The flag of the Supreme Court of Canada flies on the east flag pole in Ottawa, on Nov. 28, 2022. The federal government is preparing to introduce legislation to respond to a Supreme Court decision that struck down a law automatically adding sex offenders to a national registry.Sean Kilpatrick/The Canadian Press
Serious child sex offenders and repeat sex offenders would be placed automatically on a revamped National Sex Offender Registry, but judges would have discretion over lifetime registration, under government legislation proposed Wednesday in the Senate.
The legislation is the Liberal government’s response to a Supreme Court of Canada ruling last October striking down automatic registration of sex offenders and mandatory lifetime registration for those convicted of two sex offences in a single prosecution.
The court gave the federal government a year to fix the registry. It ruled 9-0 that the mandatory lifetime registration was unconstitutional, because it could be imposed on people who did not pose a lifetime risk. The court also ruled 5-4 that automatic registration ran afoul of the Constitution, citing evidence that the least dangerous 10 per cent of sex offenders pose no higher risk than those who have committed non-sexual crimes.
The registry gives the authorities a way of monitoring sex offenders. Those whose names are in the registry are subject to sentences of up to two years and a $10,000 fine if they fail to comply with its requirements, such as reporting their home address and travel plans.
Created in 2004, it initially offered discretion to prosecutors and the final say to judges. The mandatory lifetime registration and automatic inclusion on the registry dated from 2011, and like several crime bills passed by the Conservative government of Stephen Harper, they fell afoul of the Supreme Court because they removed discretion from judges.
The government’s response, which still needs to be debated and passed before taking effect, is to give judges limited discretion. While serious child sexual offenders and repeat offenders will automatically be registered, registration would still be presumed for all other sex offenders. This group of offenders would have a chance, however, to persuade the court it would be disproportionate in their case. The onus would be on them to make that case.
In the case of lifetime registrations, judges would be told to impose them on those who commit more than one offence if a pattern of behaviour shows an increased risk of reoffending.
Justice Minister David Lametti told a news conference that the revamped registry strikes the right balance between protecting the public and respecting the Charter of Rights and Freedoms.
“We’re confident that this legislation passes muster under the Charter.”
But Daniel Brown, president of the Criminal Lawyers’ Association, said he believes the Supreme Court will strike the legislation down.
“It’s a really disappointing piece of legislation, and really fails to address the concerns that the Supreme Court raised,” he said in an interview. “I think it’s only going to be a matter of time before they’re once again declaring this legislation unconstitutional.”
For instance, he said, the rewritten rules on lifetime registration would give judges no discretion when faced with someone who has only a marginally increased risk of reoffending.
“The Crown’s own experts said people convicted of two offences without an intervening conviction are not at a higher risk of reoffending.” The legislation adopts the “same false premise” as the current registry rejected by the court.
He said the legislation should have offered judges a chance to consider whether 10 or 20 years would have been sufficient, instead of lifetime registration.
Mr. Brown said he fears “two-tier justice,” in which defendants of means will be able to pay for expensive expert evidence that demonstrates they don’t belong in the registry. “And most people will not.”
Hilla Kerner, a front-line worker at the Vancouver Rape Relief & Women’s Shelter, said her group appreciates the government’s recognition that “people who commit sexual offences are usually repeat offenders.” She said they also appreciate the addition of new offences, such as sexual extortion and the sharing of intimate images without consent. And she praised the government for making it easier for victims to speak publicly under their own names.
Complainant’s identities are subject to near-automatic publication bans as a matter of practice, but some complainants have said they were never asked about their own wishes. The proposed law would require judges to ask the complainants if they want their identities covered by a ban. The bans were intended to encourage victims to report, by protecting their privacy.
“For the first time, there’s a recognition for judges that the wishes of the victim matter,” said Morrell Andrews, a Vancouver sexual assault survivor who helmed the push to change the way publication bans are imposed on victims of sexual offences.
The federal New Democratic Party claimed credit for pushing the Liberals to change what it called an “archaic” policy that silences victims.
“For decades, this archaic and paternalistic rule took away the voices of countless survivors, retraumatized many and even discouraged them from seeking justice in the first place,” NDP MP Laurel Collins said in a statement.
The Conservative Party could not be reached for comment.
With a report from Zosia Bielski