An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act (S.C. 2023, c. 28)
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Assented to 2023-10-26
An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act
S.C. 2023, c. 28
Assented to 2023-10-26
An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act
SUMMARY
This enactment amends the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act to, among other things,
(a) require compliance with the Sex Offender Information Registration Act for persons who are convicted of an offence of a sexual nature against a child and for persons who have been convicted on separate occasions of two or more offences of a sexual nature;
(b) require other persons who are convicted of, or receive a verdict of not criminally responsible on account of mental disorder for, an offence of a sexual nature to comply with that Act unless a court is satisfied that doing so would have no connection to the purposes of that Act or that the impact on the person of doing so would be grossly disproportionate to those purposes;
(c) provide that an order to comply with that Act as a result of convictions, or verdicts of not criminally responsible on account of mental disorder, for two or more offences of a sexual nature that are dealt with in the same proceeding — or an obligation to comply with that Act as a result of convictions, or such verdicts, for two or more offences of a sexual nature — does not apply for life if a court is satisfied that the offences do not demonstrate a pattern of behaviour showing that the person presents an increased risk of reoffending by committing such an offence;
(d) authorize a peace officer to obtain a warrant to arrest a person who has contravened any of sections 4 to 5.1 of that Act and bring them to a registration centre to remedy that contravention; and
(e) clarify the obligations in section 6 of that Act respecting the notice that sex offenders who plan to absent themselves from their residence must provide.
The enactment also amends the Criminal Code to, among other things, codify the process for modifying and revoking publication bans, and add a requirement for sentencing courts to inquire into whether the victim of an offence would like to receive information about the administration of the offender’s sentence and, in the affirmative, provide the Correctional Service of Canada with the victim’s contact information.
His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-46Criminal Code
1 Paragraph 153.1(1)(a) of the Criminal Code is replaced by the following:
(a) an indictable offence and liable to imprisonment for a term not exceeding 10 years; or
2 (1) Subparagraph 486.4(1)(a)(i) of the Act is replaced by the following:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(2) Paragraph 486.4(2)(a) of the Act is replaced by the following:
(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(3) Subsection 486.4(2) of the Act is amended by adding “and” at the end of paragraph (b) and by adding the following after that paragraph:
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(4) Subsection 486.4(2.2) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(5) Subsection 486.4(4) of the Act is replaced by the following:
Marginal note:Inquiry by court
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
Marginal note:Duty to inform
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(c) informed them of their right to apply to revoke or vary the order.
Marginal note:Limitation
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(6) Section 486.4 of the Act is amended by adding the following after subsection (4):
Marginal note:Limitation — victim or witness
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
3 (1) Subsection 486.5(3) of the Act is replaced with the following:
Marginal note:Limitation
(3) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
Marginal note:Limitation — victim, etc.
(3.1) An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim, or witness or justice system participant.
(2) Section 486.5 of the Act is amended by adding the following after subsection (5):
Marginal note:Duties — judge or justice
(5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall
(a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;
(b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (8.2).
(3) Section 486.5 of the Act is amended by adding the following after subsection (8):
Marginal note:Supplementary duty — judge or justice
(8.1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it.
Marginal note:Duty to inform
(8.2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have
(a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(c) informed them of their right to apply to revoke or vary the order.
4 The Act is amended by adding the following after section 486.5:
Marginal note:Application — vary or revoke
486.51 (1) If a person who is the subject of an order made under section 486.4 or 486.5 requests that the prosecutor have it varied or revoked, the prosecutor shall, as soon as feasible, make an application to vary or revoke the order on their behalf.
Marginal note:Order — vary or revoke
(2) If an application to vary or revoke an order made under section 486.4 or 486.5 is made by the person who is the subject of the order or by any other person, including a prosecutor, who is acting on their behalf, the court that made the order or, if that court is for any reason unable to act, another court of equivalent jurisdiction in the same province shall, without holding a hearing, vary or revoke the order, unless the court is of the opinion that to do so may affect the privacy interests of any person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.
Marginal note:Hearing
(3) If the court is of the opinion that varying or revoking the order that is the subject of an application referred to in subsection (2) may affect the privacy interests of any person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person, the court shall hold a hearing to determine whether the order should be varied or revoked.
Marginal note:Factor
(4) In order to determine whether the order should be varied, the court shall take into account whether it is possible to do so in a manner that protects the privacy interests of any other person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.
Marginal note:Notice
(5) The applicant is not required to provide notice of the application to vary or revoke the order to the accused.
