Order Fixing December 31, 2024 as the Day on Which Section 29 of the Tougher Penalties for Child Predators Act Comes into Force: SI/2024-64
Canada Gazette, Part II, Volume 158, Number 26
Registration
SI/2024-64 December 18, 2024
TOUGHER PENALTIES FOR CHILD PREDATORS ACT
Order Fixing December 31, 2024 as the Day on Which Section 29 of the Tougher Penalties for Child Predators Act Comes into Force
P.C. 2024-1301 December 9, 2024
Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, under section 34 of the Tougher Penalties for Child Predators Act, chapter 23 of the Statutes of Canada, 2015, fixes December 31, 2024 as the day on which section 29 of that Act comes into force.
EXPLANATORY NOTE
(This note is not part of the Order.)
Proposal
Pursuant to section 34 of the Tougher Penalties for Child Predators Act (the Act), this Order in Council fixes December 31, 2024, as the day on which section 29 of the Act comes into force. This provision enacts the High Risk Child Sex Offender Database Act (HRCSODA).
Objective
The objective of this Order in Council is to bring into force section 29 of the Act, which enacted the HRCSODA. The HRCSODA requires the Commissioner of the Royal Canadian Mounted Police (RCMP) to establish a publicly accessible database that contains information with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature. Centralizing public notifications of high-risk child sex offenders will provide the Canadian public, as well as international partners, with information on those offenders who are deemed to be at the greatest risk to public safety. This will allow the public to take steps to ensure their own safety and will provide law enforcement partners with additional, easily accessible information to help to ensure public safety.
Background
The Sex Offender Information Registration Act (SOIRA) was enacted in 2004 for the purpose of helping police services prevent and investigate crimes of a sexual nature. The SOIRA strikes a balance between the protection of society through the provision of timely and accurate information to police services, the privacy interests of sex offenders, as well as the public interest in their rehabilitation and reintegration. To achieve this balance, the SOIRA stringently prescribes the circumstances in which information from the RCMP-managed National Sex Offender Registry (NSOR) can be accessed, used or disclosed. Information contained within the NSOR is not publicly accessible and can only be accessed by police services for purposes authorized under the law (e.g., preventing or investigating crimes of a sexual nature).
The Act was introduced for the purpose of better protecting children against sexual exploitation and holding child sex offenders accountable. The Act received royal assent on June 18, 2015. The Act included amendments to the Criminal Code that strengthened penalties for child sex offences and amendments to the Canada Evidence Act to ensure that spousal testimony could be available in child pornography cases. Those provisions came into force on July 17, 2015.
The Act also included amendments to the SOIRA that increased reporting obligations for registered offenders and introduced additional information-sharing capabilities between the RCMP and the Canada Border Services Agency (CBSA) to enhance monitoring and management of high-risk child sex offenders. The Act also enacted the HRCSODA.
The HRCSODA requires the Commissioner of the RCMP to establish and administer a publicly accessible database that contains information on people who have been found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature. The HRCSODA stipulates that the database will only contain information that a police service or other public authority has previously made accessible to the public, including the individual’s given name, surname and any aliases; date of birth; their gender; physical description, including any physical distinguishing marks; photograph; a description of the offences committed; any condition to which they are subject; and the name of the city, town, municipality or other organized district of residence.
Furthermore, prior to listing an individual in the database, the HRCSODA includes a legislative requirement for the Commissioner to take reasonable steps to notify individuals that this information will be included in the database, and to allow those individuals to make representations concerning the matter.
The HRCSODA also provides for the removal of information. When in force, the Commissioner must decide whether there are reasonable grounds to remove information on the receipt of an application in writing by a person with information on the database. The HRCSODA also allows for the same persons to apply to the Federal Court for judicial review within 60 days after receipt of the Commissioner’s decision. As well, the HRCSODA requires the Commissioner to conduct a regular review of the information in the database to determine whether the information should still be maintained in the database.
The timelines for the review can be prescribed in regulation, however, in the absence of regulations, the RCMP will have in place operational guidance to best ensure compliance.
Finally, the HRCSODA provides regulation-making authority to the Governor in Council should there be the need to establish national criteria for determining whether a person who is found guilty of a sexual offence against a child poses a high risk of committing a crime of a sexual nature. No regulations are being made at this time. The RCMP will rely on the established and robust Provincial, Territorial and Municipal (PTM) practices for determining high-risk offenders who warrant PTM notifications as the determining factor for who is considered high risk for the purposes of inclusion in the database.
Previously held consultations with implicated stakeholders indicated that a public database may not provide much utility beyond what was available to law enforcement at the time. However, developments in the realm of information sharing requests specific to sexual offenders, as well as social media advancements and complications associated with widespread misinformation have resulted in reconsideration of the utility and efficacy of the database in providing valuable public safety information.
Since 2016, the issue of sex offender information sharing has been raised in the context of bilateral and multilateral meetings on numerous occasions, with the most significant requests coming from the United States (U.S.). Notably, the U.S. takes a significantly different approach to sex offender information sharing by making its state-managed sex offender registries available to the public, including to Canadian law enforcement. In the context of their requests, the U.S. has specifically requested that the HRCSODA be brought into force.
