Litigation, law reform likely after SCC strikes down mandatory inclusion in sex offender registry

By Cristin Schmitz

Law360 Canada (October 28, 2022, 6:56 PM EDT) -- The Supreme Court of Canada has unanimously struck down, as overbroad in violation of the principles of fundamental justice, the Criminal Code’s automatic imposition of lifetime registration and reporting requirements on all offenders who commit more than one sex crime, while dividing 5-4 to also strike down the mandatory inclusion on the national sex offender registry of everyone convicted of one designated sexual offence.

Counsel say the top court’s Oct. 28 judgment which declares invalid — as an unjustified violation of the Charter’s s. 7 liberty guarantee — two Harper-era Criminal Code provisions that eliminated any judicial discretion as to who is added to the sex offender registry, will trigger applications for personal s. 24(1) Charter remedies: R. v. Ndhlovu 2022 SCC 38.

Notably, the five-judge majority held that its declaration striking down Criminal Code s. 490.012 (mandatory registration of all sex offenders), which declaration applies prospectively, is suspended for one year. All nine judges went on to declare that requiring lifetime registration of everyone convicted of two or more designated sex crimes (s. 490.013(2.1)) should be declared unconstitutional immediately, retroactive to 2011 when the provision came into force.

 Justice Andromache Karakatsanis

Justice Andromache Karakatsanis

The majority’s reasons for judgment, co-written by Justices Andromache Karakatsanis and Sheilah Martin, contemplate that s. 24(1) Charter applications may emanate from (1) persons seeking removal from the sex offender registry on the basis that its effects on their liberty bear no relation, or are grossly disproportionate, to the objective of s. 49 0.012 of the Criminal Code of helping police investigate and prevent sexual crimes, and (2) from offenders who committed more than one designated sexual offence, asking to change the length of their lifetime registration, pursuant to s. 490.013(2.1) of the Code.

The majority ruled that both provisions infringe on the s. 7 Charter right to liberty “because registration has a serious impact on the freedom of movement and of fundamental choices of people who are not at an increased risk of re‑offending”. They held that registering offenders who are not at risk of committing a future sex offence is disconnected from the purpose of the registry, which is to capture offenders’ information with a view to helping police prevent and investigate sex offences.

The impact of an order under the Sex Offender Information Registration Act (SOIRA) on an offender’s liberty “can only fairly be described as serious,” Justices Karakatsanis and Martin wrote.

“SOIRA creates an ongoing obligation to report extensive information, subject to random checks and other compliance measures, under threat of prosecution and punishment by way of imprisonment, fines, or both. This creates continuous state monitoring that can last decades and, for some offenders, a lifetime,” the majority noted. “SOIRA also compels offenders to structure their travel and residency on an ongoing basis to remain in compliance with the legislation. There are thus burdens associated with the ongoing obligations to maintain the currency of the information on the registry, and the potential of imprisonment makes the deprivation of liberty even more severe. The impact on liberty can also be aggravated by an offender’s life circumstances. Offenders whose job requires regular, prolonged travel will frequently need to take additional measures to remain in compliance. Even worse, offenders who experience homelessness, substance use issues, and cognitive or mental health challenges may find compliance extremely difficult. As a result, ss. 490.012 and 490.013(2.1) clearly interfere with offenders’ liberty.”

 Sheila Martin

Justice Sheila Martin

Considering whether the s. 7 breaches could be upheld under s. 1 of the Charter, as reasonable and demonstrably justified in a free and democratic society, the majority accepted that the prevention and investigation of sex crimes is a pressing and substantial purpose, and that the measures are rationally connected to their objectives.

However, ss. 490.012 and 490.013(2.1) are not minimally impairing of an offender’s rights, they held. “There are reliable, tailored alternatives available that would substantially achieve the challenged measures’ objective. Restoring judicial discretion in the registration process would allow for a 90 percent inclusion rate of offenders in the registry. In addition, a variety of tools are available to improve the accuracy of judicial risk assessments, including expert evidence,” they suggested. “Alternatively, Parliament can enumerate specific criteria to guide judges on when registering an offender is unlikely to advance the scheme’s objective.”