Marginal note:Submissions
(6) The accused shall not be permitted to make submissions in relation to the application.
Marginal note:Notice of change
(7) If the order is varied or revoked, the prosecutor shall notify the accused.
5 Section 486.6 of the Act is amended by adding the following after subsection (1):
Marginal note:Prosecution — limitation
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
6 (1) The portion of subsection 490.011(1) of the Act before the definition crime of a sexual nature is replaced by the following:
Marginal note:Definitions
490.011 (1) The following definitions apply in this section and in sections 490.012 to 490.07.
(2) The definition designated offence in subsection 490.011(1) of the Act is replaced by the following:
- designated offence
designated offence means a primary offence or a secondary offence. (infraction désignée)
(3) Subsection 490.011(1) of the Act is amended by adding the following in alphabetical order:
- primary offence
primary offence means
(a) an offence under any of the following provisions:
(i) subsection 7(4.1) (offence in relation to sexual offences against children),
(ii) section 151 (sexual interference),
(iii) section 152 (invitation to sexual touching),
(iv) section 153 (sexual exploitation),
(v) section 153.1 (sexual exploitation of person with disability),
(vi) section 155 (incest),
(vii) subsection 160(1) (bestiality),
(viii) subsection 160(2) (compelling the commission of bestiality),
(ix) subsection 160(3) (bestiality in presence of or by a child),
(x) section 162.1 (publication, etc., of an intimate image without consent),
(xi) section 163.1 (child pornography),
(xii) section 170 (parent or guardian procuring sexual activity),
(xiii) section 171.1 (making sexually explicit material available to child),
(xiv) section 172.1 (luring a child),
(xv) section 172.2 (agreement or arrangement — sexual offence against child),
(xvi) subsection 173(2) (exposure),
(xvii) section 271 (sexual assault),
(xviii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
(xix) section 273 (aggravated sexual assault),
(xx) subsection 273.3(2) (removal of a child from Canada),
(xxi) section 279.011 (trafficking — person under 18 years),
(xxii) subsection 279.02(2) (material benefit — trafficking of person under 18 years),
(xxiii) subsection 279.03(2) (withholding or destroying documents — trafficking of person under 18 years),
(xxiv) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years),
(xxv) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years), and
(xxvi) subsection 286.3(2) (procuring — person under 18 years);
(b) 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 4, 1983:
(i) section 144 (rape),
(ii) section 145 (attempt to commit rape),
(iii) section 149 (indecent assault on female),
(iv) section 156 (indecent assault on male), and
(v) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (i) to (iv);
(c) 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);
(d) 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 fourteen),
(ii) subsection 146(2) (sexual intercourse with a female between ages of fourteen and sixteen),
(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);
(e) an offence under any of the following provisions of this Act, as they read from time to time before December 6, 2014 :
(i) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),
(ii) subsection 212(2) (living on the avails of prostitution of person under 18 years),
(iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and
(iv) subsection 212(4) (prostitution of person under 18 years); or
(f) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (e). (infraction primaire)
- secondary offence
secondary offence means
(a) an offence under any of the following provisions:
(i) section 162 (voyeurism),
(ii) subsection 173(1) (indecent acts),
(iii) section 177 (trespassing at night),
(iv) section 231 (murder),
(v) section 234 (manslaughter),
(vi) paragraph 245(1)(a) (administering noxious thing with intent to endanger life or cause bodily harm),
(vii) paragraph 245(1)(b) (administering noxious thing with intent to aggrieve or annoy),
(viii) section 246 (overcoming resistance to commission of offence),
(ix) section 264 (criminal harassment),
(x) section 279 (kidnapping),
(xi) section 279.01 (trafficking in persons),
(xii) subsection 279.02(1) (material benefit — trafficking),
(xiii) subsection 279.03(1) (withholding or destroying documents — trafficking),
(xiv) section 280 (abduction of a person under age of sixteen),
(xv) section 281 (abduction of a person under age of fourteen),
(xvi) subsection 286.1(1) (obtaining sexual services for consideration),
(xvii) subsection 286.2(1) (material benefit from sexual services),
(xviii) subsection 286.3(1) (procuring),
(xix) section 346 (extortion),
(xx) paragraph 348(1)(d) (breaking and entering a dwelling house with intent to commit an indictable offence),
(xxi) paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence),
(xxii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house with intent to commit an indictable offence), and
(xxiii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house and committing an indictable offence); or
(b) an attempt or conspiracy to commit an offence referred to in paragraph (a). (infraction secondaire)
- Date modified: