R v AL, 2023 ABKB 505

Court of King’s Bench of Alberta Citation: R v AL, 2023 ABKB 505 Date: 20230906 Docket: 211025135Q1 Registry: Edmonton Between: His Majesty the King Crown - and - AL Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Justice Peter Michalyshyn _______________________________________________________

Introduction [ 1 ] This is the offender AL’s application to be exempted from the mandatory application of the Sex Offender Information Registration Act ( SOIRA ) SC 2004 c 10 . For reasons which follow the application is allowed. Background [ 2 ] AL was sentenced on June 15, 2023 for the offence of unlawfully touching for a sexual purpose, contrary to s 151 of the Criminal Code .

As set out more fully in R v AL , 2023 ABKB 374 , AL plead guilty and was sentenced to 18-months to be served in the community pursuant to a Conditional Sentence Order. [ 3 ] The offence, while still serious, was clearly the least grave as compared to the many parity cases before the court. The offence was also of an isolated nature. That conclusion stemmed from the unique facts and from an August 5, 2022 expert report which concluded there was little if anything in AL’s sexual and relationship history to suggest he was a sexually deviant offender.

Test outcomes supported the conclusion he posted a low risk of sexual recidivism. Further support for low recidivism risk included his strong remorse and victim empathy. To the extent the offence was the product of compromising medical illness and/addition, AL had taken steps to address both.

And both his 18-month conditional sentence and subsequent 12-month period of probation included further assessment and treatment requirements. [ 4 ] The decision in AL’s SOIRA application was reserved to allow for a review of the parties’ written submissions and authorities. [ 5 ] The application of course flows from the decision in R v Ndhlovu , 2022 SCC 38 , in which the court struck down s 490.012 of the Criminal Code after finding its mandatory registration requirements violated s 7 of the Charter .

The court, at paras 132-134, noted a lack of evidence before it to justify what it found was the unconstitutional overbreadth of the SOIRA regime. The mandatory 20-year registration and related requirements after conviction for certain sex-related offences was found to deprive an offender of liberty in a manner that did not accord with the principles of fundamental justice. As the court stated, at para 8: [8] Because the mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police, it is inconsistent with the principle of fundamental justice against overbreadth.

Mandatory and lifetime registration overshoot the mark: subjecting sex offenders who do not have an increased risk of reoffending to obligatory reporting requirements is not connected to Parliament’s purpose of capturing information that assists police prevent and investigate sex offences.

Requiring lifetime registration also goes too far and denies the rights of some individuals in a way that bears no relation to Parliament’s objective. [ 6 ] The court in Ndhlovu suspended the invalidity of the SOIRA provisions relevant to AL’s application for a period of one year, subject to the offender’s right to apply for a personal remedy under s. 24(1) of the Charter during the period of suspended invalidity: R v Albashir , 2021 SCC 48 at paras 67 and 69 .

The law governing a SOIRA exemption [ 7 ] As to the effect of Ndhlovu , little more needs to be added to what has already been articulated in the Alberta decision of R v KS , 2023 ABKB 363 at paras 77-85 (cited too in R v Sulub , 2023 ABKB 431 ). [ 8 ] In both KS and Sulub the courts addressed conflicting authorities on jurisdiction; in both cases jurisdiction was found.

In the application before me, the Crown takes no issue with jurisdiction. [ 9 ] On the merits, again as noted in KS , citing Albashir and R v Shokouh , 2023 ONSC 1848 at para 23 , a s 24(1) Charter remedy may be available even during the period of suspension if the offender can demonstrate that application of the legislation found to be constitutionally infirm would be a breach of his own Charter rights, and if granting an individual remedy would not undermine the purpose of suspending the s 52(1) declaration. [ 10 ] In KS the court states further that its authority to grant a SOIRA exemption “should be exercised with restraint” owing to a concern alluded to in Ndhlovu for “excesses of judicial discretion”.

As the court in KS puts it: [101] ...this Court’s authority to grant an exemption to the SOIRA registration requirement should be exercised with restraint. The majority in Ndhlovu chose not to read down s 490.012(1) or to grant a retroactive declaration of invalidity because of concerns about frustrating “the compelling public interests that require a period of transition, creating uncertainty and removing the protection that justifies the suspension in the first place” (at para 140).

