R. v. B.P.M., 2019 BCPC 156

Citation: R. v. B.P.M. 2019 BCPC 156 Date: 20190506 File No: 34404-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HER MAJESTY THE QUEEN RESPONDENT AND: B.P.M. APPLICANT RULING ON CONSTITUTIONAL CHALLENGE OF THE HONOURABLE JUDGE G. LEVEN Ruling on Constitutional Challenge to

Section 409.013(2)(

b) of the Criminal Code Counsel for the Respondent: L. Ruzicka Counsel for the Applicant: A. Jaswal Place of Hearing: Fort St. John , B.C. Date of Hearing: March 7, 2019 Date of Judgment: May 6, 2019 BACKGROUND [ 1 ] On April 23, 2018, B.P.M. entered a guilty plea to a single count of committing a sexual assault against his biological daughter who was 13 when the events occurred. The circumstances disclosed that B.P.M., on more than one occasion, pulled up or down his daughter’s clothing exposing her breasts or genitals.

B.P.M. did not do this for any apparent sexual gratification but rather to discipline or humiliate his daughter when she was being defiant. B.P.M.’s actions meet the definition of a sexual assault because they violated the sexual integrity of the complainant. [ 2 ] The Crown originally proceeded summarily but at the sentencing proceedings, re-elected to proceed by indictment with the

consent of B.P.M. and his counsel. The reason for the Crown re-election was so that B.P.M. could benefit from the decision of R. v. E.R.D.R ., 2016 B.C.J. No.1998 , where the court struck down the mandatory minimum sentence of imprisonment for a sexual assault on a complainant under the age of sixteen years where the Crown proceeded by indictment.

Section 271(b), the

summary conviction sentencing provision applicable to circumstances involving a complainant under the age of sixteen was still in effect and unless B.P.M. made a successful constitutional attack on the legislation, he would have faced a mandatory minimum period of incarceration of six months if convicted of the

summary offense. [ 3 ] A psychological assessment report was prepared for the sentencing proceedings. B.P.M. received a low risk score for Canadian sex offenders. The psychologist opined that at a 95% confidence level, there would be a 0% to 4% likelihood of sexual recidivism, and a 2% to 8% likelihood of general recidivism for a person with B.P.M.’s score. On average, 2% of offenders in this category sexually re- offended within three years according to the psychologist. [ 4 ] B.P.M. expressed his remorse to the psychologist who prepared the report and in court during the sentencing proceedings.

He was fifty-two years old when the sentencing proceedings commenced and had no criminal record. He has always been a productive member of society. He has worked with the Ministry of Children and Family Development towards reuniting his family and attended counselling with two separate agencies. [ 5 ] Crown and defence jointly submitted that a suspended sentence and a period of probation would be the appropriate disposition, disagreeing only on the length of the probation order. I ultimately imposed a suspended sentence with two years of probation. [ 6 ] Sexual assault is a “designated offense” under

section 490.012(1) of the Criminal Code of Canada ( Criminal Code ) for which compliance with the Sex Offender Information Registration Act, S.C. 2004 c. 10 ( SOIRA ) is mandatory. Upon conviction by indictment, B.P.M. is subject to a mandatory SOIRA order for a period of twenty years under

section 490.013(2) (

b) of the Criminal Code . The portion of the sentencing proceedings involving the imposition of the SOIRA order was adjourned. Application for Constitutional Remedy [ 7 ] At the commencement of the sentencing proceedings, B.P.M. gave notice that he was advancing a constitutional argument and seeking a ruling that

section 490.013(2) (

b) of the Criminal Code violates

section 7 of the Canadian Charter of Rights and Freedoms (the Charter ) on the basis of overbreadth and gross disproportionality. He seeks a remedy that the provision not be applied in this case pursuant to section 24(1) of the Charter . The matter was adjourned for a significant time in part because B.P.M.’s previous counsel was appointed to the bench. [ 8 ] It is noteworthy that the provision being challenged is

section 490.013(2) (

b) and not

section 490.012(1) of the Criminal Code .

Section 490.012(1) makes a SOIRA order mandatory upon conviction of a specified “designated offense”, “for the applicable period specified in

section 490.013”. The applicable period is either ten years, twenty years or life and depends on the maximum sentence available on the offence for which there was a conviction. Had B.P.M. pled guilty to the

summary conviction offense of sexual assault as originally charged, he would have faced a mandatory ten year SOIRA order under

section 490.013(2)(a), as opposed to a mandatory twenty year order he now faces under

section 490.013(2)(

b) resulting from the Crown proceeding by indictment. [ 9 ] The respondent concedes that B.P.M.’s liberty interest is engaged under

section 7 of the Charter . The issue to be decided is if there is ultimately a breach of B.P.M.’s

section 7 rights because the effects of the challenged legislation are not in accordance with its purpose because of overbreadth and gross disproportionality. [ 10 ] The respondent takes the position that if B.P.M. is successful in arguing that his

section 7 Charter rights were breached, that the issue of a constitutional remedy should be the subject of further argument. The respondent submits that a possible outcome if I find a Charter breach, is the imposition of a ten year rather than a twenty year SOIRA order. The respondent also reserved the right to make argument under

section 1 of the Charter should I find that a breach occurred. SOIRA Legislative History of SOIRA [ 11 ] SOIRA initially came into force on December 15, 2004. The enacting legislation, Bill C-16 both created the National Sex Offender Registry and amended the Criminal Code . [ 12 ] Section 2(1) of the original SOIRA defined its purpose as to “help police services investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”. The statement of principles in section 2(2) referred to “effective investigation of crimes of a sexual nature...”.

