R. v. Jayswal, 2011 ONCJ 33

COURT FILE No.: 10/564 Citation: R. v. Jayswal , 2011 ONCJ 33 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SUBHASCHANDRA JAYSWAL Before Justice Lloyd Dean November 17, 2010 Elizabeth Brown .................................................................................................... for the Crown Hanieh AZIMI .................................................................................................. for the Accused RULING ON APPLICATION DEAN, LLOYD J.: Introduction [ 1 ] The accused pleaded guilty to an offence contrary to

section 271 of the criminal code. At the time of the offence the accused was 61 years of age. The victim was 14 years of age. Facts [ 2 ] The victim and a friend were sitting on a bench in a park when the accused approached, offered a greeting and sat next to the victim. He began feeling her hand and attempted to read her palms. The victim felt uncomfortable and attempted to leave. The accused grabbed her arm and forced her to sit. After a few attempts she was able to stand up. As she did the accused grabbed her and hugged her. The victim attempted to push him away but the he grabbed her breast.

She again tried to push the accused away only to have him grab her head and kiss her cheek. The victim left the area and reported the incident to her mother and the police were called. Issue [ 3 ] Does s. 490.012 of the Criminal Code apply to absolute and conditional discharges? Position of the Parties

[4] The accused had no prior criminal record. He has a pending refugee status claim that is awaiting the outcome of this case. TheCrown and defence counsel put forward a joint position for the court to impose a conditional discharge and probation. I am prepared togo along with the joint position, for reasons that are not necessary to go into for the purposes of this ruling. [5] The Crown is asking the court to impose an order requiring the accused to register as a sex offender pursuant to the Sex OffenderInformation Registration Act (“SOIRA”).

The Crown and defence counsel were not in agreement concerning the applicability of section490.012 of the Criminal Code. The defence maintains that a SOIRA order does not apply when an accused is granted an absolute orconditional discharge. Code provisions governing SOIRA Orders Order 490.012

(1) As soon as possible after a court imposes a sentence person for an offence referred to in paragraph (a), (c), (c.1), (

d) or (

e) ofthe definition "designated offence" in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mentaldisorder for such an offence, it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with theSex Offender Information Registration Act for the applicable period specified in

section 490.013. [Emphasis added.] ... Exception

(4) The court is not required to make an order under this

section if it is satisfied that the person has established that, if the order weremade, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protectingsociety through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sexoffenders under the Sex Offender Information Registration Act. [6] The reading of this

section causes the following question to be asked: Does an absolute or conditional discharge constitute asentence? [7] Crown counsel referred the court to the Quebec Court of Appeal case of D. K. v. R., 2009 QCCA 987 decided May 14,2009. In that case the accused had been convicted of an offence set out in

section 152 of the Criminal Code. One of the issues beforethe appeal court was whether or not the trial judge had the authority to issue an order under

section 490.012 when he also granted aconditional discharge. The court expanded the issue to absolute discharges as well (i.e. the application of

section 490.012 in cases ofabsolute or conditional discharge). The appeal court considered whether the word “sentence” used in

section 490.012 includeddischarges. Counsel for the appellant had argued that because the appellant had received a conditional discharge no sentence wasimposed and therefore no order should have been issued. [8] The Quebec Court of Appeal compared the English and French versions of subsection 490.012 (1). There is a difference betweenthe French and English versions. The French version applies where there has been both conviction and sentencing, whereas the Englishversion requires only sentencing. After referring to Mr. Justice Michel Bastarache’s text, The Law Of Bilingual

Interpretation, andapplying the approach described by Justice Bastarache, the appeal court goes on to say, interestingly, that it prefers the English version. If they had preferred the French version discharges would not be captured by the

section because when an offender receives a dischargethere is no conviction registered.

Section 730 reads in part: 730.

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [9] Having preferred the English version the Quebec Court of Appeal went on to consider whether discharges constitute a sentence.

