Eugene Ndhlovu Appellant v. His Majesty The King, 2022 SCC 38

SUPREME COURT OF CANADA Citation: R. v.

Ndhlovu, 2022 SCC 38 Appeal Heard: February 8, 2022 Judgment Rendered: October 28, 2022 Docket: 39360 Between: Eugene Ndhlovu Appellant and His Majesty The King Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of British Columbia, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Mobile Legal Clinic and Association québécoise des avocats et avocates de la défense Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

J oint R easons for J udgment : (paras. 1 to 143) Karakatsanis and Martin JJ. (Rowe, Kasirer and Jamal JJ. concurring) Reasons Dissenting in Part: (paras. 144 to 196) Brown J. (Wagner C.J. and Moldaver and Côté JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Eugene Ndhlovu Appellant v. His Majesty The King Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of British Columbia, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Mobile Legal Clinic and Association québécoise des avocats et avocates de la défense Interveners Indexed as: R. v. Ndhlovu 2022 SCC 38 File No.: 39360. 2022: February 8; 2022: October 28.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal of alberta Constitutional law — Charter of Rights — Right to liberty — Fundamental justice — Remedy —

Section 490.012 of Criminal Code requiring mandatory registration on national sex offender registry of offenders found guilty of designated sexual offences —

Section 490.013(2.1) of Criminal Code requiring lifetime registration for offenders convicted of more than one designated offence — W hether provisions infringe right to liberty of offenders — If so, whether infringement justified — Appropriate remedy if right to liberty unjustifiably infringed — Constitution Act, 1982, s. 52(1) — Canadian Charter of Rights and Freedoms, ss. 1 , 7 — Criminal Code, R.S.C. 1985, c. C-46, ss. 490.012 , 490.013(2.1) — Sex Offender Information Registration Act , S.C. 2004, c. 10 .

In 2015, the accused pled guilty to two counts of sexual assault against two complainants with respect to assaults that had both occurred at a party in 2011. The sentencing judge imposed a global sentence of six months’ imprisonment and three years’ probation. After canvassing the accused’s background and the evidence, the sentencing judge found that he was unlikely to reoffend.

Despite this finding, due to his convictions on the two counts of sexual assault, the accused was subject, pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code , to mandatory lifetime registration in the national sex offender registry created by the Sex Offender Information Registration Act (“ SOIRA ”).

Section 490.012 provides that SOIRA orders are mandatory for offenders convicted of designated offences such as sexual assault and other sexual offences.

Section 490.013(2.1), added in 2011, mandates lifetime registration for individuals convicted of more than one designated offence. As well, previously existing prosecutorial discretion and judicial discretion to impose SOIRA orders were removed in 2011. Registered offenders are subject to many reporting requirements: they must report in person to a registration centre to provide extensive personal information, update their information in person yearly, and report in person at the registration centre any changes in primary or secondary address and name, or report if they receive a driver’s licence or passport.

Moreover, offenders must notify the registration centre within seven days of any change regarding their employment or volunteering information, and notify the registration centre if they intend to be away from their primary or secondary residence for seven or more consecutive days. Non-compliance with any of these conditions may result in prosecution, with penalties of up to 2 years’ imprisonment, up to $10,000 in fines, or both. Further, police officers conduct random compliance checks to verify the information on the registry.

At a minimum, offenders are subject to at least one annual verification of their residential address. The accused brought an application to challenge the constitutionality of both provisions. The sentencing judge concluded

ss. 490.012 and 490.013(2.1) breached s. 7 of the Charter . She found that the provisions were overbroad because registering offenders with little or no recidivism risk, like the accused, did not advance SOIRA ’s purpose. She also found them grossly disproportionate, given the onerous cumulative effects of registering. She concluded s. 1 did not save the impugned provisions, and declared them of no force or effect. A majority at the Court of Appeal allowed the Crown’s appeal, concluding that neither provision violated s. 7 .

It found that s. 490.012 was not overbroad since all convicted sex offenders have an increased propensity to commit sex crimes in the future. It also found that s. 490.013(2.1) was not overbroad because Parliament could infer that committing more than one sexual offence is a proxy for an increased recidivism risk, warranting a longer registration period. The majority further concluded that neither provision was grossly disproportionate. The dissenting judge disagreed that the provisions complied with s. 7.

While she agreed the provisions were not grossly disproportionate, she found they were overbroad and concluded that the breach of s. 7 was not justified. Held (Wagner C.J. and Moldaver, C ôté and Brown JJ. dissenting in part) : The appeal should be allowed . Per Karakatsanis , Rowe, Martin , Kasirer and Jamal JJ.: Sections 490.012 and 490.013(2.1) of the Criminal Code infringe s. 7 of the Charter , and cannot be saved by s. 1 . The provisions are therefore declared of no force or effect under s. 52(1) of the Constitution Act, 1982 .

The declaration in respect of s. 490.012 is suspended for one year and applies prospectively. However, the accused is exempted from the suspension of the declaration. As for s. 490.013(2.1) , the declaration is immediate and applies retroactively. In order to demonstrate a violation of s. 7 of the Charter , a claimant must first show that the law interferes with their life, liberty or security of the person. Liberty protects the right to make fundamental personal choices free from state interference.

It also protects against physical restraint ranging from actual imprisonment or arrest to the use of state power to compel attendance at a particular place. The impact of a SOIRA order on an offender’s liberty can only fairly be described as serious. SOIRA creates an ongoing obligation to report extensive information, subject to random checks and other compliance measures, under threat of prosecution and punishment by way of imprisonment, fines, or both. This creates continuous state monitoring that can last decades and, for some offenders, a lifetime.

SOIRA also compels offenders to structure their travel and residency on an ongoing basis to remain in compliance with the legislation. There are thus burdens associated with the ongoing obligations to maintain the currency of the information on the registry, and the potential of imprisonment makes the deprivation of liberty even more severe. The impact on liberty can also be aggravated by an offender’s life circumstances. Offenders whose job requires regular, prolonged travel will frequently need to take additional measures to remain in compliance.

Even worse, offenders who experience homelessness, substance use issues, and cognitive or mental health challenges may find compliance extremely difficult. As a result, ss. 490.012 and 490.013(2.1) clearly interfere with offenders’ liberty. Once it is established that s. 7 is engaged, the next step is showing that the deprivation is inconsistent with the principles of fundamental justice, such as the principle of fundamental justice against overbreadth. The first step in an overbreadth analysis is to determine the purpose of the challenged provisions.

The focus is on the purpose of the challenged provisions, not of the entire act in which they appear, although a correspondence between those purposes may sometimes occur. To determine an impugned law’s purpose, courts may consider: statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and extrinsic evidence such as legislative history and evolution. SOIRA ’s overall purpose is readily identified.

As stated in s. 2(1), it is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders. Since SOIRA and ss. 490.012 and 490.013(2.1) of the Criminal Code form an integrated legislative scheme, SOIRA ’s overall purpose informs the

interpretation of the challenged provisions’ purpose. Further, the connection between the purpose of the provisions and SOIRA ’s overall purpose is reinforced by other provisions in SOIRA such as s. 2(2) , which implies the provisions should be read as closely tied to the overall aim of assisting police. Taking into account legislative history and SOIRA ’s explicit overall purpose, the purpose of s. 490.012 is to capture information about offenders that may assist police to prevent and investigate sex offences. The means to achieve this purpose is mandatory registration.

As for s. 490.013(2.1), no legislative history sheds light on its purpose. However, given the language of the provision, in the context of the existing scheme, Parliament’s basis for seeking a longer period of access to information on offenders when more than one offence is committed must be that it believed that these offenders were more likely to reoffend relative to other sex offenders. Given this greater risk of harm, Parliament preferred to have the offender’s information available on the registry as long as possible.

