R v Ndhlovu, 2016 ABQB 595

Court of Queen’s Bench of Alberta Citation: R v Ndhlovu, 2016 ABQB 595 Date: 20161024 Docket: 110548831Q1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Eugen Ndhlovu Accused/Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victim or the witness must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on October 25, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment Re: the Constitutionality of SOIRA of the Honourable Madam Justice A.B. Moen _______________________________________________________ Table of Contents I. Introduction . 2 II. Discussion . 3

A. Factual Background . 3 B. History of Legislative Regime . 4 C.

Section 7: Life, Liberty and Security of the Person . 5 1. The Parties’ Positions . 5 a. Mr. Ndhlovu . 5 b. The Crown . 6 2. Analysis . 6 a. Do Mandatory SOIRA orders deprive offenders of their life, liberty or security of the person? 7 b. Is the deprivation of liberty contrary to the principles of fundamental justice? . 11 i. The legislative objective of mandatory SOIRA orders. 11 ii. Are mandatory SOIRA orders arbitrary? . 12 iii. Are mandatory SOIRA orders overbroad? . 13 iv. Are the effects of mandatory SOIRA orders grossly disproportionate in comparison to the law’s objective? . 16 D.

Section 12: Cruel and unusual punishment 18 III. Conclusion . 18 I. Introduction [ 1 ] On June 26, 2015, Eugen Ndhlovu plead guilty to two counts of sexual assault, and was sentenced to 6 months in jail followed by 3 years of probation. [ 2 ] The Criminal Code , RSC 1985 c-46 mandates that I must order that Mr. Ndhlovu be registered in the Sex Offender Registry for the rest of his life: s 490.013(2.1).

He must comply with the requirements of the Sex Offender Information Registration Act , SC 2004, c 10 [SOIRA or the Act] which requirements have changed substantially since 2011. [ 3 ] He now challenges the constitutionality of this mandatory lifetime registration. [ 4 ] The challenge is whether mandatory lifetime registration is in violation of either s 7 (Life, Liberty and Security of the Person) or s12 (cruel and unusual punishment) of the Charter .

If I find that this is so, then the Crown has asked that it be given the opportunity to call evidence to address s 1 of the Charter . [ 5 ] Therefore, I must answer the following questions. 1. Do mandatory SOIRA orders contravene s 7 of the Charter ? i. Are they a deprivation of life, liberty or security of the person? ii. If so, is this deprivation in accordance with the principles of fundamental justice? 2.

Do mandatory SOIRA orders constitute cruel and unusual punishment, contrary to s 12 of the Charter ? [ 6 ] For reasons explained below, I find that the provisions of the Criminal Code respecting SOIRA are overbroad and grossly disproportionate, and therefore unconstitutional to the extent that they remove judicial discretion to refuse to place offenders on the Registry who present no risk of re-offending. II. Discussion [ 7 ] SOIRA has been challenged on constitutional grounds in R v Redhead , 2006 ABCA 84 .

However, since that case, there were significant changes made to SOIRA in 2011 by Parliament: one being the removal of judicial discretion, another being the addition of “prevention” of sexual assault to the purpose of SOIRA which was previously only for investigation. We do not yet know what the parameters of “prevention” include because there has been no judicial consideration of that word. [ 8 ] A fundamental principle of sentencing is that it be proportional to the seriousness of the offence and to the particular circumstances of the offender. [ 9 ] Because Mr.

Ndhlovu pled guilty to two sexual assaults, the Criminal Code mandates that I order him to comply with

SOIRA for the rest of his life. [ 10 ] Mr. Ndhlovu now challenges the absence of judicial discretion to impose SOIRA orders for sexual offenders on the basis that it is contrary to ss 7 and 12 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11. [ 11 ] I shall first discuss the factual background of this case to give a context for a consideration of the Charter arguments. I will then set out the legislative history of SOIRA to highlight the changes to the legislation in 2011 which are now being challenged in this case. [ 12 ] Then I will discuss the s. 7 Charter issues and finally the s. 12 issues. A. Factual Background [ 13 ] At the time of these events, Mr. Ndhlovu was 19 years old. [ 14 ] On March 12 th , 2011, Mr. Ndhlovu was invited by Ms. RD to attend a party at her residence.

The party was “advertised” on Ms. RD’s Facebook page as a highly sexualized Jersey Shore DTF (down to fuck) party and was to have a stripper pole available. [ 15 ] Ms. RD personally insisted on Mr. Ndhlovu’s attendance. He had declined because he was working the next day. Ms. RD arranged a ride for him and told him he could stay overnight and someone would give him a ride to work the next morning. [ 16 ] Mr. Ndhlovu, Ms. RD and their mutual friend, Ms. CB, began drinking at about 7:30pm that evening. [ 17 ] As the night progressed, Ms. RD and Ms. CB each reported instances where Mr.

Ndhlovu sexually touched them without their consent. Mr. Ndhlovu touched each woman’s buttocks while the three were posing for a picture. He also placed his hands on Ms. CB’s thighs and buttocks during a conversation between the two in the kitchen. [ 18 ] Early in the morning hours after that party, Ms. RD woke up to Mr. Ndhlovu’s fingers inside of her vagina. She told the accused to stop. After he tried a second time to touch her, telling her that it would “feel good,” Ms. RD pushed Mr. Ndhlovu away, and he left the house. [ 19 ] Mr. Ndhlovu later told police that he did not remember the whole night.

He nonetheless pled guilty to one charge of sexual assault against each of Ms. RD and Ms. CB. [ 20 ] Mr. Ndhlovu was born and raised in Zimbabwe. The pre-sentence report confirmed that Mr. Ndhlovu took responsibility for his actions. Given the circumstances of the offence, his lack of criminal history, and his apparent remorse, I found that Mr. Ndhlovu was unlikely to reoffend and ultimately sentenced him to 6 months in jail followed by 3 years of probation. B. History of Legislative Regime [ 21 ] The relevant Criminal Code and SOIRA provisions are attached to these reasons in

Schedule “A”.