In addition, since the HRCSODA was originally introduced, the continued increase in the use of social media has contributed to a rapid increase in the spread of misinformation. This is markedly relevant in the public’s emotional responses to crimes against children and youth, specifically sexual offences. The current technological landscape allows for information to be shared quickly, regardless of its credibility. In many cases, the information shared and used is unvetted by experts or public authorities and risks unintended and serious consequences, such as erroneously identifying someone as a child sex offender. Currently, PTM authorities have processes through which they can make public disclosures about high-risk offenders being released into the community where they have determined that it is in the public interest.
Implications
Public safety benefits
This Order brings into force the High Risk Child Sex Offender Database Act, which requires the Commissioner of the RCMP to establish a publicly accessible database of individuals who have been convicted of sexual offences against a child and who pose a high risk of committing crimes of a sexual nature. Significantly, the database would centralize information that has previously been made publicly available by a police service or public authority.
The database would provide the public with a centralized resource containing information on high-risk child sex offenders across Canada — enabling them to take appropriate precautions in those identified areas of the country.
The consolidation of information on high-risk child sex offenders would also provide an additional tool for Canadian law enforcement to monitor these offenders in the community and contribute to the more seamless communication of offender information between law enforcement. For example, due to the localization of notifications in the current context, an individual who has been released and identified as high risk may not always be communicated between neighbouring jurisdictions. Access to the HRCSODA would provide law enforcement agencies with an additional tool to ensure appropriate monitoring of high-risk offenders to ensure public safety.
Content of the database
The database will list information on individuals that a police service or public authority has previously made public. Inclusion in the database will be prospective, meaning that the database will only include individuals whose information has been made public after the coming into force of the HRCSODA (i.e., anyone who is subject to having their information made public on or after January 1, 2025).
As a matter of practice, most PTMs in Canada currently issue public notifications advising the community when a high-risk offender is being released into the community, many of which rely on advisory committees. Members of PTM advisory committees vary, but typically include representatives with a range of responsibilities in the criminal justice system such as police, correctional authorities, policy-makers, prosecutors, other professionals and/or community members. Once a decision is made to issue a public notice, the method of notification also varies by province. Some provinces (e.g., Alberta, Saskatchewan, Manitoba) have public websites containing information on all public notifications issued in that province, while others publish them in local media or via news releases through the police of jurisdiction.
Information contained in the database will flow from these PTM notifications and, as such, would be validated information released after careful review by PTM experts who have assessed the risk each individual poses to reoffend. By bringing the Act into force, Canada can maintain the restrictions on access to information collected under the SOIRA and stored in the broader NSOR, while providing the public access to a separate database of high-risk child sex offenders once the database launches. In doing so, Canada can continue to strike a balance between the protection of society and supporting offenders through their rehabilitation and reintegration into the community.
Establishment of the database
In order to fulfill the objective of developing and implementing the new database, the RCMP intends to establish the database within a year of the coming into force of the HRCSODA. During that time, Public Safety and the RCMP will conduct consultations with PTM partners to establish information sharing processes and procedures for the provision of information. These consultations are imperative as PTM participation is essential to the RCMP’s development and administration of the database. Without PTM participation, the RCMP will be unable to implement or administer the database. Appropriate time prior to implementation will also permit the RCMP to fulfill certain legislative obligations, such as notifications to individuals who are being considered for inclusion in the database.
Gender-based analysis plus
Once the HRCSODA comes into force and is fully implemented, it is expected that public notification of sexual offenders will largely benefit Canadian society by providing centralized access to notifications of individuals convicted of sexual offences against children who pose a high risk of committing further sexual offences. It is expected that the proposal will have a specific benefit on individuals who are disproportionately victims/survivors of sexual crimes, in particular children, by providing them and their caregivers with important information that will help to ensure their safety. Reported data shows that victims of sexual crimes are more likely to be young, women, sexual minority Canadians, Black Canadians, Indigenous people or persons with disabilities. The database is expected to most significantly benefit individuals whose children are represented in one of these demographic populations.