This is consistent with Parliament’s approach to target offenders who commit more serious offences. As such, s. 490.013(2.1) was designed to give police a longer period of access to information on offenders at a greater risk of reoffending. The means to achieve this purpose is lifetime registration for sex offenders who commit more than one designated offence. Having identified the purpose of the challenged provisions, the next step is to determine whether they are overbroad.

A law is overbroad when it is so broad in scope that it includes some conduct that bears no relation to its purpose, making it arbitrary in part. In other words, overbreadth addresses the situation where there is no rational connection between the purpose of the law and some, but not all, of its impacts. A law cannot deprive the life, liberty, or security of the person of even one individual in a way that is inconsistent with the principles of fundamental justice.

As a consequence, laws that are broadly drawn to make enforcement more practical run afoul of s. 7 should they deprive the liberty of even one person in a way that does not serve the law’s purpose. Mandatory registration under s. 490.012 is overbroad as it leads to the registration of offenders who are not at an increased risk of committing a future sex offence. Registering such offenders bears no connection to the purpose of capturing information about offenders that may assist police prevent and investigate sex offences.

In certain cases, an offender’s personal circumstances mean they are not at an increased risk of reoffending, undermining any real possibility that their information on the registry will ever prove useful to police. A rough proxy like a prior conviction for a sexual offence does not readily account for those circumstances. Moreover, it is inaccurate to say that all sexual offenders are at an enhanced risk of reoffending.

While a previous conviction for a sexual offence is a risk factor, about 10 percent of the individuals with such a conviction are not, at time of sentencing, at an enhanced risk of reoffending when compared to the general criminal population. Finally, the overbroad nature of s. 490.012 cannot be salvaged by the difficulty with risk assessments at sentencing. An argument based on enforcement practicality implicitly accepts that an individual’s rights are breached but holds it is justified for the sake of a benefit to the public — making the administration or enforcement of a law more practical or convenient.

Such an argument should be addressed under s. 1 of the Charter .

Lifetime registration of those convicted of more than one sexual offence is also overbroad. The purpose of the measure is to give police a longer period of access to information on offenders at a greater risk of reoffending. Yet, as the expert evidence establishes, committing more than one offence without an intervening conviction is not associated with an enhanced recidivism risk. As such, the measure captures some offenders who are not at a relatively greater risk of reoffending. Sections 490.012 and 490.013(2.1) are not saved under s. 1 of the Charter .

A breach of the Charter is justified under s. 1 when the challenged law has a pressing and substantial object and the means chosen are proportional to that object. The law is proportionate where the means adopted are rationally connected to the law’s objective, minimally impairing of the right in question, and the law’s salutary effects outweigh its deleterious effects. The prevention and investigation of sex crimes is a pressing and substantial purpose, and the measures are rationally connected to their objectives. However, ss. 490.012 and 490.013(2.1) are not minimally impairing of an offender’s rights.

There are reliable , tailored alternatives available that would substantially achieve the challenged measures’ objective. Restoring judicial discretion in the registration process would allow for a 90 percent inclusion rate of offenders in the registry. In addition, a variety of tools are available to improve the accuracy of judicial risk assessments, including expert evidence. Alternatively, Parliament can enumerate specific criteria to guide judges on when registering an offender is unlikely to advance the scheme’s objective.

Regarding s. 490.013(2.1), the Crown has not explained why exempting offenders who commit more than one offence without an intervening conviction would not achieve s. 490.013(2.1)’s purpose. Further, ss. 490.012 and 490.013(2.1)’s deleterious effects outweigh their salutary effects. The evidence on the provisions’ benefits is sparse, whereas the deleterious impact on anyone who is subject to the reporting requirements of a SOIRA order is clear.

The scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment, make the conditions onerous, especially on marginalized populations. The appropriate remedy is a declaration of invalidity.

With respect to s. 490.012, reading it down so that it would simply not apply to offenders who are not at an increased risk of reoffending or who suffer grossly disproportionate impacts would, in practice, reinstate judicial discretion and contradict Parliament’s clear intention to remove all judicial discretion to exempt offenders at the time of sentencing from the registry. In addition, on balance, the circumstances justify a suspension of the declaration of invalidity for 12 months.

Declarations of invalidity should be suspended when the government demonstrates that an immediately effective declaration of invalidity would endanger an interest of such great importance that, on balance, the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law that violates Charter rights.

Although the rights violation that the suspension would temporarily prolong is significant and granting a suspension runs counter to the public’s interest in legislation that complies with the Constitution, declaring s. 490.012 to be of no force or effect immediately would effectively preclude courts from imposing SOIRA orders on any offenders, including those at high risk of recidivism, and could therefore endanger the public interest in preventing and investigating sexual offences committed by high-risk offenders, undermining public safety. Furthermore, the declaration should apply prospectively.

A retroactive application of the declaration could frustrate the compelling public interests that require a period of transition, creating uncertainty and removing the protection that justifies the suspension in the first place. A prospective declaration would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated.

Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA ’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012. With respect to s. 490.013(2.1), an immediate declaration of invalidity is appropriate given that the offenders will remain registered and there is no gap for Parliament to fill. Furthermore , there is no compelling reason to rebut the presumption of retroactive application of the declaration.

Because the declaration affects all those impacted by the enactment of the provision since 2011, offenders who are subject to a lifetime order pursuant to this provision after having been convicted of more than one sexual offence without an intervening conviction can seek a s. 24(1) remedy to change the length of their registration. Per Wagner C.J. and Moldaver, C ôté and Brown JJ. (dissenting in part): The appeal should be allowed in part. There is agreement with the majority that mandatory lifetime registration in s. 490.013(2.1) of the Criminal Code is overbroad. However, s. 490.012 is constitutional.

It is appropriately tailored to its purpose of helping the police prevent and investigate sexual crimes, and does not limit an offender’s s. 7 rights in a manner that bears no connection to its objective. The exercise of judicial discretion to exempt offenders from registration under SOIRA was the very problem that prompted Parliament to amend the Criminal Code in 2011 to provide for automatic registration of sex offenders. Many judges had exercised their discretion to exempt offenders in a manifestly improper manner, and the Registry’s low inclusion rate undermined its efficacy.

The evidence is clear that even low risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence. It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net. The s. 7 analysis first requires a determination of the impugned provision’s purpose.

Section 490.012 contains no explicit statement of the purpose of automatic registration, but the broader legislative scheme offers some clues. Section 2(1) of SOIRA states that the purpose of that Act is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders, and s. 2(2) describes the guiding principles of the legislation.

Extrinsic evidence reveals that Parliament amended the statutory scheme in response to concerns that the Registry’s efficacy was compromised by the exclusion of nearly half of all convicted sex offenders because the Crown prosecutor had not made an application for their registration or judges had concluded that they should not be registered. The amendments responded to those concerns by providing for automatic registration of sex offenders in s. 490.012 to make the Registry as effective as possible when police are investigating crimes of a sexual nature.

The foregoing evidence supports the conclusion that the purpose of s. 490.012(1) is to help police prevent and investigate sexual crimes by requiring the registration of certain information relating to sex offenders, which conforms to the overall statutory objective. Automatic registration is not arbitrary. Arbitrariness describes the absence of a rational connection between the law’s purpose and the impugned effect on the individual, or where it can be shown that the impugned effect undermines the objective of the law.

Mandatory registration of convicted sex offenders in SOIRA is not arbitrary since there is a clear connection between having accurate and up-to-date information about persons more likely to commit sexual offences and the investigation and prevention of sexual crimes.