The reference to “uncertainty” alludes to excesses of judicial discretion. [ 11 ] For the purposes of the application before me – and having perhaps less concern for the ‘excesses of judicial discretion’ – I find it unnecessary to add an element of “restraint” to the existing test for a SOIRA exemption.

It is enough to apply the law simply as noted in many exemption cases, including KS itself, at para 105 , that: [105] In satisfying the test [for an exemption], the offender must show that the imposition of the SOIRA order in their particular circumstances is grossly disproportionate or bears no connection to the purpose of assisting police in the prevention and investigation of sex offences: R v Capot Blanc [2023 NWTTC 7] at paras 23 and 57; R v Cusick [2022 ONCJ 590] at paras 115-116. Grossly disproportionate

[ 12 ] In a decision dealing with the pre-2011 SOIRA regime, the court in R v Redhead , 2006 ABCA 84 articulated the following approach to the question of gross disproportionality (at paras 20, 26, 28-33, citations omitted): [20] The test to determine whether the exception in s. 490.012(4) applies is: 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.

Thus, the court must assess the impact of a SOIRA order on the offender, including the impact on his or her privacy and liberty interests and determine whether that impact is grossly disproportionate to the public interest. ... [26] Under s. 490.012(4), the offender bears the evidentiary burden of establishing that the impact of a SOIRA order on him or her would outweigh the public interest in protecting society by investigating crimes of a sexual nature. ... [28] The assessment of how reporting obligations might disproportionally impact an offender requires an evidentiary foundation.

The focus of that inquiry must be on the offender’s present and possible future circumstances, and not on the offence itself. [29] Different evidence is required to assess the extent to which the offender will require monitoring, which will necessarily include an examination of the nature of the particular circumstances of the offence and record of the offender. But that evidence is irrelevant to the determination of the impact of the registration and reporting on the offender. [30] Thus, the analysis under s. 490.012(4) is restricted to the impact of a SOIRA order on the offender.

Nevertheless, that subsection clearly contemplates that factors other than the offender’s privacy and liberty interests may be considered, as it requires the court to consider the impact on an offender, including any impact on the offender’s privacy and security interests. [31] Other factors might include unique individual circumstances such as a personal handicap, whereby the offender requires assistance to report.

Courts have also considered the intangible effects of the legislation, including stigma, even if only in the offender’s mind; the undermining of rehabilitation and reintegration in the community; and whether such an order might result in police harassment as opposed to police tracking. [32] Counsel for McIntyre argues the impact of a SOIRA order on an offender is self-evident given the onerous obligations imposed on a registrant under such an order.

Courts have held the 10-to-20-year reporting requirement has a substantial impact on any offender’s liberty, considering it is enforceable by imprisonment... [33] However, given the onus on the offender to demonstrate why the impact of such an order would be disproportional to the public interest, it appears there is no presumption of impact in the legislation arising from the length of reporting obligations alone. Patently, the impact on anyone who is subject to the reporting requirements of a SOIRA order is considerable.

But absent disproportional impact, the legislation mandates that anyone convicted of a prescribed offence is subject to the prescribed reporting period. [ 13 ] Since the 2022 decision in Ndhlovu , some cases have concluded similarly that an applicant must show something more than the SOIRA regime’s significant deprivation of liberty already noted in Ndhlovu .

An example is R v CRJ , 2023 BCSC 1151 at para 109 : ...the offender still needs to show something more to establish gross disproportionality than that he is at a low or negligible risk to reoffend, because this exemption is also concerned with the seriousness of the offence itself on one hand, and the circumstances of the offender (including homelessness or mental health challenges) that might make SOIRA registration a greater burden, on the other: Ndhlovu at paras. 46, 56, 135 . ( CRJ , at para 109) [ 14 ] On the other hand, in R v Shokouh , 2023 ONSC 1848 , at para 20 , the court concluded it remained an open question whether the reporting requirements themselves could, in certain circumstances, be grossly disproportionate.

The court cited Ndhlovu , are para 116 : [116] Having concluded the measures are overbroad, we need not decide whether they are grossly disproportionate. That said, we would not foreclose the possibility that the effects of the provisions may be grossly disproportionate to their purposes in some cases. As discussed above, the impact on anyone who is subject to the reporting requirements of a SOIRA order is considerable. The personal information registered, the frequency at which offenders are required to update their information and the threat of imprisonment make the conditions onerous.

They are not routine reporting requirements. [ 15 ] In any event, also post- Ndhlovu , courts have generally cautioned that the standard for gross disproportionality is “stringent” ( R v JS , 2023 MBKB 26 at para 13 ; R v OR , 2023 MBKB 32 at para 14 ) and “stringent and demanding” ( R v Capot Blanc , 2023 NWTTC 7 , at para 54 ).

Bears no connection [ 16 ] Registration under SOIRA will bear no relation to the purposes of the registration regime – which are to assist police in preventing and investigating sexual offences – if offenders can show they are persons who pose no increased risk of reoffending in the future.

Such individuals who pose no increased risk are those who the court in Ndhlovu called the “lowest risk sex offenders” (at para 92): [91] The expert evidence, which the sentencing judge accepted, made clear that there is no perceptible difference in sexual recidivism risk at the time of sentencing between the lowest-risk sexual offenders — the bottom 10 percent — and the population of offenders with convictions for non-sexual criminal offences.

In both instances, about two percent of individuals — whether they be the lowest-risk sexual offenders or the people with a criminal record unrelated to a sexual offence — commit a sexual offence over the next five years.

[92] Mandatory registration is overbroad to the extent it sweeps in these lowest-risk sex offenders. As a result of their risk profile, there is no connection between subjecting them to a SOIRA order and the objective of capturing information that may assist police prevent and investigate sex offences because they are not at an increased risk of reoffending.

The purpose of the provision is not advanced by including these offenders. [ 17 ] The court in Ndhlovu goes on to say that while the commission of a sexual offence “is one of many empirically validated predictors of increased sexual recidivism”, relevant too are other factors such as age, unusual or atypical sexual interests, sexual preoccupation, lifestyle instability or poor cognitive problem solving, amongst others.

Further: [94] ...Recidivism risk also varies depending on the pattern of offences: for instance, whether the offence is a non-contact sexual offence, or whether it is committed against a child, a stranger, an acquaintance or a family member. Yet the expert evidence makes clear that valid risk assessments must consider a range of risk relevant variables — there is no single factor that, on its own, yields an offender’s recidivism risk.

In short, many factors affect a sex offender’s recidivism risk. [ 18 ] The court cautions against focusing only on the commission of a past sexual offence as that “inevitably detracts the focus from the other variables affecting an offender’s recidivism risk.” (at para 95) Expert evidence [ 19 ] The decision in Ndhlovu creates no absolute requirement of statistical or other expert evidence relating to proof that an applicant is not at an increased risk of reoffending. Granted, the court noted that judges assess risk routinely, “including those informed by expert assessments” ( Ndhlovu at para 109 ).

But of course implicit in this statement is the fact that such assessments are not always so informed. Moreover, the court noted the Crown’s position that the risk of recidivism was difficult to assess and even expert assessments were error prone ( Ndhlovu at para 102 ). [ 20 ] Many courts have proceeded with SOIRA applications without such evidence. Some have granted exemptions even where expert evidence alone – without regard for other factors – suggests the applicant is indeed of some increased risk to reoffend.

Examples of such outcomes are R v Shokouh , 2023 ONSC 1848 , at paras 23-28 , and Ndhlovu itself, at para 141 . The majority noted expert evidence that Mr. Ndhlovu indeed shared some characteristics with individuals who would present an enhanced risk of reoffending. Still, the expert evidence was also that “risk assessment is an individualized exercise involving many variables”, and that based on the record before it, there was “no connection between subjecting Mr.

Ndhlovu to a SOIRA order and the objective of capturing information about offenders that may assist police prevent and investigate sex offences.” [ 21 ] All of this is again consistent with the Ndhlovu court’s earlier finding at para 87, coming out of the expert evidence in the s 1 hearing before the sentencing judge, that statistical models of reoffending have inherent limits: even the best studies or models cannot account for all personal characteristics that influence one’s likelihood of reoffending.

Having noted those inherent limits, the court concluded, again at para 87, that: We are satisfied that the personal circumstances of some offenders mean they are at no increased risk of reoffending. [ 22 ] The court in Sulub , at para 71 , noted that no expert evidence was before it regarding the offender’s risk to reoffend, and none was required: [71] For the Offender to obtain the benefit of a SOIRA order exemption, it is not absolutely necessary that he demonstrate that he falls within the lowest 10% in terms of sexual recidivism risk or otherwise have personal characteristics that make him less likely to reoffend.

These are simply examples used in Ndhlovu to establish overbreadth. The question is whether, for the Offender, the deprivation is in accordance with the principles of fundamental justice. In other words, is a mandatory SOIRA order for the Offender arbitrary or overly broad? [ 23 ] Such evidence aside, the court in Sulub noted comments in a Pre-Sentence Report that contributed to a finding that the offender fell short of full insight and acceptance of responsibility for the offence.

The sentencing judge concluded that: I am therefore left with the presumption that the Offender has the risk profile of an average sex offender. Applying the reasoning in Ndhlovu , the Offender would therefore have a higher risk of reoffending than the comparator group of non-sexual offenders. [ 24 ] In R v TS , 2023 ABKB 157 no expert evidence was before the court. TS is a decision coming out of a

Summary Conviction Appeal. It uniquely involved a sentencing in the first instance in which a SOIRA application was intended but never made or at least decided. The SCA judge agreed with the unopposed application before her that it was appropriate to exempt the offender from SOIRA registration. The record was also of an offender who the sentencing judge had found was unlikely to reoffend.

As such, the SCA judge concluded there was no connection between subjecting the offender to a SOIRA order and the objective of capturing information about offenders that may assist police in preventing and investigating sex crimes: Ndhlovu at para 141 . [ 25 ] The court in KS interestingly recognized the Ndhlovu court’s concern, at para 110 , that in the past sentencing judges may have improperly exempted offenders by relying on myths and stereotypes about sexual assaults.

The court in KS suggests the Ndhlovu court’s concern for myths and stereotypes is a “caution [that] serves to remind sentencing judges about the value of expert assessments in appropriate circumstances”. However, on my reading of the Ndhlovu majority on this point, I am not persuaded that it intended any particular message with regard to expert evidence and forbidden thinking. The cited

article by Prof Benedet (“A Victim-Centred Evaluation of the Federal Sex Offender Registry” (2012), 37 Queen’s LJ 437) says nothing about the use of expert evidence to mitigate concerns for judges’ reliance on myths and stereotypes. And the Ndhlovu majority’s own reminder to sentencing judges, at the conclusion of the same para 110, was simply that: To the extent some trial judges may have interpreted the former exemption too broadly, those trial decisions are always subject to

appellate review and guidance. Other province’s cases not involving expert evidence regarding recidivism include R v Capot Blanc , at para 27 ; R v Luis , 2022 CM 4016 at para 126 ; and R v Cusick , 2022 ONCJ 590 at para 122 .

Additional authorities [ 26 ] The additional SOIRA exemption authorities decided since Ndhlovu have come to my attention and are worth mentioning. [ 27 ] The decision in R v Riossi , 2023 ONSC 3812 canvasses many of the prevailing authorities albeit none from Alberta: R v Shokouh , 2023 ONSC 1848 at paras 24-29 ; R v Capot Blanc , 2023 NWTTC 7 at para 23 ; R v Purcell , 2023 SKCA 56 at paras 108-109 ; R v Cusick , 2022 ONCJ 590 at para 115 ; R v Simailak , 2022 NUCJ 39 ; R v JS, 2023 MBKB 26 ; R v Addo-Binney , 2023 ONSC 547 ; R v Luis , 2022 CM 4016 ; and R v Levesque , 2023 CM 2001 . [ 28 ] In Riossi the court dismissed an application for an exemption on the basis it was at least premature.

On the evidence, the offender was considered a low risk only if she was not involved with children. This was at the time of sentencing. Expert evidence suggested the offender “had work to do in terms of her rehabilitation and the eventual control of her risk”. The expert further suggested that the offender’s risk could be reassessed after further counselling was completed. [ 29 ] The court distinguished the decision in Shokouh . In that decision, the sentencing judge accepted expert evidence that the offender presented as a low risk to reoffend notwithstanding the offender’s ongoing pedophilic interest.

The sentencing judge found the offender was “essentially in the same position as was Mr. Ndhlovu” and that “his registration under SOIRA is unlikely to ever prove useful to police in investigating or preventing offences of this nature in the future”: Shokouh , at paras 21, 27 . [ 30 ] In R v Towler , 2023 BCSC 1209 at para 17 the court accepted expert evidence the offender’s risk of reoffending was “negligible” and “very low”. The offender’s presented as an “extremely low risk” to reoffend, and “none of the risk factors that one would expect to be present”.

The sentencing judge commented further that: The only assessment that could be lower than that, in my view, would be that there was no risk of reoffend, which of course would be an impossible and doubtful conclusion for a psychiatrist to make. (at para 19) [ 31 ] Given these findings the sentencing judge concluded that the offender’s inclusion on the SOIRA registry would bear no relation to the purpose of the registry.

The sentencing judge concluded it was unnecessary to consider whether the offender was also entitled to an exemption on the basis of the arguably grossly disproportionate impact of a SOIRA registration requirement on him. [ 32 ] Worth noting, the offender’s application in Towler was not opposed by the Crown. [ 33 ] In the earlier BC decision in R v Hart , 2023 BCSC 933 , the sentencing judge found the offender had “no increased risk of...reoffending”.

This conclusion was supported by the offender’s age, then 64, his lack of a prior criminal history, his largely pro-social lifestyle and the significantly adverse and deterrent consequences of his conviction. The sentencing judge also relied on defence expert evidence placing the offender in the lowest (level 1) category for recidivism.

The sentencing judge did not accept the Crown’s criticisms of the expert’s report given the Crown’s decision not to cross-examine the expert, or to suggest what additional evidence the offender might have led to support the conclusion he was a low risk to reoffend. [ 34 ] As noted in Towler , at para 19 , the sentencing judge in Hart at para 56 dispelled the argument that any expert would or could provide the opinion that an offender had no likelihood of reoffending. [ 35 ] In R v HP , 2023 ONSC 4808 , the court had before it a Risk Assessment Report, details of which were not articulated, but which informed the conclusion the offender was entitled to be exempted from SOIRA requirements, at para 70-71: [70] I cannot conclude that H.P,. poses anything other than a low risk of re-offending, having considered all of the areas considered by the Risk Assessment Report.

While there is no evidence of the offender having any remorse, insight or empathy into his behaviour, he is not required to accept responsibility for the offences for which he has been found guilty. Though the Report recognizes that this may increase his risk, it is the one and only reason given for any concern whatsoever about the risk he poses. [71] Given the low level of risk posed, his registration under the SOIRA is unlikely to ever prove useful to the police in investigating or preventing sexual offences.

Requiring him to register, as was the case in both Ndhlovu and Shokouh, subjects him to reporting requirements that do not advance the objectives of the SOIRA. Granting him the s. 24(1) remedy would not, in my view, undermine the purpose of suspending the declaration of invalidity, which was to ensure that those at high-risk of re-offending would be ordered to register as sex offenders. With H.P.’s low risk of re-offending, the exemption is justified. The exemption application in AL’s case [ 36 ] There is no serious issue that in AL’s case registration under SOIRA amounts to a deprivation of liberty.