Bill C-16 did not make SOIRA orders mandatory under the Criminal Code . Crown counsel had discretion whether to apply for a SOIRA order and there was a

section in the Criminal Code , which permitted judges to exempt an offender who could establish that the impact of registration would be “grossly disproportionate” (s. 490.023(2)). [ 13 ]

Section 490.013(a)(

b) and (

c) specified the length of the SOIRA order which could be made for ten years, twenty years, or life, and depended upon the maximum sentence for the offense committed. The Criminal Code provision under consideration in this case (

section 490.013(2) (b)) sets the mandatory order at twenty years and was contained in the original legislation. [ 14 ] In 2011, the SOIRA scheme was amended by Bill S-2, an Act to Amend the Criminal Code and Other Acts ( Protecting Victims from Sex Offenders Act ), S.C. 2010 c.17, which came into force on April 15, 2011. The 2011 Act removed the requirement for Crown counsel to apply for a SOIRA order and removed the right of an offender to apply for an exemption.

It made SOIRA orders mandatory for all specified designated offences. [ 15 ] The 2011 Act also broadened the stated purpose of SOIRA by expressly stating in s. 2(1) that “The purpose of this Act is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information related to sex offenders”. The “principles”

section s. 2(2) of the Act, was also broadened to include the words “ effective prevention ” and that “the

information be collected only to enable police services to prevent or investigate crimes of a sexual nature” (emphasis added). [ 16 ] The amended Act also added a provision making a SOIRA order mandatory for life if a person were convicted of, or found not criminally responsible on account of mental disorder, more than one specified designated offense (s. 490.013(5)). Both the 2004 and 2011 legislation applied retrospectively to persons convicted of a specified designated offence provided certain notice provisions were complied with. [ 17 ]

Section 490.015 of the Criminal Code allows an offender to apply for early termination of a SOIRA order after five years if the original order was for ten, after ten years if the original order was for twenty and after twenty years of the original order was for life.

Section 490.017 allows for an appeal of a refusal to issue a termination order. Both of these sections came into force in 2004 and were not changed by the 2011 amendments. The Effects of a SOIRA Order [ 18 ] Under the current scheme, once an order is made, an offender is required to report, within seven days, in person to the registration centre that serves the area in which their main residence is located ( ss. 4(1) , 7.1 SOIRA ). They are precluded from leaving Canada until they report (s. 4(4)). After first reporting, the offender is obliged to report to the registration centre pursuant to s. 4.1(1): (

a) within seven days after changing their main or secondary residence; (

b) within seven days after changing their given name or surname; (b.1) within seven days after receiving a driver’s license; (b.2) within seven days after receiving a passport; and (

c) at any time between eleven months and one year after last reporting. [ 19 ] Pursuant to 5(2) of SOIRA , when the offender reports to a registration centre, they must provide the following information: (

a) their given name and surname, and every alias that they use; (

b) their date of birth and gender; (

c) the address of their main residence and every secondary residence or, if there is no such address, the location of that place; (

d) the address of every place at which they are employed or retained, or are engaged on a volunteer basis - or, if there is no such address, the location of that place - the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there; (

e) the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place; (

f) a telephone number at which they may be reached, if any, for every place referred to in paragraphs (

c) and (d), and the number of every mobile telephone or pager in their possession; (

g) their height and weight and a description of every physical distinguishing mark that they have; (

h) the license plate number, make, model, body type, year of manufacturer and colour of the motor vehicles that are registered in their name or that they use regularly; (

i) the license number and the name of the issuing jurisdiction of every driver’s license that they hold; and (

j) the passport number and the name of the issuing jurisdiction of every passport that they hold. [ 20 ] When the offender reports in person, the registry representative may record any observable characteristics that may assist in identification of the offender, including their eye and hair colour, and may require that their photograph be taken (s. 5(3)). [ 21 ] Should the offender wish to be away from their main or secondary residence for more than seven days, they must notify the registration centre of every address or location at which they stay or intend to stay (s. 6(1)). [ 22 ] There are additional reporting requirements if an offender has been convicted of a sex offense against a child under the age of eighteen years.

They must notify the Centre of any planned departures from their primary or secondary residence for a period of seven days or more before their departure and must provide dates of departure and return and every address or location of any place they expect to stay inside of Canada. If their plans change after departure, they must report changes to the required information within seven days.