The majority called the evidence on the provisions’ benefits “sparse, whereas the deleterious impact on anyone who is subject to the reporting requirements of SOIRA order is clear. The scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment, make the conditions onerous, especially on marginalized populations.”

(Under SOIRA, sex offenders can apply to the courts to terminate their registration in: five years after a10-year order was issued; 10years after a 20-year order was issued; and 20 years after a lifetime order was issued. Thousands on the registry must report annually to police, and provide personal information accessible to police agencies across the country, including their birthdate, current and former addresses, photos, identifying features such as scars or tattoos, vehicle registration, employment, passport and driver’s licence).

 Matthew Gourlay, Henein Hutchison

Matthew Gourlay, Henein Hutchison

Matthew Gourlay of Toronto’s Henein Hutchison, who with Ryan Peck and Robin Nobleman represented the intervener HIV & AIDS Legal Clinic Ontario and HIV Legal Network, said the majority’s decision is “a welcome instance of the court being willing to hold Parliament to its constitutional obligations, even where no politician would dare challenge the measure in question.”

Gourlay said SOIRA is among the laws that sound great in theory but are not so good in practice. “As pointed out by the majority, the Crown itself could not point to a single case in which the registry helped solve or prevent a sex offence,” he remarked. “Why then do we make thousands of low-risk offenders endure the stigma and inconvenience of sex offender registration when it actually does no one any good? Even a reviled subgroup like sex offenders is entitled to protection against governmental overreach like this.”

Gourlay said the decision’s big-picture impact is unclear because Parliament has up to a year to possibly rewrite s. 490.012 i.e. (the mandatory registration provision subject to the suspended declaration of invalidity).

“It would seem to me that in order to make it constitutional, they would have to either reintroduce some element of judicial discretion or make mandatory registration applicable to a smaller category of objectively higher risk offenders,” Gourlay suggested. “In the meantime, it appears that mandatory registration will continue to apply in most cases. However, the court struck down s. 490.013(2.1) with immediate effect, so from today forward no one will be stuck with a lifetime registration simply by virtue of having been convicted of more than one sex offence.”

Gourlay said it appears that once the court’s year-long suspension of the declaration of invalidity with respect to s. 490.012 (the mandatory registration provision) ends, people who are already registered will be able go back to court and seek removal from the registry as a personal Charter remedy under s. 24(1). “They would need to show that the law is unconstitutional as applied to them, for the reasons articulated by the majority,” he advised. “Clearly, on the court’s analysis, not every registered sex offender will be exempted — only those whose inclusion is pointless.”

Gourlay speculated Parliament will respond to the declarations of unconstitutionality by “tinkering” with the registry “in a minimal way to pass constitutional muster. What they should do is reconsider whether it should exist at all, given the lack of evidence that it has done any good,” he suggested. “It seems to me that it wastes money and causes hardship for no law enforcement benefit.”

Gourlay also noted that his clients are “thrilled” that the court recognized the harsh impacts of mandatory lifetime registration as a sex offender. “In Canada, there have been more than 220 documented prosecutions for HIV non-disclosure — notably, Black men and Indigenous women are disproportionately represented among those prosecuted,” he explained. “Our clients have seen firsthand the numerous ramifications of mandatory sex offender registration on people living with HIV [who are] convicted of aggravated sexual assault for HIV non-disclosure. And this has included severe negative mental health outcomes, difficulties reintegrating into the community, and other intense forms of discrimination.”

Gourlay added, “some of the most marginalized people living with HIV could benefit most from the opportunity to remove the stigmatizing label of ‘registered sex offender.’”

He said his clients presented the court with a review of HIV non-disclosure case law (an area of prosecutions the federal government is also reviewing and has pledged to reform) which revealed instances in which a sentencing judge could reasonably find registration, and especially lifetime registration, to be both unnecessary from the perspective of the state, “and gratuitously punitive from the perspective of the person declared a sex offender.”

