Her Majesty the Queen - v. -, 2015 SKPC 146

IN THE PROVINCIAL COURT OF SASKATCHEWAN BEFORE A JUDGE IN AND FOR SASKATCHEWAN SITTING AT SASKATOON, SASKATCHEWAN IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 490.026(1) OF THE CRIMINAL CODE FOR AN ORDER PURSUANT TO

SECTION 490.027 OF THE CRIMINAL CODE Citation: 2015 SKPC 146 Date: June 9, 2015 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Donald Maxwell Appearing: Sandeep Bains For the Crown George Green For the Accused JUDGMENT B.D. WRIGHT , J I INTRODUCTION

[ 1 ] This is an application pursuant to s. 490.027 of the Criminal Code for an Order terminating the Applicant’s obligation to comply with the Sex Offender Information Registration Act (“the Act ”). [ 2 ] It is conceded by the Crown that the application is properly before this Court pursuant to s. 490.026(4) of the Criminal Code , in that the Applicant was granted a Record Suspension on June 27, 2013. II EVIDENCE [ 3 ] In support of his application, the Applicant filed an affidavit sworn on September 29, 2014.

In addition, at the hearing of the application on March 18, 2015, the Applicant provided further sworn testimony, and was cross-examined by the Crown. [ 4 ] The evidence of the Applicant, both from his sworn affidavit and his viva voce testimony, establishes the following:

a) the Applicant pled guilty to 11 counts of sexual assault in Elbow, Saskatchewan on February 13, 2003. The assaults consisted of the Applicant brushing against the victims’ buttocks or thighs. All victims were acquaintances of the Applicant from the community of Elbow or nearby. Furthermore, the Applicant at the time was the mayor of Elbow, and three of the victims were or had been employees of the Village of Elbow;

b) the Applicant was sentenced to a nine-month Conditional Sentence Order and probation for 27 months. He completed all counselling and programming required of him;

c) the Applicant has not committed any other offences;

d) on September 9, 2005, the Applicant was issued a Notice of Obligation to Comply with the Sex Offender Information Registration Act . He signed an acknowledgement of the Notice on November 21, 2005, and has been complying with his obligations under the Act since that date;

e) as of the date this matter was heard, the Applicant was 59 years old. He resides in Elbow, has been married for 38 years and has two sons. He is employed as an electrical superintendent in Fort McMurray, Alberta, on major oil sands development projects, and has been since 2005. When working, he resides in camps provided by his employer at the project site;

f) his current work

schedule requires him to spend 14 days working at camp, and seven days at home. Prior to that, his

schedule was 10 days in camp and four days at home;

g) with respect to his reporting obligations, he must report to the RCMP every time he leaves home for seven days or more, and then again when he returns home. He is permitted to report by telephone. Furthermore, he has to report in person once per year. He is unable to report to the RCMP branch office in Elbow due to his work

schedule and the limited branch office hours. As a result, he travels 50 miles from Elbow to Outlook, where he reports in person to the Outlook RCMP Detachment;

h) the police have attended only once, in person, in the approximately ten years since he has been reporting, to confirm that he is living where he said he was living;

i) in cross-examination, the Applicant confirmed that he has been working in Fort McMurray for approximately 10 years and makes

a comfortable living. He has been able to report as required over those 10 years, and his obligations to report have not impacted hisemployment or his ability to earn income;

j) with respect to his obligation to report in person once per year, he acknowledged that it was simply “inconvenient” to have todrive the 50 miles from Elbow to Outlook;

k) with respect to the obligation to report when he goes out of the province for work, or returns home, he acknowledged that this canbe done by telephone and he can simply leave a telephone message for that purpose. He confirmed that the calls take only one to twominutes, and in the 10 years of his obligations under the Act, he has always been able to report, and there has never been any impact onhis work;

l) with respect to the stigma he feels from reporting, as a sex offender, once per year in person in Outlook, he acknowledged that hedoes not live in Outlook, and in all the years he has reported he has never been confronted by anyone; and

m) finally, the Applicant confirms that his obligations under the Act have not impacted him professionally or in his work; nor havethey impacted him personally - he is still married and has the support of his wife and family. III ANALYSIS [5]

Section 490.027(1) of the Criminal Code provides as follows: 490.027(1) The Court shall make an order terminating the obligation if it is satisfied that the person has established that the impact onthem of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest inprotecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration ofinformation relating to sex offenders under the Sex Offender Information Registration Act. [6] The standard of “grossly disproportionate” is very high, and an offender must establish more than a mere disproportionate impact.

The term “grossly” means a “marked and serious imbalance”.[1] [7] Both the Applicant and the Crown have referred the Court to a number of decisions with respect to the

interpretation of s.490.027(1). Most of those decisions, however, were decided under the previous s. 490.012(4), which provided for exemption fromregistration under the Act. The current legislation no longer gives the Court the power to exempt an offender from registration;registration is mandatory. However, s. 490.012(4) was worded similarly to the present s. 490.027(1).

Section 490.027(1) specificallyrefers to the “effective prevention or investigation” of crimes of a sexual nature, whereas s. 490.012(4) refers only to the “effectiveinvestigation” of such crimes. Otherwise, the wording of the two provisions is the same. [8] The Applicant urges the Court to follow the reasoning of a line of cases commencing with R v Have, 2005 ONCJ 27, and including R v R.E.M., 2005 BCSC 698 , R v Jaune, 2005 BCPC 645 , R v A.J.N., 2005 BCPC 582, and R v G.J.J., 2006 BCPC 170 , 2006 BCPC 0170.