Data indicates that rates of sexual assault tend to be highest among 15- to 24-year-olds compared with other age groups.footnote 1 Additionally, and specific to incidents of online-facilitated sexual crimes, more recent data related to online child sexual exploitation indicates that the overall rate of police-reported incidents of online child sexual exploitation has risen since 2014, reaching 160 incidents per 100,000 Canadian children and youth in 2022. This rate largely reflects the rate of child pornography, which has increased 290% between 2014 and 2022.footnote 2 Finally, between 2014 and 2022, the large majority (84%) of victims of police-reported online sexual offences against children were youth aged 12 to 17.footnote 2
Generally, data also indicates that women are disproportionately victims of sexual violence.footnote 3 Almost half (46%) of Indigenous women have experienced sexual assault, compared with about a third (33%) of non-Indigenous women.footnote 4 Reported data also suggests that sexual minority Canadians (i.e., reported their sexual orientation as gay, lesbian, bisexual or a sexual orientation that is not heterosexual) are almost three times more likely to be victims of sexual assault than heterosexual Canadians. footnote 5 Specific to children, research has noted a marked disparity between rates of childhood abuse between lesbian, gay and bisexual youth and heterosexual youth, with the former being more likely to report a pattern of childhood victimization, including higher overall rates of sexual and physical abuse by a parent or guardian. More recently, the Survey of Safety in Public and Private Spaces echoed these findings, indicating that a significantly higher proportion of Canadians who are lesbian, gay, bisexual or of another sexual orientation experienced childhood victimization. Approximately four in ten lesbian or gay (41%) and bisexual (42%) Canadians experienced childhood victimization compared with just over one quarter (27%) of heterosexual Canadians. footnote 6
Further, while current data does not permit a complete understanding of the extent, it is understood that racialized groups are also disproportionately represented as victims of crime. Overall, approximately four in ten Indigenous People (41%) were sexually or physically assaulted by an adult before the age of 15. footnote 7 Specifically, regarding sexual assault, in 2019, nearly one in ten Indigenous people were victims of sexual assault — twice the rate of non-Indigenous people. In 2018, a higher proportion of Black people (32%) than non-Black people (27%), aged 15 years or older, reported experiencing one or more incidents of physical or sexual abuse by an adult before the age of 15. footnote 8
Finally, people with disabilities are at heightened risk of experiencing violent victimization. footnote 9 Women with disabilities are at significantly increased risk of becoming victims of sexual and physical abuse or assault, with over half having reported experiencing physical or sexual assault in their life. footnote 9 The rate of women with disabilities who reported having experienced physical or sexual assault at least once since age 15 is significantly higher than that of women without disabilities (57% vs. 37%). footnote 9
The HRCSODA aims to provide the Canadian public with an additional tool to support their safety with respect to protection from sexual victimization by providing an up-to-date database of persons, who are found guilty of sexual offences against children, posing a high risk of committing crimes of a sexual nature.
Consultation
Standing Committee on Justice and Human Rights
Through the study of the Bill at the House of Commons Standing Committee on Justice and Human Rights (JUST) in 2015, witnesses from various stakeholders were provided the opportunity to testify. Testimony was divided, with victims’ and children’s advocates generally voicing their support for the database, suggesting that the information was necessary to allow for Canadians to protect children from potential sexual victimization and underscoring that the database was not making any new information public, but rather was consolidating already publicly available information into a centralized repository for ease of reference.
Those opposed to the database, including offender advocacy groups, as well as civil liberties and privacy-focused organizations, cited the lack of available research to support publicly available databases, the potential for vigilantism, and presenting it as a potential obstacle for the effective rehabilitation of sexual offenders.
Standing Committee on Legal and Constitutional Affairs
Through the study of the Bill at the Senate Standing Committee on Legal and Constitutional Affairs (LCJC) witnesses from various stakeholders were provided the opportunity to testify. In general, testimony was mixed. Divergent opinions focused on the benefits of the public having access to information pertaining to high-risk offenders in their community (typically expressed by victim/survivor advocacy groups) and, on the other hand, privacy considerations for the offender and the risks of vigilantism (largely offender advocacy groups and the representative from the Canadian Bar Association) or driving offenders underground to avoid public scrutiny and detection by law enforcement.
The concerns raised in the course of parliamentary debate largely echo evidence related to public sex offender registries implemented in other countries. The key distinction between those registries and the HRCSODA is that the HRCSODA will be predicated on information that is already publicly available via other means. By consolidating notifications from across the country, Canada will balance the public interest in making information on the highest-risk child sex offenders more readily available to the public with its commitment to maintaining restrictions on information pertaining to those offenders who do not meet that threshold. The database will also limit information pertaining to the subject individual’s general city or municipality, rather than specific addresses or other critical locating information, such as licence plate numbers, which are made publicly available under other systems.
Additional consultations
As the Department considered next steps for the HRCSODA, additional consultations were completed in 2017 with the FPT High-Risk Offender Working Group (HROWG), National Flagging System (NFS) Coordinators, and National Voluntary Organizations (NVOs). Overall, opinions were once again divided on the utility of the database given the potential duplication with information already made public as well as concerns regarding vigilantism and impacts on successful rehabilitation and reintegration, views which were particularly raised by the NVOs who participated in the consultations. Others, including police agencies and Crown prosecutors, felt that it could provide an additional useful tool for law enforcement and other government agencies who may benefit from the information contained within, particularly understanding that the individuals included in the database would meet a standardized definition of high risk to reoffend.
In August 2022, the U.S. issued its Child Sex Offender Travel Notification White Paper which made several recommendations related to information sharing between Canada and the U.S. on travelling sex offenders. One of the recommendations specifically suggested that Canada implement the HRCSODA.
Contact
Stacey Ault
Director
Corrections and Criminal Justice Division
Crime Prevention Branch
Public Safety Canada
269 Laurier Ave West
Ottawa, Ontario
K1A 0P8
Email: Stacey.ault@ps-sp.gc.ca