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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Life, liberty and security of person - Principles of fundamental justice

Friday, April 13, 2018 @ 8:38 AM  

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Appeal by the accused from a summary appeal court judge’s decision dismissing his application for a declaration that s. 490.013(2.1) of the Criminal Code, which required offenders convicted of more than one designated offence to comply with the Sex Offender Information Registration Act (SOIRA) for life, breached s. 7 of the Canadian Charter of Rights and Freedoms (Charter) and was unconstitutional. The appellant argued the provision was overly broad and disproportionate because, in many cases, being convicted of more than one count did not necessarily correspond with the seriousness of the offence. The number of counts on an indictment was often arbitrary. He argued that the requirement that a conviction for two counts mandated putting an individual on the registry for life had a disproportionate effect. The appellant was convicted of three counts of sexual assault. He assaulted an employee by touching her breast and kissing her three times over the course of two and a half hours. As part of his sentence, he was required to register under the SOIRA for life.

HELD: Appeal dismissed. There had been no violation of the appellant’s s. 7 Charter rights. Section 490.013(2.1) of the Criminal Code was neither overbroad nor grossly disproportionate. While the impugned provision engaged the appellant’s s. 7 liberty interest, it did not violate the principles of fundamental justice. The SOIRA and the sex offender information provisions of the Criminal Code, together with the federal Sex Offender Registration Regulations, were part of a comprehensive scheme for the registration of information about sex offenders designed to ensure that the information was complete, current and accurate, so that police were able to identify and locate a convicted sex offender when seeking to prevent or investigate a sex crime. The purpose of s. 490.013(2.1) of the Criminal Code was to further public safety by subjecting sex offenders who were at enhanced risk of re-offending to a longer period of registration. In the case of offenders like the appellant, the means for achieving that purpose was the removal of prosecutorial and judicial discretion by making lifetime registration mandatory. There was some connection between the purpose of s. 490.013(2.1) and all of its effects. While there was no evidence in the record to support the proposition that offenders who were convicted of more than one designated offence were at enhanced risk of re-offending, there was also no evidence to the contrary. Parliament was entitled to draw the inference that conviction of more than one sexual offence was logically probative of an offender’s enhanced propensity to commit further sexual offences and was linked to an elevated risk of re-offending. While another offender might benefit from a decision by the Crown to charge only one count, thereby prosecuting multiple incidents as part of a single transaction, this did not support a conclusion that there was no rational basis to require a longer compliance period for an offender who had demonstrated a propensity to commit sexual offences. It was open to Parliament to conclude that the commission of two or more offences was a reasonable proxy for an enhanced risk of re-offending, warranting a longer registration period. The effect of registration on an offender’s liberty was modest. Any stigma flowed from the conviction itself, not registration. Furthering public safety by subjecting offenders who are at enhanced risk of re-offending to a longer period of registration was a pressing and important objective. In light of the importance of the purpose pursued by the provision and its relatively modest impact on an offender’s liberty, the provision was not grossly disproportionate.

R. v. R.L., [2018] O.J. No. 1522, Ontario Court of Appeal, G.R. Strathy C.J.O., D.H. Doherty, C.W. Hourigan, L.B. Roberts JJ.A. and J.D. McCombs J. (ad hoc), March 22, 2018. Digest No. TLD-April92018010