Automatic registration is not grossly disproportionate. Gross disproportionality will be found where the law’s effects on life,liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. SOIRA imposes aburden on offenders, but that burden is not totally out of sync with the objective of investigating and preventing sexual offences. Thereare also a number of arguments militating against gross disproportionality. Access to the Registry is strictly controlled.

The reporting isconfidential and use of the information is strictly limited to police for the prevention and investigation of sexual offences. Also, anystigma experienced by an offender from being labelled a sex offender flows from the convictions themselves, not registration. Anxietycaused by a law is not usually considered an infringement of liberty. Further, SOIRA’s requirements do not amount to punishment sincethey do not significantly limit lawful activities in which the accused can engage, where the accused can go, or with whom an accused cancommunicate or associate.

An offender who is placed on the Registry has already been tried and convicted of a designated sexualoffence. A SOIRA order is thus characterized as a consequence of conviction. Finally, the duration of a SOIRA order is directlyconnected to the maximum term of imprisonment for that sexual offence. By linking the length of time for reporting to the severity of theoffence, Parliament built proportionality into the legislative scheme. If there is truly a disproportionate impact on privacy or liberty, atermination order will be available for offenders who can meet the high standard of demonstrating it.

Section 490.012 is not overbroad. A law will be overbroad where it captures some conduct unrelated to its purpose,recognizing that a law can be rational in some cases but overreach in others. In enacting s. 490.012, Parliament deliberately chose not todistinguish between more serious and less serious sexual offences or higher risk and lower risk offenders. Instead, Parliament requiredregistration for all sex offenders based on a shared characteristic: a heightened risk of committing a future sexual offence.

Thegovernment can enact legislation that treats all individuals with a common characteristic in the same manner, without offending s. 7,provided there is a rational connection between that characteristic and the government’s purpose. There is a logical link between automatic registration on the basis of a sex conviction and the purpose of s. 490.012. Theexpert evidence indicates that offenders convicted of a sexual offence are five to eight times more likely to reoffend than those convictedof a non-sexual offence.

As a group, sex offenders will always pose a greater risk than the rest of the population for engaging in thatactivity and, thus, a prior conviction for a sex offence is a reliable indication of risk and a proper method of assessing that risk. Further,the experts agreed that the recidivism risk cannot be determined with certainty at the time of sentencing. A risk assessment cannotguarantee whether any individual will reoffend, and observed recidivism rates underestimate the true rates of sexual reoffending. Assuch, it is dangerous to use a risk-based assessment to determine which offenders should be registered.

It was within Parliament’spurview to draw a line based on that known increased risk of unknown degree, rather than leaving it to prosecutors and judges to weigh ifan offender poses an increased risk in each case. An important reason that Parliament drew that line was to fix a flaw in the Registry thatallowed judges to exempt offenders who they deemed not to be predators, contrary to the legislative intent.

Prior to the amendments,some judges granted exemptions based not on the impact of registration on the offender (as required by the statutory provision) but onwhether the offender was the type of person for whom the Registry was intended — in other words, a real sex offender. The category ofreal sex offender has been, at times, defined so narrowly as to exclude offenders who sexually assaulted people they knew, childpornography users, opportunistic offenders, and historic offenders. Judges have granted exemptions even where the victim was a strangerand the offences were highly predatory.

Exemptions have also been granted to offenders who occupied positions of trust and abusedvulnerable victims. Given what appears to have been a persistent, routine failure to appreciate the seriousness of these offences, it can beconfidently predicted that the rampant misuse of judicial discretion prior to the amendments will recur once automatic registration isremoved. Cases Cited By Karakatsanis and Martin JJ. Considered: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Safarzadeh-Markhali, 2016SCC 14, [2016] 1 S.C.R. 180; Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. T.L.B., 2006 ABQB533, 403 A.R. 293, aff’d 2007 ABCA 135, 404 A.R. 283; R. v. Heywood, (SCC), [1994] 3 S.C.R. 761; referred to: R. v.Long, 2018 ONCA 282, 45 C.R. (7th) 98; R. v. Debidin, 2008 ONCA 868, 94 O.R. (3d) 421; R. v. Dyck, 2008 ONCA 309, 90 O.R. (3d)409; R. v. Cross, 2006 NSCA 30, 241 N.S.R. (2d) 349; R. v. C. (S.S.), 2008 BCCA 262, 234 C.C.C. (3d) 365; R. v. J.D.M., 2006 ABCA294, 417 A.R. 186; R. v. Desmeules, 2006 QCCQ 16773; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44,[2000] 2 S.C.R. 307; R. v.

Clay, 2003 SCC 75, [2003] 3 S.C.R. 735; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Fleming v.Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519; R. v. Beare, (SCC), [1988] 2 S.C.R. 387; R. v. D.T., ;R. v. Callahan, ; R. v. Firingstoney, 2017 ABQB 343; R. v. Caruana, 2016 ONCJ 367; R. v. G.E.W., 2006 ABQB317, 396 A.R. 149; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R.906; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC),[1995] 3 S.C.R. 199; Singh v.

Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177; R. v. Sharpe, 2001SCC 2, [2001] 1 S.C.R. 45; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Ontario (Attorney General) v. G, 2020 SCC 38;Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754;Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Alberta v.Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; R. v.

Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; R. v. Albashir, 2021 SCC 48. By Brown J. (dissenting in part) Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d)81; R. v. Long, 2018 ONCA 282, 45 C.R. (7th) 98; R. v. Redhead, 2006 ABCA 84, 384 A.R. 206; R. v. T.A.S., 2018 SKQB 183; R. v.Dyck, 2008 ONCA 309, 90 O.R. (3d) 409; R. v. Debidin, 2008 ONCA 868, 94 O.R. (3d) 421; R. v. Cross, 2006 NSCA 30, 241 N.S.R.(2d) 349; R. v. C. (S.S.), 2008 BCCA 262, 234 C.C.C. (3d) 365; R. v.

K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Hooyer, 2016ONCA 44, 129 O.R. (3d) 81; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; R. v.F. (P.R.) (2001), (ON CA), 57 O.R. (3d) 475; R. v. Beare, (SCC), [1988] 2 S.C.R. 387; R. v. Dyck(2005), (ON SC), 203 C.C.C. (3d) 365; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. B.P.M.,2019 BCPC 156; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; C. (P.S.) v. British Columbia (Attorney

General) , 2007 BCSC 895 , 222 C.C.C. (3d) 230; R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45; R. v. Malmo-Levine , 2003 SCC 74 , [2003] 3 S.C.R. 571; R. v. Have , 2005 ONCJ 27 , 194 C.C.C. (3d) 151; R. v. Burke , 2005 ONCJ 422 ; R. v. Y. (B.T.) , 2006 BCCA 331 , 210 C.C.C. (3d) 484; R. v. B.S.S. , 2006 BCPC 135 ; R. v. Worm , 2005 ABPC 92 ; R. v. Randall , 2006 NSPC 38 , 247 N.S.R. (2d) 205; R. v. Aldea , 2005 SKQB 461 , 271 Sask. R. 272; R. v. S. (M.W.) , 2007 BCSC 1188 , 52 C.R. (6th) 77; R. v. Friesen , 2020 SCC 9 ; R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584.

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Summary 470E, by Robin MacKay, Law and Government Division, February 16, 2004. Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , No. 3, 3rd Sess., 40th Parl., April 14, 2010, p. 32. Stewart, Hamish. Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms , 2nd ed. Toronto: Irwin Law, 2019. Sullivan, Ruth. The Construction of Statutes , 7th ed. Toronto: LexisNexis, 2022. APPEAL from a judgment of the Alberta Court of Appeal (Slatter, Schutz and Khullar JJ.A.), 2020 ABCA 307 , 12 Alta. L.R. (7th) 225, 392 C.C.C. (3d) 459, 66 C.R. (7th) 34, 466 C.R.R. (2d) 151, [2021] 1 W.W.R. 537, [2020] A.J. No. 914 (QL), 2020 CarswellAlta 1573 (WL), setting aside two decisions of Moen J., 2018 ABQB 277 , 68 Alta. L.R. (6th) 89, 45 C.R. (7th) 137, [2018] 6 W.W.R. 590, [2018] A.J.

