Protecting Victims From Sex Offenders Act (S.C. 2010, c. 17)
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Assented to 2010-12-15
Protecting Victims From Sex Offenders Act
S.C. 2010, c. 17
Assented to 2010-12-15
An Act to amend the Criminal Code and other Acts
SUMMARY
This enactment amends the Criminal Code, the Sex Offender Information Registration Act and the National Defence Act to enhance police investigation of crimes of a sexual nature and allow police services to use the national database proactively to prevent crimes of a sexual nature.
It also amends the Criminal Code and the International Transfer of Offenders Act to require sex offenders arriving in Canada to comply with the Sex Offender Information Registration Act.
It also amends the Criminal Code to provide that sex offenders who are subject to a mandatory requirement to comply with the Sex Offender Information Registration Act are also subject to a mandatory requirement to provide a sample for forensic DNA analysis.
It also amends the National Defence Act to reflect the amendments to the Criminal Code relating to the registration of sex offenders.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Protecting Victims From Sex Offenders Act.
R.S., c. C-46CRIMINAL CODE
2. Subsection 173(2) of the Criminal Code is replaced by the following:
Marginal note:Exposure
(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
3. (1) Subparagraph (a)(i) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:
(i) subsection 7(4.1) (offence in relation to sexual offences against children),
(i.1) section 151 (sexual interference),
(i.2) section 152 (invitation to sexual touching),
(i.3) section 153 (sexual exploitation),
(i.4) section 153.1 (sexual exploitation of person with disability),
(i.5) section 155 (incest),
(i.6) subsection 160(2) (compelling the commission of bestiality),
(i.7) subsection 160(3) (bestiality in presence of or by a child),
(i.8) section 163.1 (child pornography),
(i.9) section 170 (parent or guardian procuring sexual activity),
(i.91) section 172.1 (luring a child by means of a computer system),
(i.92) subsection 173(2) (exposure),
(i.93) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),
(i.94) subsection 212(2) (living on the avails of prostitution of a person under age of 18),
(i.95) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under age of 18),
(i.96) subsection 212(4) (obtaining prostitution of person under age of 18),
(2) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (xi.2):
(xi.3) section 271 (sexual assault),
(3) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (xiii):
(xiii.1) subsection 273.3(2) (removal of a child from Canada),
(4) Subparagraphs (a.1)(i.11) to (v.2) of the definition “primary designated offence” in section 487.04 of the Act are replaced by the following:
(iv) paragraphs 212(1)(a) to (h) (procuring),
(v) paragraph 212(1)(j) (procuring),
(5) Subparagraph (a.1)(vii) of the definition “primary designated offence” in section 487.04 of the Act is repealed.
(6) Paragraph (b) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (i):
(i.1) section 145 (attempt to commit rape),
(7) Paragraph (b) of the definition “primary designated offence” in section 487.04 of the Act is amended by striking out “and” at the end of subparagraph (v), by adding “and” at the end of subparagraph (vi) and by adding the following after subparagraph (vi):
(vii) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in subparagraphs (i) to (vi),
(8) Paragraph (c) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:
(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:
(i) subsection 146(1) (sexual intercourse with a female under age of 14),
(ii) subsection 146(2) (sexual intercourse with a female between ages of 14 and 16),
(iii) section 153 (sexual intercourse with step-daughter),
(iv) section 157 (gross indecency),
(v) section 166 (parent or guardian procuring defilement), and
(vi) section 167 (householder permitting defilement),
(c.01) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:
(i) section 246.1 (sexual assault),
(ii) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), and
(iii) section 246.3 (aggravated sexual assault),
(9) Paragraph (d) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:
(d) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit an offence referred to in any of paragraphs (a) to (c.01);
(10) Subparagraphs (c)(i.4) to (iii) of the definition “secondary designated offence” in section 487.04 of the Act are replaced by the following:
(iii) subsection 173(1) (indecent acts),
4. (1) Paragraph (a) of the definition “designated offence” in subsection 490.011(1) of the Act is amended by adding the following after subparagraph (vi):
(vi.1) subsection 160(2) (compelling the commission of bestiality),
(2) Subparagraph (b)(i) of the definition “designated offence” in subsection 490.011(1) of the Act is replaced by the following:
(i) section 162 (voyeurism),
(i.1) subsection 173(1) (indecent acts),
(3) Paragraph (b) of the definition “designated offence” in subsection 490.011(1) of the Act is amended by adding the following after subparagraph (iii):
(iii.1) section 231 (murder),
5. Section 490.012 of the Act is replaced by the following:
Marginal note:Order
490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.
Marginal note:Order — if intent established
(2) When a court imposes a sentence on a person for an offence referred to in paragraph (b) or (f) of the definition “designated offence” in subsection 490.011(1), it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of that definition.
Marginal note:Order — if previous offence established
(3) When a court imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes that
(a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) or in paragraph (a) or (c) of the definition “designated offence” in section 227 of the National Defence Act;
(b) the person was not served with a notice under section 490.021 or 490.02903 or under section 227.08 of the National Defence Act in connection with that offence; and
(c) no order was made under subsection (1) or under subsection 227.01(1) of the National Defence Act in connection with that offence.
Marginal note:Failure to make order
(4) If the court does not consider the matter under subsection (1) or (3) at that time, the court
(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.
6. Subsection 490.013(3) of the Act is replaced by the following:
Marginal note:Duration of order
(2.1) An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1).
Marginal note:Duration of order
(3) An order made under subsection 490.012(1) or (2) applies for life if the person is, or was at any time, subject to an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act.
7. Section 490.014 of the Act is replaced by the following:
Marginal note:Appeal
490.014 The prosecutor, or a person who is subject to an order under subsection 490.012(2), may appeal from a decision of the court under that subsection on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the order or make an order that may be made under that subsection.
8. (1) Paragraph 490.015(1)(c) of the Act is replaced by the following:
(c) if 20 years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(c) or subsection 490.013(2.1), (3) or (5).
(2) Subsection 490.015(4) of the Act is replaced by the following:
Marginal note:Scope of application
(4) The application shall be in relation to every order that is in effect. If a person is subject to an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act, the application shall also be in relation to that obligation.
