Mandatory No More: Dissecting Supreme Court’s Ruling on Canada’s Sex Offender Registry

The Supreme Court of Canada in Ottawa on Aug. 10, 2022. (The Canadian Press/Adrian Wyld)

News Analysis

A recent decision by the Supreme Court of Canada (SCC) to raise the threshold for adding an offender’s name to the federal sex offender registry has been welcomed by some lawyers but raises concern for some others.

Legislative amendments introduced by the Harper government in 2011 had mandated that those convicted of two or more sex offences would be automatically placed on Canada’s National Sex Offender Registry (NSOR) for life. However, in a five-to-four decision, the SCC ruled on Oct. 28 that keeping offenders on the registry for life unduly curtails the constitutional rights of offenders who are not a risk to reoffend.

The court gave the federal government one year to revise its law before the clause on mandatory listing is removed. It also waived the lifetime requirement immediately, allowing those who have been added to the registry following the 2011 amendments to now be able to apply to have their status changed.

Alain Hepner, a Calgary lawyer who has represented sex offenders in the past, welcomed the decision.

“I’ve always thought it was a travesty that this had happened. And it took, after the amendments in 2011, another 10 years or so to get it straight,” Hepner told The Epoch Times.

“It was an enormous intrusion into the privacy of the individual.”

Former Manitoba judge Brian Giesbrecht, now a fellow with the Frontier Centre for Public Policy, also supports the decision.

“I think the Supreme Court got it right. In the facts of the case before them, a 19-year-old who committed two sexual offences was automatically included on the registry for life. The Supreme Court found that to be unjust,” he said in an interview.

“Sentencing judges should have the right—subject to appeal—to consider adding an offender to the list, and reviewing that inclusion in appropriate cases.”

Edmonton-based Elvis Iginla, the lawyer for the appellant in the case, says that including too many people on the sex offender registry hinders its purpose as it results in having police file through irrelevant records for a potential perpetrator.

“The police have a list of people that are dangerous, repeat offenders that are likely to reoffend. They can keep better track of those people because they have their information handy. If we can show that someone is not likely to reoffend, then why should he be on the registry?” Iginla said in an interview.

However, the SCC’s ruling saw stern opposition from those concerned with victim rights.

“Canadians deserve a country where victims rights come first,” Conservative MP Michael Barrett said on Twitter. “This decision is disgusting. It will rightfully cause victims, parents, and a great many Canadians to be fearful.”

Former RCMP Supt. Larry Comeau called the SCC decision “dangerous.”

“Victims of crime are the biggest losers from the Charter. Many judges seem far more interested to setting social norms than doing their jobs of interpreting, not making laws,” he said in an email.

Lawyer Rob Talach from London, Ontario, is of the same view.

“I’ve represented lots of victims, so here’s the counterpoint. This was already a very reasonable registry. It was not publicly accessible like in the U.S., it was only accessible by law enforcement, and even then in restricted scenarios,” Talach told The Epoch Times.

“I think our Supreme Court and our charter is starting to confirm the suspicions that it has lost touch with reality, especially with respect to child offenders.”

Talach says sex offences are something the perpetrators “should be marked for,” and police and law enforcement need to be in the know. He believes the SCC decision “is not what the public wants.”

“It’s not proactive to public safety. I remind people that the charter doesn’t have the word victim, complainant, citizen anywhere in it. Really, it’s built around offenders.”

Constitutional Challenge

The constitutional challenge was raised by Eugene Ndhlovu, who in 2015 was convicted of the sexual assaults of two women at a party in 2011, when he was 19 years old.

His complainant was a high school peer, the party’s host who invited him. According to court documents, the sentencing judge expressed concerned that the nature of the party might have given Ndhlovu the “wrong impression” because it was advertised on the host’s Facebook page as a highly sexualized “Jersey Shore DTF party” and had a “stripper pole available.”

Dissenting Argument

The four SCC judges who partially dissented with the decision said that perceived leniency of judges prompted the amendments in 2011. Although justices Richard Wagner, Michael Moldaver, Suzanne Cote, and Russell Brown agreed that mandatory lifetime registration in the registry was “overbroad,” they nevertheless found it constitutional.

“The exercise of judicial discretion to exempt offenders from registration under SOIRA [Sexual Offender Information Registration Act] was the very problem that prompted Parliament to amend the Criminal Code in 2011 to provide for automatic registration of sex offenders.

“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 minority judgment reads.

“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. It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.”

Alberta Justice Minister Tyler Shandro issued a statement on Oct. 31 saying that the SCC decision “will make our country a more dangerous place” and that he agrees with the dissenting judges.

“As the dissenting argument rightly points out, this decision was made using an exceptional case and ignores the ‘rampant misuse of judicial discretion prior to the amendment.’ Prior to automatic registration, the registry’s low inclusion rate undermined its effectiveness,” Shandro said.

“The decision to end automatic registration on the sex offender registry will make it harder to ensure that these crimes are not repeated.”

‘The Needs of Survivors’

Statistics Canada reported in August that 34,242 sexual assaults were reported to police in 2021, an 18 percent increase from 2020. The agency also cited the most recently available self-reported data, from 2019, showing that only 6 percent of actual assaults experienced by Canadians 15 and older in the previous year had been reported to police. A Statistics Canada study released in 2017 showed that just 12 percent of sexual assaults reported by police resulted in a conviction.

The SCC ruling said there are currently 27 offences ranging widely in severity that require offenders to be listed, and that “there is little or no concrete evidence of the extent to which it assists police in the prevention and investigation of sex offences.”

Kerrie Isaac, executive director of the non-profit Sexual Assault Services of Saskatchewan, said in a statement that she hopes when the federal government introduces legislation to align with the SCC ruling, it will do more to address root causes.

“Perhaps this is an opportunity for the federal government to explore how systems can better respond to the needs of survivors of sexual assault,” she wrote.