What follows is a brief discussion of the SOIRA provisions, and the changes to SOIRA in 2011, relevant to the application before me. [ 22 ] SOIRA came into force in 2004, establishing the registry, outlining reporting requirements, and setting out the procedure for registration. [ 23 ] Before 2011, sentencing judges, on giving reasons, had discretion to refuse a SOIRA order if the effects of the order on the offender’s privacy or liberty interests were grossly disproportionate to the public interest in protecting society to be achieved by the information relating to sex offenders under SOIRA: s 490.012(4) Criminal Code before amendment in 2011. [ 24 ] Offenders subject to a SOIRA order (under the 2004 Act) were to report within 15 days of the Order (s. 4) and provide specified information (s. 5). [ 25 ] In 2004, the purpose of SOIRA was to “help police investigate crimes of a sexual nature”: ( s. 2 ).

Only authorized persons were allowed to consult the database “for the purpose of investigating a specific crime that there are reasonable grounds to suspect is of a sexual nature”: (s. 16). [ 26 ] In 2011, Parliament passed the Protecting Victims from Sex Offenders Act , SC 2010, c 17 [the Amending Act] which brought into force amendments to both the Criminal Code and SOIRA . [ 27 ] In the 2004 Criminal Code , a judge would only make an order for registration on SOIRA if a prosecutor made an application after sentencing: s 490.012.

The Amending Act removed the discretion of the prosecutor to make such an application and it made mandatory the imposition of an order by the judge for registration: s 490.012(1) of the Criminal Code , as amended in 2011. [ 28 ] The Amending Act also removed the discretion of judges not to impose SOIRA orders (by repealing the former s 490.012(4)), and made the imposition of SOIRA orders mandatory: s 490.012(1). [ 29 ] It further changed the purpose of the Act to include the “prevention” of future crimes, as well as the investigation of crimes of a sexual nature.

Therefore, since the amendments, authorized persons are now able to consult the Registry “for the purpose of preventing or investigating a crime of a sexual nature” or a designated offence: s 16 SOIRA. [ 30 ] The Amending Act also made changes to the SOIRA regime. Those changes were additional reporting requirements and

offenders are now required to report any change to the contact information of their employer or volunteer supervisor, within 7 days of the change: s 5.1 SOIRA rather than 15 days. [ 31 ] As well, the Amending Act required persons who had more than one conviction for a sexual offence to be on the registry for his lifetime, regardless of the seriousness of the offence or the circumstances of the offender. This together with the removal of judicial discretion ensures that persons, such as Mr. Ndhlovu, are subject to the regime for their life even when the sexual offences are minor such as in this case.

The reporting conditions for a SOIRA order are similar to those imposed for a probation order – and for a probation order, the conditions last for 2 or 3 years. [ 32 ] Failure to comply with a SOIRA order is punishable by

summary conviction (a maximum fine of $10,000, maximum imprisonment of 6 months) or by indictment (maximum fine of $10,000 and imprisonment of 2 years): ss 490.0431 and 490.04311, Criminal Code . [ 33 ] I turn now to a discussion of s 7 of the Charter as it applies to Mr. Ndhlovu’s case. C.

Section 7: Life, Liberty and Security of the Person 1. The Parties’ Positions a. Mr. Ndhlovu [ 34 ] Mr. Ndhlovu submits that the imposition of SOIRA orders on each and every sexual offender is arbitrary, overbroad and grossly disproportionate. He agrees that the purpose of the legislation is to protect the public by facilitating police investigation. However, he argues that the lack of judicial discretion arbitrarily places all sexual offenders in the same basket, with the same restraints and obligations as those who have committed much more serious crimes.

Given the impact on offenders of complying with SOIRA orders for their entire lives, Mr. Ndhlovu further argues that including sex offenders who are not likely to reoffend bears no connection to the goal of protecting the public. Specifically, it will divert resources and attention of the police from offenders who actually pose a genuine risk to the public. [ 35 ] With respect to overbreadth, Mr. Ndhlovu submits that the mandatory inclusion of all offenders goes further than is necessary to protect the public.

In other words, there is no logical connection between including every convicted sex offender on the registry and protecting the public. He submits that subjecting offenders to reporting requirements without regard to their actual propensity to re- offend is not connected to preventing and investigating sex offences. [ 36 ] Mr. Ndhlovu finally argues that the impacts of the SOIRA Order on him are grossly disproportionate to the public’s interest in protecting society against recidivistic sexual offenders. He argues that the effects of SOIRA orders on offenders are coercive.

First, he is required to inform the state of plans to visit his family in other places of the world. If plans were to change during those visits, Mr. Ndhlovu faces the risk of unintentionally contravening SOIRA, and facing further incarceration or a large fine. Further, he says, there is a legitimate risk that Mr. Ndhlovu’s status as a sex offender, or other personal information on the registry, might be leaked or otherwise made public.

Next he contends that he will be subject to random intrusions into his life by the police at home, school or his work place, and that these intrusions could have a devastating effect on his personal relationships or employment. These random intrusions will occur during compliance checks done by EPS, or any time an unknown black male of average height commits a sexual assault in his neighbourhood. [ 37 ] Finally, Mr. Ndhlovu submits that the annual in-person registration requirement will lead to a prolonged internal stigma, over and above that which comes from the conviction itself.

He argues that this internal stigma will seriously impede his rehabilitation and cause him further anxiety. [ 38 ] Mr. Ndhlovu argues that these significant effects of SOIRA orders make requiring all offenders to register for life disproportionate to the goal of protecting the public. This is especially so for Mr. Ndhlovu, as all evidence points to the fact that he is at a very low risk of reoffending. b. The Crown [ 39 ] The Respondent Crown contests each of these allegations.