9. (1) Subsection 490.016(1) of the Act is replaced by the following:
Marginal note:Termination order
490.016 (1) The court shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
(2) Subsection 490.016(3) of the Act is replaced by the following:
Marginal note:Requirements relating to notice
(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
10. Subsection 490.017(2) of the Act is replaced by the following:
Marginal note:Requirements relating to notice
(2) If the appeal court makes an order that may be made under subsection 490.016(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
11. Paragraph 490.018(1)(d) of the Act is amended by striking out “and” at the end of subparagraph (ii), by adding “and’’ at the end of subparagraph (iii) and by adding the following after subparagraph (iii):
(iv) the Commissioner of the Royal Canadian Mounted Police.
12. The heading before section 490.019 of the Act is replaced by the following:
Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004
13. (1) Subsection 490.023(2) of the Act is replaced by the following:
Marginal note:Exemption order
(2) The court shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
(2) Subsection 490.023(4) of the Act is replaced by the following:
Marginal note:Removal of information from database
(4) If the court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
14. Subsection 490.024(2) of the Act is replaced by the following:
Marginal note:Removal of information from database
(2) If the appeal court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
15. Section 490.025 of the Act is replaced by the following:
Marginal note:Requirements relating to notice
490.025 If a court refuses to make an exemption order or an appeal court dismisses an appeal from such a decision or quashes an exemption order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, sections 490.031 and 490.0311 of this Act and section 119.1 of the National Defence Act.
16. (1) Subsection 490.026(1) of the Act is replaced by the following:
Marginal note:Application for termination order
490.026 (1) A person who is subject to an obligation under section 490.019 may apply for a termination order unless they are also subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act — or an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.
(2) Subsection 490.026(5) of the Act is replaced by the following:
Marginal note:Re-application
(5) A person whose application is refused may apply again if five years have elapsed since they made the application. They may also apply again if they receive a pardon. However, they may not apply again if, after they made the application, they become subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or an order under section 490.012 or under section 227.01 of the National Defence Act.
17. (1) Subsection 490.027(1) of the Act is replaced by the following:
Marginal note:Termination order
490.027 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
(2) Subsection 490.027(3) of the Act is replaced by the following:
Marginal note:Requirements relating to notice
(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
18. Subsection 490.029(2) of the Act is replaced by the following:
Marginal note:Requirements relating to notice
(2) If the appeal court makes an order that may be made under subsection 490.027(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
19. The Act is amended by adding the following after section 490.029:
Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada
Marginal note:Obligation
490.02901 A person who is served with a notice in Form 54 shall comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.02904 unless a court makes an exemption order under subsection 490.02905(2).
Marginal note:Persons who may be served
490.02902 (1) The Attorney General of a province, or the minister of justice of a territory, may serve a person with a notice in Form 54 only if the person arrived in Canada after the coming into force of this subsection and they were convicted of or found not criminally responsible on account of mental disorder for an offence outside Canada — other than a service offence as defined in subsection 2(1) of the National Defence Act — that is, in the opinion of the Attorney General or minister of justice, equivalent to an offence referred to in paragraph (a) of the definition “designated offence” in subsection 490.011(1).
Marginal note:Exception
(2) The notice shall not be served on a person who has been acquitted of every offence in connection with which a notice may be served on them under section 490.02903.
Marginal note:Period for and method of service
490.02903 (1) A notice in Form 54 shall be personally served.
Marginal note:Proof of service
(2) An affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out that
(a) the person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case;
(b) the notice was personally served on the person to whom it was directed on a named day; and
(c) the person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.
Marginal note:Requirements relating to notice
(3) The person who served the notice shall, without delay, send a copy of the affidavit and the notice to the Attorney General of the province, or the minister of justice of the territory, in which the person was served.
Marginal note:When obligation begins
490.02904 (1) The obligation under section 490.02901 begins on the day on which the person is served with the notice.
Marginal note:When obligation ends
(2) The obligation ends on the day on which an exemption order is made.
Marginal note:Duration of obligation
(3) If subsection (2) does not apply, the obligation
(a) ends 10 years after the person was sentenced or found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;
(b) ends 20 years after the person was sentenced or found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years;
(c) applies for life if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life; or
(d) applies for life if, before or after the coming into force of this paragraph, the person was convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) or referred to in paragraph (a) or (c) of the definition “designated offence” in section 227 of the National Defence Act and if more than one of those offences is listed in the notice.
Marginal note:Application for exemption order
490.02905 (1) A person who is served with a notice in Form 54 under section 490.02903 may apply to a court of criminal jurisdiction for an order exempting them from the obligation within one year after they are served.
Marginal note:Exemption order
(2) The court
(a) shall make an exemption order if it is satisfied that the person has established that
(i) they were not convicted of or found not criminally responsible on account of mental disorder for or were acquitted of the offence in question, or
(ii) the offence in question is not equivalent to an offence referred to in paragraph (a) of the definition “designated offence” in subsection 490.011(1); and
(b) shall order that the notice be corrected if it is satisfied that the offence in question is not equivalent to the offence referred to in the notice but is equivalent to another offence referred to in paragraph (a) of the definition “designated offence” in subsection 490.011(1).
Marginal note:Reasons for decision
(3) The court shall give reasons for its decision.
Marginal note:Removal of information from database
(4) If the court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
Marginal note:Notification
(5) If the court makes an order referred to in paragraph (2)(b), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
Marginal note:Appeal
490.02906 (1) The Attorney General or the person who applied for an exemption order may appeal from a decision under subsection 490.02905(2) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may
(a) dismiss the appeal;
(b) allow the appeal and order a new hearing;
(c) quash the exemption order; or
(d) make an order that may be made under that subsection.
Marginal note:Removal of information from database
(2) If an appeal court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
Marginal note:Requirements relating to notice
490.02907 If an appeal court quashes an exemption order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, sections 490.031 and 490.0311 of this Act and section 119.1 of the National Defence Act.
Marginal note:Application for termination order
490.02908 (1) A person who is subject to an obligation under section 490.02901 may apply to a court of criminal jurisdiction for a termination order unless they are also subject to another obligation under that section — or to an obligation under section 490.019, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.
Marginal note:Time for application — one offence
(2) The person may apply for a termination order if the following period has elapsed since the sentence was imposed or the verdict of not criminally responsible on account of mental disorder was rendered:
(a) five years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;
(b) 10 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years; or
(c) 20 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life.
