Eugene Ndhlovu Vs. His Majesty The King
DATE OF ORDER:
28 October 2022
Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ
Appellant: Eugene Ndhlovu
Respondent: His Majesty the King
The country’s mandatory and perpetual inclusion on the sex offenders’ registry has been ruled illegal by the Supreme Court of Canada. In accordance with the Sex Offender Information Registration Act, the nation's national sex offender registry was established in 2004. (SOIRA). Prior to 2011, the prosecution had to request a judge's approval before a name could be added on the registry. Since the modification, anybody found guilty of a sexual offence was forced to register by law under Section 490.012 of the Criminal Code. For those who committed many offences, Section 490.013(2.1) additionally established a mandatory registration requirement for life.
Criminal Code of Canada
- 490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.
- 490.013 (1)An order made under section 490.012 begins on the day on which it is made.
Duration of order
(2) An order made under subsection 490.012(1) or (2)
(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment for the offence is life.
- With regard to assaults that both happened at a party in 2011, the accused admitted guilt to two counts of sexual assault against two complainants in 2015. The judge who handed down the punishment gave a total penalty of three years on probation and six months in jail. The sentencing court concluded that the accused was unlikely to commit another crime after considering his history and the available evidence. Despite this ruling, the accused was required to register for a lifetime in the national sex offender registry established by the Sex Offender Information Registration Act (SOIRA), in accordance with sections 490.012(1) and 490.013(2.1) of the Criminal Code.
- According to Section 490.012, SOIRA orders are required for offenders found guilty of specified offences such sexual assault and other sexual offences. For those who have been convicted of several designated offences, lifetime registration is required under Section 490.013(2.1), which was enacted in 2011. Additionally, in 2011 the ability for prosecutors and judges to issue SOIRA orders was eliminated. An extensive amount of personal information must be provided in person at a registration centre, and registered offenders are subject to numerous reporting requirements. They must also update their information in person once a year and report any changes to their primary or secondary address, name, or if they obtain a driver's licence or passport.
- Any of these requirements that are broken may result in prosecution and punishments of up to two years in prison, up to $10,000 in fines, or both. Additionally, police officers perform arbitrary compliance checks to confirm the data in the registry. Offenders are required to submit to a minimum of one annual residence address verification. The accused filed a claim to contest both sections' constitutionality.
- Whether removal of prosecutorial and judicial discretion from s. 490.012 and introduced, under s. 490.013(2.1), lifetime registration for offenders convicted of more than one designated sexual offence violate sections 1 and 7 of Canadian Charter of Rights and Freedoms?
- The Criminal Code's Sections 490.012 and 490.013(2.1) violate Section 7 of the Charter and cannot be protected by Section 1, according to Karakatsanis, Rowe, Martin, Kasirer, and Jamal JJ. As a result, the provisions are deemed to be ineffective under section 52(1) of the Constitution Act of 1982. The declaration regarding section 490.012 is prospective and suspended for a year. The accused, however, is not subject to the suspension of the declaration. The declaration is instantaneous and applies going backwards for s. 490.013(2.1).
- A claimant must first demonstrate that the legislation interferes with their life, liberty, or security of person in order to prove a breach of section 7 of the Charter. The right to fundamentally independent personal decision-making is protected by liberty. It also defends against physical restraint, which includes anything from actual detention or arrest to the use of governmental force to enforce attendance at a specific location. A SOIRA order has a significant negative effect on the freedom of the offender. Under the fear of prosecution and punishment with imprisonment, fines, or both, SOIRA imposes a continuous requirement to report substantial information, subject to random checks and other compliance measures. This results in continuous state monitoring that lasts decades or in some cases, a lifetime.
- Additionally, SOIRA requires offenders to regularly plan their travel and residence in order to comply with the law. As a result, maintaining the accuracy of the data on the registry involves continual responsibilities, and the threat of incarceration further worsens the deprivation of liberty. The circumstances of an offender's life might additionally exacerbate the effect on liberty. Offenders who frequently need to travel for extended periods of time as part of their jobs will frequently need to take extra precautions to be in compliance. Even worse, offenders who struggle with homelessness, substance abuse, or cognitive or mental health concerns could have a very hard time complying. As a result, ss. 490.012 and 490.013(2.1) unmistakably restrict the freedom of offenders.
- Mandatory registration under s. 490.012 is too wide since it registers offenders who don't have a higher risk of committing another sex crime in the future. The registration of such offenders has nothing to do with the goal of gathering data on offenders that can help law enforcement prevent and look into sex crimes.The likelihood that police will ever use an offender's information from the registry is occasionally undermined by the fact that their personal circumstances imply they are not at an elevated risk of reoffending. Those variables are difficult to account for with an imprecise proxy like a prior conviction for a sexual offence.
- Furthermore, it is untrue to state that all sexual offenders have a higher likelihood of reoffending. A prior conviction for a sexual offence is a risk factor, however compared to the general criminal population; only 10% of those who have such a conviction are at an increased risk of reoffending at the time of sentencing. Finally, the problem with risk evaluations at sentencing cannot make up for the overbroadness of s. 490.012. In order to make the administration or enforcement of a law more practical or convenient, an argument based on enforcement practicality tacitly concedes that an individual's rights are violated but maintains that it is justifiable for the sake of the good of the public. Such a defence shall be treated in accordance with s. 1 of the Charter.
- It is also excessive to require persons convicted of several sexual offences to register for life. The measure's goal is to provide police with information on criminals who are more likely to commit crimes again for a longer length of time. However, as the expert data shows, committing multiple offences without a conviction in between are not linked to a higher likelihood of recidivism. As a result, some offenders who are not at a considerably higher risk of reoffending are included in the measure.
- Section 1 of the Charter does not save Sections 490.012 and Section 490.013(2.1).If the challenged law has a pressing and significant goal and the measures employed are appropriate for achieving that goal, then a violation of the Charter is justified under section 1.The legislation is reasonable when the methods used are proportionate to the goal of the law, minimally affect the right in question, and the beneficial impacts of the law exceed the negative ones.
- An instant declaration of invalidity for s. 490.013(2.1) is appropriate because the offenders will continue to be included on the registry and there is no gap for Parliament to fill. Furthermore, there isn't a strong argument against the declaration's presumed ability to be applied retroactively. Offenders who are subject to a lifetime order under this provision after having been convicted of more than one sexual offence without an intervening conviction may seek an s. 24(1) remedy to change the length of their registration because the declaration affects everyone who has been impacted by the enactment of the provision since 2011.
The sentencer came to the conclusion that sections 490.012 and 490.013(2.1) violated section 7 of the Charter. The Court of Appeal's majority upheld the Crown's appeal after finding that neither clause contravened Section 7 of the Constitution. Since all convicted sex offenders have a higher predisposition to commit sex crimes in the future, it was determined that s. 490.012 was not overbroad. Furthermore, it concluded that section 490.013(2.1) was not overbroad since Parliament could conclude that committing many sexual offences is a proxy for a higher risk of recidivism, necessitating a longer registration period. Furthermore, the majority came to the conclusion that neither clause was wholly disproportionate. The judge who dissented disagreed that the clauses met the requirements of art. 7. The appeal was allowed in part. Section 490.012 is constitutional.
Click here to download the original copy of the judgement