2001 Legislative Session: 5th Session, 36th Parliament
THIRD READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 10th day of April, 2001
Ian D. Izard, Law Clerk
HONOURABLE GRAEME BOWBRICK
ATTORNEY GENERAL AND MINISTER
RESPONSIBLE FOR HUMAN RIGHTS
Contents
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
Part 1 -- Interpretation and Application
1 In this Act:
"justice agency" means
(a) the Court Services Branch, Corrections Branch, Criminal Justice Branch or Public Safety and Regulatory Branch of the Ministry of Attorney General,
(b) a police force, or
(c) a registry similar to the sex offender registry established by or under an enactment of another jurisdiction in Canada;
"offender" means a person who
(a) has been determined by a court in Canada to be guilty of a sex offence, whether on acceptance of a plea of guilty or on a finding of guilt and whether or not the court orders an absolute or conditional discharge,
(b) has been found by a court in Canada to be not criminally responsible on account of mental disorder for a sex offence,
(c) has entered into a recognizance,
(d) is the subject of an outstanding sex offence charge in Canada but only until a disposition with respect to that charge has been made, or
(e) has been convicted of a sex offence by a court outside Canada;
"personal information" with respect to an offender, means
(a) legal name and any aliases,
(b) date of birth,
(c) gender,
(d) current addresses and phone numbers,
(e) photograph,
(f) any Criminal Code offence with which the offender has been charged, the location of the court in which the proceedings respecting the charge were commenced, and the disposition of the charge, if known,
(g) any recognizance under section 810.1 or 810.2 of the Criminal Code to which the offender is subject or other order of the court to which the offender is subject in relation to a sex offence,
(h) address to which the offender is required to report under an order of the court, the National Parole Board or the Board of Parole for the Province of British Columbia,
(i) date the offender is released
(i) after serving the custodial portion of a sentence, or
(ii) after being discharged from a hospital in which the offender was detained after a verdict of not criminally responsible on account of mental disorder,
(j) occupation,
(k) name of employer, business addresses and phone numbers,
(l) name, address and phone numbers of next of kin,
(m) name, address and phone numbers of known associates,
(n) names of professional or recreational associations of which the offender is a member,
(o) distinguishing or unique physical features or characteristics,
(p) driver's licence number,
(q) description and vehicle identification number of any motor vehicles registered or jointly registered to the offender,
(r) medical service plan number, and
(s) prescribed information that is likely to assist
(i) in confirming the identity of the offender, or
(ii) in locating the offender
for the purpose of maintaining the registry up to date;
"police force" means a police force referred to in section 1.1 of the Police Act or a law enforcement agency within or outside Canada;
"public body" has the same meaning as in the Freedom of Information and Protection of Privacy Act;
"recognizance" means
(a) a recognizance under section 810.1 of the Criminal Code, or
(b) a recognizance under section 810.2 of the Criminal Code if the person who is required to enter into the recognizance has previously been
(i) determined by a court in Canada to be guilty of an offence under section 271 [sexual assault], 272 [sexual assault with a weapon, threats to a third party or causing bodily harm] or 273 [aggravated sexual assault] of the Criminal Code, whether on acceptance of a plea of guilty or on a finding of guilt and whether or not the court orders an absolute or conditional discharge, or
(ii) found by a court in Canada to be not criminally responsible on account of mental disorder for an offence referred to in subparagraph (i);
"registrar" means a person designated as registrar under section 4 (1) and includes a person designated as deputy registrar under section 4 (3);
"registry" means the sex offender registry established under section 3;
"registry officer" means a person in a class of public service employee designated under section 4 (4);
"sex offence" means
(a) an offence under any of the following provisions of the Criminal Code:
(i) section 151 [sexual interference];
(ii) section 152 [invitation to sexual touching];
(iii) section 153 (1) [sexual exploitation];
(iv) section 153.1 [sexual exploitation of person with disability];
(v) section 155 (1) [incest];
(vi) section 160 (1), (2) or (3) [bestiality];