Marginal note:Time for application — more than one offence
(3) If more than one offence is listed in the notice served under section 490.02903, the person may apply for a termination order if 20 years have elapsed since the sentence was imposed, or the verdict of not criminally responsible on account of mental disorder was rendered, for the most recent offence.
Marginal note:Re-application
(4) A person whose application is refused may apply again if five years have elapsed since the application was made.
Marginal note:Termination order
490.02909 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
Marginal note:Reasons for decision
(2) The court shall give reasons for its decision.
Marginal note:Requirements relating to notice
(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
Marginal note:Appeal
490.0291 (1) The Attorney General or the person who applied for a termination order may appeal from a decision under subsection 490.02909(1) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, allow the appeal and order a new hearing, quash the termination order or make an order that may be made under that subsection.
Marginal note:Requirements relating to notice
(2) If the appeal court makes an order that may be made under subsection 490.02909(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
Marginal note:Obligation to advise police service
490.02911 (1) A person who was convicted of or found not criminally responsible on account of mental disorder for an offence outside Canada shall, if the offence is equivalent to one referred to in paragraph (a) of the definition “designated offence” in subsection 490.011(1), advise a police service within seven days after the day on which they arrive in Canada of that fact and of their name, date of birth, gender and address. They are not required to so advise the police service again unless they are later convicted of or found not criminally responsible on account of mental disorder for another such offence.
Marginal note:Change in address
(2) The person shall, if they are in Canada, advise a police service of a change in address within seven days after the day on which the change is made.
Marginal note:Information to be provided to Attorney General
(3) The police service shall cause the Attorney General of the province, or the minister of justice of the territory, in which it is located to be provided with the information.
Marginal note:Obligation ends
(4) A person’s obligation under subsection (2) ends when they are served under section 490.02902 or, if it is earlier, one year after the day on which they advise the police service under subsection (1).
International Transfer of Offenders Act
Marginal note:Application for termination order
490.02912 (1) A person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act may apply to a court of criminal jurisdiction for a termination order unless they are also subject to an obligation under section 490.019 or 490.02901 or under section 227.06 of the National Defence Act — or to an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.
Marginal note:Time for application — one offence
(2) The person may apply for a termination order if the following period has elapsed since the sentence was imposed or the verdict of not criminally responsible on account of mental disorder was rendered:
(a) five years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;
(b) 10 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years; or
(c) 20 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life.
Marginal note:More than one offence
(3) If more than one offence is listed in the copy of the Form 1 that was delivered under subparagraph 8(4)(a)(ii) of the International Transfer of Offenders Act, the person may apply for a termination order if 20 years have elapsed since the sentence was imposed, or the verdict of not criminally responsible on account of mental disorder was rendered, for the most recent offence.
Marginal note:Re-application
(4) A person whose application is refused may apply again if five years have elapsed since the application was made.
Marginal note:Termination order
490.02913 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
Marginal note:Reasons for decision
(2) The court shall give reasons for its decision.
Marginal note:Requirements relating to notice
(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
Marginal note:Appeal
490.02914 (1) The Attorney General or the person who applied for a termination order may appeal from a decision under subsection 490.02913(1) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, allow the appeal and order a new hearing, quash the termination order or make an order that may be made under that subsection.
Marginal note:Requirements relating to notice
(2) If the appeal court makes an order that may be made under subsection 490.02913(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
Marginal note:Notice before release
490.02915 (1) The person in charge of the place in which a person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act is serving the custodial portion of a sentence, or is detained in custody before their release or discharge, shall give the person a copy of the Form 1 referred to in subsection 490.02912(3) not earlier than 10 days before their release or discharge.
Marginal note:Notice on disposition by Review Board
(2) A Review Board shall cause a copy of the Form 1 to be given to the person when it directs
(a) under paragraph 672.54(a), that the person be discharged absolutely; or
(b) under paragraph 672.54(b), that the person be discharged subject to conditions unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with sections 4, 4.1, 4.3 and 6 of the Sex Offender Information Registration Act.
20. Subsections 490.03(1) and (2) of the Act are replaced by the following:
Marginal note:Disclosure
490.03 (1) The Commissioner of the Royal Canadian Mounted Police or a person authorized by the Commissioner shall, on request, disclose information that is registered in the database or the fact that such information is registered in the database
(a) to the prosecutor if the disclosure is necessary for the purpose of a proceeding under section 490.012; or
(b) to the Attorney General if the disclosure is necessary for the purpose of a proceeding under subsection 490.016(1), 490.023(2), 490.027(1), 490.02905(2), 490.02909(1) or 490.02913(1) or for the purpose of an appeal from a decision made in any of those proceedings or in a proceeding under subsection 490.012(2).
Marginal note:Disclosure in connection with proceedings
(2) The Commissioner or that person shall, on request, disclose to the prosecutor or Attorney General the information that is registered in the database relating to a person if the person discloses, in connection with a proceeding or appeal other than one referred to in subsection (1), the fact that information relating to them is registered in the database.
21. (1) Subsection 490.031(1) of the Act is replaced by the following:
Marginal note:Offence
490.031 (1) Every person who, without reasonable excuse, fails to comply with an order made under section 490.012 or under section 227.01 of the National Defence Act or with an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act is guilty of an offence and liable
(a) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or
(b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
(2) Section 490.031 of the Act is amended by adding the following after subsection (2):
Marginal note:Proof of certain facts by certificate
(3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b) of the Sex Offender Information Registration Act stating that the sex offender failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Attendance and cross-examination
(4) The sex offender named in the certificate may, with the leave of the court, require the attendance of the person who signed it for the purpose of cross-examination.
Marginal note:Notice of intention to produce
(5) A certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the sex offender a copy of it and reasonable notice of their intention to produce it.
22. Paragraphs 490.0311(a) and (b) of the Act are replaced by the following:
(a) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or
(b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
23. The Act is amended by adding the following after section 490.0311:
Marginal note:Offence
490.0312 Every person who, without reasonable excuse, fails to comply with an obligation under subsection 490.02911(1) or (2) is guilty of an offence punishable on summary conviction.
24. Paragraph 490.032(a) of the Act is replaced by the following:
(a) requiring that additional information be contained in a notice under Form 53 or Form 54; and
25. Paragraph 553(c) of the Act is amended by adding the following after subparagraph (viii):
(viii.01) section 490.031 (failure to comply with order or obligation),
(viii.02) section 490.0311 (providing false or misleading information),
26. Form 52 in Part XXVIII of the Act is replaced by the following:
FORM 52(Section 490.012)ORDER TO COMPLY WITH SEX OFFENDER INFORMATION REGISTRATION ACT
Canada,
Province of ....................