Their answer is given at paragraph 41: [41] Does an absolute or conditional discharge constitute a sentence? In my view, it does. First,

section 730 is in

Part XXIII of theCriminal Code, entitled “Sentencing”. In addition,

section 673 Cr. C., which provides

definitions applicable to appeals from indictableoffences, includes “discharge” in the definition of “sentence”. Similarly, the case law has recognized a discharge as constituting asentence, describing it as [translation] “the lightest sentence under the Criminal Code”.[7] Finally, scholarly commentary has described adischarge as a [translation] “sentence without penal consequences”,[8] a [translation] “lenient sentence”,[9] a “lesser penalty”,[10] and “a

sentence viewed as a warning”. [11] [ 10 ] Defence counsel submits the Quebec Court of Appeal selection of the English version was incorrect. Although I am of the view that the Québec Court of Appeal may have incorrectly chosen the English version, I do not feel it necessary, for the reasons that follow, to deal with that specific issue. For the purpose of this case I will assume that the Quebec Court of Appeal was correct to apply the English version and not the French version which would have been more favourable to the accused. Instead, I will focus on the issue of whether or not

section 490.012 applies when an offender is granted an absolute or conditional discharge. And in regards to that issue I have come to a different conclusion than the Québec Court of Appeal. My analysis follows. Analysis [ 11 ] After hearing submissions of counsel I reserved my decision so I could review the case law counsel had provided. The review of the case of law led me to do some further research, including over the Internet. [ 12 ] Defence counsel has provided and relies on a judgement given by Justice D. Fairgrieve, in the case of R. v. Mwamba , 2006 ONCJ 374 .

In that case the accused was found guilty of sexual assault (s.271). The Crown was seeking a suspended sentence and defence counsel was asking Justice Fairgrieve to impose a conditional discharge. Justice Fairgrieve comments on the applicability of

section 490.012 when a conditional discharge is granted. At paragraph eighteen he states: [18] I also do not think (nor, in fairness, did Ms. Jaffer really suggest it) that the availability of a discharge should be influenced by the consequences of a conviction for an offender under the Sexual Offender Information Registration Act or Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c.1 . The provisions of both statutes impose obligations only on an offender who has been convicted or found not criminally responsible on account of mental disorder, and not on an offender who has been granted a discharge.

Under SOIRA, Mr. Mwamba would be a “sex offender” required to report if, pursuant to s. 3(1) of the Act, he is a person subject to an order under s. 490.012 of the Criminal Code . Such an order is to be made by a court under that

section of the Code “as soon as possible after it imposes a sentence” on a person for a “designated offence”. While the discharge provisions are set out in s. 730, in

Part XXIII of the Criminal Code governing “Sentencing”, and a discharge may often be regarded informally as a “sentencing option” (see, for example, the “synopsis” following s. 730 in 2007 Martin’s Annual Criminal Code , at p. 1394), for appeal purposes, s. 730(3) treats a refusal to grant a discharge as an acquittal or dismissal of a charge and a determination of guilt with a discharge as a conviction. It follows, I think, that a court that grants a discharge does not “impose a sentence” within the meaning of s. 490.012.

Any doubt about the correctness of that conclusion, I think, is eliminated by s. 4(2) of SOIRA , which specifies the reporting obligations only for a person who is “convicted” or who “receive[s] an absolute or conditional discharge under

Part XX.1 of the Criminal Code ” , the Mental Disorder provisions. Christopher’s Law is even more explicit, with its definition of “offender” in s. 1 restricted to a person who has been “convicted” of a “sex offence” or found not criminally responsible on account of mental disorder. [Emphasis added.] [ 13 ] Although s. 4(2) is somewhat similar, I believe J. Fairgrieve meant to say s. 4(1) of SOIRA , as s. 4(1) reads: 4.

(1) A person who is subject to an order shall report to a registration centre referred to in

section 7.1 within 15 days after (

a) the order is made, if they are convicted of the offence in connection with which the order is made but are not given a custodial sentence; (

b) they receive an absolute or conditional discharge under

Part XX.1 of the Criminal Code , if they are found not criminally responsible on account of mental disorder for the offence in connection with which the order is made ; ( b.1 ) they receive an absolute or conditional discharge or are released from custody under Division 7 of

Part III of the National Defence Act, if they are found not criminally responsible on account of mental disorder for the offence in connection with which the order is made; ( b.2 ) the imprisonment or detention to which they are sentenced for the offence in connection with which the order is made is suspended under

section 215 or 216 of the National Defence Act ; (

c) they are released from custody pending the determination of an appeal relating to the offence in connection with which the order is made; or (

d) they are released from custody after serving the custodial portion of a sentence for the offence in connection with which the order is made. [Emphasis added.]