It first asserts that the registry is established on the assumption that all convicted sex offenders have an increased propensity to commit sex crimes. Because the collection of up-to-date information makes it easier for police to investigate sex crimes, there is an obvious connection between the purpose of SOIRA and its adverse effects. [ 40 ] The Crown argues that it is well accepted that sex offenders are prolific offenders, who are likely to reoffend.

Therefore, because of the risk of serious harm to potential future victims of sexual offences, and because there is no way to reliably know which offenders will re-offend, it is not overly broad to require all sexual offenders to register. The Crown also relies on a number of decisions which have upheld the constitutionality of sex offender registries: R v Long , 2015 ONSC 4509 ; R v Dyck , 2008 ONCA 309 . [ 41 ] The Crown argues that the reporting requirements under SOIRA are not disproportionate to its objectives, and specifically that they are minimal.

The Act requires information that is not unlike other information routinely provided to the state as part of other regulated activities, such as driving. Moreover, SOIRA does not prohibit any activities, or restrain travel, and the information provided is subject to strict confidentiality rules. The Crown further submits that any stigma experienced by the offenders is as a result of the conviction itself, and not from the reporting requirements. [ 42 ] For these reasons, it submits that mandatory SOIRA orders do not breach any of the principles of fundamental justice. 2. Analysis

[ 43 ] The first step on a s 7 challenge is to determine whether there has been an interference with or deprivation of life, liberty, or security of the person. Once this is established, the next step is to show that the deprivation is not in accordance with principles of fundamental justice: Carter v Canada , 2015 SCC 5 , [2015] 1 SCR 331 at para 55 . a.

Do Mandatory SOIRA orders deprive offenders of their life, liberty or security of the person? [ 44 ] Although the Crown concedes that the reporting requirements associated with SOIRA orders constitute a deprivation of an offender’s liberty, I shall nevertheless outline those requirements and the consequences of breaches of the orders.. [ 45 ] As stated by our Court of Appeal in Redhead : “[p]atently, the impact on anyone who is subject to the reporting requirements of a SOIRA order is considerable”: at para 33.

A number of cases further support this conclusion: R v SSC , 2008 BCCA 262 ; Long , supra . [ 46 ] In R v Have , 2005 ONCJ 27 , the Court held that the impact of a SOIRA order on an offender’s liberty is “substantial”, especially considering that the reporting requirements of the order are enforceable by prosecution and imprisonment: at para 12. [ 47 ] A

summary of the reporting requirements of a mandatory order under SOIRA on individuals serves to illustrate the extent to which individuals are deprived of their liberty. Reporting Requirements [ 48 ] Offenders subject to a SOIRA order must abide by a number of reporting conditions set out in the Act.

Specifically: • The offender must first register in person within 7 days of being subject to the order: s 4 SOIRA ; • At the time of registration, the offender must provide the following information: o Given name, surname, aliases; o Date of birth, gender; o Address of primary and secondary residence; o Address of employment or volunteer locations; name of employer or volunteer supervisor and a description of the work done s 5(1) (d); o Address of every education institution in which they are enrolled; o Contact telephone number for each location where they can be reached and every mobile telephone or pager in their possession; o Height, weight, description of every physical distinguishing mark that they have; o Licence plate number, make, model, body type, year of manufacture and colour of vehicles that are registered in their name or that they use regularly. • Thereafter, the offender must report within 7 days of changing their primary or secondary residence, or given name or surname.

Otherwise, they are to report at any time between 11 months and one year after their last report: s 4.1(1) SOIRA . • The offender is required to report in person: s 4(3) SOIRA • If any of the information in s 5(1)(

d) changes, the offender must notify the registration centre of such a change within 7 days: s 5.1 SOIRA . • Notification can be done by registered mail: s 6(2) SOIRA – for example, changes to s 5(1)(d). • The offender must also notify the registration centre if he or she intends to be away from his or her primary or secondary residences for a period of seven consecutive days or more: o Before departure - the estimated dates of their departure and return and of every address or location that they expect to stay in Canada; o Within seven days of departure – of the estimated date of their return: s 6(1) SOIRA . [ 49 ] Failure to comply with any of these conditions may result in a significant fine, or imprisonment. [ 50 ] These reporting conditions last for the duration of the order.

In our case, this means that Mr. Ndhlovu will be forced to comply, upon threat of imprisonment or fine – he is now in his early twenties - until he dies. That is, unless he successfully applies for a termination order after 20 years. [ 51 ] In Dyck , the Ontario Court of Appeal examined the effects of reporting requirements under Christopher's Law (Sex Offender Registry), 2000, SO 2000, c 1. This was prior to the federal government enacting SOIRA . That 2004 Act was at least in part based on Christopher’s Law .

The Court minimized the effects of the reporting requirements, stating that they were modest because they did “not prohibit anyone from doing anything or going anywhere”: at para 111. [ 52 ] With respect, I disagree with this characterization. I agree with the other cases cited above. In my view, the reporting

requirements are significant. I recognize that SOIRA orders are not physically restrictive. I further acknowledge that viewed in isolation, the provision of information to the Registry is not particularly onerous. However, the cumulative effects of the reporting requirements under SOIRA orders are quite onerous, given the depth of information, the continuing obligation to report changes, the annual in-person reporting requirements, the consequences of breaching the order, compounded with the fact that each of these obligations lasts for life. Further, the offender is subject to random checks by the police.

Impacts from measures taken by the police: [ 53 ] The Crown called Detective Arlene Hove to give evidence at the Charter hearing. Detective Hove has been a detective in the Sex Offender Registration Unit (“SORU”) of the Edmonton Police Service for the past two years. Her job is to oversee the administration of the Sex Offender Registry (“the Registry”) for the Edmonton area.