(territorial division)
To A.B., of ................, (occupation), (address or address of court if no fixed address), (date of birth), (gender):
You have been convicted of or found not criminally responsible on account of mental disorder for (description of offence(s)) under (applicable designated offence provision(s) of theCriminal Code), a designated offence (or designated offences) within the meaning of subsection 490.011(1) of the Criminal Code.
1. You must report for the first time to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under subsection 4(1) of that Act.
2. You must subsequently report to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under section 4.1 or 4.3 of that Act, for a period of ...... years after this order is made (or if paragraph 490.013(2)(c) or any of subsections 490.013(2.1) to (5) of the Criminal Code applies, for life).
3. Information relating to you will be collected under sections 5 and 6 of the Sex Offender Information Registration Act by a person who collects information at the registration centre.
4. Information relating to you will be registered in a database, and may be consulted, disclosed and used in the circumstances set out in the Sex Offender Information Registration Act.
5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act or, if applicable, the Canadian Forces Provost Marshal, to correct the information.
6. You have the right to apply to a court to terminate this order, and the right to appeal the decision of that court.
7. If you are found to have contravened this order, you may be subject to a fine or imprisonment, or to both.
8. If you are found to have provided false or misleading information, you may be subject to a fine or imprisonment, or to both.
Dated this ................ day of ................, at ................. .
...................................................................
(Signature of judge or clerk and name of court)
...........................................................
(Signature of person subject to order)
27. Part XXVIII of the Act is amended by adding the following after Form 53:
FORM 54(Sections 490.02901 to 490.02903, 490.02905 and 490.032)OBLIGATION TO COMPLY WITH SEX OFFENDER INFORMATION REGISTRATION ACT
To A.B., of ................, (occupation), (address in Canada), (date of birth), (gender):
Because, on (date), you were convicted of or found not criminally responsible on account of mental disorder for an offence (or offences) in (location of offence(s)) that the Attorney General of the province, or the minister of justice of the territory, has identified as being equivalent to (description of offence(s)) under (applicable provision(s) of theCriminal Code), a designated offence (or designated offences) as defined in subsection 490.011(1) of the Criminal Code;
You are provided with this to inform you that you are required to comply with the Sex Offender Information Registration Act.
1. You must report for the first time to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under subsection 4(2) of that Act.
2. You must subsequently report to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under section 4.1 or 4.3 of that Act, for a period of ....... years after the day on which you were sentenced or found not criminally responsible on account of mental disorder for the offence (or if paragraph 490.02904(3)(c) or (d) of the Criminal Code applies, for life because you were convicted of or found not criminally responsible on account of mental disorder for (description of offence(s)) under (applicable designated offence provision(s) of theCriminal Code), a designated offence (or designated offences) within the meaning of subsection 490.011(1) of the Criminal Code) or for any shorter period determined under subsection 490.02904(2) of the Criminal Code.
3. Information relating to you will be collected under sections 5 and 6 of the Sex Offender Information Registration Act by a person who collects information at the registration centre.
4. Information relating to you will be registered in a database, and may be consulted, disclosed and used in the circumstances set out in the Sex Offender Information Registration Act.
5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act to correct the information.
6. You have the right to apply to a court to exempt you from the obligation to comply with the Sex Offender Information Registration Act, and the right to appeal the decision of that court.
7. You have the right to apply to a court to terminate the obligation to comply with the Sex Offender Information Registration Act and the right to appeal the decision of that court.
8. If you are found to have not complied with the Sex Offender Information Registration Act, you may be subject to a fine or imprisonment, or to both.
9. If you are found to have provided false or misleading information, you may be subject to a fine or imprisonment, or to both.
Served on (date).
For administrative use only:
Sentence imposed or verdict of not criminally responsible on account of mental disorder rendered on (date).
2004, c. 10SEX OFFENDER INFORMATION REGISTRATION ACT
28. (1) Subsection 2(1) of the Sex Offender Information Registration Act is replaced by the following:
Marginal note:Purpose
2. (1) The purpose of this Act is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.
(2) Paragraph 2(2)(a) of the Act is replaced by the following:
(a) in the interest of protecting society through the effective prevention and investigation of crimes of a sexual nature, police services must have rapid access to certain information relating to sex offenders;
(3) Subparagraph 2(2)(c)(i) of the Act is replaced by the following:
(i) the information be collected only to enable police services to prevent or investigate crimes of a sexual nature, and
29. The definition “sex offender” in subsection 3(1) of the Act is replaced by the following:
“sex offender”
« délinquant sexuel »
“sex offender” means a person who is subject to an order or to an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act.
30. (1) The portion of subsection 4(1) of the Act before paragraph (b) is replaced by the following:
Marginal note:First obligation to report
4. (1) A person who is subject to an order shall report to a registration centre referred to in section 7.1 within seven days — or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days — after
(a) the order is made, if they are convicted of the offence in connection with which the order is made and
(i) they are not given a custodial sentence,
(ii) they are ordered to serve a sentence of imprisonment intermittently under subsection 732(1) of the Criminal Code, or
(iii) they are the subject of a conditional sentence order made under section 742.1 of the Criminal Code;
(2) The portion of subsection 4(2) of the Act before subparagraph (b)(i) is replaced by the following:
Marginal note:First obligation to report
(2) A person who is subject to an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act shall report to a registration centre referred to in section 7.1
(a) if they are not in custody on the day on which they become subject to the obligation, within seven days — or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days — after that day; and
(b) in any other case, within seven days — or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days — after
31. Paragraphs 4.1(1)(a) and (b) of the Act are replaced by the following:
(a) within seven days after they change their main residence or any secondary residence or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days after the change;
(b) within seven days after they change their given name or surname or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days after the change; and
32. Section 4.2 of the Act is replaced by the following:
Marginal note:More than one order or obligation
4.2 A person shall report on the reporting dates established under only the most recent order or obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act.
33. Subsection 4.3(1) of the Act is replaced by the following:
Marginal note:Temporarily outside Canada
4.3 (1) A sex offender who is outside Canada when they are required to report under section 4.1 shall report not later than seven days after they return to Canada.