The real question is whether the deprivation is in accordance with the principles of fundamental justice: Sulub , at paras 66-67 . In other words, has AL shown that his inclusion on SOIRA would be “grossly disproportionate to” the purpose of the regime, or would “bear no relation” to those purposes. Grossly disproportionate

[ 37 ] The Crown points to a lack of evidence to support a finding of gross disproportionality, and I agree. Bears no relation [ 38 ] I find that on the record before me AL has proven he is an offender who is not at increased risk to reoffend. He is thus entitled to a SOIRA exemption. [ 39 ] I note that in her written submissions, counsel for the Crown submits that the applicant must prove on the basis of expert evidence that his statistical recidivism risk is no higher than for non-sexual offenders.

However, as noted earlier in these reasons, I have rejected that expert or statistical evidence is absolutely required in every case. [ 40 ] The Crown argues further that to succeed on this part of the Ndhlovu test, AL must place himself within a narrow category of 10 per cent of all sex offenders comprised of “sexual offenders over the age of 50 at the time of sentencing who offended the index offence against a related female victim”. The Crown’s quoted reference, part of paras 29-33 of its written submission before me, comes from the Appellant’s Record (Vol II, 215/5-19) before the court in Ndhlovu .

While this evidence was doubtless before the court – in addition to many other parts of the Record not specifically mentioned – the reported judgment in Ndhlovu does not make the finding the Crown now seeks in AL’s case.

To sharpen the point, the reported judgment says nothing with regard to a narrow category or characterization of “sexual offenders over the age of 50 at the time of sentencing who offended the index offence against a related female victim”. [ 41 ] The Crown’s suggested narrow characterization does not accord with my reading of Ndhlovu , or with the weight of authority in the cases applying it, many of which have already been reviewed in these reasons. [ 42 ] I agree rather with the observation in Sulub , at para 71 , that Ndhlovu referred to numerous examples of overbreadth, but did not limit how courts may conclude, on the record before them with or without expert or statistical evidence.

The only question is whether, for the offender, the deprivation is in accordance with the principles of fundamental justice. The answer is reached through an inquiry into “the personal circumstances” of the offender –whether, on the whole, they are at no increased risk of reoffending: Ndhlovu , at para 87 . The lone example of a disabled offender that follows, at paras 88-89 of Ndhlovu , does not limit the reach of the court’s earlier general guidance, either at para 87, or as noted above, at paras 91-95. [ 43 ] In her written submissions counsel for the Crown takes issue with AL’s August 5, 2022 expert report.

However, as in R v Hart , 2023 BCSC 933 , the Crown neither objected to the report being before the court, nor evidently sought to cross-examine on it.

In my view the report, though only part of the record before the court, is entitled to significant weight: it is the result of a series of psychometric tests including a Personality Assessment Inventory (PAI), SPECTRA indices of psychopathology, and a Hypersexual Behavior Inventory (HBI); the expert reviewed a lengthy Agreed Statement of Facts, interviewed the offender and reviewed his medical history; response bias profiles were valid; the offender’s responses on the HBI were “well below the clinical cutoff for hypersexuality”; the expert notes “base rate information” for certain male sexual offenders of recidivism of nine per cent over five years and 13 per cent over 10 years; that said, nowhere in his report does the expert apply these rates to AL; rather, he concludes that AL’s test outcomes “suggest a level of risk that is considerably lower” than those base rates; AL was in no need of specific sexual offender treatment going forward. [ 44 ] Based on these test outcomes and his consideration of the record before him – including for example the offender’s remorse and victim empathy – the expert expressed what I find to be a highly relevant and persuasive opinion that AL was a low risk to reoffend and posed no undue risk of harm.

Conclusion [ 45 ] The record in AL’s application, together with the prevailing authorities, support the conclusion that AL is an offender who is “at no increased risk of reoffending”, as understood in Ndhlovu . As such, SOIRA registration would bear no connection to the regime’s purpose of capturing information about him that may assist police prevent and investigate sex offences. Granting AL a s 24(1) remedy would not undermine the purpose of suspending the declaration of invalidity, which was to ensure that those at high-risk of re-offending would be ordered to register as sex offenders.

Heard by way of written submissions received May 15 and June 30, 2023. Dated at the City of Edmonton, Alberta this 6 th day of September, 2023. Peter Michalyshyn J.C.K.B.A. Appearances:

Veronica Alexander for the Crown Laura Matalas Pringle Law for the Accused