[ 14 ] In my view it is clear from reading section 4(1) that the legislators make a clear distinction between a conviction and a person who receives an absolute or conditional discharge. In the case of an absolute or conditional discharge the legislators felt it appropriate to specifically state that when an offender received an absolute or conditional discharge after they were found not criminally responsible on account of mental disorder they would still be subject to the possibility of a SOIRA order.

It would have been simple enough for the legislators to include the wording pertaining to discharges in paragraph 4(1)(a), if the legislation was to also apply to offenders given a discharge who were not found criminally responsible on account of a mental disorder. Consider what the legislators did for Criminal Code

section 161 (Order of Prohibition) and 487.051 (1) (DNA orders). They read in part as follows: 161.

(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730 , of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; 487.051

(1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under

section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act , of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (

a) of the definition “primary designated offence” in

section 487.04 when the person is sentenced or discharged. [Emphasis added.] [ 15 ] In the Quebec Court of Appeal case mentioned above the appellant argued, because the SOIRA legislation did not specifically include the words “discharged under

section 730” as the above sections do, discharges do not apply to the SOIRA legislation. The Quebec Court of Appeal rejected that argument. Their reasons are found at paragraph 36 of the judgement: [36] The a contrario

interpretation may be valid in some situations, especially where other indicators point to the same result. In this case, I find that this method should not be used because the provisions at issue were not introduced into the Criminal Code by the same statute and it therefore cannot be assumed that the wording is uniform. In my view, it is more prudent to determine the meaning of s. 490.012(1) by examining the provision in its context under the heading of “Sex Offender Information”, which stands on its own, and in light of the legislative intent. [ 16 ] With the greatest of respect to the Quebec Court of Appeal, in my view the plain reading of the

section in the context of the entire legislation (the Criminal Code as well as the Sex Offender Information Registration Act ) makes it clear that those who receive a discharge are not subject to the provisions of the SOIRA, unless they were found not criminally responsible on account of a mental disorder. [ 17 ] T he Quebec Court of Appeal refers to the definition of sentence for the purposes of appeals under s. 673. There, sentence includes orders under s. 730, and dispositions for suspended sentences and intermittent sentences under s. 731 and 732.

In my view if Parliament had intended “sentence” to have the meaning the Quebec Court of Appeal concluded throughout the Criminal Code , it would have said so. Other parts of the Criminal Code suggest exactly the opposite of what the court decided. One can find an example in s. 722: Victim impact statement 722.

(1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to

section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. [ 18 ] If a person can either be discharged or sentenced, a discharge cannot be a sentence. [ 19 ] The formal written Order requiring the offender to comply with SOIRA measures is known as Form 52. It is referred to within s. 490.012 (1). It is a pre-typed document supplied by the Court Services Division. Once the form is signed by the ordering judge the

offender is given a copy. Near the top of Form 52 is a clause which reads: You have been convicted of, or found not criminally responsible on account of mental disorder… [ 20 ] The ordering judge is required to check one of the two boxes.

There is nothing on the form referring to an absolute or conditional discharge. [ 21 ] While searching the Internet I came across the following on the Public Safety Canada website, a Federal government website, found at http://www.publicsafety.gc.ca/media/nr/2009/nr20090601-2-eng.aspx : Strengthening the National Sex Offender Registry and the National DNA Data Bank The Government of Canada is committed to strengthening the National Sex Offender Registry and the National DNA Data Bank so that they better protect Canadians from sexual offenders.