If travelling outside of Canada, they must report all of the above information prior to departure and again without delay if their plans change after departure (s. 6(1.01)). [ 23 ] The British Columbia Sex Offender Information Registration Regulations , SOR/2005-2 (“the Regulations ”), provide that a sex offender whose main residence is located in the province of British Columbia may provide any notification required under

section 6 of SOIRA by telephone to the British Columbia sex offender information registration centre administered by RCMP “E” Division. The

schedule attached to the Regulations designates the Fort St. John RCMP detachment and the Dawson Creek RCMP detachment as registration centres. [ 24 ] Prior to 2011, an offender had fifteen days to report initially and to report any changes to their main or secondary residence or name. If they were to be absent from their main or secondary residence for a period of at least fifteen consecutive days, they had to report that within fifteen days. The 2011 amendments shortened all fifteen day time periods to seven days and added the provisions respecting offenses committed against a child. [ 25 ]

Section 490.031 of the Criminal Code makes a person who without reasonable excuse fails to comply with a SOIRA order, on conviction or indictment, liable to a fine of not more than $10,000 or to imprisonment for not more than two years, or both; or on

summary conviction, to a fine of not more than $10,000, or to imprisonment for a term of not more than six months, or both.

[26] The National Sex Offender Registry (NSOR) database is maintained by the RCMP. Access to the database is governed bys.16(4) of SOIRA. The public does not have access to NSOR. Police services do not have direct access to the database. Rather, they mustmake a request for information to the provincial/territorial sex offender registry centre within their jurisdiction.

There is no publicdisclosure of the fact that a person is listed in the SOIRA registry or that one has to report. [27] SOIRA contains a series of prohibitions on unauthorized persons, unauthorized consultation, unauthorized comparison ofinformation, unauthorized combination or linking of information, unauthorized disclosure, and unauthorized use (ss. 16(1) to (5)). [28] Anyone who knowingly contravenes s.16(1) to (5) is guilty of a

summary conviction offense punishable by a fine of not morethan $10,000 or to imprisonment for a term of not more than six months or to both (s.17). Jurisprudence on the Constitutionality of the SOIRA Provisions [29] There has been much jurisprudence on whether SOIRA orders are “punishment”. Appellate courts have repeatedly held that aSOIRA order is not “punishment” within the meaning of sections 11 or 12 of the Charter (see R. v. Cross, 2006 NSCA 30, leave toappeal dismissed, [2006] S.C.C.A No 161; R. v. S.S.C., 2008 BCCA 262; R. v.

Long, 2018 ONCA 282). [30] Appellate courts have unanimously concluded that the retrospective operation of the 2004 and 2011 legislation did not violatesections 7, 11(

h) or 11(

i) of the Charter (see R. v. Cross; R v. S.S.C.; R. v. Dyck, 2008 ONCA 309; Morin v. R., 2009 QCCA 187; R. v.Youngpine, 2009 ABCA 89; R. v. B.(C.L.), 2010 ABCA 134; R. v. Warren, 2010 ABCA 133; R. v. Whiting, 2013 SKCA 127). [31] In R. v. D.J.P. (6 January 2012), Victoria Registry No. 147688-2 (B.C.S.C.) Johnson J. of the B.C. Supreme Court consideredwhether the removal of Crown and judicial discretion in 2011 made SOIRA orders punishment within the meaning of ss. 11 and 12 of theCharter: [33] So Mr.

P’s argument that SOIRA registration requirements are saved or were saved from being viewed as punishment by the rightthat formerly existed to apply for an exemption is, in my view, another overstatement of the effect of the authorities. [35] In my view, the removal of the ability to seek an exemption does little more than to leave the registration requirements set out insection 490.012 of the Criminal Code at a level of minimal or trivial impact on liberty, sufficient perhaps to warrant a

section 7 analysis,but not sufficient to render the effect of the amendment punitive to the point that it precludes the retrospective operation of theamendments.

SECTION 7 OF THE CHARTER [32] The SOIRA provisions in the Criminal Code have received significant judicial scrutiny under

section 7 of the Charter. B.P.M.relies heavily on the case of R. v. Ndhlovu, 2016 ABQB 595 , [2016] A.J. No.1105, where Moen J. of the Alberta Court ofQueen’s Bench declined to impose a SOIRA order against an offender. Moen J. ruled that the mandatory application of

section 490.012 ofthe Criminal Code to all offenders was overbroad, grossly disproportionate and in violation of

section 7 of the Charter. The decision isunder appeal and the Alberta Court of Appeal has stayed the declaration of invalidity pending determination of the appeal: R. v. Ndhlovu,2018 ABCA 260. The appeal has yet to be heard. [33] The respondent points out that, with the exception of Ndhlovu, recent constitutional challenges to the SOIRA amendments haveall been dismissed (see G. v. Attorney General for Ontario et al., 2017 ONSC 6713 (under appeal); R. v. Long, 2018 ONCA 282; R. v.T.A.S., 2018 SKQB 183; R. v. Jomphe, 2018 QCCQ 5192). ANALYTICAL FRAMEWORK OF APPLICANT’S S. 7 ARGUMENT [34] In order to demonstrate a violation of