34. (1) Paragraph 5(1)(d) of the Act is replaced by the following:
(d) the address of every place at which they are employed or retained or are engaged on a volunteer basis — or, if there is no address, the location of that place — the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there;
(2) Subsection 5(1) of the Act is amended by striking out “and” at the end of paragraph (f), by adding “and’’ at the end of paragraph (g) and by adding the following after paragraph (g):
(h) the licence plate number, make, model, body type, year of manufacture and colour of the motor vehicles that are registered in their name or that they use regularly.
(3) Subsection 5(2) of the Act is replaced by the following:
Marginal note:Additional information
(2) When a sex offender reports to a registration centre, the person who collects the information from them may ask them when and where they were convicted of, or found not criminally responsible on account of mental disorder for, an offence in connection with an order or with an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act.
35. The Act is amended by adding the following after section 5:
Marginal note:Notification of change of information — paragraph 5(1)(d)
5.1 A sex offender shall, within seven days after the date of the change, notify a person who collects information at the registration centre referred to in section 7.1 of any change in the information that they have provided under paragraph 5(1)(d).
36. Subsection 6(1) of the Act is replaced by the following:
Marginal note:Notification of absence
6. (1) Subject to subsection (1.1), a sex offender shall notify a person who collects information at the registration centre referred to in section 7.1
(a) before their departure — of the estimated dates of their departure and return and of every address or location at which they expect to stay in Canada — if they expect not to be at their main residence or any of their secondary residences for a period of seven or more consecutive days;
(b) within seven days after the date of their departure — of the estimated date of their return and, if the sex offender is in Canada, of their address or location — if they decide, after departure, not to be at their main residence or any of their secondary residences for a period of seven or more consecutive days or if they have not given a notification required under paragraph (a); and
(c) before departure or, if it is later, within seven days after the day on which the change is made — of a change in address, location or date.
Marginal note:Canadian Forces
(1.1) A sex offender who is required to notify a person who collects information at a registration centre designated under the National Defence Act and who requests the Chief of the Defence Staff to make a determination under section 227.16 of that Act shall provide the information relating to the operation within seven days after the date of their departure unless the determination is made during that period.
37. Section 7.1 of the Act is replaced by the following:
Marginal note:Registration centre
7.1 For the purposes of sections 4, 4.1, 4.3, 5.1 and 6, the registration centre is one that is designated under paragraph 18(1)(d) or subsection 19(1) that serves the area of the province in which the sex offender’s main residence is located, unless a registration centre designated under paragraph 227.2(e) of the National Defence Act serves a class of persons of which the sex offender is a member or the area in which the unit of the Canadian Forces in which the sex offender is serving is located.
38. (1) The portion of section 8 of the Act before paragraph (a) is replaced by the following:
Marginal note:Registration of information
8. When a police service or the Commissioner of the Royal Canadian Mounted Police receives a copy of an order sent in accordance with paragraph 490.018(1)(d) of the Criminal Code, either a person who registers information for the police service or one who registers it for the Commissioner shall
(2) Paragraph 8(a) of the Act is amended by adding the following after subparagraph (vi):
(vi.1) the person’s method of operation in relation to the offence or offences, if that information is available to the person who registers information,
39. (1) The portion of subsection 8.1(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Registration of information — obligations
8.1 (1) When the Attorney General of a province, or the minister of justice of a territory, receives a copy of an affidavit and a notice sent in accordance with subsection 490.021(6) or 490.02903(3) of the Criminal Code — or receives a copy of the Form 1 delivered under subparagraph 8(4)(a)(ii) of the International Transfer of Offenders Act — a person who registers information for the Attorney General, or the minister of justice, shall register without delay in the database only the following information, as applicable, relating to the person named in the notice or Form 1, as the case may be:
(2) Paragraph 8.1(1)(d) of the Act is replaced by the following:
(d) every offence listed in the notice or form;
(3) Subsection 8.1(1) of the Act is amended by adding the following after paragraph (g):
(g.1) the person’s method of operation in relation to the offence or offences, if that information is available to the person who registers information;
(4) Paragraph 8.1(1)(h) of the Act is replaced by the following:
(h) the expected duration of the obligation; and
(5) Subsections 8.1(2) to (4) of the Act are replaced by the following:
Marginal note:Registration of information — termination orders
(2) When the Attorney General of a province, or the minister of justice of a territory, receives a notice referred to in subsection 490.016(3), 490.017(2), 490.027(3), 490.029(2), 490.02909(3), 490.0291(2), 490.02913(3) or 490.02914(2) of the Criminal Code, a person who registers information for the Attorney General, or the minister of justice, shall register without delay in the database the fact that a termination order was made.
Marginal note:Registration of information — exemption orders
(3) A person who registers information for the Attorney General of a province, or the minister of justice of a territory, may register in the database the fact that a person has applied in that jurisdiction for an exemption order under section 490.023 or 490.02905 of the Criminal Code.
Marginal note:Registration of information — exemption orders
(4) When the Attorney General of a province, or the minister of justice of a territory, receives a notice referred to in section 490.025 or 490.02907 of the Criminal Code, a person who registers information for the Attorney General, or the minister of justice, shall register without delay in the database the fact that the court refused to make an exemption order under subsection 490.023(2) or 490.02905(2) of that Act or that the appeal court dismissed an appeal from such a decision or quashed an exemption order.
(6) The portion of subsection 8.1(5) of the Act before paragraph (a) is replaced by the following:
Marginal note:Registration of information
(5) A person who registers information for the Attorney General of a province, or the minister of justice of a territory, may register in the database the day on which the custodial portion of a sex offender’s sentence or detention in custody begins, the days on which they are or are expected to be outside penitentiary as defined in subsection 2(1) of the Corrections and Conditional Release Act or outside the provincial correctional facility, the address or location at which they stay or are expected to stay during that period and the date of their release or discharge if
40. (1) Subsection 8.2(1) of the Act is amended by striking out “and” at the end of paragraph (f) and by adding the following after paragraph (f):
(f.1) their method of operating in relation to the offence or offences, if that information is available to the person who registers information; and
(2) Subsection 8.2(2) of the Act is amended by striking out “and” at the end of paragraph (g) and by adding the following after paragraph (g):
(g.1) their method of operating in relation to the offence or offences, if that information is available to the person who registers information; and
(3) Subsection 8.2(6) of the Act is replaced by the following:
Marginal note:Registration of information — Canadian Forces
(6) If a sex offender was prosecuted under the National Defence Act for the offence to which the sentence or detention relates, a person who registers information for the Canadian Forces Provost Marshal may register in the database
(a) the day on which the custodial portion of the sex offender’s sentence or detention in custody begins;
(b) the days on which they are or are expected to be outside the service prison or detention barrack as defined in subsection 2(1) of that Act and the address or location at which they stay or are expected to stay during that period; and
(c) the date of their release or discharge.