Proposed changes will also enable police to prevent and investigate crimes of a sexual nature more effectively. Background The National Sex Offender Registry is a national registration system for sex offenders who have been convicted of designated sex offences and ordered by the courts to report annually to police. The Registry includes such information as: ▪ name; ▪ date of birth; ▪ current address; ▪ current photograph; ▪ identifying marks (e.g. tattoos, scars); ▪ sex offence(

s) for which the offender has been convicted. In 2004, the Sex Offender Information Registration Act (SOIRA) was proclaimed in law and established authority to create a national database of convicted sex offenders to be administered by the Royal Canadian Mounted Police (RCMP). In 2008, amendments to the National Defence Act came into force to ensure that measures in the SOIRA apply to Canadian Forces personnel found guilty of designated offences at court martial. The National DNA Data Bank is maintained by the RCMP and was established in the DNA Identification Act which came into force in June 2000.

The DNA Data Bank consists of two collections or indices of DNA profiles: a crime scene index, containing DNA profiles derived from bodily substances found at a crime scene; and a convicted offenders index, containing DNA profiles derived from bodily substances taken from offenders against whom post-conviction DNA data bank orders have been made. Today, to strengthen the Registry and the Data Bank, amendments are being proposed to the following acts – the Sex Offender Information Registration Act , the Criminal Code , the National Defence Act and the International Transfer of Offenders Act .

The proposed amendments include the following fundamental reforms: automatic inclusion in the registry of all convicted sex offenders ; mandatory DNA sampling for all convicted sex offenders; proactive use of the Registry by police; registration of sex offenders convicted abroad; notifications to other police jurisdictions when high-risk registered offenders travel; and, amendments to the National Defence Act to ensure that reforms apply to the military justice system. As well, several other operational and administration matters are addressed. Proposed amendments are outlined below.

Automatic Inclusion in the National Sex Offender Registry ▪ This proposal would require that sexual offence convictions would result in an automatic Sex Offender Registry order and a DNA data bank order (making it mandatory to provide DNA samples for inclusion in the National DNA Data Bank).The amendments would therefore also toughen the DNA scheme to ensure that all designated sexual offences result in not only a Sex offender Registry order, but also in a DNA data bank order. ▪ SOIRA and DNA registration would be automatic upon conviction , making it mandatory for the sentencing judge to impose an order to register and provide a DNA sample whenever a conviction for a prerequisite sexual offence has been entered against an offender.

The Crown prosecutor will no longer be required to bring an application for an order. This provision will apply prospectively only. ▪ This proposal would ensure the primary designated offence list for forensic DNA analysis is amended to include all SOIRA

designated sexual offences. ▪ For 13 apparently non-sexual offences, the Crown would have to make a finding that there was intent to commit a designated sexual offence, prior to inclusion on the Registry (e.g., manslaughter, trespass at night). [Emphasis added.] [ 22 ] Another item I came across on the Internet was a directive issued by the Department of Public Prosecutions in Nova Scotia found at http://www.gov.ns.ca/pps/publications/ca_manual/ProsecutionPolicies/SOIRApolicy04.pdf . The directive was distributed March 4, 2005, presumably to Crown prosecutors within Nova Scotia.

A portion of the directive is reproduced below: OVERVIEW The Sex Offender Registration Act ( SOIRA , “the Act”), in force as of December 15, 2004, establishes a database designed to assist peace officers in the investigation of sexual offences. The database is to contain addresses, descriptions, and other vital information relating to convicted sex offenders , and is accessible to investigators as soon as they become aware of the commission of a sexual offence. Investigators are able to search the database by location, within a radius of any specific address or geographical area.

Crown Attorneys, except in very narrow circumstances, do not have access to the database information. When a sex offender is convicted , the Crown, as outlined in this policy document, is to apply to the court for an order under SOIRA , and the court, as soon as possible after sentencing, shall issue an order directing the offender to report to a designated registration centre. There, the offender is to provide the personal information specified in the Act.

The information is to be updated regularly by the offender, and this obligation continues for 10 years, 20 years, or life, depending on the maximum penalty for the offence upon which the conviction is registered . Failure to comply with the terms of a SOIRA order is a new offence under the Criminal Code .

The court may exempt an offender from SOIRA obligations only if the court is satisfied that the impact of the obligations would be “grossly disproportionate to the public interest in protecting society though the effective investigation of crimes of a sexual nature” to be achieved through SOIRA. … KEY ASPECTS OF SOIRA, and POLICY CONSIDERATIONS Applications for SOIRA Orders The process of issuing an order requiring an offender to provide information to the database established under SOIRA begins with the prosecutor making an application to the court when an offender is convicted of a “designated offence” .