No. 427 (QL), 2018 CarswellAlta 794 (WL), and 2016 ABQB 595 , 44 Alta. L.R. (6th) 382, 32 C.R. (7th) 392, 366 C.R.R. (2d) 20, [2017] 3 W.W.R. 343, [2016] A.J. No. 1105 (QL), 2016 CarswellAlta 2054 (WL). Appeal allowed, Wagner C.J. and Moldaver, Côté and Brown JJ. dissenting in part. Elvis Iginla , for the appellant. Jason R. Russell , for the respondent. Jeffrey G. Johnston , for the intervener the Attorney General of Canada. Michael S. Dunn , for the intervener the Attorney General of Ontario. Sylvain Leboeuf and Julie Dassylva , for the intervener the Attorney General of Quebec.

Written submissions only by Glenn Hubbard , for the intervener the Attorney General of Nova Scotia.

Lesley A. Ruzicka , K.C. , for the intervener the Attorney General of British Columbia. Mark C. Halfyard , for the intervener the Criminal Lawyers’ Association (Ontario). Christine Mainville and Carly Peddle , for the intervener the Canadian Civil Liberties Association. Matthew R. Gourlay , Ryan Peck and Robin Nobleman , for the interveners the HIV & AIDS Legal Clinic Ontario and the HIV Legal Network. Donald Tremblay , for the intervener the Mobile Legal Clinic. Stéphanie Pelletier-Quirion , for the intervener Association québécoise des avocats et avocates de la défense.

The judgment of Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ. was delivered by Karakatsanis and Martin JJ. — I. Overview [ 1 ] Parliament and courts have increasingly recognized the grave harms which flow from the wide variety of sexual offences prohibited in the Criminal Code , R.S.C. 1985, c. C-46 .

Over the years, the substantive elements of some sexual offences have been modified: consent is now expressly defined in the Criminal Code ; procedures were introduced to address thorny evidentiary questions; testimonial assistance is available to vulnerable witnesses; and sentencing provisions and principles reflect the seriousness of sexual offences. [ 2 ] In 2004, concerned about the sexual abuse and abduction of children, Parliament passed the Sex Offender Information Registration Act , S.C. 2004, c. 10 ( SOIRA or Act ).

Through this legislation, Parliament sought to help police investigate crimes of a sexual nature by creating a national sex offender registry. At the time, a sex offender would only be placed on the registry if the Crown prosecutor first chose to apply to the court for an order requiring the offender to comply with SOIRA .

Moreover, the legislation gave sentencing judges the discretion to exclude offenders from the registry if the effects of the order on their privacy or liberty interests were grossly disproportionate to the public interest in protecting society. [ 3 ] These two separate safeguards were removed in 2011 following the enactment of the Protecting Victims From Sex Offenders Act , S.C. 2010, c. 17 . Instead, s. 490.012 of the Criminal Code now requires the mandatory registration of all offenders who have been found guilty of any one of the 27 different sexual offences designated in s. 490.011(1)(a).

Now each and every such sexual offender is compelled to register their personal information on Canada’s national sex offender registry, regardless of their individual risk of reoffending. In addition to compulsory SOIRA orders, Parliament also imposed a mandatory lifetime registration for offenders who commit more than one offence, irrespective of the nature or timing of the offences and even if they are part of the same transaction (s. 490.013(2.1)). [ 4 ] In this case, the appellant, Eugene Ndhlovu, pled guilty in 2015 to two counts of sexual assault against two complainants at a party in 2011.

He was 19 years old at the time. At sentencing, the judge was tasked with tailoring a proportionate sentence that was fit in relation to both Mr. Ndhlovu and the sexual assaults he committed. After canvassing his background and the evidence, the judge found that Mr. Ndhlovu was unlikely to reoffend. However, due to Parliament’s amendments in 2011, the Criminal Code obliged the judge to issue an order requiring Mr.

Ndhlovu to comply with SOIRA , and for the rest of his life. [ 5 ] As a result, like all other such offenders, he would be required to report to a police station and forced to supply extensive personal information which would be placed on Canada’s national sex offender registry. SOIRA also imposes ongoing reporting requirements which are numerous, invasive and extensive; including that offenders must keep their information up to date, report their plans for any travel lasting seven or more consecutive days and report any change to their home or employment address.

He would have to report annually to the police and be subject to random police checks. Non-compliance with any of the reporting obligations associated with registration carries the threat of prosecution, a maximum of two years’ imprisonment, a fine, or both ( Criminal Code , s. 490.031(1) ). His presence in the database would mean he would be among the list of persons police may consider to be of interest in their investigations, which may generate further interactions with the police. The impact on Mr. Ndhlovu and anyone subject to these provisions is considerable.

The scope of the personal information registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the state, and the threat of prosecution and imprisonment all interfere with what it means to be free in Canada. [ 6 ] This appeal requires this Court to determine whether Parliament complied with the Canadian Charter of Rights and Freedoms when it chose to remove prosecutorial and judicial discretion from s. 490.012 and introduced, under s. 490.013(2.1), lifetime registration for offenders convicted of more than one designated sexual offence.

Through s. 490.012, Parliament sought to capture information about offenders that may assist police prevent and investigate sexual offences. Similarly, s. 490.013(2.1) is designed to give police a longer period of access to information on offenders at a greater risk of reoffending. [ 7 ] Even when Parliament acts with a laudable purpose, it must still legislate in a constitutional manner and comply with the Charter . It failed to do so when it enacted ss. 490.012 and 490.013(2.1).

These measures infringe the liberty interest under s. 7 of the Charter because registration has a serious impact on the freedom of movement and on the freedom to make fundamental choices of people who are not at an increased risk of reoffending over their lifetime. [ 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. [ 9 ] There are offenders who, because of their individual characteristics, are at a negligible risk of reoffending. Further, the reality is that 75 to 80 percent never reoffend. Based on the Crown’s statistical evidence, there are also a significant number of sex offenders who are at no greater risk of reoffending than members of the general criminal population.

As a result, s. 490.012 applies to offenders for whom there is no real possibility that their information may ever assist police — and there is no discretion to exclude such persons from the wide reach of SOIRA ’s onerous and ongoing obligations. In addition, the Crown’s expert evidence established that committing more than one sexual offence without an intervening conviction is not associated with a greater risk of reoffending. [ 10 ] The two challenged provisions, therefore, suffer from the same constitutional defect.

They both use categorical and unyielding proxies that are too broad, resulting in the measures casting too wide a net. To the extent they require the registration, sometimes for life, of offenders who demonstrate no increased risk of reoffending, they threaten the liberty interests of offenders in a manner which is overbroad and violates s. 7 of the Charter . [ 11 ] Nor are they justified under s. 1 because they are not minimally impairing of Charter rights and the deleterious effects of the provisions outweigh their salutary ones.

The blanket and blunt requirement that all designated sex offenders must be registered, and those convicted of more than one offence must be registered for life, restricts the liberty of offenders who are not at an increased risk of reoffending without any evidence that doing so enhances the ability of police to prevent and investigate sex crimes.

While the Crown has asserted that it believes it is necessary to include all offenders for the registry to be as effective as the Crown wants it to be, any such avowal is insufficient to meet its burden of proof under which it is required to justify, not merely explain, the infringement on liberty. Critically, the Crown has adduced no evidence that demonstrates how these provisions are effective in helping police prevent and investigate sex crimes.