41. Section 14 of the English version of the Act is replaced by the following:
Marginal note:Administration of database
14. The database is to be administered by the Royal Canadian Mounted Police.
42. (1) The portion of subsection 15(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Permanent removal and destruction of information
(3) Despite any other Act of Parliament, all information that is collected under this Act, or registered in the database, in connection with an obligation under section 490.019 or 490.02901 of the Criminal Code or section 227.06 of the National Defence Act shall be destroyed and permanently removed from the database if
(2) Paragraph 15(3)(c) of the Act is replaced by the following:
(c) the person who is subject to the obligation is granted an exemption order under subsection 490.023(2) or 490.02905(2) of the Criminal Code or subsection 227.1(4) of the National Defence Act or on an appeal from a decision made under that subsection.
43. The Act is amended by adding the following after section 15:
AUTHORITY TO RELEASE INFORMATION
Marginal note:Correctional Service of Canada
15.1 (1) The Correctional Service of Canada may disclose to a person who registers information
(a) the day on which a sex offender is received into a penitentiary as defined in subsection 2(1) of the Corrections and Conditional Release Act;
(b) if a sex offender is expected to be temporarily outside penitentiary for seven or more days, the days on which they are expected to be outside, the days on which they are outside, the address or location at which they are expected to stay and the address or location at which they stay; and
(c) the date of a sex offender’s release or discharge.
Marginal note:Provincial correctional authority
(2) The person in charge of a provincial correctional facility may disclose to a person who registers information
(a) the day on which a sex offender is received into the facility;
(b) if a sex offender is expected to be temporarily outside the facility for seven or more days, the days on which they are expected to be outside, the days on which they are outside, the address or location at which they are expected to stay and the address or location at which they stay; and
(c) the date of a sex offender’s release or discharge.
Marginal note:Canadian Forces
(3) The person in charge of a service prison or detention barrack as defined in subsection 2(1) of the National Defence Act may disclose to a person who registers information
(a) the day on which a sex offender is received into the prison or barrack;
(b) if a sex offender is expected to be temporarily outside the prison or barrack for seven or more days, the days on which they are expected to be outside, the days on which they are outside, the address or location at which they are expected to stay and the address or location at which they stay; and
(c) the date of a sex offender’s release or discharge.
44. (1) Paragraphs 16(2)(a) to (c) of the Act are replaced by the following:
(a) a member or employee of, or a person retained by, a police service who consults the information for the purpose of preventing or investigating a crime of a sexual nature or an offence under section 490.031, 490.0311 or 490.0312 of the Criminal Code;
(b) a person who collects information at a registration centre designated under this Act in the province in which a sex offender’s main residence is located who consults the information to verify compliance by the sex offender with an order or with an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act;
(b.1) a person who collects information at a registration centre designated under the National Defence Act who consults the information to verify compliance by a sex offender who is subject to the Code of Service Discipline — or who is an officer, or non-commissioned member, of the primary reserve as defined in section 227 of the National Defence Act — with an order or with an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act;
(c) a person who collects or registers information who consults the information in order to exercise the functions or perform the duties assigned to them under an Act of Parliament;
(2) Paragraph 16(2)(f) of the English version of the Act is replaced by the following:
(f) a member or employee of, or a person retained by, the Royal Canadian Mounted Police who is authorized to consult the information for the purpose of administering the database and who does so for that purpose.
(3) Paragraphs 16(3)(a) and (b) of the Act are replaced by the following:
(a) the information was consulted in accordance with paragraph (2)(a) and they compare it with other information for the purpose of preventing or investigating a crime of a sexual nature;
(b) the information was consulted in accordance with paragraph (2)(b) or (b.1) and they compare it with other information for the purpose of verifying compliance by the sex offender with an order or with an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act or for the purpose of preventing or investigating an offence under section 490.031, 490.0311 or 490.0312 of the Criminal Code — or an offence under any of those provisions that is punishable under section 130 of the National Defence Act — or an offence under section 119.1 of that Act; or
(4) Subsection 16(3.1) of the Act is amended by striking out “or” at the end of paragraph (a) and by adding the following after that paragraph:
(a.1) the information was consulted in accordance with paragraph (2)(a) and they combine it with, or link it to, law enforcement information for the purpose of preventing or investigating a crime of a sexual nature;
(a.2) the information was consulted in accordance with paragraph (2)(b) or (b.1) and they combine it with, or link it to, law enforcement information for the purpose of verifying the sex offender’s compliance with an order or with an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act or for the purpose of preventing or investigating an offence under section 490.031 or 490.0311 of the Criminal Code, an offence under either of those provisions that is punishable under section 130 of the National Defence Act or an offence under section 119.1 of that Act; or
(5) Subparagraph 16(4)(c)(ii) of the Act is replaced by the following:
(ii) to enable them to prevent or investigate a crime of a sexual nature, an offence under section 119.1 of the National Defence Act, an offence under section 490.031 or 490.0311 of the Criminal Code or an offence under either of those provisions that is punishable under section 130 of the National Defence Act or to enable them to lay a charge for such an offence, or
(6) Subsection 16(4) of the Act is amended by striking out “or” at the end of paragraph (j) and by adding the following after that paragraph:
(j.1) unless the disclosure is to a member or an employee of, or a person retained by, a police service outside Canada and is necessary to assist them in the prevention or investigation of a crime of a sexual nature; or
R.S., c. N-5NATIONAL DEFENCE ACT
45. (1) Subsection 119.1(1) of the National Defence Act is replaced by the following:
Marginal note:Failure to comply with order or obligation
119.1 (1) Every person who, without reasonable excuse, fails to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
(2) Section 119.1 of the Act is amended by adding the following after subsection (2):
Marginal note:Proof of certain facts by certificate
(3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b.1) of the Sex Offender Information Registration Act stating that the person named in the certificate failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Attendance and cross-examination
(4) The person named in the certificate may, with the leave of the court martial, require the attendance of the person who signed it for the purpose of cross-examination.