Offenders who are granted absolute discharges under s. 730 of the Criminal Code are not subject to SOIRA orders. The Act also does not apply to “young persons”, unless they are tried in ordinary court (YOA), or are given an adult sentence (YCJA). [Emphasis added.] [ 23 ] The parts that I have emphasized of the Public Safety Canada website and the above directive are compelling and in my view support the position that SOIRA orders apply to those offenders who are “convicted” of a designated offence.

I am mindful that the Nova Scotia directive indicates offenders who are granted “absolute” discharges are not subject to a SOIRA order. No comment is made regarding conditional discharges. [ 24 ] I pause to indicate that I am also mindful of the dangers of relying solely on information discovered on the Internet. While the Internet can provide up-to-date useful and accurate information it is also filled with inaccurate, misguided and dated information. And so I acknowledge that I cannot be sure nor have I made inquiries to see if the Nova Scotia directive I discovered is the directive currently in place.

However, the discovery of that directive caused me to wonder if the Attorney General of Ontario had issued a directive or practice memorandum applicable to SOIRA orders. I made inquiries of the local Crown’s office and received a copy of the practice memorandum dated December 10, 2004 dealing with the national sex offender registry. The memorandum was issued by the Ontario Ministry of the Attorney General - Criminal Division. It has been incorporated in the newest Crown Policy Manual (March 31, 2006), the manual currently in effect. On page one an excerpt from that memorandum states as follows:

Under S.O.I.R.A., offenders who are convicted of, or found not criminally responsible on account of mental disorder for a designatedoffence will not be automatically entered into the national sex offender registry. Rather, Crowns will have to apply for a prospective sexoffender registry order. These applications are to be ordered as soon as possible after sentence is rendered or the verdict of NCR ismade… [Emphasis added.] [25] On page two of that same memorandum under the heading “Crown Applications for Prospective Orders: s. 490.012”, it reads:

a) Brief overview S.O.I.R.A. applies prospectively to persons who are convicted or found not criminally responsible on account of mental disorder for adesignated offence, after the date of proclamation of the legislation. These offenders are not automatically required to register.

Prospective sex offender registry orders can only be made on application of the Crown… [Emphasis added.] [26] There is no mention in the Ontario memorandum regarding the applicability of SOIRA orders to those receiving absolutedischarges or to young offenders as stated in the Nova Scotia directive, but it appears the position of the Ontario Attorney General is thatSOIRA orders apply to “convicted” offenders or those found not criminally responsible on account of mental disorder. [27] I am also further convinced of my view that s. 490.012 is not applicable in cases where a discharge has been granted bycomments made in several cases. [28] The Ontario Superior Court of Justice in the case of R. v.

Dyck (2005), (ON SC), 203 C.C.C. (3d) 365, ajudgment of Hambly J., at paragraph 2 states: (vi) The Federal Sex Offender Information Registration Act (SOIRA) and its Application [104] SOIRA came into effect on December 15, 2004. Its reporting requirements for convicted sexual offenders are similar to thosein Christopher’s Law. It contains a list of four categories of offences which it defines as designated offences. One category is of sexualoffenders and two categories are of historical sexual offences. There is a fourth category of non-sexual offences.

A person convicted of asexual offence or a non-sexual offence with a sexual intent is required to register identifying characteristics with the police. The offendermust make the information current annually or when it changes. If the offence for which the offender is required to report wasprosecuted summarily or the maximum term of imprisonment is two or five years he must report for ten years. If the offence for whichhe was prosecuted has a maximum term of imprisonment of ten or fourteen years he must report for twenty years.

If the offence forwhich he was prosecuted has a maximum term of imprisonment of life he must report for life. He also must report for life if he isconvicted of an offence for which he is required to report having been previously required to report under the Act. [Emphasis added.] [29] The Ontario Court of Appeal, although not deciding the specific issue I am dealing with, in the case of R. v. Debidin (2008),2008 ONCA 868 , 94 O.R. (3d) 421, makes several references to the fact that it is a “convicted” offender who is subject to aSOIRA order. Watt J.

