R v CK, 2024 ABKB 062

Court of King’s Bench of Alberta Citation: R v CK, 2024 ABKB 062 Date: 20240201 Docket: 190530899Q1 Registry: Edmonton Between: His Majesty The King Crown - and - CK Defendant _______________________________________________________ Endorsement of the Honourable Justice C.L.

Arcand-Kootenay _______________________________________________________ SOIRA Registration [ 1 ] The Crown requests that CK register in the National Sex Offender Registry ( SOIRA). [ 2 ] CK seeks an exemption on the basis that there would be no connection between the making of the Order and the purpose of the legislation, that is for the purpose of preventing and investigating sexual offences. [ 3 ] Regarding the cases relied upon by the Defense, I am not following these cases for the reasons below:

a. R v CRN, 2024 ABKB 15 . In this case, there was no violence, and the offender was remorseful. I distinguish on the facts, here in the matter before me, there was violence and CK was not remorseful. b. R v AL , 2023 ABKB 505 . In this case, there was an expert report and the offender expressed remorse and victim empathy. I distinguish on the facts. c. R v TS , 2023 ABKB 157 . In this case, the incident involved touching with no penetration. In the matter before me, there was penetration. I distinguish on the facts. A.

Previous SOIRA provisions found unconstitutional [ 4 ] In R v Ndhlovu , 2022 SCC 38 , the Supreme Court of Canada held the mandatory registration obligations found in CC 490.012 violated s 7 of the Charter and were of no force and effect by operation of s 52 of the Constitution Act . The Court suspended its declaration of invalidity for one year, allowing Parliament an opportunity to implement legislative changes. B.

Sentencing Courts’ response to Ndhlovu [ 5 ] During the year in which the Court’s declaration of invalidity was suspended, various sentencing courts have considered individual exemptions, pursuant to s 24(1) of the Charter , primarily to exempt low-risk offenders from SOIRA’s registration and reporting requirements. C. Parliament’s response to Ndhlovu [ 6 ] Parliament responded to the Supreme Court’s decision in Ndhlovu with Bill S-12,

An Act to amend the Criminal Code , the Sex Offender Information Registration Act, and the International Transfer of Offenders Act . Bill S-12 received Royal Assent on October 26, 2023. [ 7 ] Under the amended provisions, Sentencing Courts must make SOIRA orders when sentencing offenders convicted of a designated offence if: (

a) The designated offence was prosecuted by indictment; (

b) The sentence imposed for the designated offence is a term of imprisonment of two years or more; and (

c) The victim of the designated offence is under the age of 18 years: CC 490.012(1). [ 8 ] Where the mandatory provisions do not apply, CC 490.012(3) states the Court shall make a SOIRA Order unless satisfied the offender has established that: (

a) There would be no connection between making the Order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Act ; or (

b) The impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act . [ 9 ] Subsection (4) sets the factors the Court must consider in determining whether to make an order under ss (3): (

a) The nature and seriousness of the designated offence; (

b) The victim’s age and other personal characteristics; (

c) The nature and circumstances of the relationship between the person and the victim; (

d) The personal characteristics and circumstances of the person; (

e) The person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (

f) The opinions of experts who have examined the person; and (

g) Any other factors that the court considers relevant. [ 10 ]

Section 490.013(1) directs Sentencing Courts to give reasons for any decision made under CC 490.012(3)(

a) or CC 490.013(3)(b). D. Is there “no connection” between making a SOIRA order and SOIRA’s purpose?

[ 11 ] In considering the “no connection” test, Courts have focussed primarily on whether the offender has demonstrated there is no enhanced risk of reoffending and his current and prospective circumstances. E. Has CK established a SOIRA order should not be granted? [ 12 ] Subsection (4) sets the factors the Court must consider in determining whether to make an order under ss (3): (

a) The nature and seriousness of the designated offence: CK engaged in multiple non-consensual sexual acts: Forced oral sex; forced digital penetration; vaginal penile penetration. The accused removed the victim’s clothes, although the victim repeatedly said “stop”. The accused did not wear a condom and ejaculated inside the victim. The accused grabbed her head and waist, and his elbow collided with her head, para 5, Endorsement of the Honourable Cheryl L. Arcand-Kootenay , filed October 2, 2023 [Endorsement]. (

b) The victim’s age and other personal characteristics: the victim was 18 years old at the time of the offence. The victim submitted a Victim Impact Statement which highlighted the circumstances of this offence and how this offence had affected her. She has a fear of being in public, had depression and anxiety and PTSD, and it has impacted her emotionally, para 8 Endorsement . (

c) The nature and circumstances of the relationship between the person and the victim : CK and the victim were acquaintances before this incident. There was some degree of trust which led the victim in contact with CK. (

d) The personal characteristics and circumstances of the person : CK was 20 years of age at the time of the offence. He is now 25 years old. He is currently serving his federal penitentiary sentence at Bowden Institution in Alberta. He was unemployed at the time of sentencing but was previously employed in the auto industry and he wises to someday open his own business. He has good family support, a partner and two young boys. He will reside with his partner when he returns to the community. (

e) The person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence: CK had no previous convictions. S #2 is CK’s criminal history after the fact, for property related crimes. (

f) The opinions of experts who have examined the person ; There are no expert reports. (

g) Any other factors that the court considers relevant : CK used violence to overcome resistance and has expressed no remorse. [ 13 ] CK argues that a formal risk assessment is not invariably required to obtain an exemption. I agree. [ 14 ] In Ndhlovu , the majority of the Supreme Court at paras 109-110 noted that sentencing Judges make risk assessments routinely, including those informed by expert assessments, but did not suggest that expert evidence is always required.

