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CONSTITUTIONAL ISSUES - Legal rights - Principles of fundamental justice

Tuesday, October 06, 2020 @ 6:16 AM  


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Appeal by the Crown from a declaration of a sentencing judge that ss. 490.012 and 490.013(2.1) of the Criminal Code were unconstitutional and a violation s. 7 of the Canadian Charter of Rights and Freedoms (Charter). These provisions required the respondent’s mandatory registration and reporting under the Sex Offenders Information Registration Act for life because of his conviction of more than one designated offence. The respondent, then 19, sexually assaulted RD and CB at the same party but in different locations at different times. Both complainants testified to the respondent sexually touching them at the party without their consent. He later digitally penetrated RD while she was sleeping. The sentencing judge concluded the respondent was unlikely to reoffend and that he would be safe to return to the community. The sentencing judge concluded that the mandatory registration for all sex offenders upon conviction of two or more offences, without regard to the seriousness of the offences or the offender’s propensity to reoffend, was overbroad.

HELD: Appeal allowed. The sentencing judge erred in finding that the respondent established a breach of s. 7. The sentencing judge’s holding that the Act operated with the impugned Criminal Code provisions to capture only predatory offenders or was aimed at protecting only vulnerable persons such as children, was unduly limited and constituted reversible error. The plain language of s. 490.012 reflected Parliament’s recognition of predictable repetitive behaviour of sexual offenders, and the inordinate consequences of sexual offences for victims of any age. As a comprehensive piece of legislation, the Act’s purpose was to protect society from recidivist sexual offenders. This statement of purpose was neither too general, nor too specific, and was independent of the means used to achieve this purpose. Sections 490.012 and 490.013(2.1) were not overbroad on the basis that they failed to account for the seriousness of the offence or the individual’s propensity to reoffend. Parliament decided that the exclusion of any sexual offenders, all of whom posed some risk of reoffending, undermined the Act’s purpose. That all convicted sexual offenders, including the respondent, had an increased propensity to commit sex crimes in the future provided the necessary connection between mandatory registration under s. 490.012 and the purpose of the legislation. Section 490.012 did not restrict the respondent’s s. 7 Charter rights more than necessary to achieve its purpose which was mandatory registration to protect the public. The purpose of s. 490.013(2.1), which applied to persons convicted of more than one designated offence, was to further public safety by subjecting sexual offenders who were at enhanced risk of reoffending to a longer period of registration. Section 490.013(2.1) was not tied to the seriousness of the offences committed but was concerned with the offender who, by virtue of having been convicted of more than one offence, was a member of a group with an enhanced risk of reoffending. Given that it could not be disputed that the commission of a sexual offence was a reasonable proxy for the risk of reoffending, it was open to Parliament to conclude that the commission of two or more offences was a reasonable proxy for an enhanced risk of reoffending, warranting a longer registration period. The deprivation imposed by s. 490.012 was rationally connected to its purpose and under s. 490.013(2.1) the number of sexual offences committed by the respondent bore some relationship to his enhanced risk of reoffending. Sections 490.012 and 490.013(2.1) did not violate s. 7 of the Charter and the respondent’s right to liberty or in a manner that was grossly disproportionate. The registration and reporting requirements under the Act were not so onerous as to be divorced from the purpose of the legislation. The impugned provisions were not grossly disproportionate in their effect on the respondent, or any other sexual offender who was unable to establish that the seriousness of the deprivation of their individual s. 7 rights was totally irreconcilable with the purpose of the legislation.

R. v. Ndhlovu, [2020] A.J. No. 914, Alberta Court of Appeal, F.F. Slatter, F.L. Schutz and R. Khullar JJ.A., September 3, 2020. Digest No. TLD-October52020004