April 26, 2023, when the Supreme Court decision dates back to October 28, 2022, almost a year ago? That means there were six months between the time the Supreme Court ruled that the act had to be amended and the introduction of the bill. Can you explain why it took so long, Minister?

[Arif Virani, Liberal, Parkdale—High Park, ON]

The compliance warrant is an interesting one. The law enforcement community reached out and said that they not only want this registry, but they also want the ability to act on the registry. They said it's sometimes difficult to get offenders to provide the registry with their information or to update their information.

Bill S-12 will create a situation that authorizes the police to seek a warrant to arrest an offender who is non-compliant with their registry obligation and to bring them to a reporting centre to facilitate compliance. That's an important step. We don't want to have a situation where people are out there believing they can just flout the law. This compliance warrant measure allows us to provide an additional enforcement tool for law enforcement to maintain the integrity of the registry itself.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I would be happy to. Thank you, Ms. Dhillon.

First of all, to Mr. Moore, the important takeaway from Bill S-12 is that the vast majority of individuals will remain registered. That's the first point.

I say that because there's an automatic registration in two categories, and for everyone else you're going to get registered unless you can demonstrate a rebuttable presumption why you shouldn't because it would be overbroad or grossly disproportionate. That's important.

Have we given it careful thought? Absolutely, we have, but the most reflection that I gave to the bill was simply the fact that the Supreme Court said, in its majority view, that lacking any judicial discretion is a violation of the charter under section 7, because it's overbroad and doesn't meet the minimal impairment test under section 1. Therefore, we had to make changes, and we've carefully tailored those changes in a manner that I believe conforms to the charter.

Thank you, Ms. Dhillon.

[Rob Moore, Conservative, Fundy Royal, NB]

Minister, thank you.

The decision that we're addressing here.... The Supreme Court stated that someone who is on the registry, an offender, is eight times more likely than the general population to commit a sexual offence. That is why a mandatory listing in the sex offender registry of those who are convicted of sexual offences and a mandatory lifetime listing of those who have multiple offences are so essential.

It was a 5-4 decision. In the dissent, it says:

It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.

Have you given consideration to casting a wider net? What has been carved out in Bill S-12 are some fairly narrow provisions that would result in mandatory listing in the sex offender registry when previously any conviction for a sexual offence was listed.

Have you considered casting a wider net?

[Arif Virani, Liberal, Minister of Justice and Attorney General of Canada]

Thank you very much, Madam Chair. I'd like to begin by congratulating you on being elected chair of this committee.

This is my first time here as the minister, but it's not my first time here on the committee. I'm a regular. I'd like to thank the committee for giving me the opportunity to be here to discuss Bill S‑12, which proposes a series of reforms to the national sex offender registry and to the Criminal Code provisions pertaining to publication bans.

The publication ban reforms would give victims of criminal offences more autonomy with respect to publication bans and enhance their right to ongoing information. The reforms with respect to sex offenders would give more teeth to the national sex offender registry and be consistent with the Supreme Court of Canada's 2022 decision in R. v. Ndhlovu.

I am very pleased to see the committee recognize the urgency of this issue and begin a prestudy of this legislation. I thank you sincerely for doing that and taking that initiative. As you know, we are under a court-imposed deadline. If the legislation before us does not receive royal assent by October 28, sex offenders will no longer be able to be added to the sex offender registry. That is an outcome that I believe none of us wants to see happen.

I'll begin by discussing the reforms in this legislation that have been proposed by the victims and survivors of sexual assault and also by their advocates. I'm very grateful for the lived experiences that victims and survivors shared with my office as Bill S-12 was being developed. Very much thanks to their leadership, Bill S-12 will help craft a criminal justice system that better serves the needs of victims in Canada.

Bill S‑12 advocates a victim-oriented approach that empowers victims. It accomplishes this by requiring that courts and attorneys verify whether victims wish to be protected by a publication ban, and if so, that they be informed of the impact of a publication ban and their right to request its revocation or alteration.

Bill S-12 aims to eliminate the threat of prosecution for individuals when they share their own identifying information. Victims and survivors should not be prosecuted for telling their own stories. That is fundamental to the conception and understanding of this bill.

I want to thank committee members for showing leadership on the subject of publication bans. I know that this issue was examined by this very committee during last year’s victims of crime study, and many people in this room right now were participants in that study. I also know that many of you have met with and listened to members of a group call My Voice, My Choice, as well as other advocates. Support for these reforms, thankfully, crosses partisan lines. We now have the opportunity to get this package across the finish line in a timely manner that respects the deadlines imposed by the Supreme Court.

