Canada’s National Sex Offender Registry (NSOR) is a byproduct of the Sex Offender Information Registration Act (SOIRA). In short, NSOR is a database which stores readily accessible data for Canadian policing agencies about convicted persons of certain “designated offences”. The purpose of NSOR as described by Parliament is to “help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”. Having this information on hand is meant to expedite investigation processes related to sexual crimes, especially in instances where ‘time is of the essence’ in an investigative matter.
SOIRA was first enacted in 2004. At this time, a sex offender could be placed in the registry if the Crown prosecutor applied for such an order, and it was approved. Additionally, SOIRA gave judges discretionary privileges to exclude certain offenders from the registry where the effects of the order on the offender’s section 7 Charter rights were grossly disproportionate to the protections the registration would achieve. However, in 2011, the government amended SOIRA so that anyone convicted of any of the designated offences would be mandated to register.
More recently this was deemed by the Supreme Court of Canada as unconstitutional and therefore, in response, the Canadian Senate introduced Bill S-12. The details of this Bill are discussed in more detail here.
The Existing National Sex Offender Registry
Who Has to Report?
There are essentially three scenarios where you may find yourself having to report. The first is should you commit any of the offences enumerated in ss. 490.011(1)(a),(c),(c.1),(d),(d.1) or (e). There are many offences included in these sections. They are linked here. Anyone found guilty and sentenced, or found not criminally responsible for these offences MUST comply with SOIRA reporting (see: section 490.012(1) of the Criminal Code).
The second scenario for which one might have to report is if they commit any of the offences enumerated in ss. 490.011(b) or (f). There are also many offences included in these sections. They are linked here. Anyone found guilty and sentenced or found not criminally responsible for these offences may have to comply with SOIRA reporting if the Crown makes an application demanding such compliance. The offender is allowed in this situation to challenge the making of the order. This may be done by bringing forward evidence respecting the effect of such order in balance with the seriousness of the offence committed and the likelihood of recidivism.
The last scenario whereby a SOIRA compliance order may be made is where the Crown can show that the offender has been previously convicted of, or found not criminally responsible for any of the designated offences in ss. 490.011(1)(a),(c),(c.1),(d),(d.1) or (e) and makes an application demanding such compliance. There are many offences included in these sections. They are linked here. Again, in this scenario, the offender is allowed in this situation to challenge the making of the order.
Additionally, those who attempted or conspired to commit any of the listed designated offences in subsection (b), are also required to register (see: s. 490.011(1)(f) of the Criminal Code). Note that despite its name “Sex Offender Information Registration Act”, the registry does not apply to only offences that are sexual in nature. It covers many violent offences (e.g., murder/manslaughter) and offences against the person (e.g., break and enter).
How Long Does the Reporting Obligation Last?
The reporting obligation can last anywhere from 10 years to life. How long your order will be in place is normally associated with the prospective sentence for the offence you’ve been convicted of.
- A SOIRA order lasts 10 years “IF the offence in connection with which it was made was prosecuted summarily OR if the MAXIMUM term of imprisonment for the offence is two or five years”.
- A SOIRA order lasts 20 years “IF the MAXIMUM term of imprisonment for the offence is 10 or 14 years.
- A SOIRA order lasts for life IF the MAXIMUM term of imprisonment for the offence is life.
- A SOIRA order lasts for life IF the person is convicted of, or found not criminally responsible for, more than one offence referred to in paragraphs (a), (c), (c.1), (d), (d.1) or (e) of s. 490.011(1) (linked here).
- A SOIRA order lasts for life IF the Crown successfully applies for an order the offender has been previously convicted of or found not criminally responsible for any of the designated offences in ss. 490.011(1)(a),(c),(c.1),(d),(d.1) or (e) (linked here).
Making a Report
Sections 4 and 5 of the Sex Offender Information Registration Act, require that those a part of the registry:
- report for the first time to a registration centre (SOIRA s. 4(1)) within 7 days after the making of the order or release from custody (if applicable).
- reporting for the first time shall be in person (SOIRA s. 4(3)).
- a person is not permitted to leave Canada until they have reported for the first time (SOIRA s. 4(4)).
- report within 7 days of changing primary or secondary residence or change their first name or family name (SOIRA s. 4.1(1))
- reporting shall be in person unless the regulations permit exceptions
- upon reporting provide (SOIRA s. 5(1))
- their given name and surname, and every alias that they use;
- their date of birth and gender;
- the address of their main residence and every secondary residence or, if there is no such address, the location of that place;
- the address of every place at which they are employed or retained or are engaged on a volunteer basis — or, if there is no address, the location of that place — the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there;
- if applicable, their status as an officer or a non-commissioned member of the Canadian Forces within the meaning of subsection 2(1) of the National Defence Actand the address and telephone number of their unit within the meaning of that subsection;
- the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place;
- a telephone number at which they may be reached, if any, for every place referred to in paragraphs (c) and (d), and the number of every mobile telephone or pager in their possession;
- their height and weight and a description of every physical distinguishing mark that they have; and
- the licence plate number, make, model, body type, year of manufacture and colour of the motor vehicles that are registered in their name or that they use regularly.