Indeed, the sparse information in the record points in the opposite direction. [ 12 ] We would allow the appeal and declare ss. 490.012 and 490.013(2.1) of no force or effect under s. 52(1) of the Constitution Act, 1982 . A one-year suspension of the declaration is appropriate for mandatory registration, given concerns about public safety and the many ways Parliament could remedy the provision’s overbreadth. An immediate declaration, however, is warranted for lifetime registration for offenders convicted of more than one offence. II. Facts and Judicial History A. Facts [ 13 ] Mr.

Ndhlovu pled guilty to two counts of sexual assault in June 2015. The convictions resulted from sexual assaults charged on a single indictment against two complainants at a house party in 2011. Mr. Ndhlovu touched both of the complainants’ buttocks and one of the complainant’s thighs. Later in the evening, one of the complainants awoke to Mr. Ndhlovu inserting his fingers inside her vagina. After she motioned to him to stop, he tried to reinsert his fingers. The complainant pushed him and told him to stop, but Mr. Ndhlovu instead tried to remove her bra. The complainant once again told him to stop and he fled.

Mr. Ndhlovu was 19 years old at the time of the offences. B. Judicial History

(1) First Instance Proceedings [ 14 ] Three proceedings before Moen J. are pertinent to this appeal. [ 15 ] The first was a sentencing hearing in which Moen J. was tasked with tailoring a fit and proportional punishment. She found that six months’ imprisonment and three years’ probation were warranted in all the circumstances. In reaching this conclusion, she took into account the characteristics of the offender, as well as the gravity of the offences he committed. She received evidence concerning Mr. Ndhlovu, including a presentence report. She noted that Mr.

Ndhlovu took responsibility for his actions and was remorseful. He had no criminal history. His offences related to excessive alcohol consumption, but he had stopped drinking to excess. He had the support of his family and community. [ 16 ] Importantly, based on the evidence placed before her by the Crown and defence, the sentencing judge found that Mr. Ndhlovu was “unlikely to offend again” (A.R., vol. II, at p. 38). Moen J. stated that he “will be safe to release into the community. I have absolutely no concerns that [he] will re-offend.

Nor does the Crown suggest that [he] will” (p. 38). [ 17 ] Despite this finding, due to his conviction for two designated offences, Mr. Ndhlovu was subject to mandatory lifetime registration in Canada’s national sex offender registry pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code . Following sentencing, Mr. Ndhlovu brought an application to challenge both provisions as contrary to ss. 7 and 12 of the Charter . [ 18 ] The second hearing addressed whether this mandatory lifetime registration breached those Charter rights. The Crown called the evidence of Det.

Arlene May Hove, a police investigator with the Edmonton Police Service (EPS), who was responsible for administering access to the database for police in the Edmonton area. [ 19 ] Moen J. concluded ss. 490.012 and 490.013(2.1) breached s. 7 of the Charter ( 2016 ABQB 595 , 44 Alta. L.R. (6th) 382 (ABQB reasons (2016))). The purpose of the provisions was “to protect vulnerable people including children in society, by allowing police quick access to current information on convicted sex offenders” (para. 87).

The provisions deprived an offender’s liberty and the deprivation was “quite onerous” given the depth of information, the continuing obligation to report changes, the annual in-person reporting requirements, and the consequences of breaching the order, along with random checks and registration for life (para. 52). She also noted the stigma of being on the registry, the fear that this information may not be kept confidential and how random compliance checks at home and at work risked divulging their registration status.

[ 20 ] The provisions offended the principles of fundamental justice. While not arbitrary, the provisions were overbroad: registering offenders with little or no recidivism risk, like the appellant, did not advance SOIRA ’s purpose. The measures were therefore “broader than necessary” (para. 116). They were also grossly disproportionate, given the onerous cumulative effects of registering.

Having found the provisions breached s. 7, Moen J. declined to address the defence’s arguments on s. 12 of the Charter . [ 21 ] Following Moen J.’s s. 7 ruling, the Crown sought to justify the provisions under s. 1 of the Charter . A third hearing was held to address whether the provisions were justified under s. 1 and, at this time, the Crown submitted expert evidence from Dr. Robert Karl Hanson about recidivism rates and the risk associated with sexual offenders subsequently committing further offences. The defence called Dr.

Kristen Marie Zgoba who gave evidence on recidivism rates and also addressed the efficacy and impact of sex offender registries. [ 22 ] Moen J. concluded s. 1 did not save the impugned provisions ( 2018 ABQB 277 , 68 Alta. L.R. (6th) 89). She agreed that the public interest addressed by Parliament was the protection of society through the effective and quick investigation of crimes of a sexual nature by providing police with rapid access to information about known sex offenders. While this was a sufficiently pressing and substantial objective, the means chosen to achieve it was not proportional.

Removing judicial discretion and requiring mandatory and sometimes lifetime registration was not rationally connected to this objective, in part because there was no evidence before either her, or the Parliamentary Committee and Senate Committee studying the 2011 amendments, that “there would be more arrests made more quickly as a result of the 2011 amendments” (para. 44). The removal of judicial discretion was not minimally impairing because the Crown “produced no evidence that suggested that judicial discretion had caused any difficulty for the police in their investigations of sexual offences” (para. 110).

In addition, the evidence established that the mandatory imposition of lifetime registration does not minimally impair the rights of persons convicted of at least two sexual offences. When comparing registration’s proven costs with the claimed benefits of having everyone on the registry, Moen J. relied heavily on the evidence of the Crown expert to conclude that the deleterious effects of the impugned provisions outweighed any salutary effects. Thus, she declared ss. 490.012 and 490.013(2.1) of no force or effect, and declined to order Mr. Ndhlovu to register.

(2) Court of Appeal [ 23 ] A majority at the Court of Appeal of Alberta (Slatter and Schutz JJ.A.) allowed the Crown’s appeal, concluding that neither provision violated s. 7 ( 2020 ABCA 307 , 12 Alta. L.R. (7th) 225). The majority held the purpose of s. 490.012 was to “require mandatory registration of all sex offenders convicted of designated offences” (para. 74). The fact that all convicted sex offenders have an increased propensity to commit sex crimes in the future provides the necessary connection between mandatory registration under s. 490.012 and the purpose of the legislation.

Thus, the measure was not overbroad, since a certain degree of recidivism risk was not a “necessary prerequisite” (para. 95). [ 24 ] Lifetime registration was also not overbroad. The majority held the purpose of s. 490.013(2.1) was “to further public safety by subjecting sex offenders who are at enhanced risk of re-offending to a longer period of registration” (para. 103, quoting R. v. Long , 2018 ONCA 282 , 45 C.R. (7th) 98, at para. 102 ). Parliament could infer that committing more than one sexual offence is a proxy for an increased recidivism risk, warranting a longer registration period.

Nor were ss. 490.012 and 490.013(2.1) grossly disproportionate. If not strictly modest, the measures were “reasonable and not dissimilar to many other reporting obligations that routinely occur as part of the everyday life of all Canadians, who are state-compelled to provide information from time to time” (para. 130). [ 25 ] Khullar J.A., in dissent, disagreed that the provisions complied with s. 7. While she agreed the provisions were not grossly disproportionate, they were overbroad.

The provisions had the same purpose as the overall Act : to assist law enforcement in preventing and investigating sexual crimes by centralizing information about convicted sex offenders. It was unnecessary to register offenders at negligible risk of reoffending, like the appellant, to further the provisions’ objective. The Crown’s argument that the difficulties of predicting risk necessitated the registration of all offenders should be addressed under s. 1, as Moen J. concluded. Yet, there was no evidence to show the measures’ salutary effects outweighed their deleterious effects.

The breach of the Charter right was not justified. III. Issues [ 26 ] Mr. Ndhlovu appeals on the ground that the Court of Appeal erred in its determination that ss. 490.012 and 490.013(2.1) of the Criminal Code comply with s. 7 of the Charter . As such, the following issues arise on this appeal: (

a) Do ss. 490.012 and 490.013(2.1) of the Criminal Code breach s. 7 of the Charter ? (

b) If so, are the breaches justified under s. 1 of the Charter ? (

c) If they are not justified, what is the appropriate remedy? IV. Analysis [ 27 ] We begin our analysis with a survey of SOIRA , its history and the obligations it imposes on offenders, concluding that the provisions interfere with the liberty interests of those required to register. We turn next to identifying Parliament’s objective in enacting these provisions, ultimately determining that the provisions are overbroad and therefore the limit on liberty is not in accordance with the principles of fundamental justice.

Finding a breach of s. 7, we proceed to examine whether the breach is justified under s. 1 of the Charter . We conclude that it is not: ss. 490.012 and 490.013(2.1) are not minimally impairing of Charter rights and the deleterious effects of the provisions outweigh their salutary ones. Finally, we conclude by determining the appropriate remedy. A. Sex Offender Information Registration Act

(1) The Challenged Provisions [ 28 ] Two provisions in the Criminal Code which govern the registration of offenders under SOIRA are at issue in this

appeal. The first is s. 490.012, which provides that a court “shall” make an order requiring sex offenders convicted of designated offences to comply with SOIRA for the applicable period specified in s. 490.013. Subsection (1) provides: “When a court imposes a sentence on a person for [a] . . . designated offence . . . , it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013”. Similar language is used in subss. (2) and (3) of the same provision. [ 29 ] The second is s. 490.013(2.1), one of several measures that sets out the applicable registration period, or the length of time that an offender is required to comply with SOIRA . The orders have 3 different durations — 10 years, 20 years or life — depending on the maximum punishment for the offence or if the offence was prosecuted summarily.

Section 490.013(2.1) provides that “[a]n order made under subsection 490.012(1) applies for life if the person is convicted of . . . more than one . . . designated offence”. [ 30 ] Having set out the challenged provisions, we survey SOIRA ’s history and canvass the overall scheme and the obligations it imposes on offenders in greater detail.

(2) The History of SOIRA [ 31 ] SOIRA came into force in 2004. SOIRA established a national registry of sex offenders. It was modelled on Ontario’s registry, created by Christopher’s Law (Sex Offender Registry), 2000 , S.O. 2000, c. 1 ( Christopher ’s Law ), which was the first registry in Canada. Ontario’s registry was enacted in 2001 following the recommendation of a provincial inquest into the abduction and murder of an 11-year-old boy by a convicted sex offender (Library of Parliament, Bill C-16: Sex Offender Information Registration Act , Legislative

Summary 470E, February 16, 2004, at p. 8). Parliament followed suit with a national registry after calls mounted for an interprovincial database of sex offenders.

Unlike Christopher’s Law , SOIRA is maintained by the Royal Canadian Mounted Police, although in conjunction with local and provincial police services who oversee the administration of and access to the registry in designated regions. [ 32 ] When SOIRA came into force, it was largely seen as a tool to help police stop the sexual abuse and abduction of children, a type of investigation where “time is of the essence” (House of Commons, Standing Committee on Public Safety and National Security, Statutory Review of the Sex Offender Information Registry Act: Report of the Standing Committee on Public Safety and National Security , 2nd Sess., 40th Parl., December 2009, at pp. 3-4).

The Act stated that the registry’s purpose was to help police investigate crimes of a sexual nature ( s. 2(1) , as it read in 2004). To manage the enrollment of offenders in the registry, Parliament added several measures to the Criminal Code and under these provisions, prosecutors exercised discretion over whether to bring an application to register an offender.

Moreover, if prosecutors brought an application, judges could still exempt the offender from the registry if they were “satisfied that the person ha[d] established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (see Criminal Code , s. 490.012(4) , as it read in 2004). [ 33 ] In 2011, both SOIRA and the Criminal Code were amended by way of the Protecting Victims From Sex Offenders Act .

The objective of helping police prevent sex offences was added to SOIRA ’s purpose statement in s. 2(1) . Further, prosecutorial discretion and judicial discretion to impose SOIRA orders were removed from the provisions of the Criminal Code . From that point forward, s. 490.012 provided that SOIRA orders were mandatory for offenders convicted of designated offences. Parliament also added s. 490.013(2.1) to the Criminal Code , which mandated lifetime registration for individuals convicted of more than one designated offence.

The constitutionality of both these amendments is at issue in this case. [ 34 ] As well, before the 2011 amendments, police needed to show they were investigating a crime and had reasonable grounds to suspect the crime was of a sexual nature before they could consult the registry ( SOIRA , s. 16(2) (a), as it read in 2004). In 2011, however, the reasonable grounds requirement was removed.

Thus, since 2011, police are now able to consult the registry to either prevent or investigate sex offences, whether or not they reasonably suspect an offence was or will be committed ( SOIRA , s. 16(2) (a)). [ 35 ] Since SOIRA ’s inception, many offences have led to registration under the Act .

Section 490.011(1) (

a) of the Criminal Code presently designates 27 offences that lead to automatic registration under s. 490.012(1) when a sentence is imposed or a verdict of not criminally responsible on account of mental disorder is rendered for those offences. The list of designated offences spans a broad range of criminal activity, including sexual assault, exposure, and withholding or destroying travel documents to facilitate the trafficking of persons under 18 years of age. SOIRA ’s ambit is amplified by designated offences like sexual assault, which can be committed in innumerable ways.

The conduct captured by sexual assault includes everything from touching a complainant’s buttocks over clothing to prolonged, violent assaults. SOIRA , as a result, captures a highly varied and diverse group of offenders. The number and breadth of designated sexual offences means that the net of sexual offenders subject to SOIRA is itself cast widely — many are subject to its provisions. [ 36 ] SOIRA is nearly 20 years old. Despite its long existence, there is little or no concrete evidence of the extent to which it assists police in the prevention and investigation of sex offences. Det.

Hove, an investigator with the EPS who administers the registry in the Edmonton region, testified before the sentencing judge; she could only speculate how SOIRA could be used to help the EPS prevent sexual offences. Moreover, she noted she received only about 15 requests from police to access the registry for an investigative purpose in her 2 years administering the registry . The experts at trial were unaware of any study of SOIRA ’s efficacy.

(3) The Legislative Scheme and Reporting Requirements Under SOIRA [ 37 ] SOIRA imposes many obligations on offenders to report to a registration centre in person (ss. 4 and 4.1) and provide personal information for the purpose of the registry (s. 5), on an ongoing basis. SOIRA also imposes corresponding obligations on the police officers administering the registry to collect certain information and keep it confidential (s. 8).

Access to the information contained in SOIRA is restricted to certain persons, including police who, since 2011, require access for “the purpose of preventing or investigating a crime of a sexual nature” ( s. 16(2) (a)). [ 38 ] Offenders must comply with SOIRA for the applicable registration period specified under s. 490.013 of the Criminal Code . Offenders, however, can seek a termination order, which (if granted) releases the offender from SOIRA obligations before the end

of the applicable registration period (s. 490.016(1)). The order is only granted if a judge is satisfied that continuing the offender’sregistration is grossly disproportionate “to the public interest in protecting society through the effective prevention or investigation ofcrimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under . . . [SOIRA]” (s. 490.016(1)).Moreover, an offender can only bring an application for a termination order after several years have elapsed (s. 490.015(1)).

In the caseof lifetime registration following a conviction for more than one offence under s. 490.013(2.1), a termination order can be sought 20years after the order to comply with SOIRA was made (s. 490.015(1)(c)). [39] Registered offenders are subject to many reporting requirements. Following an order made pursuant to s. 490.012(1),offenders must report in person to a registration centre, which are police stations designated with administering the registry in ageographic region.

At the centre, the offender must provide extensive personal information, including their name, date of birth, gender,the address of their principal and secondary residences, the address of every place of employment or volunteer location, the name of theiremployer or volunteer supervisor and a description of the work done, the address of every educational institution at which they areenrolled, their height and weight, a description of every physical distinguishing mark that they have, and the licence plate number, make,model, body type, year of manufacture and colour of every vehicle registered in their name or that they use regularly (SOIRA, s. 5(1)).They must also report a contact phone number for each location where they can be reached and every mobile phone and pager in theirpossession (s. 5(1)(f)).

They must supply information relating to all driver’s licenses and passports they may hold. The registration centremay take their photograph and record their eye colour and hair colour. [40] Offenders must update their information in person yearly (ss. 4(3) and 4.1(1)). They must also report in person at theregistration centre any changes in primary or secondary address and name.

They must also report in person if they receive a driver’slicence or passport (s. 4.1(1)). [41] Moreover, offenders must notify the registration centre within seven days of any change regarding their employmentor volunteering information (ss. 5(1)(

d) and 5.1). They must also notify the registration centre if they intend to be away from theirprimary or secondary residence for seven or more consecutive days (s. 6(1)). Specifically, offenders must notify the registration centre,before departure, of their departure and return dates and of every address or location at which they expect to stay, whether the addressesor locations are in or outside Canada (s. 6(1)(a)).

Similar reporting requirements are imposed on offenders who decide, after departure,not to be at their primary or secondary residence for seven or more consecutive days (s. 6(1)(b)). [42] Failing to comply with SOIRA brings serious consequences for offenders. The Criminal Code makes it an offence foran offender to fail to comply with SOIRA’s reporting obligations without “reasonable excuse” (s. 490.031(1)). Non-compliance with anyof these conditions may result in prosecution, with penalties of up to 2 years’ imprisonment, up to $10,000 in fines, or both(s. 490.031(1)).

The risks are clearly high for offenders if they fail to adhere to SOIRA’s numerous requirements. [43] Further, police officers conduct random compliance checks to verify the information on the registry. At a minimum,offenders are subject to at least one annual verification of their residential address. Det. Hove of the EPS also testified the current policyin Edmonton was to restrict compliance checks to the offender’s primary residence, although SOIRA does not restrict where these checksare carried out. Nothing, as a result, prevents officers from showing up at an offender’s place of employment.

Thus, as the sentencingjudge found, “offenders on the registry will be subject to further police interference due to the investigatory, and now preventative stepstaken by police officers in relation to sex crimes” (ABQB reasons (2016), at para. 59). [44] A number of appellate courts have concluded SOIRA’s reporting requirements have a “minimal” or “modest” impacton registered offenders (see Long, at para. 147; R. v. Debidin, 2008 ONCA 868, 94 O.R. (3d) 421, at para. 82; R. v. Dyck, 2008 ONCA309, 90 O.R. (3d) 409, at paras. 104-6; R. v. Cross, 2006 NSCA 30, 241 N.S.R. (2d) 349, at paras. 50 and 66; R. v.

C. (S.S.), 2008 BCCA262, 234 C.C.C. (3d) 365, at para. 55). The Court of Appeal in this case, while finding that the measures were “not strictly modest”,equated registration to everyday reporting obligations. [45] With respect, we cannot agree. Rather, the impact on anyone subject to SOIRA’s reporting requirements isconsiderable. The requirements impact privacy and liberty, personal interests that are fundamental to society: liberty of movement andchoice, mobility, and freedom from state monitoring or intrusion in our personal lives.

The scope of the personal information registered,the frequency at which offenders are required to update their information, the ongoing monitoring by the state, and, of course, the threatof imprisonment make the conditions onerous.

They simply cannot be compared to reporting requirements that “routinely occur as partof the everyday life” such as those associated with filing income tax forms, obtaining a driver’s licence or a passport, or registering withbanks or telephone companies (see Dyck, at para. 110). [46] Additionally, the cost of compliance varies from offender to offender based on their life circumstances. WhileSOIRA’s reporting requirements are always serious, offenders whose job requires regular, prolonged travel will frequently need to takeadditional measures to remain in compliance.

Even worse, offenders who experience homelessness, substance use issues, and cognitiveor mental health challenges may find compliance extremely difficult (see, e.g., R. v. J.D.M., 2006 ABCA 294, 417 A.R. 186, at para. 9;R. v. Desmeules, 2006 QCCQ 16773, at paras. 25-27 ).

Quite simply, we must recognize the full scope of the restrictions thatare imposed by SOIRA orders — both physical and informational — to properly assess the constitutionality of ss. 490.012 and490.013(2.1). [47] The Act thus imposes numerous exacting obligations concerning initial registration, ongoing reporting, statemonitoring and possible prosecution and imprisonment. We turn now to consider whether the challenged provisions breach s. 7 of theCharter. B. Sections 490.012 and 490.013(2.1) Infringe

Section 7 of the Charter [48]

Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the rightnot to be deprived thereof except in accordance with the principles of fundamental justice.” [49] In order to demonstrate a violation of s. 7, the claimant must first show that the law interferes with their life, liberty orsecurity of the person. Once they have established that s. 7 is engaged, they must then show that the deprivation in question is

inconsistent with the principles of fundamental justice (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, atpara. 55). [50] In the first

section we conclude that the provisions interfere with the liberty interests of those required to register. Wethen identify Parliament’s objective in enacting these provisions, ultimately determining that the provisions are overbroad. Finding abreach of s. 7, we next examine whether the breach is justified under s. 1 of the Charter and explain why it is not.

(1) Sections 490.012 and 490.013(2.1) Interfere With the Offender’s Liberty [51] Underlying the rights in s. 7 is a concern for the protection of individual autonomy and dignity (Carter, at para. 64).Liberty protects “the right to make fundamental personal choices free from state interference” (Blencoe v. British Columbia (HumanRights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 54; see R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, at paras. 31-32).Liberty also protects against physical restraint ranging from actual imprisonment or arrest (R. v.

Malmo-Levine, 2003 SCC 74, [2003] 3S.C.R. 571, at para. 89; Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519, at para. 65) to the use of state power to compelattendance at a particular place (R. v. Beare, (SCC), [1988] 2 S.C.R. 387, at p. 402). [52] The Crown properly concedes SOIRA engages the liberty interest of the accused but argues that the infringement islimited, analogous to fingerprinting, and exists only to the extent SOIRA compels attendance at a particular time and place.

Thesimilarities between a mandatory SOIRA order and the fingerprinting order considered in Beare certainly support a finding that s. 7 isengaged here. In Beare, there was a deprivation of liberty because the order obliged “a person to appear at a specific time and place andoblige[d] that person to go through an identification process on pain of imprisonment for failure to comply” (p. 402). [53] However, the nature and extent of the deprivations at issue are much greater here than in Beare.

SOIRA does notmerely oblige offenders to appear once at a specific time and place and provide one type of personal information. Rather, it creates anongoing obligation to report extensive information, subject to random checks and other compliance measures, under threat of prosecutionand punishment by way of imprisonment, fines, or both. This creates continuous state monitoring that can last decades and for someoffenders, like Mr. Ndhlovu, a lifetime. [54] The impact of a SOIRA order on an offender’s liberty can only fairly be described as serious.

The most obviousimpact on liberty is the risk of prosecution and imprisonment for failure to meet the reporting requirements without “reasonable excuse”.Indeed, there are numerous reported cases involving offenders who have received terms of imprisonment for failing to comply withSOIRA orders (e.g., R. v. D.T., (N.L. Prov. Ct.), at para. 56; R. v. Callahan, (N.L. Prov. Ct.), atpara. 62; R. v. Firingstoney, 2017 ABQB 343, at paras. 178-79 ; R. v. Caruana, 2016 ONCJ 367, at para. 7 ). [55] But the mandatory measures also involve constraints on liberty that are insidious and pervasive for all those who mustcomply.

That offenders must report to a registration centre within tight timelines to provide the information of any changes in primary orsecondary address, or name, as well as if they receive a driver’s licence or passport, under threat of penalty, is a clear deprivation ofliberty. It compels offenders to structure their travel and residency on an ongoing basis to remain in compliance with SOIRA (see, e.g., R.v. G.E.W., 2006 ABQB 317, 396 A.R. 149, at paras. 19 and 25, where the court considered the impact on an offender who worked in thetrucking industry).

There are burdens associated with the ongoing obligations to maintain the currency of the information on the registry.The potential of imprisonment makes the deprivation even more severe (Re B.C. Motor Vehicle Act, (SCC), [1985] 2S.C.R. 486, at p. 515). [56] As noted above, the impact on liberty can also be aggravated by an offender’s life circumstances. For personsexperiencing homelessness or frequent changes in housing, complying with SOIRA’s requirement in s. 4.1(1)(

a) to report in person anychanges to the location of their “main” residence (regardless of whether they have a formal address) is an extremely onerous obligation,that can be virtually impossible to respect, even more so since it can last for their lifetime. [57] It is clear to us that ss. 490.012 and 490.013(2.1) interfere with offenders’ liberty in serious ways.

Liberty isobviously undermined when personal information is collected, under threat of imprisonment, for the very purpose of monitoring a personin the community and promptly identifying the person’s whereabouts in the course of a criminal investigation. [58] Finally, to be clear, we make no finding as to whether SOIRA orders constitute punishment under the K.R.J. test (R.v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906).

This question was neither raised nor argued by either party before us, and we would notspeculate, without the benefit of submissions, on whether SOIRA orders engage s. 11 of the Charter and, if they do, whether they wouldsurvive a Charter challenge.

(2) The Purpose of Sections 490.012 and 490.013(2.1) [59] The first step in an overbreadth analysis is to determine the purpose of the challenged provisions (R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 24; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24).

It is to thatpreliminary question that we now turn. [60] Several principles have emerged to assist a court in properly characterizing a law’s purpose. [61] The focus is on the purpose of the challenged provisions, not of the entire act in which they appear, although acorrespondence between those purposes may sometimes occur (Moriarity, at paras. 29 and 48; RJR-MacDonald Inc. v.

Canada (AttorneyGeneral), (SCC), [1995] 3 S.C.R. 199, at para. 144). [62] The law’s purpose should be succinct, precise, and characterized at the appropriate level of generality, which“resides between the statement of an ‘animating social value’ — which is too general — and a narrow articulation” that amounts to avirtual repetition of the challenged provision, divorced from its context (Safarzadeh-Markhali, at para. 27, quoting Moriarity, atpara. 28).

[ 63 ] A law’s purpose is distinct from the means used to achieve that purpose ( Safarzadeh-Markhali , at para. 26 ; Moriarity , at para. 27 ). [ 64 ] To determine an impugned law’s purpose, courts may consider: statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and extrinsic evidence such as legislative history and evolution ( Safarzadeh-Markhali , at para. 31 ; Moriarity , at para. 31 ). [ 65 ] SOIRA ’s overall purpose is readily identified.

The statement of purpose in s. 2(1) of SOIRA states the Act aims “to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”. In this case, there is no question that the statement of purpose fully reflects Parliament’s aims in enacting SOIRA . Both at the time it was enacted and when it was later amended, Parliament emphasised the Act was designed to assist police. Moreover, it has clearly indicated that SOIRA is intended to assist police in the prevention and investigation of sex offences.

However, the challenge in this case is not to the Act as a whole, but is confined to two particular sections of the Criminal Code : one that provides no judicial discretion to exempt offenders from the registry and another that requires lifetime registration for those convicted of more than one designated sexual offence. [ 66 ] When assessing the purpose of these challenged provisions, several sources of legislative

interpretation closely tie these two provisions to SOIRA ’s overall purpose. [ 67 ] To begin, SOIRA and ss. 490.012 and 490.013(2.1) of the Criminal Code form an integrated legislative scheme. The provisions subject offenders to the reporting requirements listed in SOIRA . When Parliament enacts related legislation dealing with the same subject, the legislation is presumed to offer a coherent and consistent treatment of the subject (R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 13.04). As a result, the provisions must be interpreted in conjunction with the scheme established under the Act . SOIRA ’s overall purpose informs the

interpretation of the challenged provisions’ purpose. [ 68 ] The connection between the purpose of the provisions and SOIRA ’s overall purpose is reinforced by other provisions in SOIRA . Section 2(2) of SOIRA lists three principles that must guide the Act ’s

interpretation. Two emphasize that information collected and disclosed under the Act is intended to assist police prevent and investigate sex offences ( s. 2(2) (

a) and (c)(i)). Since the Criminal Code provisions similarly affect the scope of information collected in the database, s. 2(2) of SOIRA implies the provisions should be read as closely tied to the overall aim of assisting police. [ 69 ] Turning to legislative history, statements made during the amendment process indicate that the specific purpose of mandatory registration is to capture information about offenders that may assist police prevent and investigate sex offences.

No extrinsic aids, however, shed light on the purpose of lifetime registration. [ 70 ] Mandatory registration was introduced following a report by the Standing Committee on Public Safety and National Security on SOIRA ’s operation and efficacy ( Statutory Review of the Sex Offender Information Registry Act : Report of the Standing Committee on Public Safety and National Security ). The Standing Committee’s mandate was to identify amendments to ensure the registry is “best able to fulfill the purpose for which it was enacted” (p. 2).

Among its recommendations, the report expressed concerns that SOIRA ’s inclusion rate was too low. Only around 50 percent of sex offenders were registered in the database (p. 8). The Standing Committee recommended eliminating prosecutorial discretion. Importantly, the Standing Committee concluded that judicial discretion to exempt offenders where the measures were grossly disproportionate should be maintained (p. 9). [ 71 ] Parliament, however, opted to eliminate all discretion.

Before Parliament, the Minister of Public Safety and his representatives reiterated the Standing Committee’s concerns on SOIRA ’s low inclusion rate. The Minister remarked before the Standing Senate Committee on Legal and Constitutional Affairs that some recidivistic offenders were “falling through the cracks” because prosecutors were failing to bring applications and judges were excluding offenders when applications were brought ( Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , No. 3, 3rd Sess., 40th Parl., April 14, 2010, at p. 32).

Similarly, in the House of Commons, the Minister’s parliamentary secretary echoed the concerns that SOIRA was under-inclusive and its ability to assist police was undermined as a result ( House of Commons Debates , vol. 145, No. 112, 3rd Sess., 40th Parl., December 7, 2010). [ 72 ] The majority at the Court of Appeal concluded that the purpose of mandatory registration was to register all sex offenders. While such a purpose may find some support in parts of the Hansard, we cannot agree with this characterization of the provision’s purpose.

First, it replicates the error warned against in Moriarity , at paras. 27-28 : it fails to adequately distinguish between ends and means, which forecl

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