Supreme Court rules mandatory sex offender registry is unconstitutional

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Supreme Court rules mandatory sex offender registry is unconstitutional The decision means an Edmonton man who molested a sleeping woman will not be subject to a mandatory lifetime listing on the sex offender registry Photo by Sean Kilpatrick / The Canadian Press

Article content Mandatory listing on Canada’s sex offender registry is, for some offenders, an unjustified infringement on their liberty that is not rationally connected to the goal of investigating or preventing sexual crimes, the Supreme Court ruled Friday.

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tap here to see other videos from our team. Try refreshing your browser, or Supreme Court rules mandatory sex offender registry is unconstitutional Back to video Automatic lifetime listing in the case of multiple sexual offences is similarly “overbroad,” the court decided in striking down both laws to permit discretion by sentencing judges.

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Article content The decision means Eugene Ndhlovu, an Edmonton man who molested a sleeping woman and groped another at a party, will not be subject to a mandatory lifetime listing on the sex offender registry. Having served a two year sentence and probation, he will be free of its many reporting requirements, surveillance schemes, and non-compliance penalties that include jail time. Imposing those automatically, with no regard to an offender’s circumstances or risk of re-offending, is not justified by any rational connection to the goal of investigating and preventing offences, the court ruled. The legislative purpose of the lifetime listing in the case of multiple offences was to target offenders with greater risk to re-offend, but it catches people, like Ndhlovu, “who are not at an increased risk of committing a future sex offence,” the Supreme Court decided.

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Article content “A law cannot deprive the life, liberty, or security of the person of even one individual in a way that is inconsistent with the principles of fundamental justice,” reads the judgment jointly written for a 5-4 majority by Justices Andromache Karakatsanis and Sheilah Martin. “As a consequence, laws that are broadly drawn to make enforcement more practical run afoul of (the Charter’s guarantee of life, liberty and security of the person) should they deprive the liberty of even one person in a way that does not serve the law’s purpose.” As is typical when it strikes down criminal laws, the Supreme Court delayed the effect of its decision for a year to allow Parliament to react, and said it does not apply retroactively.

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Article content The court said restoring judicial discretion about the registry will allow 90 per cent of offenders to be included, and it urged Parliament to draft rules to guide judges when listing an offender’s name “is unlikely to advance the scheme’s objective.” Four dissenting judges, including Chief Justice Richard Wagner, predicted “rampant misuse” of this discretion. For Ndhlovu, the legal result is a hard fought victory on a split decision of the top court, after he convinced a sentencing judge but lost on the Crown’s appeal. It is a qualified victory, though, because a main ground of his challenge to the law was his concern about the stigma of being forever regarded in public as a sex offender. Now his name will always mark a major change in Canada’s tracking of sex offenders, and ironically, be widely known for its absence from the registry.

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Article content The ruling comes amid renewed public interest in how Canada’s criminal justice system evaluates and manages risk of re-offending, both at the level of courts that decide sentences, and parole boards that decide terms of release. Recommended from Editorial Toronto 18 terrorist leader gets parole after RCMP interrogation to show he isn't a threat Here is just a partial list of serial child sex offenders set free by the Canadian justice system Canada’s sex offender registry dates to 2004, but the law was changed in 2011 to add the lifetime rule, and to remove the discretion of judges and prosecutors. One reason for this change was that a Parliamentary review found the registry had low inclusion rates that undermined its use as an investigative tool.

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Article content 2011 was a big year for criminal reform under the Conservative government of the day, with its new majority in the House of Commons. Former Prime Minister Stephen Harper’s reforms included mandatory minimum sentences on various offences, several of which have since been ruled unconstitutional by provincial appeals courts. The mandatory five-year minimum on robbery with a prohibited firearm (or four years for a non-prohibited one), for example, is now before the Supreme Court in the undecided case of Ocean Hilbach. A trial judge decided a two-year sentence instead of five. The Alberta Court of Appeal agreed the mandatory minimum was grossly disproportional in this case of a young Indigenous first offender, 19 at the time of the convenience store robbery with an unloaded sawed off shotgun.

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Article content Another 2011 reform was allowing judges to stack periods of parole eligibility on multiple murderers, which was ruled unconstitutional a few months ago in the case of Quebec spree killer Alexandre Bissonnette, on the grounds that a sentence longer than an offender’s possible lifespan was cruel and unusual. Ndhlovu was born in Zimbabwe, and moved to Edmonton as a child. At the time of the crimes, he was 19, having troubles with his studies at the Northern Institute of Technology, and was “using alcohol to his detriment,” as his lawyers put it in written materials. In March 2011, a woman invited him to a party promoted in a way the trial judge called “highly sexualized,” as a “Jersey Shore DTF (down to f–k)” event with a stripper pole. Ndhlovu’s first offence that night was to touch the buttocks and try to touch the breasts of two women without their consent while they all posed for pictures. The second was to put his fingers in the vagina of one woman as she slept. She told him to stop, he said it would “feel good,” she pushed him away, and he left the house, according to the trial judgment. He plead guilty to two counts of sexual assault in June 2015, and was sentenced to six months in jail and three years on probation. But the judge refused to apply the automatic lifetime registry. That position — overturned on appeal, and opposed at the Supreme Court by attorneys general in the provinces and for Canada — is now the law across Canada.

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