She looks after offenders registering for the first time and monitors continuing compliance with the Registry. [ 54 ] Detective Hove testified that the Registry’s head office was in Ottawa, and that the database itself is located on a secure RCMP server. She explained that the RCMP administers the database, but gives access to police services across the country in order to facilitate investigations. Her own access to the server is based on her position in EPS, and was dependent upon successful completion of the relevant training.

She stated that she has the power to investigate failures to report and compliance issues for offenders in the Edmonton area. [ 55 ] Detective Hove described her practise with respect to investigating compliance with SOIRA . Members of her unit will randomly attend at offenders’ residences to verify the information on the Registry.

This occurs only in the following circumstances: • When offenders from other jurisdictions move to Edmonton, a member of the SORU will attend at their reported residence to ensure that it is correct; • When an offender reports a change in primary residence; and • When the SORU is otherwise directed by the RCMP to do an address verification for investigative purposes. [ 56 ] Detective Hove explained that she and her unit do their best to protect offenders’ privacy when conducting random compliance checks.

Her unit only verifies offenders’ primary residences, and not each location listed on the registry (for example place of employment or volunteering). Further, when doing compliance checks, Detective Hove attends in plain clothes, and asks to speak with the offender directly.

If the offender is not present, she does not divulge the reason why she was at the residence. [ 57 ] She acknowledged that her unit only investigates the primary residence because of current policy, and that, technically, administrators are authorized to perform random compliance checks for any of the information on the Registry, and in any other manner not prohibited by the Act . [ 58 ] Detective Hove takes the privacy of offenders quite seriously, and does her best to ensure that a person’s status as a sex offender is not accidentally divulged.

This is consistent with s 16 of SOIRA , which prohibits the unauthorized consultation, comparison, combination, and disclosure of information. However, nothing in SOIRA prevents compliance checks from becoming more invasive and less subtle, which would increase the risk of other people becoming aware of a person’s presence on the registry.

As stated by Duncan J in R v Have , 2005 ONCJ 27 , 2005 CarswellOnt 447, “[t]here is no control against harassment [of sex offenders by police] except the judgment and restraint of the local police force”: at para 12 (WL). [ 59 ] I also find that offenders on the registry will be subject to further police interference due to the investigatory, and now preventative steps taken by police officers in relation to sex crimes.

The recent SOIRA amendments now allow the information in the registry to be used to prevent as well investigate crimes. [ 60 ] The previous s 16 of SOIRA only authorized access to the Registry if the accessor had reasonable grounds to suspect that the crime being investigated is of a sexual nature. This necessarily required that a crime had already been committed, and further that it was of a sexual nature. [ 61 ] Since the 2011 amendments, access is granted “for the purpose of preventing or investigating a crime of a sexual nature”: s 16(2)(

a) SOIRA . Not only has the explicit requirement for reasonable grounds been removed, but the uses for which this information can be accessed have necessarily increased. Offenders on the registry are not only included as suspects for crimes that have already occurred, but police may also access their information in relation to suspicious activity. [ 62 ] Detective Hove explained that preventative access to the database could occur if, for example, police come across an adult playing in a park alone with a remote control truck who begins engaging with children.

In that case, the officer would perform a tactical query of the database. The result of which would be a list of all offenders within a certain radius of the suspicious activity. [ 63 ] However, Detective Hove’s evidence only represents her department’s particular

interpretation of the SOIRA provisions. All the legislation requires is that access to the Registry be restricted to the purpose of preventing and investigating crimes of a sexual nature. There is no limitation in the legislation requiring that the commission of a sexual offence is likely, imminent or even suspected. [ 64 ] Although the addition of the word “prevent” is not challenged before me, its addition to the statute, at the very least, expands the number of occasions that police may access and use the information on the Registry.

This not only impacts the privacy interests of those on the registry, but also increases the potential for police intrusion into an offender’s life. [ 65 ] Finally, Detective Hove explained that the results of a tactical query do not include information related to the offender’s modus operandi . Because of this, the only way to eliminate suspects is on the basis of physical descriptors. In our case, Mr. Ndhlovu would undoubtedly be included in any tactical search of his neighbourhood that included a black male of average height.

It is difficult to imagine how racial profiling will not inform the creation of the list of suspects for sexual crimes in these circumstances.

Information Leaks: [66] Mr. Ndhlovu testified that he was anxious about the possibility that the information about him on the Registry mightotherwise be leaked to the public. [67] With respect to access to the Registry, Detective Hove indicated that she was the only member of the EPS with access to thedatabase. She further explained that to obtain information from the Registry for investigative purposes, investigators must fill out arequest form indicating the reason they want the information.

That form is then forwarded to the provincial RCMP administrators of thedatabase who then determine whether or not the query should be done. Authorization is only given for investigative, administrative andcompliance related circumstances. Logically, it is also possible to access the Registry for preventative purposes [68] If approved, the SORU or the provincial administrator will release only the information asked for.

It does not grant access tothe database to the investigating officer. [69] The RCMP conduct random audits of the individuals with access to the database, ensuring that they continue to meet thecriteria for access. Further, once an officer takes a position where they no longer require access, it is immediately taken away. [70] It appears that the legislation provides some measure of protection for the privacy of offenders in this regard. [71] Mr.

Ndhlovu did not present me with any evidence with respect to information leaks that had happened in the past, andtherefore I conclude that the risks of information being accidentally disclosed are very low. [72] However, regardless of the risk of information leaks, offenders may still be subject to anxiety surrounding the release of thisinformation. [73] Mr. Ndhlovu expressed considerable anxiety fearing that his being on the Registry will become public. He also expressedconcern that there would be a continuing stigma in his own mind constantly reminding him of his status as a sex offender.

The Crownargues, however that any stigma comes from the fact of conviction, and not from registration. With respect, I disagree with the Crown’sassertion. [74] An offender subject to only a conviction is not annually reminded of his label as a convict. Offenders subject to SOIRAorders, on the other hand, are forced to report annually to a police station and renew their status as a sex offender. Logically, thepotential for internal stigma is much greater in that case. Conclusion [75] I note that in 20 years the offender can make an application to be removed from the registry.

