Bill S-39

National Defence Act

Clause 1: New.

Clause 2: New.

Clause 3: Existing text of subsection 202.14(1):

202.14 (1) Where a court martial finds that an accused person committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed that act or made the omission but is not responsible on account of mental disorder (referred to in this Act as a finding of not responsible on account of mental disorder).

Clause 4: New.

Clause 5: Relevant portion of section 230:

230. Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

Clause 6: Relevant portion of section 230.1:

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

Clause 7: New.

Clause 8: Existing text of subsection 232(3):

(3) No appeal or application for leave to appeal under this Division shall be entertained unless the Notice of Appeal is delivered within thirty days after the date on which the court martial terminated its proceedings to the Registry of the Court Martial Appeal Court or, in such circumstances as may be prescribed by the Governor in Council in regulations, to a person prescribed in those regulations.

Clause 9: New.

Clause 10: Existing text of the definition:

“Provost Marshal” means the Canadian Forces Provost Marshal.

Criminal Code

Clause 11: (1) Existing text of the definition:

“verdict of not criminally responsible on account of mental disorder” has the same meaning as in section 672.1.

(2) Relevant portion of the definition:

“designated offence” means

...

(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:

...

(v) subsection 246(1) (assault with intent);

Clause 12: Existing text of the heading:

Order to Comply with Registration Requirements

Clause 13: Existing text of subsections 490.012(1) to (3):

490.012 (1) A court shall, on application of the prosecutor, make an order in Form 52 requiring a person to comply with the Sex Offender Information Registration Act for the applicable period specified in subsection 490.013(2), (3) or (4) as soon as possible after it imposes a sentence on the person for an offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated offence” in subsection 490.011(1), or renders a verdict of not criminally responsible on account of mental disorder for such an offence.

(2) A court shall, on application of the prosecutor, make an order in Form 52 requiring a person to comply with the Sex Offender Information Registration Act for the applicable period specified in subsection 490.013(2), (3) or (4) as soon as possible after it imposes a sentence on the person for an offence referred to in paragraph (b) or (f) of the definition “designated offence” in subsection 490.011(1), if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (d) or (e) of that definition.

(3) A court shall, on application of the prosecutor, make an order in Form 52 requiring a person in respect of whom an order may be made under subsection (1) or (2) to comply with the Sex Offender Information Registration Act for the applicable period specified in subsection 490.013(5), as soon as possible after it imposes a sentence on the person for a designated offence or renders a verdict of not criminally responsible on account of mental disorder for such an offence, if the prosecutor establishes that

(a) the person was, before or after the coming into force of that Act, previously convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated offence” in subsection 490.011(1);

(b) the person is not, and was not at any time, subject to an obligation under section 490.019; and

(c) no order was made under subsection (1) in connection with the previous offence.

Clause 14: (1) to (3) Existing text of subsections 490.013(2) to (5):

(2) An order made under subsection 490.012(1) or (2)

(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or is an offence for which the maximum term of imprisonment is two or five years;

(b) ends 20 years after it was made if the offence in connection with which it was made is one for which the maximum term of imprisonment is 10 or 14 years; and

(c) applies to the person for life if the offence in connection with which it was made is one for which the maximum term of imprisonment is life.

(3) An order made under subsection 490.012(1) or (2) applies to a person for life if they are, or were at any time, subject to an obligation under section 490.019.

(4) An order made under subsection 490.012(1) or (2) applies to a person for life if they are, or were at any time, subject to an order made previously under either of those subsections.

(5) An order made under subsection 490.012(3) applies to a person for life.

Clause 15: Existing text of section 490.015:

490.015 (1) A person who is subject to an order may apply for a termination order

(a) not earlier than five years after the order was made, in the case of an order that is applicable for 10 years under paragraph 490.013(2)(a);

(b) not earlier than 10 years after the order was made, in the case of an order that is applicable for 20 years under paragraph 490.013(2)(b);

(c) not earlier than 20 years after the order was made, in the case of an order that is applicable for life under paragraph 490.013(2)(c) or subsection 490.013(3) or (5); or

(d) on or after the day on which they receive a pardon.

(2) If more than one order is made in respect of a person, the person may apply for a termination order not earlier than 20 years after the most recent order was made under section 490.012, or on or after the day on which they receive a pardon. The application must be in relation to every order that is in effect.

(3) If an applicant is also subject to an obligation under section 490.019, the application must be in relation to that obligation as well as to every order that is in effect.

(4) A person whose application is refused may re-apply not earlier than five years after they made the previous application. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 after the previous application was made.

(5) A person must apply to a superior court of criminal jurisdiction under this section if such a court made an order to which the application relates. In any other case, they must apply to a court of criminal jurisdiction.

Clause 16: (1) Existing text of subsection 490.016(1):

490.016 (1) The court shall make a termination order if it is satisfied that the person has established that the impact on them of continuing the order or orders, and any obligation, to which the application relates, including on their privacy or liberty, would be grossly disproportionate to the public interest in the protection of society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

(2) New.

Clause 17: New.

Clause 18: (1) Relevant portion of subsection 490.018(1):

490.018 (1) When a court or appeal court makes an order under section 490.012, it shall cause

...

(c) that person to be informed of sections 4 to 7 and subsection 17(1) of the Sex Offender Information Registration Act and section 490.031; and

(2) Relevant portion of subsection 490.018(3):

(3) A Review Board shall cause a copy of the order to be given to the person who is subject to it when it directs

...

(b) under paragraph 672.54(b), that the person be discharged subject to conditions, unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with section 4, 4.1, 4.3 or 6 of the Sex Offender Information Registration Act.

Clause 19: Existing text of the heading:

Obligation to Comply with Registration Requirements

Clause 20: (1) and (2) Existing text of subsection 490.02(2):

(2) A notice shall not be served on a person

(a) referred to in paragraph (1)(a) or (b) if they have been finally acquitted of, or have received a free pardon granted under Her Majesty’s royal prerogative of mercy or section 748 for, every offence in connection with which notice may be served on them under that paragraph;

(b) referred to in paragraph (1)(a) or (b) if an application has been made for an order under subsection 490.012(3) in relation to any offence in connection with which notice may be served on them under that paragraph; or

(c) referred to in paragraph (1)(b) if they have provided proof of a pardon in accordance with subsection 9(1) of the Ontario Act.

Clause 21: (1) and (2) Existing text of subsections 490.021(1) and (2):

490.021 (1) The notice shall be personally served within one year after the day on which the Sex Offender Information Registration Act comes into force.

(2) If a person referred to in paragraph 490.02(1)(a) is unlawfully at large or is in breach of any terms of their sentence or discharge, or conditions set under this Act, that relate to residence, the notice may be served by registered mail at their last known address.

Clause 22: (1) Existing text of subsection 490.022(1):

490.022 (1) The obligation under section 490.019 begins

(a) either one year after the day on which a person is served with a notice under section 490.021 or when a court decides not to make an exemption order under subsection 490.023(2), whichever is later; or

(b) when an exemption order made under this Act is quashed.

(2) to (4) Existing text of subsection 490.022(3):

(3) If none of paragraphs (2)(a) to (c) applies earlier, the obligation

(a) ends 10 years after the day on which the person was sentenced, or found not criminally responsible on account of mental disorder, for an offence to which the obligation relates that was prosecuted summarily or for which the maximum term of imprisonment is two or five years;

(b) ends 20 years after the day on which the person was sentenced, or found not criminally responsible on account of mental disorder, for an offence to which the obligation relates and for which the maximum term of imprisonment is 10 or 14 years;

(c) applies for life if the maximum term of imprisonment for an offence to which the obligation relates is life; or

(d) applies for life if the person was convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated offence” in subsection 490.011(1).

Clause 23: Existing text of subsection 490.023(1):

490.023 (1) A person who is not subject to an order under section 490.012 may, within one year after the day on which they are served with a notice under section 490.021, apply to any court of criminal jurisdiction for an order exempting them from the obligation under section 490.019.

Clause 24: Existing text of sections 490.025 and 490.026:

490.025 When a court decides not to make an exemption order under subsection 490.023(2) or an appeal court dismisses an appeal from such a decision or quashes an exemption order made under that subsection, it shall notify the Attorney General of the decision and cause the person who applied for the exemption order to be informed of sections 4 to 7 and subsection 17(1) of the Sex Offender Information Registration Act and section 490.031.

490.026 (1) A person who is subject to an obligation under section 490.019 and is not subject to an order under section 490.012 may apply to a court of criminal jurisdiction for a termination order.

(2) A person may apply for a termination order under subsection (1) if the following period has elapsed since the day on which they were sentenced, or found not criminally responsible on account of mental disorder, for an offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated offence” in subsection 490.011(1):

(a) five years if the offence was prosecuted summarily or is an offence for which the maximum term of imprisonment is two or five years;

(b) 10 years if the offence is one for which the maximum term of imprisonment is 10 or 14 years; and

(c) 20 years if the offence is one for which the maximum term of imprisonment is life.

(3) A person who committed more than one offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated offence” in subsection 490.011(1) may apply for a termination order under subsection (1) if 20 years have elapsed since the day on which they were sentenced, or found not criminally responsible on account of mental disorder, for the most recent offence.

(4) A person whose application is refused may re-apply if five years have elapsed since the day on which they made the previous application. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 after the previous application was made.

Clause 25: (1) Existing text of subsection 490.027(1):

490.027 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in the protection of society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

(2) New.

Clause 26: Existing text of sections 490.028 and 490.029:

490.028 If a person is eligible to apply for both an exemption order under section 490.023 and a termination order under section 490.026 within one year after they are served with a notice under section 490.021, an application within that period for one order is deemed to be an application for both.

490.029 The Attorney General or the person who applied for a termination order may appeal from a decision of the court made under section 490.027 on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the termination order or make an order that may be made under that section.

Clause 27: (1) and (2) Existing text of section 490.03:

490.03 (1) At the request of a prosecutor or the Attorney General, as the case may be, the Commissioner of the Royal Canadian Mounted Police shall disclose information that is registered in the database or the fact that such information is registered in the database

(a) to the prosecutor, if the Commissioner is satisfied that the disclosure is necessary for the purposes of a proceeding for an order under section 490.012; or

(b) to the Attorney General, if the Commissioner is satisfied that the disclosure is necessary for the purposes of a proceeding under section 490.015, 490.023 or 490.026, or an appeal from a decision made in a proceeding under any of those sections or in a proceeding for an order under section 490.012.

(2) At the request of the Attorney General, the Commissioner shall disclose to the Attorney General all information relating to a person that is registered in the database if the person, in connection with a proceeding, discloses any such information or the fact that any such information is registered in the database.

(3) The prosecutor or the Attorney General may disclose the information to a court in connection with a proceeding referred to in subsection (1) or (2), or to an appeal court in connection with an appeal from a decision made in the proceeding, if the information is relevant to the proceeding or appeal.

(4) Information that is collected under the Sex Offender Information Registration Act or registered in the database and that is relevant to the proceeding may be disclosed to a judge or justice in a proceeding relating to an application for a search warrant in connection with the investigation of a crime that there are reasonable grounds to suspect is of a sexual nature.

Clause 28: (1) Relevant portion of section 490.031:

490.031 Every person who, without reasonable excuse, fails to comply with an order made under section 490.012 or with an obligation under section 490.019, is guilty of an offence and liable

(2) New.

Clause 29: New.

Clause 30: (1) to (3) Relevant portion of Form 52:

You have been convicted of, or found not criminally responsible on account of mental disorder for, ............. (insert description of offence(s)), a designated offence (or if more than one offence, designated offences) within the meaning of subsection 490.011(1) of the Criminal Code, under ......... (insert the applicable designated offence provision(s) of the Criminal Code).

1. You must report for the first time, in person, to the registration centre that serves the area in which your main residence is located, whenever required under subsection 4(2) of the Sex Offender Information Registration Act.

2. You must subsequently report to the registration centre that serves the area in which your main residence is located whenever required under section 4.1 or 4.3 of the Sex Offender Information Registration Act, for a period of ...... years after this order is made (or if paragraph 490.013(2)(c) or any of subsections 490.013(3) to (5) of the Criminal Code applies, for life).

...

5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre that serves the area in which your main residence is located to correct the information.

Clause 31: (1) to (3) Relevant portion of Form 53:

Because, on ....... (insert date(s)), you were convicted of, or found not criminally responsible on account of mental disorder for, ......... (insert description of offence(s)), one or more offences referred to in paragraph (a), (c), (d) or (e) of the definition “designated offence” in subsection 490.011(1) of the Criminal Code, under ....... (insert the applicable offence provision(s) of the Criminal Code), this is provided to give you notice that you are required to comply with the Sex Offender Information Registration Act.

1. You must report for the first time, in person, to the registration centre that serves the area in which your main residence is located, whenever required under subsection 4(3) of the Sex Offender Information Registration Act.

2. You must subsequently report to the registration centre that serves the area in which your main residence is located whenever required under section 4.1 or 4.3 of the Sex Offender Information Registration Act for a period of ....... years after the day on which you were sentenced, or found not criminally responsible on account of mental disorder, for the offence (or if paragraph 490.022(3)(c) of the Criminal Code applies, for life) or for any shorter period set out in subsection 490.022(2) of the Criminal Code.

...

5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre that serves the area in which your main residence is located to correct the information.