section 7, the applicant must first show that the law interferes with or deprives him of hislife, liberty or security of the person. This first step is conceded by the respondent. Having established that

section 7 is engaged, he mustthen show that the deprivation in question is not in accordance with the principles of fundamental justice. Three principles offundamental justice have emerged in recent

section 7 jurisprudence. Laws that impinge on life, liberty or security the person must not bearbitrary, overbroad or have consequences that are grossly disproportionate to their object (Carter v. Canada 2015 SCC 5 ,[2015] 1 SCR 331 at paras. 55 and 72). Both the applicant and respondent agree that the law is not arbitrary. At issue here, areoverbreadth and gross disproportionality. [35] As stated at the outset, B.P.M. is not challenging the constitutionality of a mandatory SOIRA order under

section 490.012(1) ofthe Criminal Code as was the case in Ndhlovu. The impugned provision in this case is

section 490.013(2)(

b) which states: An order made under subsection 490.012(1) or (2) ends twenty years after it was made if the maximum term of imprisonment for theoffense is ten years or fourteen years; [36] Although the applicant’s challenge is to the imposition of the mandatory twenty year registration period, setting aside the issueof remedy, the argument he makes closely follows the judgment in Ndhlovu. B.P.M. argues that a twenty year SOIRA order will have asignificant impact on his liberty interest and adopts the following from paragraph 52 in Ndhlovu: In my view, the reporting requirements are significant.

I recognize that SOIRA orders are not physically restrictive. I further acknowledgethat viewed in isolation, the provision of information to the registry is not particularly onerous. However, the cumulative effects of thereporting requirements under SOIRA orders are quite onerous, given the depth of information, the continuing obligation to reportchanges, the annual in-person reporting requirements, the consequences for breaching the order, compounded with the fact that each ofthese obligations lasts for life [20 years].

Further, the offender is subject to random checks by police. [37] The respondent while conceding that B.P.M.’s

section 7 liberty interest is engaged, argues that the impact of a mandatorytwenty year SOIRA order on B.P.M.’s liberty is minimal and does not offend the principles of fundamental justice of over-breadth and

gross disproportionality. THE LEGISLATIVE PURPOSE OF SOIRA AND

SECTION 490.013(2)(B) [38] Any analysis with respect to whether a law violates the principles of fundamental justice involves a comparison of the rightsinfringement caused by the law with the object or purpose of the law: Canada (Attorney General) v. Bedford, 2013 SCC 72 ,[2013] 3 S.C.R. 1101 at para 123. It is therefore important to identify the purpose of the law with some precision at the outset. Indetermining what the purpose of the law is in a

section 7 analysis, a reviewing court may look at three things: (

a) statements of purposecontained in the legislation; (

b) the text, content and scheme of the legislation; and (

c) extrinsic evidence such as the history andevolution of the legislation: R. v. Long at para 79; R. v. Safarzadeh-Markhali, 2016 SCC 14 , [2016] 1 S.C.R. 180 at para 31;and R. v. Moriarty, [2015] S.C.R. 485 at para 31. Statements of Purpose Contained in the Legislation [39]

Section 2 of SOIRA contains the following statement of purpose and principles: s. 2(1) The purpose of this Act is to help police services prevent and investigate crimes of a sexual nature by requiring the registration ofcertain information relating to sex offenders.

(2) This Act shall be carried out in recognition of, and in accordance with, the following principles: (

a) in the interest of protecting society through the effective prevention and investigation of crimes of a sexual nature, policeservices must have rapid access to certain information relating to sex offenders; (

b) the collection and registration of accurate information on an ongoing basis is the most effective way of ensuring that suchinformation is current and reliable; and (

c) the privacy interests of sex offenders and the public interest in their rehabilitation and reintegration into the community as law-abiding citizens require that (

i) the information be collected only to enable police services to prevent or investigate crimes of a sexual nature, and (ii) access to the information, and use and disclosure of it, be restricted. Text, Content and Scheme of the Legislation [40] The Ontario Court of Appeal in Long stated: [88] SOIRA and the sex offender information provisions of the Criminal Code (ss. 490.011 to 490.032) together with the federal SexOffender Information Registration Regulations…, set out a comprehensive scheme for the registration of information about sexoffenders.

The scheme is plainly designed to ensure that the information is complete, current and accurate, so that police are able toidentify and locate a sex offender when seeking to prevent or investigate a sex crime. [89] This court, and other appellate courts, have emphasized that while one of the underlying rationales for the enactment of SOIRAwas to facilitate the investigation of sexual offenses by keeping track of sexual predators, the regime is not limited to “likely recidivistsor sexual predators”: see R. V. Debidin, 2008 ONCA 868 at paras. 70, 77. See also: S.S.C. at para. 43; R. v.

