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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Reasonable limits on Charter rights - Life, liberty and security of person

Tuesday, May 15, 2018 @ 8:38 AM  


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Determination of whether a Charter breach was justifiable under s. 1 of the Charter. Ndhlovu was at a sex party and thereafter pled guilty to two offences which occurred at the party, one of which was minor. He challenged the constitutional validity of the 2011 amendments to the Sex Offender Information Registry Act (SOIRA), and the Court found that the amended provisions of SOIRA and the Criminal Code violated s. 7 of the Charter because they were overly broad and disproportionate. The amendment took away all discretion of the prosecutor and the sentencing judge and provided mandatory registration for life of a person convicted of two sex offences. Prior to the amendment, sentencing judges, on giving reasons, had discretion to refuse a SOIRA order if the effects of the order on the offender’s privacy or liberty interests were grossly disproportionate to the public interest in protecting society. The Crown argued that the ultimate aim of SOIRA was to ensure that police had ready access to reliable information on every sex offender. The Crown submitted that the removal of the judicial discretion had a pressing and substantial objective sufficient to justify an infringement of individual Charter rights. The Crown further submitted that there were no less intrusive means reasonably available to Parliament to meet its objective. Ndhlovu took the position that the SOIRA registry impinged on his liberty rights and the government could not justify including in the registry every person found guilty of a sexual offence. Ndhlovu further submitted that a lifetime registry for two offences was similarly not justified and, given the variability of circumstances of offences and offenders, judicial discretion had to be permitted.

HELD: The Charter breach was not saved by s. 1 of the Charter. The actions of the government in removing judicial discretion appeared to be arbitrary and there was no rational connection shown for that change to the legislation. Similarly, there was no evidence before the Court that suggested that putting an offender on the registry for life would assist the objective. Furthermore, there were less harmful means of achieving the legislative goals and the impairment of rights was not minimal. The Crown failed to demonstrate that the registration of Ndhlovu or someone like him on the SOIRA registry for life was proportional to the pressing and substantial objective of enabling the police to have a database of offenders to which they could turn when faced with a sexual offence and an unknown sexual offender. Sections 490.012 and 490.013(2.1) of the Criminal Code were declared unconstitutional and struck down.

R. v. Ndhlovu, [2018] A.J. No. 427, Alberta Court of Queen's Bench, A.B. Moen J., April 9, 2018. Digest No. TLD-May142018003