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The National Sex Offender Registry: Existing Rules and New Developments

Since 2004, the Canadian government has maintained a National Sex Offender Registry (the “National Registry”), containing data about individuals who have been convicted of sexual offences.  As a result, convictions for most sexual offences will be accompanied by an order to make regular reports to the National Registry.

Recently, the Government of Canada has proposed a new law that would impose additional reporting obligations under the National Registry and establish a new publicly accessible sex offender registry for “high-risk” offenders convicted of sexual crimes against children.

This article provides an overview of the current National Registry and the recently proposed changes, and is meant to provide general information only.  Individuals charged with a sexual offence who have concerns about the implications of a conviction, or who are currently subject to a reporting obligation, should seek the advice of a lawyer.

The Existing National Sex Offender Registry

Who Has to Report

The obligation to report will arise during the sentencing hearing after a person is convicted of a “designated offence”.  “Designated offence” includes most sexual offences and some other criminal offences that do not necessarily have a sexual component. For most “designated offences”, a judge is automatically required to make an order that the convicted individual report to the National Registry.

An obligation to report can also arise in other circumstances. For example, if a person is convicted of an offence outside of Canada that would be considered a “designated offence” had it occurred in Canada, and later transfers to a Canadian prison to serve their sentence.

How Long Does the Reporting Obligation Last

Once an order is made to report to the National Registry, the person will have to report on a periodic basis for a number of years.  The length of the reporting obligation varies.  Usually, it depends on the maximum sentence of the offence for which the individual was convicted and can last for 10 years, 20 years, or life.

However, there are other circumstances in which the reporting period will be for life.  For example, individuals convicted of multiple designated sexual offences are required to report for life.

A person subject to a reporting order can apply for early termination of the order once a specified amount of time has passed since the order was made.  The amount of time that must pass before an application can be made depends on the original duration of the order.

Making a Report

Individuals required to report to the National Registry will have to make a first report after the order is made.  After the first report, subsequent reports must be made every 11 months to 1 year after the last report.  Reports must also be made with a certain number of days after a change of residence or change of name.

Information collected includes the individual’s name, date of birth, address of their residence(s), work addresses, a photograph, information about identifying marks like scars and tattoos, and information about vehicles driven by that person.

The information collected is not available to the public. In fact it is an offence under the Sex Offender Information Registry Act for individual who are not authorized to access this information.

Penalties for Failing to Report

The failure to comply with the reporting obligations is itself a criminal offence.  It is also a criminal offence to knowingly provide false information when making a report.  In both cases, a conviction could result in a fine of up to $10,000 and/or imprisonment.

The Ontario Registry

Individuals who have been convicted of a sexual offence who reside in Ontario may also be subject to a requirement that they report to the Ontario Sex Offender Registry. This registry is separate from the National Registry and governed by different laws.  While the Ontario Registry is similar in many ways, there are important differences.  The Ontario Registry is not covered in detail in this article.

Recent Developments

In February, 2014, the Government of Canada proposed a new law that would make a number of changes to the current National Registry reporting obligations, as well as introduce a second public registry for “high-risk” individuals convicted of sexual offences against children.

The law would introduce new reporting obligations for individuals who have been ordered to report to the National Registry. Those intending to travel would be required to report their departure dates, return dates, and the address of all locations they would be staying at. This obligation would arise whenever an individual was going to be away from their residence(s) for seven or more days. It would apply regardless of whether the person is traveling within or outside of Canada.

The law would also require individuals subject to a reporting order to make a report after they receive a new driver’s licence or passport.

The proposed law would also create a database of publicly accessible information relating to individuals who have been convicted of sexual offences against minors, and have been deemed at a “high risk” to re-offend. Unfortunately, the proposed law does not define the criteria that would result in a person being considered “high-risk”; the criteria would be established after the law is passed.

Information contained in the new database will be publicly accessible. The information contained in the new registry would be similar to the current National Registry. Importantly, identifying information, information about the offence for which the person was convicted and information about the city, town, or municipality in which they reside could all become publicly available.

Many commentators are concerned about the possibility of vigilantism.

While the proposed law raises significant privacy concerns, it is important to realize that it has not yet actual law.  The proposed law may be passed in its current form, or with significant changes, or not at all.  Further, if the law is passed, it is sure to be challenged in court.

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