(vii) section 163.1 (2), (3) or (4) [child pornography];
(viii) section 170 [parent or guardian procuring sexual activity];
(ix) section 171 [householder permitting sexual activity];
(x) section 172 (1) [corrupting children];
(xi) section 173 (2) [indecent acts];
(xii) section 179 (1) (b) [vagrancy];
(xiii) section 212 (1) with respect to a person under the age of 18 [procuring];
(xiv) section 212 (2), (2.1) or (4) [procuring];
(xv) section 271 [sexual assault];
(xvi) section 272 (1) [sexual assault with a weapon, threats to a third party or causing bodily harm];
(xvii) section 273 (1) [aggravated sexual assault],
(b) an offence under section 24 (1) of the Criminal Code [attempts] of attempting to commit a sex offence referred to in paragraph (a),
(c) an offence under a predecessor or successor to a provision referred to in paragraph (a) or (b),
(d) an offence under section 264 of the Criminal Code [criminal harassment] if, in committing the offence charged, the person is contravening the conditions of a recognizance,
(e) an offence under section 348 (1) of the Criminal Code [breaking and entering with intent, committing offence or breaking out] if the indictable offence referred to in the paragraph under which the person is charged is a sex offence,
(f) an offence under section 173 (1) [indecent acts], 177 [trespassing at night], or 279 [kidnapping/forcible confinement] of the Criminal Code but only in relation to a person whose personal information is entered into the registry in respect of that offence under section 6,
(g) a prescribed offence under the Criminal Code or another enactment of Canada, or
(h) an offence committed outside Canada that, if committed in Canada, would be an offence referred to in paragraph (a), (b) or (g);
"spouse" means a person who
(a) is married to an offender, or
(b) is living and cohabiting with an offender in a marriage-like relationship, including a marriage-like relationship between persons of the same gender;
"young person" means a person who is at least 12 years of age and under 18 years of age.
2 (1) Subject to a regulation under subsection (2), this Act does not apply to a person who is charged with or convicted of a sex offence committed while the person was a young person.
(2) The Lieutenant Governor in Council may, by regulation,
(a) set a day on and from which some or all of the provisions of this Act apply to a person referred to in subsection (1), and
(b) provide for that application, including by modifying or adding to any provision of this Act.
Part 2 -- Sex Offender Registry
3 The minister may establish a sex offender registry for the purposes of
(a) law enforcement,
(b) crime prevention, and
(c) public safety.
4 (1) The minister must designate in writing a person appointed under the Public Service Act as the registrar for the registry.
(2) The registrar may appoint, in accordance with the Public Service Act, the employees necessary to enable the registrar to exercise the powers or perform the duties and functions of the registrar under this Act.
(3) The registrar may designate a person appointed under subsection (2) as deputy registrar.
(4) The registrar may designate a class of public service employee as registry officers for the purposes of Part 3.
(5) The registrar may enter into an agreement or arrangement for services with any person, government or government agency to enable the registrar to exercise the powers and perform the duties and functions of the registrar under this Act.
5 (1) The registrar must record in the registry and maintain up to date the personal information about an offender as it is made available to the registrar under
(a) section 8 (2) or (6), 9 (2), 11 or 12, or
(b) section 15 (5) or 18 (2).
(2) The requirement of subsection (1) applies with respect to any offender who, is in British Columbia at any time after this Act comes into force and who,
(a) on the day this Act comes into force, is, irrespective of where,
(i) serving a sentence for a sex offence,
(ii) subject to the terms of a conditional discharge imposed for a sex offence,
(iii) subject to a recognizance, or
(iv) subject to detention in a hospital or a conditional discharge in respect of a verdict of not criminally responsible on account of mental disorder for a sex offence, or
(b) on or after the day this Act comes into force, is, irrespective of where,
(i) charged with a sex offence,
(ii) determined by a court to be guilty of a sex offence whether on acceptance of a plea of guilty or on a finding of guilty and whether or not the court orders an absolute or conditional discharge,
(iii) required to enter into a recognizance, or
(iv) found not criminally responsible on account of mental disorder for a sex offence.
6 (1) Subject to subsection (2), the registrar must enter into the registry the personal information about a person convicted of or found to be not criminally responsible on account of mental disorder for an offence under section 173 (1), 177, or 279 of the Criminal Code.
(2) The registrar must not enter the personal information about a person referred to in subsection (1) into the registry if, after reviewing information respecting the circumstances of the commission of the offence, the registrar decides
(a) in the case of an offence under section 173 (1) of the Criminal Code, that the act that forms the basis of the offence
(i) was a non-sexual indecent act, or
(ii) was a consensual sexual act, or
(b) in the case of an offence under section 177 or 279 of the Criminal Code, that the offence was not committed for a sexual purpose or with a sexual motive.
(3) If the registrar decides that subsection (2) does not apply with respect to a person and enters the personal information about that person into the registry, the registrar must include with the notice to the offender under section 10, notice of the right of the offender to request a reconsideration of the registrar's decision under this subsection.
(4) An offender whose personal information has been entered into the registry under subsection (1), may request, in accordance with the regulations, the registrar to reconsider the decision made under subsection (3).
. (5) The offender may include with the request under subsection (4) any written submissions or other documents the offender wishes the registrar to consider.
(6) The registrar
(a) must reconsider the decision under subsection (3) if requested to do so in accordance with subsection (4),
(b) may confirm that decision, or reverse that decision and remove the person's personal information from the registry, and
(c) must advise the person of the decision under paragraph (b) in accordance with the regulations.
7 (1) An offender is entitled to have his or her personal information removed from the registry only if
(a) in respect of every sex offence for which the registrar is required to enter the personal information about the offender in the registry
(i) an acquittal has been entered,
(ii) subject to subsection (2), a free pardon under section 748 of the Criminal Code has been granted, or
(iii) a stay of proceedings has been entered under section 579 (1) of the Criminal Code or ordered by the court, and
(b) the offender has not entered into a recognizance.
(2) An offender who has been granted a free pardon under section 748 of the Criminal Code for a sex offence referred to in subsection (1) must provide proof of that free pardon satisfactory to
(a) the registrar, or
(b) a registry officer.
8 (1) The registrar may collect personal information about an offender, from
(a) a justice agency,
(b) a registry officer, or
(c) a government or agency with which the minister has entered into an information-sharing agreement or arrangement under section 11.
(2) A justice agency in British Columbia, other than a police force referred to in section 1.1 of the Police Act, or a registry officer must disclose to the registrar the personal information about an offender that is in the possession or control of that justice agency or registry officer.
(3) Without limiting subsection (1) or (2), personal information that may be collected or disclosed under those subsections may be collected or disclosed by electronic data transmission or electronic data matching.
(4) Despite section 13, for the purposes of the registry, the registrar may demand from any public body, corporation, or individual named in the personal information recorded in the registry about an offender, any personal information about the offender that is in the possession or control of that public body, corporation or individual.
(5) Subsection (4) does not apply in respect of
(a) personal correspondence between the offender and his or her parent, child, spouse, brother or sister,
(b) personal information that is in the possession or control of
(i) the offender's lawyer, or
(ii) a family court counsellor, or
(c) information the disclosure of which is prohibited by section 9 (1) of the Statistics Act.
(6) Despite any other enactment, a public body, corporation or individual that receives a demand for personal information under subsection (4) must provide to the registrar within 10 days of the demand any of that personal information that is in any record in the possession or control of the person or public body.
(7) This section does not apply to records referred to in section 3 (1) of the Freedom of Information and Protection of Privacy Act, except
(a) a record referred to in section 3 (1) (a) of that Act insofar as it records the disposition of a sex offence charge, and
(b) a record referred to in section 3 (1) (h) of that Act.
9 (1) On application of the registrar, the Provincial court may make an order under subsection (2) if it is satisfied that
(a) the registrar has been refused information after making a demand under section 8 (4), or
(b) the registrar needs, for the purposes of the registry, information contained in personal correspondence between an offender and a parent, a child over the age of 18, a spouse, a brother or a sister of the offender.
(2) Despite any other enactment but subject to subsection (4), if satisfied in accordance with subsection (1), the court may order any public body, corporation, or individual named in the personal information recorded in the registry about an offender, to provide to the registrar in the time and manner the court specifies, any information that
(a) is in any record in the possession or control of that public body, corporation or individual, and
(b) discloses personal information about the offender.
(3) For the purpose of an application under subsection (1), a certificate purporting to have been issued by the registrar certifying the names of the individuals named in the personal information recorded in the registry about an offender is admissible without proof of the signature or official character of the person appearing to have signed the document, and is proof of the certified facts unless there is evidence to the contrary.
(4) The court may not make an order under subsection (2) in respect of information described in section 8 (5) (b) or (c).
(5) If the court makes an order for the provision of information under subsection (2), it may make any order it considers appropriate with respect to the confidentiality to be maintained in connection with that information.
10 After recording an offender's personal information in the registry, the registrar must promptly deliver to the offender a notice that
(a) identifies the sex offence, or the recognizance, in respect of which the registrar is required to record the offender's personal information in the registry,
(b) sets out the personal information of the offender that is recorded in the registry, and
(c) advises the offender of his or her right to request the correction of that personal information under section 29 of the Freedom of Information and Protection of Privacy Act.
11 (1) With the prior approval of the Lieutenant Governor in Council, the minister may enter into an information-sharing agreement or arrangement with
(a) the government of Canada or an agency of that government,
(b) the government of a province or other jurisdiction in Canada or an agency of that province or other jurisdiction,
(c) the government of a state of the United States or an agency of that government, or
(d) the government of an independent nation or an agency of that government.
(2) An information-sharing agreement or arrangement may only be entered into under subsection (1) for the purpose of recording the personal information of offenders that is in the possession or control of the registrar or a body referred to in subsection (1) in the registry or a similar registry maintained by that other body.
(3) An information-sharing agreement or arrangement entered into under this section must include the prescribed terms and conditions, and provisions that have the following effects:
(a) that any use made by a party to the agreement or arrangement of the personal information collected under the agreement or arrangement will be for the purpose for which it was obtained or compiled by British Columbia or for a use consistent with that purpose as defined under section 34 of the Freedom of Information and Protection of Privacy Act;
(b) that any disclosure of the personal information collected from British Columbia by a party to the agreement or arrangement will be in substantial compliance with section 13 of this Act.
(4) An information-sharing agreement or arrangement entered into under this section may not agree to share personal information
(a) about an offender referred to in paragraph (d) of the definition of "offender" in section 1, or
(b) referred to in paragraph (l) or (m) of the definition of "personal information" in that section.
(5) In this section, "information-sharing agreement or arrangement" includes a data-matching agreement or arrangement but does not include an agreement or arrangement to share personal information obtained by the minister for the purposes of another Act administered by the minister.
12 (1) The registrar may seek verification of any personal information about an offender that is recorded in the registry and
(a) collected under section 8 (2) or (6), 9 (2), 11 or this section,
(b) collected under section 15 (5), or
(c) received from an offender or registry officer under section 7 (2) or 18 (2).
(2) A person employed or engaged by the registrar to verify personal information under subsection (1) may enter onto private property at any reasonable time for that purpose.
(3) Subsection (2) does not authorize any person to enter a dwelling house.
(4) A person referred to in subsection (2) may request that a peace officer accompany him or her onto private property and that peace officer has authority under this Act to accompany that person.