Penalties for Failing to Report
Sections 490.031(1)-490.0312 of the Criminal Code outline the penalties for both failing to report and for providing false information when reporting.
- For both failure to report or comply with a SOIRA order without reasonable excuse ( 490.031(1)), as well as providing false information upon reporting (s. 490.0311), a person is liable to a fine of no more than $10,000 and/or a term of imprisonment not exceeding two years if prosecuted by indictment.
- If prosecuted summarily, a person is liable to a fine of no more than $10,000 and/or a term of imprisonment not exceeding two years less a day.
Bill S-12 Amendment
At the time of writing this article, Bill S-12 is tabled in the Canadian Senate. This Bill is a proposal to amend the Criminal Code and the Sex Offender Information Registration Act among other things. Bill S-12 was introduced as a response to the Supreme Court of Canada’s (SCC) decision in R v Ndhlovu, 2022 SCC 38 which was in the Fall of 2022.
As a brief history, the National Sex Offender Registry was enacted in 2004. At this time, SOIRA orders were given prosecutorial discretion. In other words, the Crown would apply for a SOIRA order on a case-by-case basis. This was until 2011 when the Federal Government enacted changes to SOIRA and the Criminal Code which largely removed prosecutorial discretion and mandated SOIRA orders (see the section above entitled “The Existing National Offender Registry”).
Ultimately, the SCC determined in R v Ndhlovu that automatic registration of all people convicted of sexual crimes (s. 490.012 of the Criminal Code) as well as mandatory lifetime registration for individuals convicted of more than one sexual offence (see: s. 490.013(2.1) of the Criminal Code) is overbroad, does not fulfill the purpose of SOIRA, and therefore, is unconstitutional. Specifically, the court found that ss. 490.012 and 490.013(2.1) unconstitutional and of no force and effect. The declaration for s. 490.012 has been suspended for one year and its effects (whether amended or in the absence of s. 490.012) will exist prospectively, meaning that those bound by a SOIRA order pursuant to s. 490.012 will remain, however, there will exist an avenue to seek relief whereby those registered can apply for an exemption. Bill S-12 addresses this by creating a statutory framework for such applications. Section 490.013(2.1) was of no force and effect immediately and applied retrospectively.
If enacted, Bill S-12 would amend the provisions at issue in Ndhlovu to align the approach to registration and mandatory lifetime orders with the constitutional principles articulated by the SCC. Bill S-12 would also make several amendments to the Criminal Code and to SOIRA to improve the operation and effectiveness of the sex offender registration regime. Specifically, it would:
- add offences to the list of designated offences that can form the basis of an order under SOIRA, including the offence of non-consensual distribution of intimate images;
- amend the offence of providing misleading information under SOIRA to clarify that it applies to the enhanced notification obligations requiring child sex offenders to provide certain information to registry officials when they travel;
- enact a new arrest warrant scheme to facilitate compliance with reporting obligations under SOIRA;
- create a new summons power to compel a person who has been convicted or found not criminally responsible for a designated offence to appear at a hearing to determine whether a SOIRA order should be made;
- amend the Criminal Code to require offenders convicted of sexual offences outside of Canada to provide more information to police about their convictions and contact information;
- amend the provisions in SOIRA that require registered offenders to provide notice before they travel to include a requirement that notice be given at least 14 days before the travel period, and to specify in greater detail what information it must include;
- amend SOIRA to permit disclosure of sex offender registration information in circumstances where it is necessary to verify a registered sex offender’s compliance with their reporting obligations or to obtain a compliance warrant; and
- amend the Criminal Code provisions governing publication bans and victims’ right to information, and would increase the maximum penalty for the offence of sexual exploitation of a person with a disability.
At the time of publication, The Federal Government has until October of this year to pass Bill S-12 into law before s. 490.012 of the Criminal Code is of no force and effect. If Bill S-12 is not passed by this time, the courts will not be able to make SOIRA orders.
Frequently Asked Questions
How does the sex offender registry work?
If you have been convicted of or found not criminally responsible for a designated offence as per ss. 490.011(1) and 490.012 of the Criminal Code, you are automatically required to register with the NSOR. This must be done unless there are statutory exceptions (such as being sentenced to a term of imprisonment) within 7 days of the sentencing order being made.
According to the SOIRA, sex offenders in Canada must register in most cases within seven days after being ordered to do so in a court proceeding. The information provided by each offender includes their full name, date of birth, gender, contact details, physical description, address of educational institution, vehicle details, driver’s license number and passport number. Any change in information must also be reported within seven days.
Canadian law enforcement agencies can then utilize this database as an investigative tool when trying to identify or confirm suspects of unsolved or ongoing cases. The NSOR makes this information accessible and easy to retrieve especially when time is of the essence in investigative procedures.
Can you see if a sex offender lives near you?
The sex offender registry is not public and can only be accessed by Canadian police agencies. In other words, the public does not have access to the registry and therefore, cannot conduct searches for those registered, based on name, geographical location, etc.
If you have been charged with a criminal offence, visit our location pages to contact our team.