However, I cannot presume thatat that time he will be granted such an application. Therefore, I am treating this application as a challenge to a lifetime registration. [76] I find that the offender subject to a SOIRA order is deprived of his liberty, and, in particular, that a SOIRA order for life to beimposed on Mr. Ndhlovu will deprive him of his liberty for the balance of his life. b.

Is the deprivation of liberty contrary to the principles of fundamental justice? [77] The applicant bears the burden of establishing that the deprivation of liberty caused by the impugned law is contrary to theprinciples of fundamental justice: Chaoulli v Quebec (Attorney General), 2005 SCC 35 at para 131, per McLachlin CJC and Major J. [78] Mr. Ndhlovu asserts that mandatory SOIRA orders are arbitrary, overbroad and grossly disproportionate. All three principlesof fundamental justice involve examining the government’s objective in passing the impugned legislation: Carter, supra, at para 76.

Therefore, I will first examine the legislative purpose of mandatory SOIRA orders. i. The legislative objective of mandatory SOIRA orders. [79] The court is entitled to consider statements of legislative purpose together with the words of the provision, the legislativecontext, and other relevant factors when determining legislative purpose: Appulonappa at para 33, citing R.

Sullivan, Sullivan on theConstruction of Statutes (6th ed. 2014), at pp 268-87, and R v Chartrand, (SCC), [1994] 2 S.C.R. 864, at pp 879-82. [80] This court must be careful not to attribute too broad a purpose to legislation, so as to immunize it from Charter scrutiny:Carter at para 77, citing RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1995] 3 SCR 199 at 144. [81] The Act itself sets out a general purpose.

SOIRA, 2004, s 2 states that the purpose is to help police services investigate crimesof a sexual nature based on principles which include protecting society through giving police rapid access to information relating to sexoffenders. Similarly, the purpose of the 2011 Amending Act is similar with the addition of the word “prevention” to the purpose andprinciples. [82] Evidence from statements in legislative debates may also shed light on a law’s purpose: Appulonappa at para 64, citingGlobal Securities Corp. v.

British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para 25; R. v Gladue, (SCC), [1999] 1 SCR 688 (S.C.C.), at para 45; Reference re Firearms Act (Canada), 2000 SCC 31, [2000] 1 SCR783, at para. 17. [83] The Parliamentary and Senate debates surrounding the passing of SOIRA make it clear that the legislation was aimed atassisting the police in the investigation of sexual offences committed against vulnerable people, and especially children. When Bill C-36

was introduced to Parliament, the proponent of the Bill pointed out that the registration would ensure that police could rapidly respond toa child abduction.

The proponent also pointed out to Parliament that the “persons whose sentences would normally include registrationin the database will have the opportunity to defend themselves in court to prevent their registration … “ on the basis that the registrationwould have a grossly disproportionate impact on them: House of Commons Debates, Official Report (Hansard), Friday, February 21, 2003, Vol 138 No 065, 2nd Session, 37th Parliament. [84] When SOIRA (Bill C-16) was introduced at second reading before the Senate, the speaker spoke of “finding predators andbringing them to justice”.

The sex offenders registry was to be regarded as a “public safety tool in order to reduce the risks to children and to other citizens from sex offenders by facilitating investigations”: Debates of the Senate (Hansard) 3rd Session, 37th Parliament,Volume 141, Issue 10, Tuesday February 17, 2004, Orders of the Day, Sex Offender Information Registration Bill, Second Reading. [85] Specifically, the purpose of the Act was to enable police to quickly consult the registry because the first hours after a child isreported missing are often the most important in the investigation.

This is mirrored in s 2 of SOIRA, 2004, s 2 that states that “policeservices must have rapid access to certain information relating to sex offenders”. [86] Members of Parliament and Senators alike recognized that the imposition of a national sex offender registry was modeled afterChristopher’s Law in Ontario, which was implemented after a young Ontario boy was abducted and murdered by a convicted sexoffender. Similarly, the debates around the 2011 amendments mirrored this major concern for children.

Nearly all examples aboutpreventative use of the database concerned the police encountering a potential predator in a park. [87] For this reason, I find that the purpose of the original Act is to protect vulnerable people including children in society, byallowing police quick access to current information on convicted sex offenders. ii. Are mandatory SOIRA orders arbitrary? [88] Are mandatory SOIRA orders arbitrary?

This question is posed in the context of a change to SOIRA in 2011 which ensuredthat an accused no longer had the opportunity to argue before the sentencing court that registry for that individual would have a grosslydisproportionate impact on him. [89] A law is not arbitrary if there is a “rational connection between the object of the measure that causes the s 7 deprivation, andthe limits it imposes on life, liberty, or security of the person”: Bedford v Canada (Attorney General), 2013 SCC 72 at para 111.

Therefore I must examine whether there is any connection between the above-described deprivation of liberty and the law’s purpose:Bedford at para 119. [90] The Crown submits that there is a rational connection between requiring all sex offenders to register and the prevention andinvestigation of crimes of a sexual nature.

This is because the Registry is based on the assumption that convicted sex offenders have anincreased propensity to commit sex crimes. [91] As stated by Fitzpatrick J in Long, “[c]learly, the information collected can make it easier to investigate sex crimes byidentifying individuals who, by virtue of past convictions, may be considered suspects in similar crimes”: para 83.

The Court furthernoted that it was a matter of “common sense and experience” that individuals who are convicted of sex crimes have increased propensityto commit sex crimes in the future: ibid. [92] In my view, it is not the case that there is no connection between providing police with up-to-date information on previous sexoffenders and the goal of investigating and preventing sexual crimes. However, the question is whether including all offenders,regardless of their risk of re-offending, on the registry bears a connection to preventing or investigating these crimes.