A. writes for the court: [35] The purpose of the SOIRA is to help police investigate sexual offences by making available to them information provided byconvicted sexual offenders required to register under the Act. This information may be of investigative assistance in the inculpation orelimination of various suspects.

… [37] It is the SOIRA, rather than the Criminal Code, that determines what is involved in registration under the Act. As its namesuggests, the SOIRA requires a convicted sex offender to provide certain information about him or herself to those charged with theresponsibility of collecting information at a registration centre. Sections 4(1) and 4(2) of the SOIRA tell the offender when and where toreport.

Section 5(1) of the Act defines what information the offender must provide: [30] And at paragraph 41: [41] The authority for a sentencing judge to direct a person sentenced on conviction of a crime to register under the SOIRA resides ins. 490.012 of the Criminal Code. In general terms, what is required is an application by the prosecutor to the judge who imposessentence on a person convicted of a designated offence. [31] Further at paragraphs 44 through 46, [44]

Section 490.012(1) uses mandatory language: the presumptive “shall”, not the permissive “may.” When the conditionsprecedent in s. 490.012(1) have been met- an application by the prosecutor and conviction of a designated offence - the sentencing judgeis required to direct that the accused register under the SOIRA.

The order is to be made as soon as possible after the judge imposessentence. [45] Thus, in cases governed by s. 490.012(1), a SOIRA order is mandatory on application by the prosecutor after conviction of adesignated offence, unless the convicted offender establishes a case for exception under s. 490.012(4).

In cases to which s. 490.012(2)applies, a SOIRA order is only mandatory on application by the prosecutor after conviction of a designated offence and proof beyond areasonable doubt that the designated offence was committed with the (further) intent to commit a designated offence governed by s.490.012(1), unless the offender establishes a case for exception under s. 490.012(4). [46] On its face, s. 490.012(1) does not distinguish recidivists from first offenders, or sexual predators from opportunistic relativesor friends.

An application by the prosecutor and a conviction for a listed offence is all that is required to engage the presumptive orderfor which the subsection provides. [Emphasis added.] [32] And finally, at paragraphs 58 through 60: [58] Since an order will be made under s. 490.012(1) upon the application of the prosecutor on conviction for a designated offencedescribed in the subsection, any convicted offender who seeks to avoid registration must seek and satisfy the requirements for anexception under s. 490.012(4).

In other words, it falls to the offender to satisfy the presiding judge that the exception applies byestablishing that the impact of the registration on the offender is grossly disproportionate to the specified public interest. 59] The effect of s. 490.012(1) is to create a rebuttable presumption that a SOIRA order will be made on application of theprosecutor on conviction for a designated offence. The presumption is rebuttable by evidence that satisfies the requirements of s.490.012(4): R. v. R.L., 2007 ONCA 347 , 2007 ONCA 347; 74 W.C.B. (2d) 11, at para. 7; R. v.

Redhead 2006 ABCA 84, (2006), 384 A.R. 206 (C.A.), at para. 26. [60] The evidence upon which the convicted offender may rely to invoke and to satisfy the exception may emerge from the trial orsentencing proceedings, but it must be relevant to the issue framed for decision on the application: the impact of registration on theoffender and the balancing of the competing interests required by s. 490.012(4). [Emphasis added.] [33] As I said before, I appreciate the Court of Appeal was not dealing with the specific issue that confronts this court.

Could it bethat the court of Appeal was simply not considering the parameters of s. 490.012 carefully since that issue was not before it? I find thathard to believe, and don’t believe it to be the case. I think Mr. Justice Watt’s statement in paragraph 44 above makes it clear…” When

the conditions precedent in s. 490.012 (1) have been met- an application by the prosecutor and conviction of a designated offence - thesentencing judge is required to direct that the accused register under the SOIRA.” Until the Ontario Court of Appeal says otherwise I amsatisfied with that statement as a clear indication by the Court of Appeal that a conviction is required for s. 490.012 (1) to apply.Therefore a discharge does not attract the provision. [34] If all that weren’t enough, I point to the following casesout of British Columbia which seem to suggest the sameviewpoint.