Marginal note:Notice of intention to produce
(5) A certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the person named in the certificate a copy of it and reasonable notice of their intention to produce it.
46. Paragraph (b) of the definition “primary designated offence” in section 196.11 of the Act is replaced by the following:
(b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c.01) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130.
47. (1) Subsections 227.01(1) to (3) of the Act are replaced by the following:
Marginal note:Order
227.01 (1) When a court martial imposes a sentence on a person for an offence referred to in paragraph (a) or (c) of the definition “designated offence” in section 227 or finds the person not responsible on account of mental disorder for such an offence, it shall make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02.
Marginal note:Order — if intent established
(2) When a court martial imposes a sentence on a person for an offence referred to in paragraph (b) or (d) of the definition “designated offence” in section 227, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a) or (c) of that definition.
Marginal note:Order — if previous offence established
(3) When a court martial imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) or finds the person not responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes that
(a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not responsible on account of mental disorder for, an offence referred to in paragraph (a) or (c) of the definition “designated offence” in section 227 of this Act or in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) of the Criminal Code;
(b) the person was not served with a notice under section 227.08 of this Act or section 490.021 or 490.02903 of the Criminal Code in connection with that offence; and
(c) no order was made under subsection (1) or under subsection 490.012(1) of the Criminal Code in connection with that offence.
Marginal note:Failure to make order
(3.1) If the court martial does not consider the matter under subsection (1) or (3) at that time,
(a) the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;
(b) the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; and
(c) for greater certainty, the person continues to be liable to be dealt with under the Code of Service Discipline for that purpose.
(2) Subsections 227.01(5) and (6) of the Act are repealed.
48. Subsection 227.02(3) of the Act is replaced by the following:
Marginal note:Duration of order
(2.1) An order made under subsection 227.01(1) applies for life if the person is convicted of, or found not responsible on account of mental disorder for, more than one offence referred to in paragraph (a) or (c) of the definition “designated offence” in section 227.
Marginal note:Duration of order
(3) An order made under subsection 227.01(1) or (2) applies for life if the person is, or was at any time, subject to an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act.
49. (1) Paragraph 227.03(1)(c) of the Act is replaced by the following:
(c) if 20 years have elapsed since the order was made, in the case of an order referred to in paragraph 227.02(2)(c) or subsection 227.02(2.1), (3) or (5).
(2) Subsection 227.03(4) of the Act is replaced by the following:
Marginal note:Scope of application
(4) The application shall be in relation to every order that is in effect. If a person is subject to an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act, the application shall also be in relation to that obligation.
50. Subsection 227.04(1) of the Act is replaced by the following:
Marginal note:Termination order
227.04 (1) The court martial shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
51. The heading before section 227.06 of the Act is replaced by the following:
Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before September 12, 2008
52. (1) Subsection 227.1(4) of the Act is replaced by the following:
Marginal note:Exemption order
(4) The court martial shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
(2) Subsection 227.1(6) of the Act is replaced by the following:
Marginal note:Removal of information from database
(6) If the court martial makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the notice.
53. (1) Subsection 227.12(1) of the Act is replaced by the following:
Marginal note:Application for termination order
227.12 (1) A person who is subject to an obligation under section 227.06 may apply for a termination order unless they are also subject to
(a) an obligation under section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act that began later; or
(b) an order under section 227.01 of this Act or section 490.012 of the Criminal Code that began later.
(2) Subsection 227.12(5) of the Act is replaced by the following:
Marginal note:Re-application
(5) A person whose application is refused may apply again if five years have elapsed since they made the application. They may also apply again if they receive a pardon. However, they may not apply again if, after they made the application, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act or an order under section 227.01 of this Act or section 490.012 of the Criminal Code.
54. Subsection 227.13(1) of the Act is replaced by the following:
Marginal note:Termination order
227.13 (1) The court martial shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
55. Paragraph 227.15(1)(b) of the Act is replaced by the following:
(b) appeal the legality of a decision made under subsection 227.01(2), 227.04(1), 227.1(4) or 227.13(1) of this Act — or appeal a decision made under subsection 490.012(2), 490.016(1), 490.023(2), 490.027(1), 490.02905(2), 490.02909(1) or 490.02913(1) of the Criminal Code — within the required period;
56. (1) The portion of subsection 227.18(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Disclosure
227.18 (1) At the request of the Provost Marshal, the Commissioner of the Royal Canadian Mounted Police or a person authorized by the Commissioner shall disclose information that is registered in the database, or the fact that information is registered in the database, to the Provost Marshal if the disclosure is necessary to enable the Provost Marshal to determine
(2) Paragraphs 227.18(1)(b) and (c) of the Act are replaced by the following:
(b) for the purpose of a proceeding under section 227.01 or subsection 227.04(1), 227.1(4) or 227.13(1) or for the purpose of an appeal respecting the legality of a decision made under any of those provisions, whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is, or was at any time, required to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act;
(c) for the purpose of enabling compliance with the Sex Offender Information Registration Act, whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is required to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act; or
57. Subsection 227.19(1) of the Act is replaced by the following:
Marginal note:Disclosure
227.19 (1) If a person, in connection with a proceeding or an appeal other than one referred to in paragraph 227.18(2)(a) or (b), discloses the fact that information relating to them is registered in the database, the Provost Marshal shall request that the Commissioner of the Royal Canadian Mounted Police disclose all of the information relating to the person that is registered in the database. The Commissioner or a person authorized by the Commissioner shall disclose the information to the Provost Marshal without delay.
58. Paragraph 230(g) of the Act is replaced by the following:
(g) the legality of a decision made under subsection 227.01(2).
59. Paragraph 230.1(h) of the Act is replaced by the following:
(h) the legality of a decision made under subsection 227.01(2).
60. Subsections 240.5(1) and (2) of the Act are replaced by the following:
Marginal note:Appeal against order or decision
240.5 (1) On the hearing of an appeal respecting the legality of a decision made under subsection 227.01(2), 227.04(1), 227.1(4) or 227.13(1), the Court Martial Appeal Court, or another court hearing the appeal, may dismiss the appeal, allow it and order a new hearing, quash the order or make an order that may be made under that provision.