Redhead, 2006 ABCA 84, atparas. 36-38. The scheme of the legislation evinces a concern about the apprehension of sex offenders and prevention of sexual offenses,particularly, but by no means exclusively, in relation to offenses against children and other vulnerable groups. Extrinsic Evidence Such As The History And Evolution of the Legislation [41] The history of the legislation and changes to it in 2011 were described above. The original legislation enacted in 2004 requiredthe Crown to apply for an order and allowed an offender to apply for an exemption.

Although I have not been provided with any directevidence of parliamentary debates in this case, the following paragraphs from Long are helpful: [92] In 2010, the Minister of Justice, the Honourable Vic Toews, appeared before the Senate Standing Committee on Legal andConstitutional Affairs to discuss proposed amendments to SOIRA and further amendments to the Criminal Code.

He noted that theexisting discretionary system meant that 42% of those convicted of sexual offenses had not been entered in the registry, resulting in aninconsistent application of the law across the country and impairing the investigation of sexual offenses because police were unaware ofsome offenders as potential suspects.

He expressed the concern that due to the difficulty in determining which sex offenders would re-offend and which would not, the discretionary nature of the registration system meant that some recidivists would fall through the cracks.Other witnesses at committee hearings spoke of the need for an expeditious response in the prevention and investigations of sexualcrimes. . . . [96] In submissions to the Senate Standing Committee, a lawyer speaking on behalf of the Criminal Lawyer’s Association expressedconcern about the absence of an exemption in the proposed legislation for what he described as “relatively minor” sexual offenses orsexual assaults.

He gave the example of a teenager taking a sexual picture of herself and sending it to her boyfriend, making him guilty ofpossession of child pornography. He also referred to a “woman who is angry with her boyfriend for cheating on her and grabs him by thecrotch to show her displeasure”. . . . [98] Parliament did not yield to these concerns and the impugned provision was carried into law.

[ 42 ] Different Courts have recently considered the purpose of various sections of the SOIRA regime. In Ndhlovu , the court was dealing with a

section 7 challenge to the mandatory requirement of a SOIRA order under

section 430.012(1). The court found that the purpose of the original SOIRA scheme was “to protect vulnerable people including children in society by allowing police quick access to current information on convicted sex offenders” (at para. 87). [ 43 ] The Ontario Court of Appeal in Long , was addressing a

section 7 challenge to

section 490.013(2.1) of the Criminal Code which mandates a lifetime SOIRA order for offenders convicted of multiple offenses. The court determined that the purpose of the lifetime registration requirement mandated by s. 490.013(2.1) for repeat offenders was not necessarily tied to the seriousness of the offense itself, since that purpose was already captured by the differing registration periods described in sections 490.013(2)(

a) and 490.013(2)(b) (at para. 100). The court found that the “ animating social value of SOIRA is the protection of the public” and the section’s purpose “is to further public safety by subjecting sex offenders who are at enhanced risk of re-offending to a longer period of registration” (para. 102). [ 44 ] The applicant makes the following argument: In analysing the purpose of the SOIRA regime, both the narrower purpose identified in the Ndlovu and the broader purpose of general protection of the public stated in R.L. [ Long ] can be considered in determining whether the registration period of

section 490.013(2)(

b) violates the principles of fundamental justice. What is clear from R.L is that the Court determined that sections 490.013(2) (

a) and 490.013(2) (

b) prescribed longer periods of registration based on the respective seriousness of offenses that come with proceeding summarily or by indictment, and the lengthier prison sentences that come with proceeding by the latter election. It differentiated the lifetime registration

section by finding that sections 490.013(2)(

a) and 490.013(2)(

b) were already tied to the seriousness of offenses, while

section 490.013(2.1) had a different purpose tied to the enhanced risk of recidivism based on multiple convictions (Applicant’s written argument para. 22). The difference in the ten year registration period prescribed by

section 490.013(2)(

a) and the twenty year registration period prescribed by

section 490.013(2(

b) is based on the presumption that sexual offenses are more serious when they are proceeding by indictment, increasing the risk of recidivism and therefore justifying a lengthier registration period. This presumption, while generally true, can be problematic in certain circumstances such as the way the sentencing proceeding took place in the case at bar. In this instance, in proceeding by indictment, the twenty year registration period that the applicant is subjected to by

section 490.013(2)(

b) does not reflect the elevated serious (sic) of the offense to which he pled guilty… (Applicant’s written argument para. 23). The purpose of

section 490.013(2)(

b) therefore would appear to (sic) furthering public safety by subjecting offenders to a longer period of registration on the presumption that being convicted (or entering a guilty plea) to sexual offenses in indictable proceedings reflect the elevated seriousness of the offense (Applicant’s written argument para. 24). [ 45 ] In R. v. T.A.S. , [2018] S.J. No. 264 , a

section 7 Charter challenge was made to the imposition of a mandatory SOIRA order under

section 490.012(1) of the Criminal Code . Barrington-Foote, J., of the Saskatchewan Court of Queen’s Bench writes: [75] Here, the challenge is to the mandatory registration requirement imposed by

section 490.012(1). In Long , the issue was the registration for life requirement imposed on repeat offenders by

section 490.013(2.1). Strathy C.J.O. found that the purpose of that

section is to further public safety by subjecting sex offenders who are at enhanced risk of re-offending to a longer period of registration.