There is, no doubt,a statistical probability that a sex offender will offend again. Unfortunately, statistical probabilities cannot protect individuals who willnot probably find themselves on that statistical curve ever again. iii. Are mandatory SOIRA orders overbroad? [93] The principle that a law must not be overbroad is an entrenched principle of fundamental justice.

As stated by Cory J. for themajority of the Supreme Court in R v Heywood, (SCC), [1994] 3 SCR 761, “in considering whether a legislativeprovision is overbroad, a court must ask the question: are those means necessary to achieve the State objective?” at 792. [94] A law is overbroad when the means selected to accomplish the legislative objective are broader than necessary to achieve thatobjective: R v Khawaja, 2012 SCC 69 at para 40.

Therefore, the overbreadth analysis involves: whether a law that takes away rights in a way that generally supports the object of the law, “goes too far” by denying the rights of someindividuals in a way that bears no relation to the object.

A law that is drawn broadly to target conduct that “bears no relation to itspurpose” in order to make enforcement more practical may therefore be overbroad: Carter v Canada (Attorney General), 2015 SCC 5 atpara 85. [emphasis added] [95] Overbreadth is related to arbitrariness in that an overbroad law possesses no connection between the legislative means chosento accomplish its goal, and some, but not all, of the law’s impacts on life, liberty and security of the person: Bedford at para 112.

Thequestion is whether the law deprives individuals of life, liberty or security of the person in cases that do not further the object of the law:R v Appulonappa, 2015 SCC 59 at para 27. [96] Nonetheless, a measure of deference must still be paid to the policy decisions made by the legislature. Simply because thereviewing court might have chosen different means to accomplish the objective, does not mean that the legislation should be struck downas overbroad: Heywood at 793. [97] As aptly stated by the Supreme Court in Carter:

The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature.

The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammelled: at para 85. [ 98 ] There are a number of examples from the Supreme Court where a law that is generally congruent with its purpose, goes too far in its application and becomes overbroad. [ 99 ] In Heywood , the majority of the Court found that a provision making it an offence for persons previously convicted of certain offences to loiter “in or near a school ground, playground, public park or bathing area”, was overbroad in geographical ambit, temporal application, as well as with respect to the number of people to which it applied.

This was because, in some circumstances, the law restricted the liberty of persons in such a manner that did not further the objective of the legislation. [ 100 ] The majority specifically noted that the application of these restrictions for life was overbroad because it applied even to “a person who has ceased to be a danger to children”: at 796.

Moreover, the majority found that the application of the provision to all offenders, without the necessity of showing that the offender will be a danger in the future also made it overbroad. [ 101 ] In R v Demers , 2004 SCC 46 , the legislative regime concerning accused persons unfit to stand trial was found to be overly broad in its application to individuals who were permanently unfit. As it stood, a permanently unfit offender could never receive an absolute discharge, even if he or she was deemed not to be a danger to society.

Therefore, the offender would be subject to indefinite supervision and control of the state. The Court held that the law restricted the liberty of these accused persons “for no reason” as society’s interest in bringing accused persons to trial could not be accomplished: para 55. [ 102 ] In Bedford , the Supreme Court found that the prohibition in the Criminal Code against living off the avails of prostitution was overbroad. The purpose of the provision was to “target pimps and the parasitic, exploitative conduct in which they engage”: at para 137.

This provision was ultimately overbroad because it targeted all individuals who lived on the avails of prostitution without distinguishing between those who exploit prostitutes and those who did not: at para 142. In that way, it included conduct that bore no connection to the law’s purpose of preventing exploitation. [ 103 ] In Carter , the Supreme Court held that the criminal prohibition on assisted dying was overbroad. The purpose of the prohibition was to “prevent vulnerable persons from being induced to commit suicide at a moment of weakness”: at para 86.

Because that blanket prohibition also infringed the liberty of non-vulnerable people who wished to take their own lives, it caught conduct that bore no connection to its purpose, and was therefore overly broad. [ 104 ] In Appolunappa , s 117(1) of the Immigration and Refugee Protection Act , SC 2001, c 27, was overbroad. That provision made it an offence to “knowingly organize, induce, aid or abet” individuals coming into Canada who are not authorized to do so.

The majority held that the provision was overbroad because it criminalized those who give humanitarian aid to asylum seekers coming to Canada, which bore no relation to the provisions purpose of criminalizing human smuggling. [ 105 ] The Crown argues that the mandatory inclusion of all sex offenders on the registry is connected to the law’s purpose because “there is no way to reliably know in advance which offenders will reoffend and which ones will not”: Respondent’s brief at para 25.

It further submits that the Charter does not require an individualized risk assessment to be done as part of a legislative response to the risk posed by recidivist offenders. [ 106 ] This reasoning was also cited by the Court in Dyck , which explained that because there was no way to know in advance which sex offenders will re-offend and which will not, the choice to include all convicted sex offenders on the registry was “logical, rational and not grossly disproportionate to the state objective”: at para 125. [ 107 ] With respect, these arguments are not relevant to the overbreadth analysis.

The Supreme Court in both Carter and Bedford held that analogous submissions were more applicable to the s 1 justification stage, and not to the question of whether a law was overly broad. In Carter , the Federal Government argued that it was difficult to determine who exactly was “vulnerable” and who was not, and therefore the blanket prohibition on assisted suicide was justified. In Bedford , the Crown similarly argued that the line between exploitative and non-exploitative relationships with prostitutes was “blurry” and therefore a broadly drafted law was justified.

In both cases, the Court determined that these arguments were more properly addressed in the justification stage under s 1. These submissions therefore have no bearing to the question of whether this law is overbroad. [ 108 ] At this stage, I must only decide whether the mandatory inclusion of all offenders is contrary to the principles of fundamental justice.