Marginal note:Requirements relating to notice
(2) If the Court Martial Appeal Court or other court makes an order that may be made under subsection 227.01(2), it shall cause the requirements set out in section 227.05 to be fulfilled.
2004, c. 21INTERNATIONAL TRANSFER OF OFFENDERS ACT
61. Subsection 8(4) of the International Transfer of Offenders Act is replaced by the following:
Marginal note:Information about sentence and other obligations
(4) The Minister
(a) shall inform a Canadian offender, in writing, as to how their foreign sentence is to be served in Canada and, in the case of an offender who is required to comply with the Sex Offender Information Registration Act,
(i) inform them, in writing, of that obligation and of sections 4 to 7.1 of that Act and sections 490.031 and 490.0311 of the Criminal Code, and
(ii) on the day of the transfer at the earliest, deliver a copy of Form 1 of the schedule to
(A) the offender,
(B) the Attorney General of the province, or the minister of justice of the territory, in which the person is to be detained in custody, and
(C) the person in charge of the place in which the person is to be detained in custody; and
(b) shall deliver to a foreign offender the information with which the Minister was provided by the foreign entity as to how their Canadian sentence is to be served.
62. The Act is amended by adding the following after section 36:
SEX OFFENDER INFORMATION REGISTRATION ACT
Marginal note:Obligation
36.1 If the criminal offence identified under section 15 or 36.3 is one referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) of the Criminal Code, the person is required to comply with the Sex Offender Information Registration Act.
Marginal note:When obligation begins
36.2 (1) The obligation begins on the day of the person’s transfer.
Marginal note:Duration of obligation
(2) The obligation
(a) ends 10 years after the day on which the sentence was imposed or the person was found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent criminal offence is two or five years;
(b) ends 20 years after the day on which the sentence was imposed or the person was found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent criminal offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment provided for in Canadian law for the equivalent criminal offence is life.
Marginal note:Duration — if more than one offence
(3) The obligation applies for life if the person was convicted of or found not criminally responsible on account of mental disorder for more than one offence in respect of which the equivalent criminal offence is an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) of the Criminal Code.
Marginal note:Duration — if previous obligation
(4) The obligation applies for life if the person is, or was at any time, subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or section 227.06 of the National Defence Act.
Marginal note:Duration — if previous order
(5) The obligation applies for life if the person is, or was at any time, subject to an order made previously under section 490.012 of the Criminal Code or section 227.01 of the National Defence Act.
Marginal note:Duration — if previous offence
(6) The obligation applies for life if
(a) the person was, before or after the coming into force of this paragraph, previously convicted of or found not criminally responsible on account of mental disorder for an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) of the Criminal Code or in paragraph (a) or (c) of the definition “designated offence” in section 227 of the National Defence Act;
(b) the person was not served with a notice under section 490.021 or 490.02903 of the Criminal Code or section 227.08 of the National Defence Act in connection with that offence; and
(c) no order was made under subsection 490.012(1) of the Criminal Code or subsection 227.01(1) of the National Defence Act in connection with that offence.
Marginal note:Not criminally responsible — equivalent offence
36.3 (1) If a request is made to transfer a person in respect of whom a verdict of not criminally responsible on account of mental disorder was rendered for an offence that consists of one or more acts that are sexual in nature, the Minister shall identify the criminal offence that, at the time the Minister receives the request, is equivalent to that offence.
Marginal note:Not criminally responsible — delivery of Form 1
(2) If the person is required to comply with the Sex Offender Information Registration Act, the Minister shall deliver a copy of Form 1 of the schedule to the Review Board of the province to which the person is transferred.
63. The Act is amended by adding, after section 43, the schedule set out in the schedule to this Act.
R.S., c. C-47CONSEQUENTIAL AMENDMENT TO THE CRIMINAL RECORDS ACT
64. Paragraph 5(b) of the Criminal Records Act is replaced by the following:
(b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament — other than section 109, 110, 161, 259, 490.012, 490.019 or 490.02901 of the Criminal Code, subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act — or of a regulation made under an Act of Parliament.
COMING INTO FORCE
Marginal note:Order in council
65. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
SCHEDULE(Section 63)
SCHEDULE(Subparagraph 8(4)(a)(ii) and subsection 36.3(2))
FORM 1OBLIGATION TO COMPLY WITH SEX OFFENDER INFORMATION REGISTRATION ACT
To A.B., of ................, (occupation), (address in Canada), (date of birth), (gender):
Because you are being transferred to Canada under the International Transfer of Offenders Act;
And because you were convicted of or found not criminally responsible on account of mental disorder for (description, date and location of offence(s)) that the Minister has identified as being equivalent to (description of offence(s)) under (applicable provision(s) of theCriminal Code), a designated offence (or designated offences) as defined in subsection 490.011(1) of the Criminal Code;
You are provided with this to inform you that you are required to comply with the Sex Offender Information Registration Act commencing on the day of your transfer.
1. You must report for the first time to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under subsection 4(2) of that Act.
2. You must subsequently report to the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act, whenever required under section 4.1 or 4.3 of that Act, for a period of ....... years after the day on which you were sentenced or found not criminally responsible on account of mental disorder for the offence (or if paragraph 36.2(2)(c) or any of subsections 36.2(3) to (6) of the International Transfer of Offenders Act applies, for life because you were convicted of or found not criminally responsible on account of mental disorder for (description of offence(s)) under (applicable designated offence provision(s) of theCriminal Code), a designated offence (or designated offences) within the meaning of subsection 490.011(1) of the Criminal Code).
3. Information relating to you will be collected under sections 5 and 6 of the Sex Offender Information Registration Act by a person who collects information at the registration centre.
4. Information relating to you will be registered in a database, and may be consulted, disclosed and used in the circumstances set out in the Sex Offender Information Registration Act.
5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre referred to in section 7.1 of the Sex Offender Information Registration Act to correct the information.
6. You have the right to apply to a court to terminate the obligation to comply with the Sex Offender Information Registration Act and the right to appeal the decision of that court.
7. If you are found to have not complied with the Sex Offender Information Registration Act, you may be subject to a fine or imprisonment, or to both.
8. If you are found to have provided false or misleading information, you may be subject to a fine or imprisonment, or to both.
For administrative use only:
Transferred on (date).
Sentence imposed or verdict of not criminally responsible on account of mental disorder rendered on (date).
- Date modified: