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Criminal Code (R.S.C., 1985, c. C-46)

Full Document:  

Act current to 2024-02-06 and last amended on 2024-01-14. Previous Versions

PART XVSpecial Procedure and Powers (continued)

Sex Offender Information (continued)

Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada (continued)

Marginal note:Persons who may be served

  •  (1) The Attorney General of a province, or the minister of justice of a territory, may serve a person with a notice in Form 54 only if the person arrived in Canada on or after April 15, 2011 and they were convicted of or found not criminally responsible on account of mental disorder for an offence outside Canada — other than a service offence as defined in subsection 2(1) of the National Defence Act — that is, in the opinion of the Attorney General or minister of justice, equivalent to an offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1).

  • Marginal note:Exception

    (2) The notice shall not be served on a person who has been acquitted of every offence in connection with which a notice may be served on them under section 490.02903.

Marginal note:Period for and method of service

  •  (1) A notice in Form 54 shall be personally served.

  • Marginal note:Proof of service

    (2) An affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out that

    • (a) the person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case;

    • (b) the notice was personally served on the person to whom it was directed on a named day; and

    • (c) the person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.

  • Marginal note:Requirements relating to notice

    (3) The person who served the notice shall, without delay, send a copy of the affidavit and the notice to the Attorney General of the province, or the minister of justice of the territory, in which the person was served.

  • 2010, c. 17, s. 19

Marginal note:When obligation begins

  •  (1) The obligation under section 490.02901 begins on the day on which the person is served with the notice.

  • Marginal note:When obligation ends

    (2) The obligation ends on the day on which an exemption order is made.

  • Marginal note:Duration of obligation

    (3) If subsection (2) does not apply, the obligation

    • (a) ends 10 years after the person was sentenced or found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;

    • (b) ends 20 years after the person was sentenced or found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years;

    • (c) applies for life if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life; or

    • (d) applies for life if, on April 15, 2011 or before or after that day, the person was convicted of, or found not criminally responsible on account of mental disorder for, more than one offence outside Canada that is, in the opinion of the Attorney General of the province or minister of justice of the territory, equivalent to an offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1) and if more than one of those offences is listed in the notice.

Marginal note:Application for exemption order

  •  (1) A person who is served with a notice in Form 54 under section 490.02903 may apply to a court of criminal jurisdiction for an order exempting them from the obligation within one year after they are served.

  • Marginal note:Exemption order

    (2) The court shall make an exemption order if it is satisfied that the person has established that

    • (a) they were not convicted of or found not criminally responsible on account of mental disorder for or were acquitted of the offence in question;

    • (b) the offence in question is not equivalent to an offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1);

    • (c) there is no connection between the obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or

    • (d) the impact of the obligation on the person, including on their privacy or liberty, is grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.

  • Marginal note:Factors

    (2.1) In determining whether to make an exemption order under paragraph (2)(c) or (d), the court shall consider

    • (a) the nature and seriousness of the offence that is the basis of the obligation;

    • (b) the victim’s age and other personal characteristics;

    • (c) the nature and circumstances of the relationship between the person and the victim;

    • (d) the personal characteristics and circumstances of the person;

    • (e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;

    • (f) the opinions of experts who have examined the person; and

    • (g) any other factors that the court considers relevant.

  • Marginal note:Order to correct

    (2.2) If the court does not make an exemption order but is satisfied that the offence in question, though not equivalent to the offence referred to in the notice, is equivalent to another offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1), the court shall order that the notice be corrected.

  • Marginal note:Reasons for decision

    (3) The court shall give reasons for its decision.

  • Marginal note:Removal of information from database

    (4) If the court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.

  • Marginal note:Notification

    (5) If the court makes an order referred to in subsection (2.2), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.

Marginal note:Application for variation order

  •  (1) A person who is served with a notice in Form 54 under section 490.02903 may, within one year after they are served, apply to a court of criminal jurisdiction for an order to vary the duration of the obligation if

    • (a) the obligation applies for life under paragraph 490.02904(3)(d); and

    • (b) none of the offences in question listed in the notice have an equivalent offence with a maximum term of imprisonment for life provided for in Canadian law.

  • Marginal note:Variation order

    (2) The court shall make the variation order if it is satisfied that the person has established that the offences in question listed in the notice do not demonstrate, or do not form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.

  • Marginal note:Variation of duration

    (3) If the court makes a variation order, it shall set out the duration of the obligation in the order, which shall be determined by applying paragraphs 490.02904(3)(a) and (b) to the offence in question listed in the notice whose equivalent offence has the longest maximum term of imprisonment provided for in Canadian law.

  • Marginal note:Reasons for decision

    (4) The court shall give reasons for its decision.

  • Marginal note:Notification

    (5) The court shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of a variation order made under this section.

Marginal note:Appeal

  •  (1) The Attorney General or the person who applied for an exemption order or a variation order may appeal from a decision under subsection 490.02905(2) or (2.2) or 490.029051(2) or (3) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may

    • (a) dismiss the appeal; or

    • (b) allow the appeal and order a new hearing, quash or amend the exemption order or variation order or make an order that may be made, as the case may be, under subsection 490.02905(2) or (2.2) or 490.029051(2).

  • Marginal note:Removal of information from database

    (2) If an appeal court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.

Marginal note:Requirements relating to notice

  •  (1) If an appeal court quashes an exemption order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, sections 490.031 and 490.0311 of this Act and section 119.1 of the National Defence Act.

  • Marginal note:Notice — variation order

    (2) If an appeal court quashes a variation order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.

Marginal note:Application for termination order

  •  (1) A person who is subject to an obligation under section 490.02901 may apply to a court of criminal jurisdiction for a termination order unless they are also subject to another obligation under that section — or to an obligation under section 490.019, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.

  • Marginal note:Time for application — one offence

    (2) The person may apply for a termination order if the following period has elapsed since the sentence was imposed or the verdict of not criminally responsible on account of mental disorder was rendered:

    • (a) five years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;

    • (b) 10 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years; or

    • (c) 20 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life.

  • Marginal note:Time for application — more than one offence

    (3) If more than one offence is listed in the notice served under section 490.02903, the person may apply for a termination order if 20 years have elapsed since the sentence was imposed, or the verdict of not criminally responsible on account of mental disorder was rendered, for the most recent offence.

  • Marginal note:Re-application

    (4) A person whose application is refused may apply again if five years have elapsed since the application was made.

  • 2010, c. 17, s. 19

Marginal note:Termination order

  •  (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that

    • (a) there would be no connection between continuing the obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or

    • (b) the impact on the person of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.

  • Marginal note:Factors

    (1.1) In determining whether to make the termination order, the court shall consider

    • (a) the nature and seriousness of the offence that is the basis of the obligation;

    • (b) the victim’s age and other personal characteristics;

    • (c) the nature and circumstances of the relationship between the person and the victim;

    • (d) the personal characteristics and circumstances of the person;

    • (e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;

    • (f) the opinions of experts who have examined the person; and

    • (g) any other factors that the court considers relevant.

  • Marginal note:Reasons for decision

    (2) The court shall give reasons for its decision.

  • Marginal note:Requirements relating to notice

    (3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.

 

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