Arguments related to justifications for infringements on liberty, and broader societal concerns will be dealt with in the s 1 analysis. [ 109 ] I acknowledge that the Ontario Court of Appeal came to the opposite conclusion when it determined that Christopher’s Law (which brought into place the Ontario sex offender registry) was not overbroad in R v Dyck , 2008 ONCA 309 . [ 110 ] In my view, however, the Court in that case conflated the test for gross disproportionality with that of overbreadth.

Blair JA cited Gonthier and Binnie JJ in R v Clay , 2003 SCC 75 , [2003] 3 SCR 735, where they wrote that the standard for assessing a violation of s 7 was gross disproportionality. However, the Supreme Court recently clarified in Bedford that gross disproportionality and overbreadth are two distinct concepts: at para 120. [ 111 ] Therefore, the finding in Dyck is more properly characterized as a finding that the effects of Christopher’s Law were not grossly disproportionate to the law’s objective.

I will deal with gross disproportionality in the next section. [ 112 ] In Heywood , Bedford , and Carter the Court described hypothetical examples to demonstrate that the application of the impugned law could be overbroad. In Heywood , the Court stated: The effect of the

section is that it could apply to a man convicted at age 18 of sexual assault of an adult woman who was known to him

in a situation aggravated by his consumption of alcohol. Even if that man never committed another offence, and was not considered to be a danger to children, at the age of 65 he would still be banned from attending, for all but the shortest length of time, a public park anywhere in Canada.

The limitation of liberty…is simply much broader than is necessary to accomplish its laudable objective of protecting children from becoming victims of sexual offences: at p 799. [ 113 ] In Bedford , the Court used the example of legitimate drivers and bodyguards as an example where the prohibition against living on the avails was overbroad: at para 142. [ 114 ] In Carter , the Court did not require a reasonable hypothetical to illustrate the overbreadth of the legislation, as it was conceded that the law’s application to the applicant, Ms.

Taylor, was unrelated to the law’s purpose to protect the vulnerable people in society: at para 86. This was because Ms. Taylor was competent, well informed and free from duress, and therefore was not one of the vulnerable people the legislation aimed to protect. [ 115 ] The Crown concedes in its brief that the registry will ultimately catch some sex offenders who do not re-offend. I am satisfied that Mr. Ndhlovu is likely one of those offenders. Therefore, an analogy might be drawn between the above statement from Heywood , and this case: The current legislation will have the effect of requiring Mr.

Ndhlovu to register as a sex offender for life, as a result of committing sexual assault of two adult women, known to him, in a situation aggravated by his consumption of alcohol when he was 19. Even if he never committed another offence, and is not considered a danger to society, at the age of 65, he would still be required to report annually to the police, and be reminded of his label as a “sex offender”, and risk being included as a subject in criminal investigations in his neighbourhood.

He will also have had to report any travel plans, changes to his personal information, or residence to the police throughout that time. [ 116 ] The resulting limitation of liberty is broader than necessary to accomplish the objective of assisting in the investigation of sexual crimes, and thus overbroad. I am not satisfied that including people like Mr. Ndhlovu on the registry will “[help] police services prevent and investigate crimes of a sexual nature” (s 2 SOIRA ). [ 117 ] I recognize that offenders are able to apply to terminate SOIRA orders after a specified period of time.

Section 490.015 of the Criminal Code dictates that a person may apply for termination (

a) after 5 years, if they are subject to an order for 10 years; (

b) after 10 years if they are subject to a 20 year order; and (

c) after 20 years if they are subject to a lifetime order. [ 118 ] However, the possibility of a termination order does not cure the overbroad nature of this law. The ability to take one’s name off of the Registry after 20 years does not mean that placing that name there in the first place was rationally connected to the law’s objective. In the case before me, there is a mandatory life time registration required.

Conclusion [ 119 ] In my view, the mandatory registration for all sex offenders upon conviction of two or more offences, without regard to the seriousness of the offences or the offender’s propensity to reoffend is overbroad. The goal of the legislation is to assist police with investigating past crimes and preventing new ones. The Crown conceded that the Registry captures individuals who will never re- offend. In my view, including offenders on the Registry who have little to no chance of reoffending bears no relation to protecting the public.

Subjecting all offenders, regardless of their future risk, to onerous reporting requirements, random compliance checks by the police, and internal stigma, goes further than what is necessary to accomplish the goal of protecting the public, and is therefore overbroad. iv.

Are the effects of mandatory SOIRA orders grossly disproportionate in comparison to the law’s objective? [ 120 ] If I am wrong in holding mandatory SOIRA orders unconstitutionally overbroad, I also find that they are grossly disproportionate. [ 121 ] Gross disproportionality targets a situation where “the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported”: Bedford at para 120 .

This analysis “balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law”: Ibid at para 121. [ 122 ] Mr. Ndhlovu gave evidence on what he perceived the effects of a SOIRA order would be on him. His greatest concern was the stigma within his own mind of being constantly labelled a sex offender.

He was also troubled by the possibility that people from his church might be notified of his status as a “sex offender” if police officers come to speak specifically to him in that location. [ 123 ] The Court of Appeal in Dyck held that the reporting requirements under an order pursuant to Christopher’s Law were quite modest.

Specifically, it found that they are “limited in their informational scope, do not prohibit the appellant from going anywhere or doing anything, are no more intrusive than other state-imposed registration requirements, impose minimal stigma on the offender and are not publicly known”: at para 106. [ 124 ] With respect I disagree with Blair JA’s characterization of the reporting requirements as “minimal”. The list of information to be provided is significant. Moreover, the Court in Dyck did not consider the other deleterious effects on offenders.

Specifically, the effects of random compliance checks, including the risks of information being divulged during these checks. Further, there are potentially far reaching effects on an offender’s privacy when their name is generated on a list of suspects for a sex crime, or even simply suspicious behaviour.

