Government amendments to sex offender registry fall short
Proposed legislation introduced by the Liberal government at the end of April addresses changes to the National Sex Offender Registry. While Bill S-12 increases the rights of victims of sexual assault, I am concerned that the rights of the accused seemed to be pushed to the back burner.
The Department of Justice (DoJ) notes the bill is in response to the 2022 Supreme Court of Canada (SCC) decision in R. v. Ndhlovu, which found that two Criminal Code provisions relating to the National Sex Offender Registry were inconsistent with the Canadian Charter of Rights and Freedoms.
The provisions were:
- the automatic registration of all individuals convicted, or found not criminally responsible on account of mental disorder, of designated sexual offences; and
- the mandatory lifetime registration for individuals convicted of more than one sexual offence in the same prosecution.
Parliament’s response to SCC ruling
The court gave Parliament one year to respond, leading to Bill S-12. It proposes that:
- serious child sexual offenders would be registered automatically;
- repeat sexual offenders would be registered automatically; and
- all other sexual offenders must be registered unless they can demonstrate that they pose no risk to the community.
I believe the SCC wanted the government to back away from the idea that anyone convicted of sexual assault would automatically be added to the registry. The Liberals partially embraced that idea, though the onus is on the offender to “demonstrate that they pose no risk to the community.”
As I wrote in December 2022, “I agree with the Supreme Court’s determination that people who have committed minor sexual offences do not need to be included in the registry.”
That idea was reflected in the Ndhlovu judgment, which noted, “the conduct captured by sexual assault includes everything from touching a complainant’s buttocks over clothing to prolonged, violent assaults.”
In explaining the reason for overturning the legislation that made inclusion in the registry mandatory for sex offenders, the judgement notes: “The unproven premise is that police can only effectively prevent and investigate sex offences if all designated offenders are registered. The assumption appears to be that if some are good, more is better, and all is best."
Differences between sex offender registries
I believe many people fail to understand the limit and purpose of the Canadian sex offender registry. First, it should not be confused with the U.S. registry.
South of the border, the National Sex Offender Public Website allows people to search for sex offenders by name or address. They will then be given information about offenders living from one to three miles from a given residence.
To test it out, I entered the address of 73 W. Flagler St., Miami, the site of the Miami-Dade County Courthouse. According to the U.S. registry, there are 217 sex offenders who live within a three-mile radius of the courthouse. Each entry has the offender’s headshot, home address and any aliases they are known to use.
The Canadian public cannot do a similar search. Only police agencies can access the registry. That allows officers to keep track of sex offenders while offering them a degree of privacy from the public. That's reasonable, considering these people have served their sentences for their crimes.
Bill opens the door to a U.S.-style system
What concerns me is that this new bill seems to be opening the door to changes that will affect the privacy of convicted sex offenders who have paid for their crimes.
For example, the DoJ information notes that the bill will “require judges to ask if victims want to receive ongoing information about their case after sentencing, and ensure that their wishes, if known, are entered into the record of the proceedings.”
This legislation would also prompt changes to the registry to facilitate “information-sharing through federal corrections agencies,” according to a news report.
We are suddenly getting a little bit closer to what the U.S. registry allows. If victims are permitted to “receive ongoing information about their case after sentencing,” will that include the address of the offender who has served their time? These people have fulfilled the rehabilitative and punitive requirements our judicial system deemed necessary. They deserve a chance to rebuild their lives and are entitled to the privacy we all enjoy.
If a victim is told that the offender resides close by, that will create issues for the person who has been released after serving their sentence. When does a victim stop having a say and when does the offender stop paying for their crime?
These are important questions that I don't know the answer to.
The Supreme Court continually states that we must consider the rights of victims. But what about the rights of the rehabilitated offender?
Contact me for advice
I have defended people accused of sex crimes in courtrooms across the Ottawa region for two decades, working to ensure they receive a fair trial and just sentence. If you, a family member or a friend has been charged with a criminal offence, contact me for a free consultation with no obligation.