Ontario Court Declares Provincial Sex Offender Registry Unconstitutional

The Ontario Court of Justice is seen in Toronto on Sept. 14, 2018. The Canadian Press/Christopher Katsarov

The law governing the Ontario Sex Offender Registry has been declared unconstitutional by a provincial court, potentially paving the way for changes to the law’s legislative framework.

The landmark ruling issued by Justice Davin Garg of the Ontario Court of Justice in Hamilton said mandatory registration and lifetime reporting requirements for sex offenders are “overbroad” and violate Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty, and security of the person.

The Jan. 29 decision comes after a 2022 ruling by the Supreme Court of Canada that prompted legislative changes regarding the National Sex Offender Registry, including the limiting of automatic registration to repeat or serious offenders.

The Ontario ruling considered the case of applicant Michael Roberts, a convicted sex offender who refused to report to the registry in a bid to spark a constitutional challenge, according to court documents.

Roberts had reported to the registry annually for 13 years after pleading guilty to eight counts of sexual assault in 2010 for touching four victims over their clothing. He was sentenced to four months’ custody on each count, to be served concurrently, and was placed on the registry, which requires offenders to report every year.

He last reported to the Hamilton Police Service in June 2023 and was required to report again before June 1, 2024. He was charged under the Ontario registry law after failing to do so.

The registry, a confidential provincial database managed by the Ontario Provincial Police (OPP), tracks locations, personal details, and employment status of convicted sex offenders living in Ontario to help prevent and resolve crimes.

Roberts’ non-compliance was intended to challenge mandatory registration of all sex offenders and the lifetime reporting obligation for certain offenders, the decision said. He argued that these elements of the law were “grossly disproportionate.”

Roberts’ counsel referenced the 2022 challenge concerning the National Sex Offender Registry. In R. v. Ndhlovu, a Supreme Court majority determined that mandatory registration and lifetime reporting infringed upon Section 7 of the Charter.

The Attorney General of Ontario argued the provincial registry operated differently from the national registry.

Counsel for the provincial attorney general said the primary objective of the Ontario registry is to help prevent and resolve sex crimes. It helps police respond to child abductions and other urgent cases by allowing them to quickly identify and exclude suspects based on their proximity, physical characteristics, and other factors, the counsel argued.

National vs. Provincial

Garg said the attorney general showed that a primary goal of the Ontario registry is to help in urgent investigations, but concluded that the differences between the Ontario and national frameworks are “indistinguishable.”

“The provincial regime is not sufficiently different from the national regime to rationalize a different result,” he wrote.

The judge said the Supreme Court determined mandatory registration was excessively broad because it involved registering offenders who did not present an elevated risk of reoffending. The Supreme Court was also critical of lifetime reporting regardless of when the offences took place and ruled that the mandatory and lifetime registration on the sex offender registry was unconstitutional.

The Canadian federal government passed legislation in 2023 to amend the Criminal Code concerning the National Sex Offender Registry, following the 2022 Supreme Court ruling. The changes introduced judicial discretion and restricted automatic registration to individuals who are repeat or serious offenders.

The judge stayed Roberts’ charge for failure to report and said the province may need to follow the example of the federal government to change elements of the law for those who are not high-risk offenders or haven’t reoffended for several years.

The judge cited expert testimony provided in the Ontario case, which indicated that the likelihood of reoffending is greatest during the initial five years following release and decreases by approximately 50 percent for each five-year period the offender is offence-free in the community.

“The provincial law may require a similar legislative response to ensure that its objectives are pursued within constitutional limits,” he said. “Constitutional compliance is not an obstacle to public safety; it is the condition on which public power is exercised.”

The attorney general’s office has not yet said if it will appeal the decision.

Registry Still ‘Important’

Justice Garg said his decision should not be interpreted as criticism of the provincial registry as a whole, adding that a lot of “important” work is carried out by the administration of the registry.

It was created in 2000 under Christopher’s Law, legislation named after 11-year-old murder victim Christopher Stephenson.

Christopher was abducted in Brampton in 1988, where he was later sexually assaulted and murdered by a sex offender who had been freed from prison after serving a five-year term for the sexual assault of another 11-year-old boy.

The jury recommended a sex offender registry at the inquest into Christopher’s death.

The sex offender registry collects the names, photographs, physical descriptions, current and former addresses, phone numbers, and employment or volunteer locations of offenders.

Registrants are required to report annually and within seven days of certain events, such as a change of address, name change, or employment status.

The length of time an individual must remain on the registry—10 years, 20 years, or life—depends on the severity of the offence and the number of convictions.