However, the majority cautioned that, in the past, Judges may have improperly exempted offenders from registration and reporting requirements relying on myths and stereotypes about sexual assault. That caution serves to remind Sentencing Judges about the value of expert assessments in appropriate circumstances. [ 15 ] Here, I am presented with a major sexual assault involving a high level of violence. [ 16 ] In my Endorsement , I found as follows: Crown submitted the gravity of the offence was very high. I agree with Crown’s submissions. I must look at the harm or likely harm to the victim or to society.

Here, there were multiple sexual acts: Forced oral sex; forced digital penetration; vaginal penile penetration. The accused removed the victim’s clothes, although the victim repeatedly said “stop”. The accused did not wear a condom and ejaculated inside the victim. The accused grabbed her head and waist, and his elbow collided with her head, paragraph 5. Crown also submitted that your degree of responsibility was also very high. I agree with Crown’s submissions. You committed intentional acts to overcome the victim, which were sustained over several minutes.

You took the victims phone away immediately; thus, she was unable to call for help. The victim was resisting you and saying “stop”, paragraph 6. ... The aggravating factors relating to the circumstances of the offence and the offender are: • There was some degree of trust which led the victim into contact with the accused.

The accused was someone she knew. • There was a risk of pregnancy, as no condom was used. • There was the use of violence to overcome resistance – the victim suffered some injuries and abrasions. • The victim and her family and close friend provided VIS, collectively s #1, which highlights the circumstances of this offence and how this offense has affected the victim and her family and friends. The victim has a fear of being in public, has depression and anxiety and PTSD, and it has impacted her emotionally. She states “no amount of therapy can help me forget that night.

All the details of what he did to me will forever be stuck in my mind”. Her family and friends state that the victim is no longer the same carefree person she used to be. She never feels safe and struggles with her mental health and trusting others, paragraph 8. …

The mitigating factors relating to the circumstances of this offence and the offender are: • Crown submitted that there were no mitigating factors. • However, defense submitted that the accused was youthful at the time of the offence (20 years of age); he was previously employed, although unemployed at present; he has a supportive family and friends; and provided reference letters, collectively s #3. • The accused did not have anything to say to the court when asked. I find that the accused is not remorseful, paragraph 10. ...

Case law guides me in finding that the accused’s character will not be considered as a mitigating factor in the matter before me. I will allow a small measure of mitigation for his youth, para 14 and 15. [ 17 ] While the majority of the Supreme Court found that mandatory SOIRA registration was overbroad and breached s 7 rights in that it captured individuals that were at no increased risk to re-offend, courts must be cautious to not grant exceptions without an evidentiary foundation that the offender falls into this lowest category.

R v Fagan , 2023 ONSC 823 at para 46 . [ 18 ] I am following the decision in R v KS , 2023 ABKB 363 [ KS ], para 111 , while CK may be a good prospect for rehabilitation, that finding is insufficient to establish that CK is not at an increased risk to reoffend or that the risk profile is so low that I should otherwise grant an exemption. I cannot make the necessary determination based upon the limited evidence before me. I have some short letters of support, the trial evidence, and the sentencing submissions about CK’s personal circumstances.

However, the modest details do not offer a fulsome risk profile. [ 19 ] Regarding the sexual assault, little explanation is provided for the underlying cause or whether CK has gained any insight about his behaviour. In these circumstances, better information is required, KS , para 115 . [ 20 ] There is no evidence before me to prove that CK is not at an increased risk of reoffending in light of a bare assertion. The offence speaks for itself: a violent sexual attack of people close in age who knew each other. [ 21 ] Defense has not met his onus.

The factors defense has enumerated, DNA and fingerprints, are factors that would exist in virtually every case of a serious sexual assault where a conviction is granted. Prior good character is a feature in many sexual assault cases and has limited bearing on assessing the accused’s character or risk, para 11 – 13, Endorsement. While I agree that an expert opinion is not required, I am entitled to consider the absence of one in considering the facts of a serious sexual assault with someone CK knew. F.

The existing evidence does not demonstrate that an exemption should be granted. [ 22 ] There is nothing on the record before me to establish that there would be no connection between the making of the order and the purpose of the legislation, namely the objective of capturing information that would assist police in preventing and investigating sexual offences. Further, the stated purpose of SOIRA includes a prevention component. Being subject to a SOIRA Order can have a deterrent effect on an offender, which is consistent with the SOIRA ’s purpose: see R v Jensen , 2019 ABQB 873 at para 37 .

For these reasons, I find that CK has not demonstrated that there is no connection between making the order and the purpose of helping police services prevent or investigate crimes. [ 23 ] The Charter application is therefore dismissed. [ 24 ] I impose the following ancillary order: A SOIRA Order for a duration of 20 years pursuant to s 490.013(2)(

b) of the Criminal Code . Heard on the 29th day of January, 2024. Dated at the City of Edmonton, Alberta this 1 st day of February, 2024. C.L. Arcand-Kootenay J.C.K.B.A. Appearances:

Fraser Genuis for the Crown Alexandra Seaman Jordan McDermott for the Defendant