Canada has a national sex offender registry. Since 2011, people found guilty of certain crimes, including sexual assault and child pornography, have been mandatorily added to the register. In addition, lifetime registrations are given to anyone who commits more than one offence, even if the offences took place simultaneously.
This article looks at a recent decision of the Supreme Court of Canada in which a registered offender challenged these provisions.
The sex offender registry provisions previously contained safeguards
Parliament passed the Sex Offender Information Registration Act (“SOIRA”) in 2004. It created a national sex offender registry to assist police in investigating sexual offences.
An offender was placed on the registry if the Crown prosecutor applied to the court for an order requiring them to comply with SOIRA. Compliance with the provisions is onerous. Listed offenders must report to a police station and provide personal information, report travel plans and changes to their information, report annually to the police and may be subject to random police checks.
Additionally, the SOIRA permitted sentencing judges to omit offenders from the registry if the impacts on their privacy or liberty interests were grossly disproportionate to the public interest in protecting society.
The Harper Government removed the safeguards in 2011
The Protecting Victims From Sex Offenders Act changed the law in 2011. It amended the Criminal Code (Code) to require:
- mandatory registration for all offenders found guilty of any of the sexual offences in a list, irrespective of the risk of reoffending (section 490.012); and
- mandatory lifetime registration for anyone who commits more than one offence, regardless of the nature or timing of the offences (section 490.013(2.1)).
Two-time offender placed on the registry for life
In R. v Ndhlovu, a 19-year-old offender pled guilty to two charges of sexual assault against two complainants at a party. A judge sentenced the offender to six months in prison and three years’ probation. The judge found that the offender was unlikely to offend again as he took responsibility and was remorseful. He had no criminal history and the offences related to drinking, which he had since stopped.
Nonetheless, the offender was handed a lifetime registration in the sex offender registry under sections 490.012 and 490.013(2.1). He later challenged these provisions as inconsistent with the right to liberty under the Canadian Charter of Rights and Freedoms (Charter). The case made its way to the Supreme Court of Canada.
SOIRA interferes with liberty interests of offenders
Section 7 of the Charter states that “everyone has the right to … liberty … and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
The majority of the Supreme Court found that the two Code provisions interfered with offenders’ liberty interests in profound ways. It noted that the requirements to maintain current information required offenders to structure travel and residency requirements on an ongoing basis to remain compliant, which could be virtually impossible for a homeless offender.
The Court concluded:
“Liberty is obviously undermined when personal information is collected, under threat of imprisonment, for the very purpose of monitoring a person in the community and promptly identifying the person’s whereabouts in the course of a criminal investigation.”
Limits on liberty are inconsistent with the principles of fundamental justice
Next, the Court identified the purpose of the SOIRA was to help police investigate and prevent sex crimes. The purpose of lifetime registration was to give police more time to access information on offenders with a higher chance of reoffending.
The majority of the Court decided that the two Code provisions were overbroad. Firstly, mandatory registration led to the registration of offenders who were not at high risk for committing future sex crimes, which was the purpose of the registry. Secondly, expert evidence showed that while committing another offence after a conviction increased the risk of future offences, the same did not apply in other circumstances, such as where a person was convicted of multiple offences at the same time.
As a result, the Court found that the limits on liberty were not in accordance with the principles of fundamental justice.
Provisions are not minimally impairing of Charter rights; negative effects outweigh positives
The Court then examined whether the provisions were saved “as reasonable limits prescribed by law” that “can be demonstrably justified in a free and democratic society” under section 1 of the Charter.
The majority found they were not as the Crown did not show that mandatory registration was necessary to satisfy the purpose. There was also no evidence of the benefit of registering every offender.
Mandatory and lifetime registration provisions struck down
On October 28, 2022, the Supreme Court declared the two Code provisions of no force or effect. The mandatory registration provision does not apply prospectively, but the Court decided that its declaration should be suspended for one year. The lifetime registration provision is invalid now, retroactively.
It is possible that Parliament will change the mandatory registration provision in the next year to reduce its scope going forward. After one year, registered offenders may apply to the court and seek removal if they can show their section 7 right has been infringed. Those registered for life can now apply to change the length of their registration, for example, if they were given a lifetime order because more than one offence was committed at the same time.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Defence Against Sexual Offences
If you are registered on the national sex offender registry, the criminal defence lawyers at Barrison Law can discuss your options with you. We represent clients in the Durham Region and Central East Region of Ontario who are facing charges for alleged sexual offences.
Our office is located near the Durham Consolidated Courthouse, and we accept cases on private retainer and Legal Aid. We are accessible via our 24-hour emergency phone service. To arrange a free consultation regarding your criminal law matter, call us at 905-404-1947 or reach out to us online.