“Ideally, our clients would have liked the declaration of invalidity of the mandatory registration provision to be retroactive but are hopeful that the decision holds promise for those who are currently on the registry to remove that designation,” Gourlay said.

 Elvis Iginla, Iginla & Company

Elvis Iginla, Iginla & Company

Elvis Iginla of Edmonton’s Iginla & Company represented the successful appellant, Eugene Ndhlovu, who pled guilty in 2015 to two counts of sexual assaulting two women, on the same occasion at a party four years earlier, when he was 19 years old. The trial judge sentenced him to six months in jail, followed by three years’ probation, but found Ndhlovu was unlikely to reoffend. But because of the impugned 2011 Criminal Code amendments, Ndhlovu was automatically subject to a lifetime registration on the national sex offender registry.

The Supreme Court granted Ndhlovu an exemption from s. 490.012, pending its declaration of invalidity, i.e. he is not required to register as a sex offender, the court said.  

“What [this decision] means for my client is that he gets to continue doing what he's doing,” Iginla told The Lawyer’s Daily. “He is gainfully employed, is doing his best to learn from the mistake he made, and to grow as a person – and he's very grateful that the decision allows him to continue making the progress he’s been making.”

Iginla said the sex offender registry will continue to exist in the wake of the Ndhlovu ruling.  “All that this is saying is that if you remove the [judicial] discretion and just put everybody on there, it doesn't serve the public interest.”

He emphasized the purpose of the sex offender registry is not to punish offenders — who have already been punished. “This is for public safety, to help the police, and you can only help the police when you have people [on it] who are likely to reoffend,” he advised. “Including people on the registry who are not likely to re-offend does not further this goal.”

The respondent Alberta Crown said, in a statement, that the prosecution service “is examining the decision and will take whatever steps necessary to implement.”

In the minority’s partial dissent Justice Russell Brown, backed by Chief Justice Richard Wagner and Justices Michael Moldaver and Suzanne Côté, agreed with the majority (comprising also Justices Malcolm Rowe, Nicholas Kasirer and Mahmud Jamal) that mandatory lifetime registration under s. 490.013(2.1) is over broad and unconstitutional.

However, the minority ruled that automatic registration of every sex offender under s. 490.012 does not violate the Charter.

Justice Brown criticized the majority reasons for fixating on Parliament’s removal of judges’ discretion to exempt offenders who do not pose an “increased risk” to reoffend.

“But the exercise of discretion was the very problem that prompted Parliament to amend the Criminal Code to provide for automatic registration of sex offenders under the Sex Offender Information Registration Act,” he pointed out. “Specifically, many judges had exercised their discretion to exempt offenders in a manifestly improper manner, and the registry’s low inclusion rate undermined its efficacy. The evidence is clear that even low-risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence,” he said. “It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will re-offend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.”

Justice Brown warned that, “given what appears to have been a persistent, routine failure to appreciate the seriousness of these offences, it can be confidently predicted that the rampant misuse of judicial discretion prior to the amendments will recur once automatic registration is removed.”

Justice Brown explained “Parliament sought to avoid those chronic and improper exercises of judicial discretion by drawing a clear line: all sexual offences are serious, and all sex offenders pose a heightened risk. Both premises are backed by expert evidence, judicial precedents, and logic,” he argued. “The majority’s reasons suggest that judicial discretion cannot be fettered. But following the majority’s analysis to its inevitable conclusion, Parliament could never remove judicial discretion from a criminal law scheme. And yet, is that not what all legislation does to some extent? This court’s role is limited to examining legislation for Charter compliance, not second-guessing policy decisions.”

He held, “operating within that confine, I am constrained to conclude that s. 490.012 is appropriately tailored to its purpose of helping the police prevent and investigate sexual crimes, and does not limit an offender’s s.7 rights in a manner that bears no connection to its objective.”

Photos of Justices Andromache Karakatsanis and Sheila Martin by SCC Collection

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