With respect, it is my view that a slightly amended version of that characterization of the purpose is preferable to the characterization adopted in Ndhlovu more specifically, I would characterize the purpose of the mandatory registration requirement as follows: to further public safety by subjecting sex offenders who have an increased risk of re-offending to an appropriate period of registration . [ 46 ] I agree with the applicant’s submission that the difference between the ten year and twenty year registration periods is based on the presumption that sexual offenses are more serious when proceeding by indictment .

I do not agree that the seriousness of an offense is necessarily tied to an increased risk of recidivism . I do find that serious offenses suggest a greater risk to public safety and therefore, a longer registration period may be appropriate . T.A.S. is the most recent decision to which I was referred and in it, the court had the benefit of considering the different fact patterns and arguments advanced in Ndlovu and Long . I adopt the statement of purpose from T.A.S. and find that the purpose of

section 490.013(2) (

b) of the Criminal Code is to further public safety by subjecting sex offenders who have an increased risk of re-offending to an appropriate period of registration . OVERBREADTH [ 47 ] Overbreath is concerned with the connection between the purpose of a law and the infringement of rights. As the Supreme Court noted in Carter : [85] The overbreadth inquiry asks 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 some individuals in a way that bears no relation to the object: Bedford at paragraphs 101 and 112-13 ...

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 of the individuals whose life liberty or security of the person is trammelled. [ 48 ] I find the following passages from the T.A.S. decision helpful: [76] Turning next to overbreadth, Moen J. held in Ndhlovu that the provision for mandatory SOIRA orders for life was overbroad, as there was no rational connection between such an order and that purpose of the legislation in relation to some individuals. As she put it: [119] …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 reoffend. In my view, including offenders on the registry who have little or no chance of re-offending 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 farther than what is necessary to accomplish the goal of protecting the public, and is therefore overbroad.

[77] T.A.S. alleges overbreadth on essentially the same basis. He says that mandatory registration catches offenders with little or norisk to reoffend. He notes that the fact that the order is mandatory removes the court’s discretion to consider the circumstances of theoffender and the offense, and their risk of reoffending or ability to be rehabilitated. He notes that the applicant is not a predator, andargues that there is little or no risk that he will reoffend. [78] With respect, it is my opinion that

section 490.012(1) is not overbroad. As Strathy C.J.O. noted in Long (at para119), SOIRA isbased on the assumption “that as a matter of common sense and experience, individuals who are convicted of sex crimes have anincreased propensity to commit sex crimes in the future”. That “common sense” assumption - which relates to the propensity of allconvicted sex offenders - provides the necessary connection between mandatory registration and the purpose of the legislation.

AsStrathy C.J.O. emphasized in Long, a law will be held to be overbroad only if the applicant demonstrates that there is no connectionbetween its effect and its purpose in some cases: [125] The legislation at issue in this appeal involves the assessment of the risk of future harm, an exercise that is inherently imprecise.The onus is on the appellant to establish that, in some cases, there is no rational connection between the purpose and effect of the law.The Supreme Court in Bedford described, at para 119, the ultimate question as “whether the evidence establishes that the law violatesbasic norms because there is no connection between its effect and its purpose” (emphasis in original).

As the Supreme Court observed,“[t]his standard is not easily met”: Bedford at para 119. [79] Here, as in Long, there is some connection as a result of the common sense assumption, and no evidence to the contrary: Longpara 126 to 132. T.A.S. has not provided the evidence necessary to displace that assumption. The fact that some offenders will never re-offend does not mean that they are not at a greater risk of re-offending. The evidence does not suggest T.A.S. is a predator.

However, asStrathy CJO noted (at para 89), the purpose of the regime is not limited to tracking predators, or to protecting children or other vulnerablegroups. [49] In this case, the respondent points out that there is some evidence in the psychological report that B.P.M. is at a risk to re-offend, albeit a low risk of 2%, within three years. B.P.M. called no evidence rebutting this suggestion contained in the psychologicalreport.

The common sense assumption described above, suggests that a predictor of future behaviour is past behaviour and that there issome rationale for requiring all convicted sex offenders to register under SOIRA. [50] A key component of B.P.M.’s argument that

section 490.013(2)(

b) is overbroad must necessarily involve the Crown’s re-election to proceed by indictment. This re-election, which benefited him and was consented to by him, is also what makes him subject toa mandatory twenty year versus a ten year SOIRA order. B.P.M. makes reference to a reasonable hypothetical which involves a similarsituation where an accused was charged with a minor sexual offense and had Crown re-elect to proceed by indictment to avoid amandatory period of imprisonment.

Both B.P.M.’s situation and the reasonable hypothetical presented, raise the issue of prosecutorialdiscretion. [51] Similar arguments were advanced in Long where the accused faced a lifetime SOIRA order having been convicted of threecounts of sexual touching that involved the same complainant on the same day. Mr. Long argued that the Crown could have charged himwith one offense capturing all three incidents thus avoiding the lifetime order.

Strathy C.J.O. rejected that argument: [133] Further, I do not accept the appellant’s submission that the law is overbroad because prosecutorial discretion plays a role indetermining which offenders are caught by the provision and which are not. Prosecutorial discretion is a well established feature of thejustice system. In the prosecution of sexual offenses, prosecutors decide whether to charge at all, whether to charge by indictment or bysummary conviction, and whether to charge a lesser included offense that may not be a designated offense.

Each of these decisions mayaffect whether SOIRA registration is mandatory or the length of the registration. Prosecutorial discretion cannot save a law that isotherwise unconstitutional on its face: R. v. Nur, 2015 SCC 15 but a law does not become arbitrary or overbroad simply becausesimilarly situated accuseds are treated differently through the exercise of prosecutorial discretion.

The fact that some offenders mayescape lifetime registration as a result of prosecutorial discretion does not make the legislation overbroad in relation to those who arecaught by the provision. . . . [135] A similar distinction can be made regarding the Crown’s discretion to determine whether to proceed with certain chargessummarily or by way of indictment. Under

section 490.013(2)(a), an offender is only required to register for a period of ten years if theoffense is prosecuted summarily, rather than twenty years if convicted of an indictable offense. [136] The legislative history of the impugned provision makes it clear that one of the purposes of the 2011 amendments was to removeprosecutorial and judicial discretion related to whether or not a SOIRA order was imposed on an offender because an individualoffender’s risk of re-offending could not be predicted with precision.

Subjecting an offender to a shorter period of registration based on ajudge’s or prosecutor’s assessment of the individual’s risk of reoffending would undermine the integrity of the registry and, thereby,impede the ability of police to rapidly and effectively prevent or investigate a sex crime. [137] Two judges examining the sexual assaults carried out by the appellant or by Mr. Ndhlovu or by the intervenor’s hypotheticaloffender might well disagree on their likelihood of recidivism.

One of the purposes of the legislative amendments was to removediscretion and, in its place, to substitute a reasonable proxy to assess the risk of future harm. Parliament determined that the stakes weretoo high to leave it to the discretion of the Crown or the courts. [52] The question I must ask on an overbreath analysis is whether there is some connection between the purpose of section490.013(2)(

b) and its effects on B.P.M. whose

section 7 rights are engaged. For a law to be overbroad, there must be no connectionbetween its effects and purposes in some cases. In considering what I have found to be the purpose of

section 490.013(2)(b), namely thatit is “to further public safety by subjecting sex offenders who have an increased risk of re-offending to an appropriate period ofregistration”, I cannot find that there is no connection between the law’s purpose and its effect on B.P.M. I rely on the common senseassumption that once convicted of a sexual offense there is a greater likelihood of recidivism. I therefore attribute little weight to thelikelihood that B.P.M. is not a sexual predator and that he did not commit the current offense for any apparent sexual purpose. It is not

for me to determine his risk of future harm. [ 53 ] There is also some evidence before me in the form of a psychological report that B.P.M. presents some risk to re-offend. That evidence has not been rebutted. [ 54 ] I therefore find that

section 490.013(2) (

b) of the Criminal Code is not overbroad. GROSS DISPROPORTIONALITY [ 55 ] I must next consider the applicant’s argument that

section 490.013(2)(

b) is grossly disproportionate. [ 56 ] The test for gross proportionality was laid out in Long as follows: [143] A law will be found to be grossly disproportionate under s. 7 of the Charter in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure: Bedford , at para. 120 . The Supreme Court affirmed the test for gross proportionality in Carter at para. 89 : This principle is infringed if the impact of the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure.

As with overbreadth, the focus is not on the impact of the measure on society or the public, which are matters for s. 1, but on its impact on the rights of the claimant. The inquiry into gross disproportionality compares the law’s purpose, “taken at face value”, with its negative effects on the rights of the complainant, and asks if this impact is completely out of sync with the object of the law. The standard is high: the law’s object and its impact may be incommensurate without reaching the standard for gross disproportionality. [Emphasis in original.

Citations omitted.] [144] …In this regard, the Court’s task is to balance the negative effects with the purpose of the law, not its benefits to society more broadly: Bedford at para. 121 . [ 57 ] The applicant argues that the effects of a twenty year SOIRA order in his case would be onerous and grossly disproportionate with the purpose of the law.

The respondent submits that the effects of a SOIRA order are minimal and that B.P.M. has not met the high standard required to establish gross disproportionality. [ 58 ] B.P.M. relies on the following passage in Ndhlovu : [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. [ 59 ] The respondent submits that courts in this province have concluded that while a SOIRA order impacts an offender’s liberty interest, the infringement of liberty is “minimal”, “to a minimum degree”, and “not significant”: R. v. S.S.C . , 2008 BCCA 262 at paras. 40-55 , P.S.C v. British Columbia (Attorney General), 2007 BCSC 895 , at paras. 107 &154-155 .

The respondent further submits that these cases are binding on this Court and should be determinative of whether the effect on B.P.M.’s liberty is grossly disproportionate to the purpose of the law.

The respondent also says that B.P.M. has not called any evidence to prove that the effects of the current scheme on him are anything other than minimal. [ 60 ] The applicant submits that these cases predate the 2011 amendments to the SOIRA scheme and that a new analysis is warranted given the removal of a court’s discretion to grant an exemption as well as the expanded purpose and additional reporting obligations imposed by the new scheme. For example, in P.S.C v.

British Columbia,(Attorney General), 2007 BCSC 895 Barrow J. of our Supreme Court in considering how an offender’s liberty interest was affected by the SOIRA scheme stated: [107] …I accept that there is an element of deprivation of liberty but it is not significant. Moreover, in those cases in which the offender’s particular circumstances would result in a more significant impact on his or her liberty, the exemption provisions allow for relief. [ 61 ] This passage was cited and adopted by the British Columbia Court of Appeal in R. v.

S.S.C , (paras 50 and 51 ) where Chaisson J.A. then stated: [55] … Although I do consider the infringement of liberty to be minimal, in my view, it is necessary to advance to the next stage of the analysis: whether a principal of fundamental justice is offended. [ 62 ] The respondent cites recent cases from Ontario and Saskatchewan which have considered the effect of the 2011 SOIRA scheme and held that the impact on an offender’s liberty is “modest” or “relatively modest”: R. v. Long , at para. 147 ; G. v. Attorney General , 2017 ONSC 6713 , at paras 79-117 , 148-149; R. v.

T.A.S. , at paras. 80-81 . [ 63 ] I consider that the SOIRA regime has changed since the British Columbia cases of P.S.C. and S.S.C . were decided. In 2011, SOIRA registration became mandatory for specified designated offenses, the purpose of SOIRA was expanded to include prevention, timelines for reporting requirements were shortened, and provisions were added for persons convicted of a sex offense against a child. These provisions will all have an additional impact on B.P.M. Despite these additional impacts on B.P.M., I am unable to agree with the reasoning in the Ndhlovu.

I find the Long decision helpful in that regard where the Ontario Court of Appeal stated: [147] I agree with the Crown’s submission that the effect of registration on an offender’s liberty is modest. In Dyck , Blair J.A. observed, at para. 104, that the reporting requirements imposed by Christopher’s Law , which for the purposes of this appeal is analogous to SOIRA , are particularly modest given the fact that an offender has already been tried and convicted of a designated sexual offense.

Blair JA noted, at paragraph 106, that “[t]he requirements 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.” Moreover, as noted by the Crown, any stigma flows from the conviction itself, not registration. The statute contains provisions designed to protect the privacy of registrants and to restrict access to the registry.

There is no evidence on this appeal that would justify concluding that a lifetime registration order has anything other than a modest impact on an offender’s liberty interest. [ 64 ] I agree with the court’s analysis in Long and also find that B.P.M. has not called evidence which could lead me to conclude that a twenty-year order has anything other than a modest impact on his liberty. [ 65 ] I also note that the applicant has not challenged the mandatory requirement of a SOIRA order, but rather the imposition of a twenty-year versus a ten year order.

In B.P.M.’s case, he continues to have a judicial remedy to apply to shorten the twenty-year order to ten years under

section 490.015(1) (

b) of the Criminal Code . The court in Ndhlovu also considered the prospect of early termination and found that the “ability to take one’s name off the registry… [early] does not mean that placing that name there in the first place was rationally connected to the law’s objective”. I find that Ndhlovu is distinguishable on this point because the court there was considering a constitutional challenge to the mandatory requirement of a SOIRA order and not just the length of such an order as is the case here. [ 66 ] I have found that the purpose of

section 490.013(2)(b) “is to further public safety by subjecting sex offenders who have an increased risk of re-offending to an appropriate period of registration”. While registration will undoubtedly have an impact on B.P.M., I am unable to find on the evidence before me that B.P.M. has established that the impact of a 20 year SOIRA order on him will be onerous. I find that the impact of such an order on him will be modest. [ 67 ] There is a pressing an important objective to further public safety by subjecting sex offenders who have an increased risk of re- offending to an appropriate period of registration.

Because the impact of a mandatory twenty-year order on B.P.M. is modest, I find that imposing such an order on B.P.M. is not completely out of sync with the purpose of the law and is not grossly disproportionate. [ 68 ] I find that

section 490.013(2)(

b) is not overbroad or grossly disproportionate and therefore does not violate

section 7 of the Charter . ____________________________________ G. Leven, PCJ Provincial Court of British Columbia