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
R.S., c. C-46Criminal Code (continued)
16 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
(a) there would be no connection between continuing the obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or
(b) the impact on the person 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 that Act.
Marginal note:Factors
(1.1) In determining whether to make the termination order, the court shall consider
(a) the nature and seriousness of the offence that is the basis of the obligation;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
17 Subsection 490.02902(1) of the Act is replaced by the following:
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 on or after April 15, 2011 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 primary offence in subsection 490.011(1).
18 Paragraph 490.02904(3)(d) of the Act is replaced by the following:
(d) applies for life if, on April 15, 2011 or before or after that day, the person was convicted of, or found not criminally responsible on account of mental disorder for, more than one offence outside Canada that is, in the opinion of the Attorney General of the province or minister of justice of the territory, equivalent to an offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1) and if more than one of those offences is listed in the notice.
19 (1) Subsection 490.02905(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
(a) they were not convicted of or found not criminally responsible on account of mental disorder for or were acquitted of the offence in question;
(b) the offence in question is not equivalent to an offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1);
(c) there is no connection between the obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or
(d) the impact of the obligation on the person, including on their privacy or liberty, is 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 that Act.
Marginal note:Factors
(2.1) In determining whether to make an exemption order under paragraph (2)(c) or (d), the court shall consider
(a) the nature and seriousness of the offence that is the basis of the obligation;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
Marginal note:Order to correct
(2.2) If the court does not make an exemption order but is satisfied that the offence in question, though not equivalent to the offence referred to in the notice, is equivalent to another offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1), the court shall order that the notice be corrected.
(2) Subsection 490.02905(5) of the Act is replaced by the following:
Marginal note:Notification
(5) If the court makes an order referred to in subsection (2.2), 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.
20 The Act is amended by adding the following after section 490.02905:
Marginal note:Application for variation order
490.029051 (1) A person who is served with a notice in Form 54 under section 490.02903 may, within one year after they are served, apply to a court of criminal jurisdiction for an order to vary the duration of the obligation if
(a) the obligation applies for life under paragraph 490.02904(3)(d); and
(b) none of the offences in question listed in the notice have an equivalent offence with a maximum term of imprisonment for life provided for in Canadian law.
Marginal note:Variation order
(2) The court shall make the variation order if it is satisfied that the person has established that the offences in question listed in the notice do not demonstrate, or do not form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.
Marginal note:Variation of duration
(3) If the court makes a variation order, it shall set out the duration of the obligation in the order, which shall be determined by applying paragraphs 490.02904(3)(a) and (b) to the offence in question listed in the notice whose equivalent offence has the longest maximum term of imprisonment provided for in Canadian law.
Marginal note:Reasons for decision
(4) The court shall give reasons for its decision.
Marginal note:Notification
(5) The court 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 a variation order made under this section.
21 Subsection 490.02906(1) of the Act is replaced by the following:
Marginal note:Appeal
490.02906 (1) The Attorney General or the person who applied for an exemption order or a variation order may appeal from a decision under subsection 490.02905(2) or (2.2) or 490.029051(2) or (3) 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; or
(b) allow the appeal and order a new hearing, quash or amend the exemption order or variation order or make an order that may be made, as the case may be, under subsection 490.02905(2) or (2.2) or 490.029051(2).
22 Section 490.02907 of the Act is renumbered as subsection 490.02907(1) and is amended by adding the following:
Marginal note:Notice — variation order
(2) If an appeal court quashes a variation 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.
23 Subsection 490.02909(1) of the Act is replaced by the following:
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
(a) there would be no connection between continuing the obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or
(b) the impact on the person 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 that Act.
Marginal note:Factors
(1.1) In determining whether to make the termination order, the court shall consider
(a) the nature and seriousness of the offence that is the basis of the obligation;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
24 Subsection 490.02911(1) of the Act is replaced by the following:
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 primary 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
(a) their name, date of birth, gender, address and telephone number in Canada; and
(b) to the best of their knowledge,
(i) the offence for which they were convicted or found not criminally responsible,
(ii) the country — and, if applicable, the province, state, territory or municipality in that country — in which the offence was committed,
(iii) the day on which the offence was committed,
(iv) the day on which they were convicted of the offence or found not criminally responsible for it, and
(v) if different from the day on which they were convicted of the offence, the day on which the sentence was imposed.
Marginal note:New obligation to advise
(1.1) The person is not required to advise the police service again under subsection (1) unless they are later convicted of or found not criminally responsible on account of mental disorder for another offence outside Canada referred to in that subsection.
25 The Act is amended by adding the following before section 490.02912:
Marginal note:Application for exemption order
490.029111 (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 an order exempting them from the obligation within one year after the day of their transfer to Canada under that Act.
Marginal note:Exemption order
(2) The court shall make an exemption order if it is satisfied that the person has established that
(a) there is no connection between the obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or
(b) the impact of the obligation on the person, including on their privacy or liberty, is 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 that Act.
Marginal note:Factors
(3) In determining whether to make an exemption order, the court shall consider
(a) the nature and seriousness of the offence that is the basis of the obligation;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
Marginal note:Reasons for decision
(4) The court shall give reasons for its decision.
Marginal note:Removal of information from database
(5) 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 a copy of the Form 1 referred to in subparagraph 8(4)(a)(ii) of the International Transfer of Offenders Act.
Marginal note:Application for variation order
490.029112 (1) A person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act may, within one year after the day of their transfer to Canada under that Act, apply to a court of criminal jurisdiction for an order to vary the duration of the obligation if
(a) the obligation applies for life under subsection 36.2(3) of that Act; and
(b) none of the offences in question listed in the Form 1 referred to in subparagraph 8(4)(a)(ii) of that Act have an equivalent criminal offence with a maximum term of imprisonment for life provided for in Canadian law.
Marginal note:Variation order
(2) The court shall make the variation order if it is satisfied that the person has established that the offences in question listed in that Form 1 do not demonstrate, or do not form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.
Marginal note:Variation of duration
(3) If the court makes a variation order, it shall set out the duration of the obligation in the order, which shall be determined by applying paragraphs 36.2(2)(a) and (b) of the International Transfer of Offenders Act to the offence in question listed in that Form 1 whose equivalent criminal offence has the longest maximum term of imprisonment provided for in Canadian law.
Marginal note:Reasons for decision
(4) The court shall give reasons for its decision.
Marginal note:Notification
(5) The court 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 a variation order made under this section.
Marginal note:Appeal
490.029113 (1) The Attorney General or the person who applied for an exemption order or a variation order may appeal from a decision under subsection 490.029111(2) or 490.029112(2) or (3) 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; or
(b) allow the appeal and order a new hearing, quash or amend the exemption order or variation order or make an order that may be made, as the case may be, under subsection 490.029111(2) or section 490.029112.
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 a copy of the Form 1 referred to in subparagraph 8(4)(a)(ii) of the International Transfer of Offenders Act.
Marginal note:Requirements relating to notice
490.029114 (1) 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:Notice — variation order
(2) If an appeal court quashes a variation 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.
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