Mandatory registration of all sex offenders, and lifetime registration of those who have committed more than one offence, is unconstitutional because not all of them pose a risk, the Supreme Court of Canada has ruled.
On Friday, the top court said the country’s nearly 20-year-old federal sex-offender registry, in its current form, does more harm to individual liberty than it does to protect vulnerable children and women. That brought strong reactions on both sides.
“We will be returning to a time in which a man who is convicted of sexual assault may end up sentenced to not much more than a curfew and, once that is over, no ongoing requirement to let the police know where he lives or works,” said Janine Benedet, a law professor at Allard School of Law in Vancouver. (She was referring to a weakened registry alongside Parliament’s reintroduction of house arrest for some sex offenders.)
But Mary Campbell, a former senior government official who helped develop the registry, called it ineffective and a “charade.”
“The SCC decision is extremely important because of what it highlights about the flaws in basing crime prediction laws solely on the nature of the crime. That is just one factor in any assessment of risk,” she said.
The registry, created in 2004, requires its members to report regularly to police, update them on moves, and inform them of travel longer than seven days. Police can do random checks on them. Failure to report can bring punishment of two years and a $10,000 fine. When a sex offence has been committed, those on the registry may receive visits from police.
Initially, the registry allowed for prosecutors to choose which offenders to enroll, and judges had the final say. In 2011, the Conservative government of Stephen Harper said the discretion was being misused and too many offenders were being exempted. It established the mandatory and lifetime provisions. Since then, there have been 35,540 automatic inclusions, the RCMP told The Globe and Mail on Friday.
The Supreme Court ruling came in the case of Eugene Ndhlovu of Alberta. He committed two sexual assaults at a party in 2011 when he was 19 and intoxicated. He touched a woman on the buttocks and another on the thigh, and later digitally penetrated one of the two women while she slept. He was sentenced to six months in jail and three years probation. Justice Andrea Moen of the Alberta Court of Queen’s Bench determined that Mr. Ndhlovu was unlikely to reoffend and found both registry provisions unconstitutional; the Alberta Court of Appeal later upheld them by a 2-1 count.
By a 5-4 majority, the Supreme Court found mandatory inclusion on the registry unfair, and a violation of the Charter of Rights and Freedoms, because not all sex offenders are at risk of reoffending, it said. It cited expert evidence that the least dangerous 10 per cent of sex offenders are no more dangerous than offenders who had not committed sex offences. And, citing testimony from the Crown’s expert witness, it said 75 to 85 per cent of convicted sex offenders do not reoffend, and committing two sex offences at the same time does not predict a bigger danger than committing one.
Courts in several provinces had called the registry a minimal or modest intrusion, but the Supreme Court majority said its constraints on liberty are “insidious and pervasive.”
The ruling, co-authored by Justice Andromache Karakatsanis and Justice Sheilah Martin, said the Crown offered “no evidence that demonstrates how these provisions are effective in helping police prevent and investigate sex crimes. Indeed, the sparse information in the record points in the opposite direction.” The other three in the majority were Justice Mahmud Jamal, Justice Malcolm Rowe and Justice Nicholas Kasirer. With the exception of Justice Karakatsanis, a Harper appointee, all were picks of Prime Minister Justin Trudeau’s Liberal government.
The minority said it is difficult to predict risk, and sex offenders as a group are more of a risk than others.
“My colleagues fixate on the removal of judicial discretion,” Justice Russell Brown wrote for the dissenters, adding that the improper exercise of discretion itself was the problem. In the face of uncertain risk, “Parliament was entitled to cast a wide net.” His view was endorsed by Chief Justice Richard Wagner, Justice Suzanne Côté and Justice Michael Moldaver. All four dissenters were Harper appointees.
Elvis Iginla, a lawyer for Mr. Ndhlovu, said his client is “grateful that the Supreme Court has given him this opportunity to continue with his life without having to disclose all kind of personal information that will be required on an ongoing basis.”
Prof. Benedet said Justice Smith’s comment about Mr. Ndhlovu was an indication of how judges go wrong when they have discretion over the registry. “The offender in this case committed a serious sexual assault against a vulnerable sleeping woman … and yet the courts decided he shouldn’t be in the registry at all, because he was young, drunk and remorseful.”
She anticipates defence counsel will now “argue against registration in most cases, and the Crown may be hard-pressed to keep up with the demand for risk assessments,” unless the government develops new rules that pass constitutional muster.
Federal Justice Minister David Lametti said in a statement that he is reviewing the decision and is “committed to ensuring that law enforcement has the tools necessary to prevent and investigate sex crimes.”
The decision on the lifetime registration, which was unanimous, applies retrospectively: Anyone enrolled for life since 2011 may apply to the courts to be released from that provision. The edict on the mandatory enrolment applies from now on, but the court suspended it for a year to give Parliament a chance to rewrite the provision while still offering protection from predators. Mr. Ndhluvo was exempted from the mandatory inclusion.
Sean Fine