13 (1) Despite the Freedom of Information and Protection of Privacy Act and any other enactment, the registrar may disclose personal information recorded in the registry only
(a) to a person who makes a request under section 5 of the Freedom of Information and Protection of Privacy Act if the information is about that person,
(b) to a member of a police force or an employee of or person performing services to a police force for purposes of law enforcement, crime prevention, public safety or a purpose set out in section 25 or 33 (p) of the Freedom of Information and Protection of Privacy Act,
(c) to a person in another jurisdiction performing functions similar to those of the registrar,
(d) in accordance with an information-sharing agreement or arrangement entered into under section 11,
(e) to a person referred to in section 4 (2) or (4), or a person with whom, or a government with which, the registrar has entered into an agreement or arrangement under section 4 (5), if the information is necessary for the performance of the person's duties, or the government's obligations under the agreement or arrangement,
(f) to the Public Safety and Regulatory Branch of the Ministry of Attorney General for a purpose set out in section 25 or 33 (p) of the Freedom of Information and Protection of Privacy Act,
(g) to the Information and Privacy Commissioner in accordance with section 44 (2) or (3) of the Freedom of Information and Protection of Privacy Act,
(h) in accordance with section 33 (r) insofar as it applies to section 35 of the Freedom of Information and Protection of Privacy Act, or
(i) to a prescribed public body.
(2) For greater certainty, a person who makes a request under section 5 of the Freedom of Information and Protection of Privacy Act is not entitled to disclosure of the sources of the person's personal information recorded in the registry.
(3) Information that may be disclosed under subsection (1) (b), (c), (d), (e) or (i) may be disclosed in any manner including by electronic data transmission or data matching.
14 (1) Subject to subsection (2), the registrar may delegate in writing to any person or government any power, duty or function of the registrar under this Act.
(2) The registrar may delegate the power conferred on the registrar by section 8 (4) only to a person employed under the Public Service Act.
15 (1) An offender in British Columbia must report in person to a registry officer at the location specified in a notice under section 17 by the date specified in that notice.
(2) In addition to the obligation to report under subsection (1), an offender must report in person
(a) to a registry officer at the location specified in the notice under section 17
(i) within 15 days after changing the offender's address,
(ii) at least 15 days before changing the offender's address, whether temporarily or permanently, if he or she is moving a sufficient distance that reporting to a registry officer at the specified location would be impracticable,
(iii) at least 15 days before the offender leaves temporarily, or ceases to be a resident of, British Columbia, and
(iv) on a day not later than 12 months after and not earlier than 11 months after the offender last reported to a registry officer in accordance with this section, and
(b) to the registrar or a registry officer within 15 days after
(i) being released from a custodial sentence referred to in subsection (3) (a),
(ii) being released from a hospital referred to in subsection (3) (b), or
(iii) entering or re-entering British Columbia,
and subsequently in accordance with a notice under section 17.
(3) An offender is not required to report under this section during any period while he or she
(a) is serving the custodial portion of a sentence, other than a conditional sentence under section 742.1 of the Criminal Code [imposing of conditional sentence] for any offence,
(b) is detained in a hospital after a verdict of not criminally responsible on account of mental disorder for any offence, or
(c) is outside British Columbia if the offender has reported his or her departure in accordance with subsection (2) (a) (iii).
(4) An offender who must report to a registry officer under subsection (1) or (2) must provide proof satisfactory to the registry officer of
(a) the offender's identity, and
(b) the offender's personal information requested by the registry officer.
(5) A registry officer who collects personal information from an offender under this section must record that personal information and provide it to the registrar in the manner and time specified by the registrar.
(6) This section does not apply to an offender referred to in paragraph (d) of the definition of "offender".
16 An offender must comply with section 15 throughout whichever of the following periods applies to that offender:
(a) for 10 years after he or she first receives notice under section 17, if the maximum sentence for the sex offence referred to in section 10 (a) in relation to the offender is not more than 10 years;
(b) for the rest of the offender's life, if the maximum sentence for the sex offence referred to in section 10 (a) in relation to the offender is more than 10 years;
(c) for the rest of the offender's life, if the registrar is required to record the offender's personal information in the registry in respect of at least 2 sex offences
(i) that were not set out in the same information or indictment, and
(ii) for neither of which the registrar is required to remove the offender's personal information from the registry under section 7.