As previously stated, the cumulative effect of these orders is onerous. [ 125 ] In my view, the government itself recognized that there were times when the application of the law to certain offenders would be grossly disproportionate to the public interest (Hansard above when the Act was first promulgated in 2004). The test under the previous exemption provision was whether the impact of a SOIRA order on the liberty and privacy interests of a convicted sex offender would be grossly disproportionate to the public interest of effectively investigating crimes of a sexual nature: R v Redhead , 2006 ABCA

84 . [ 126 ] Indeed, the Nova Scotia Court of Appeal in R v Cross , 2006 NSCA 30 , also recognized this, stating that the former exemption provision was a sufficient safeguard to protect against “severe handling” or “harsh treatment” that might result to particular offenders as a result of being placed on the registry. The court stated at paragraph 86: The exemption

section succeeds in striking an appropriate balance between individual rights and societal interests. It is a “constitutional compromise” which, in this context, addresses the need to assist and streamline criminal investigations yet protect offenders from the unfairness of subjecting them to harsh or severe sanctions not contemplated at the time of the offence [Emphasis added]. [ 127 ] The exemption provision again saved SOIRA from constitutional attack in R v Warren, 2010 ABCA 133 .

In that case, ss 490.019 and 490.02(1) of the Criminal Code were challenged on the basis that their retrospective application to offenders who had already been sentenced violated s 7. The Court held that the retrospective imposition of SOIRA orders did not contravene any principle of fundamental justice.

This was in part because [t]he community concerns with respect to fairness are balanced by the fact [that]...the legislation provides for exemptions in cases where the impact of the order on an individual’s liberty is grossly disproportionate to the public interest: at para 29. [ 128 ] In SSC , supra , the British Columbia Court of Appeal stated at paragraph 70: Insofar as the burden on a low risk offender is disproportionate to the public interest, that can be a factor in the court’s consideration whether to grant an exemption or to terminate the obligation to register. [ 129 ] I agree with these decisions that the previous exemption provision “saved” the legislation in situations when the impacts of SOIRA orders infringed upon constitutionally protected rights of offenders. [ 130 ] I therefore recognize that the effects of SOIRA orders on certain offenders are grossly disproportionate to the aim of protecting the public.

D.

Section 12: Cruel and unusual punishment [ 131 ] I have found that SOIRA , breaches s 7 of the Charter , insofar as it does not provide the court with discretion to consider the circumstances of a particular offender and a particular crime when determining registration on the registry. Therefore, I do not have to consider Mr. Ndhlovu’s argument on s 12 of the Charter . III. Conclusion [ 132 ] The law as it stands will now place Mr. Ndhlovu on police radar for the rest of his life anytime a sexual offence is committed by a black man of average height in his neighbourhood.

I find that requiring him to register bears no connection to the object of assisting police officers in the investigation or prevention of future sex crimes. Thus, subjecting him to the reporting requirements, compliance investigation and further possible interference from police is in violation of his Charter protected right. [ 133 ] At his sentencing, I found that Mr. Ndhlovu was at a very low risk to reoffend. He has no criminal history. He took responsibility for his actions and showed great remorse for what he had done.

His offences related to alcohol consumption and he testified that he had since stopped drinking. The psychologist’s report was not helpful. I conclude that Mr. Ndhlovu does not present a risk to the public. [ 134 ]

Section 490.012 of the Criminal Code unjustifiably infringes s. 7 of the Charter . [ 135 ] The Crown requested at the outset that it be permitted to present argument and evidence on s 1 of the Charter if I found that the current Criminal Code and SOIRA was overbroad or grossly disproportionate as to registration of an offender on the registry.

If the Crown chooses to proceed with a s 1 hearing, I will consider its evidence and argument to determine if the Criminal Code and SOIRA are saved by that section. [ 136 ] If the Crown intends to call a s 1 case, it must file its application before November 30, 2016. [ 137 ] If the Crown does not make submissions or call evidence concerning s 1 of the Charter , my finding that s 490.012 infringes s 7 of the Charter stands and, consequently, is of no force or effect to the extent that it provides no discretion in the judge to decide not to put an accused on the registry if it is shown that to do so is grossly disproportionate to the nature of the crime and the offender.

There will be no SOIRA order made with respect to Mr. Ndhlovu. Heard on February 26 th and June 10 th , 2016. Dated at the City of Edmonton, Alberta this 24 th day of October, 2016.

A.B. Moen J.C.Q.B.A. Appearances: Ms. Carrie-Ann Downey (Crown Prosecutor's Office) for the Crown/Respondent Mr. Elvis Iginla, Mr. Christopher Bataluk (Iginla & Company) for the Accused/Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice A.B.

Moen _______________________________________________________ This judgment was changed by replacing the following paragraphs as follows: [27] In the 2004 Criminal Code , a judge would only make an order for registration on SOIRA if a prosecutor made an application after sentencing: s 490.012. The Amending Act removed the discretion of the prosecutor to make such an application and it made mandatory the imposition of an order by the judge for registration: s 490.012(1) of the Criminal Code , as amended in 2011. [134]

Section 490.012 of the Criminal Code unjustifiably infringes s. 7 of the Charter . [135] The Crown requested at the outset that it be permitted to present argument and evidence on s 1 of the Charter if I found that the current Criminal Code and SOIRA was overbroad or grossly disproportionate as to registration of an offender on the registry.

If the Crown chooses to proceed with a s 1 hearing, I will consider its evidence and argument to determine if the Criminal Code and SOIRA are saved by that section. [136] If the Crown intends to call a s 1 case, it must file its application before November 30, 2016. [137] If the Crown does not make submissions or call evidence concerning s 1 of the Charter , my finding that s 490.012 infringes s 7 of the Charter stands and, consequently, is of no force or effect to the extent that it provides no discretion in the judge to decide not to put an accused on the registry if it is shown that to do so is grossly disproportionate to the nature of the crime and the offender.

There will be no SOIRA order made with respect to Mr. Ndhlovu.