In the Supreme Court of British Columbia case ofP.S.C. v. British Columbia (Attorney General) (2007), 2007 BCSC895 , 222 C.C.C. (3d) 230, at paragraph 1: [1] The Sex Offender Information Registration Act, S.C. 2004, c. 10 (the “SOIR Act”) and companion amendments to the CriminalCode, R.S.C. 1985, c. C-46, came into force on December 15, 2004. In combination, they establish the National Sex Offender Registry(the “registry”) and create a process under which certain individuals are required to register with that establishment. The legislationapplies both prospectively and retrospectively.

In prospect, it applies to offenders convicted of various specified offences (generallyoffences that are sexual in nature) after December 15, 2004. The prospective obligation to register is triggered by court order (the “orderprovisions”). Retrospectively a different regime is created. Registration is limited to those who, at the time the legislation came intoforce, were serving a sentence for certain sexual offences. Those individuals must register if they receive a notice to do so from theAttorney General (the “notice or obligation provisions”).

Under both regimes, potential registrants may apply for an exemption to therequirement that they register. [35] And further at paragraphs 4 through 8: [4] The amendments to the Criminal Code deal with who may be required to register under the SOIR Act. The SOIR Act creates theregistry, sets out the information that registrants are required to provide, and defines the circumstances under which that informationmay be accessed. [5] In terms of who may be required to register, the Criminal Code defines “designated offence” in s. 490.011(1).

Designatedoffences are divided into four categories: the first are offences that have as an element of them some overt sexual aspect; the secondconsists of offences that lack such an element but may have been committed with the intention of committing one of the offences in thefirst category; the third and fourth categories consist of offences which have an overt sexual component but are no longer part of theCriminal Code, such as rape and gross indecency. Subsections 490.011(1)(

e) and (

f) deal with attempts and conspiracy to commit one ofthe above offences. [6] In the case of an offender convicted of and sentenced for an offence in the first, third or fourth category (the overtly sexualoffences) after the coming into force of the amendments, if the prosecutor applies for a registration order, the court must make the order(s. 490.012(1)) unless the offender can demonstrate that he or she is entitled to an exemption. [7] In the case of an offender convicted and sentenced for an offence in the first, third or fourth category prior to the coming intoforce of the amendments to the Code and the SOIR Act, the obligation to register is triggered by the Attorney General issuing andcausing to be served a notice under s. 490.019.

The notice is prescribed in Form 53. The obligation does not apply if the offenderapplies for and is granted an exemption under s. 490.023. The offender who receives a notice is required to register within one year afterbeing served or upon being denied an exemption, whichever occurs first. Finally, the notice must be served within a year of the SOIRAct coming into force (s. 490.021(1)). [8] Offenders convicted of offences that fall in the second category noted above prior to the amendments and the SOIR Act cominginto force cannot be the subject of a notice.

Those convicted after the coming into force of the SOIR Act can be the subject of an orderunder s. 490.012, if the Crown proves beyond a reasonable doubt that the offence was committed with the intention of committing one ofthe offences noted in any of the other categories, that is, an offence with an overt sexual component to it. [Emphasis added.] [36] And in the British Columbia Court of Appeal, the case of R. v.

S.S.C., 2008 BCCA 262, the court stated at paragraph 2: [2] On or about December 15, 2004, the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), and associatedamendments to the Criminal Code, R.S.C. 1985, c. C-46, came into force. Together, they establish a database of sex offenderinformation and procedures for requiring individuals convicted of a designated sex offence to report and register certain personalinformation.

Because the appellant was still under sentence on the passing of this new legislation, the Attorney General of BritishColumbia, as authorized by the legislation, served a notice on the appellant, informing him of his obligation pursuant to s. 490.022(3)(d)of the Criminal Code to register under SOIRA unless he obtained an exemption under s. 490.023. As the appellant was convicted of

more than one offence, his SOIRA reporting obligations are for life (s. 490.022(3)(d)). Conclusion [37] Based on the above analysis, in my view it is made clear in several different types of publications, cases, etc., that s. 490.012 does not apply to absolute or conditional discharges (except in those case where the offender is found not criminally responsible as a result of a mental disorder). Dated at the City of Windsor this 14th day of January 2011. ____________________________ Lloyd Dean, Justice Ontario Court Justice