17 The registrar must serve an offender with a notice setting out
(a) the location of a registry officer for the purpose of reporting under section 15,
(b) the date by which the offender must report under section 15 (1) or (2) (b), and
(c) the continuing reporting obligations of the offender in accordance with sections 15 and 16.
18 (1) Sections 15 and 16 do not apply to an offender in respect of a sex offence for which the offender has been granted a free pardon under section 748 of the Criminal Code if the offender has complied with section 7 (2).
(2) A registry officer who is satisfied that an offender meets the requirements under section 7 (2) must advise the registrar.
19 (1) Section 5 of the Offence Act does not apply in respect of this Act.
(2) A person who contravenes section 8 (6) or 13 (1) or who fails to comply with an order under section 9 (2) commits an offence and is liable on conviction to a fine of not more than $2 000 or to imprisonment for a term of not more than 6 months, or to both.
(3) An offender who
(a) without reasonable excuse fails to comply with section 15 or 16, or
(b) provides false or misleading information under this Act
commits an offence.
(4) An offender who is convicted of an offence under subsection (3) is liable
(a) for a first offence, to a fine of not more than $10 000 or to imprisonment for a term of not more than 1 year, or to both, and
(b) for a second or subsequent offence, to a fine of not more than $10 000 or to imprisonment for a term of not more than 2 years, or to both.
20 (1) In a prosecution under section 19 (3) (a), a certificate purporting to have been issued by the registrar and setting out, as applicable,
(a) the date on which the offender was served with a notice under section 17,
(b) the date on which the offender last reported to a registry officer under section 15,
(c) the date by which the offender was required to report to a registry officer under section 15, and
(d) that the offender did not report as required
is admissible without proof of the signature or official character of the person appearing to have signed the certificate and is proof of the certified facts unless there is evidence to the contrary.
(2) The time limit for laying an information respecting an offence under this Act is 6 months after the facts on which the information is based first comes to the knowledge of the registrar.
(3) A certificate purporting to have been issued by the registrar certifying the day on which he or she became aware of the facts on which an information is based, is admissible without proof of the signature or official character of the person appearing to have signed the document, and is proof of the certified facts unless there is evidence to the contrary.
21 No action for damages lies or may be brought against the government, the registry, the registrar or a person acting on behalf of or under the direction of the registrar for damages resulting from
(a) the disclosure or failure to disclose all or part of a record under this Act or any consequences of that disclosure or failure to disclose unless the disclosure or failure to disclose is the result of bad faith, or
(b) the failure to give any notice required under this Act or a provision of the Freedom of Information and Protection of Privacy Act that applies in respect of this Act if reasonable care is taken to give the required notice.
22 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing information for the purpose of paragraph (s) of the definition of "personal information";
(b) prescribing provisions of the Criminal Code or another enactment of Canada for the purpose of paragraph (g) of the definition of "sex offence";
(c) prescribing practices and procedures for a reconsideration under section 6;
(d) prescribing terms and conditions that must be included in an information-sharing agreement or arrangement under section 11;
(e) prescribing public bodies for the purpose of section 13 (1) (i);
(f) requiring that the registry be included in and form part of a specified existing record or registry of information;
(g) for any purpose for which regulations are contemplated by this Act.
23 (1) The Lieutenant Governor in Council may make regulations respecting any matters necessary or advisable for more effectively bringing into operation the provisions of Part 3 of this Act and for obviating any transitional difficulties encountered.
(2) Without limiting subsection (1), the regulations may for a period the Lieutenant Governor in Council specifies, suspend the operation of a provision of Part 3 if that provision would impede the effective implementation of this Act.
(3) Unless earlier repealed, a regulation made under this section is repealed one year after it is enacted.
24 This Act comes into force by regulation of the Lieutenant Governor in Council.
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