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

First, an amendment was made by the Senate that would require the prosecutor to inform victims and witnesses who are 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 a change of that nature, it does raise serious questions about prosecutorial independence and conflicts of interest.

Some of the very Crown attorneys who would be providing that advice would be the same individuals who would ultimately be handling a prosecution. I am very conscious of the fact that in this committee we have no less than three former prosecuting Crown attorneys, and I'm sure they may share some of the concerns that I have with respect to this proposed Senate amendment. In fact, I have already received correspondence from some provincial attorneys general raising this very concern.

Second, I am also concerned with the amendment to clarify what is or is not captured by a publication ban. As amended by the Senate, Bill S-12 currently specifies that individuals who are protected by a publication ban may disclose information about themselves as long as they do not identify another person who is protected by the same publication ban. The problem here is that sometimes there are victims or witnesses who are subject to different publication bans and who still may wish to keep their identities private.

I want to move now to other components of Bill S-12, so I'm moving away from the Senate amendments.

Another victim- and survivor-centric element of Bill S-12 relates to information that is received from the courts. Under the Victims Bill of Rights, victims can decide whether they want to stay informed about all case developments, like appeals or parole. They can also decide that they do not want to be contacted about the case. They have the right to move on and to not have to hear about it again.

Bill S-12 significantly simplifies and streamlines the process for registering for information by requiring judges to ask victims their preferences and by making receipt of ongoing information a simple box to tick on a form. I am grateful to the advocates who brought this issue to light, and would like to emphasize that this measure is a key priority of the federal ombudsperson for victims of crime.

I now want to outline the measures in Bill S-12 that relate to the national sex offender registry.

In response to the Supreme Court’s decision in Ndhlovu, 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. The first is repeat sexual offenders. The second is those who commit sexual offences against children and are sentenced to two years or more of imprisonment, on indictment, even in the case of a first-time offender in that category.

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. This responds directly to the Supreme Court’s judgment in Ndhlovu that automatic registration is only justified for individuals who pose an elevated risk of reoffending. The court has called for the tailoring of this provision, and that is the tailoring we have done.

It is my view that including these individuals on the registry will always be related and proportionate to the objectives of the registry. Sexual offences against children are despicable crimes that I condemn in the strongest terms, and I presume all parliamentarians would condemn in the strongest terms. I'm speaking to you not just as the Minister of Justice or a member of Parliament from Toronto, but as the father of two young boys.

In addition, we know that repeat sexual offenders—that's the second category of those who would be automatically registered—are five to eight times more likely to reoffend than individuals who have non-sexual criminal histories.

There is another piece in the Ndhlovu decision that relates to mandatory lifetime registration. What Bill S-12 proposes to do is to allow a court to order lifetime registration for certain individuals. We are talking about people 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.

In addition to the proposals resulting from R. v. Ndhlovu, there are also some amendments whose purpose is to strengthen the offender registration regime as a whole and to make it more effective. These amendments include a requirement for registered sex offenders to give prior notice of at least 14 days for any travel, as well as a specific destination address. This gives the police more time and information to assess risks, and where required, to alert their international partners responsible for enforcing the act of an individual's 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 sextortion, and a new arrest warrant to address non-compliance with an offender’s registration obligations.

What I'm saying is that we not only revisited the issue of the sex offender registry, making it compliant, in my view, with the Supreme Court's guidance, but we are actually improving the registry, including the number of offences that would be captured by the registry.

The new arrest warrant is critical from a law enforcement perspective. Again, this is not a partisan issue but an issue that all of us take seriously. What I would emphasize to you is that many stakeholders have talked to my office about this bill, including law enforcement stakeholders such as the RCMP and the Canadian Association of Chiefs of Police.

What I will say to you is that they've said they would like the sex offender registry to be maintained. They see it as a very valuable tool for fighting crime, including for repeat sexual offenders. What they said to me—which was quite shocking, and I'll share it with you—is that the stats vary on a weekly basis. Between 46 and 75 times per week in Canada, names are added to the sex offender registry. That is quite staggering, but it would be more staggering to lose the ability to do that and keep Canadians safe.

I will conclude by saying that I'm convinced all of the reforms proposed in the bill would strengthen the national sex offender registry, comply with the Canadian Charter of Rights and Freedoms, and make the criminal justice system more responsive to the needs of victims of crime.

I hope that all parties in this committee and all parties in the chamber can work together to pass this legislation in the coming weeks, since time is of the essence.

Thank you, Madam Chair.