Based on those cases, the Applicant suggests that in cases ofoffenders who are of low or no risk to re-offend, there is little public interest in registration and in the continuing requirement to report. [9] In interpreting s. 490.012(4), Have and the cases noted above have made a number of determinations which I summarize asfollows:

a) the Court is required to assess the impact of registration on an offender, to assess the public interest that is furthered byregistration, and to determine if the impact on the offender is grossly disproportionate to the public interest that is furthered byregistration;

b) the impact on an offender is substantial, not only from subjecting the individual to an obligation to report, but also from being required to provide information that would otherwise be private. These cases suggest that there is a substantial stigma attaching to an individual who is subject to registration, even if that stigma is only internal. Furthermore, it is also suggested that registration may undermine treatment, rehabilitation and re-integration into the community. Finally, these cases suggest that there is a fine line between legitimate police tracking of offenders and the harassment of offenders, and that there is no control against the harassment of offenders by the police;

c) with respect to the public interest to be served by registration, these cases suggest that the purpose and value of the legislation is not limited to the statement of purpose in s. 2(1) of the Act . These cases have all determined that the purpose and value of the legislation is related to the investigation of “predatory stranger offenders” with a propensity to commit similar offences in the future, particularly those involving child abduction where time is of the essence; and

d) with respect to the “grossly disproportionate” test, these cases all hold that s. 490.012(4) was to be given an

interpretation that resulted in some meaningful leeway for an offender to demonstrate that he should not be included in the registration provisions. It is stated that from a public interest point of view, it is desirable that the registry not be so inclusive as to include so many low-risk or no- risk offenders as to dilute the resources and attention of the police from those that pose a genuine risk.

See: Have , supra , at pp. 6 - 7. [ 10 ] The above cases suggest that in assessing whether the impact on the offender of registration is grossly disproportionate to the public interest in registering an offender, the Courts can determine on a case-by-case basis whether there exists a public interest in registering the offender. The Applicant submits, based on this reasoning, that as he is of low-risk or even no-risk to re-offend, there is no legitimate public interest in this case in requiring him to comply with his obligations under the Act .

Therefore, argues the Applicant, any impact on him of complying, even slight, is sufficient to result in a finding that such impact is grossly disproportionate to the public interest in his continued registration. [ 11 ] However, other cases have taken a different approach to the

interpretation of s. 490.012(4). In particular, in R v Redhead , supra , the Alberta Court of Appeal overturned the trial court’s decision to grant the accused an exemption from registration. In so doing, the Alberta Court of Appeal considered a number of the previous decisions interpreting s. 490.012(4), including Have , supra , and went on to make a number of determinations with respect to the

interpretation of s. 490.012(4). The Alberta Court of Appeal concluded that the analysis under s. 490.012(4) is restricted to the impact of a SOIRA order on the offender, including the impact on the offender’s privacy and liberty interests.

Other impacts on the offender may also be considered. [2] [ 12 ] Furthermore, there is no presumption of impact in the legislation arising from the length of reporting obligations alone. [3] [ 13 ] The Alberta Court of Appeal also disagreed with the conclusion in Have , supra , that the purpose and value of the Act is related to the investigation of “predatory stranger” offenders. The Court of Appeal stated as follows at para. 38: [38] We do not agree. The language of s. 490.012 does not suggest its application is so limited.

Rather, the absence of such limiting language reflects Parliament’s recognition of predictable repetitive behaviour of sexual offenders, and the inordinate consequences of sexual offences for victims of any age. [ 14 ] In Redhead the Court also dealt with the issue of offenders who are of low risk to re-offend and whether their inclusion in the registry would dilute the registry and make it less effective, rather than serve the public interest. The Court of Appeal concluded that a case-by-case analysis of whether there exists a public interest in registering an offender was not appropriate.

The public interest is presumed. The Court stated at para. 42: [42] However, had Parliament intended that courts should determine whether there exists a public interest in registering an offender on a case-by-case basis, factoring in all of the individual circumstances surrounding each offender and his or her offence, it could have made that intention clear in the wording of the provision. Instead, Parliament has pronounced that there is a public interest in having those

who commit the prescribed offences registered. The language of s. 490.012(4) presumes a “public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders,” but questions whether the impact on the offender would be grossly disproportionate to that public interest.

Thus, the focus of the inquiry is not on whether there is a public interest in having the offender registered, but rather on whether the impact on the offender would be grossly disproportionate to the public interest. [ 15 ] To similar effect is the decision of the Ontario Court of Appeal in R v Debidin , supra . In Debidin , the Ontario Court of Appeal overturned the sentencing court’s decision to grant the accused an exemption from registration pursuant to s. 490.012(4), and instead required the accused to register under the Act .

The Court noted, at para. 50, with respect to the assessment of the impact on the offender, as follows: [50] It is worth emphasis that the first component of the test for an exemption under s. 490.012(4) involves an assessment of the impact of a SOIRA order on the offender, including the impact on the offender’s privacy and liberty interests. The impact to be assayed is not the impact of being charged with or convicted of a sexual offence, or being stigmatized as a sex offender.

Rather, what must be gauged is the impact of the registration requirements on the offender’s current and prospective circumstances. [ 16 ] In discussing the burden imposed on an offender to establish that the impact of registration is grossly disproportionate to the public interest in registration, the Court stated at para. 52, in part: In the absence of any evidence about the impact of registration on the offender, the presumption of s. 490.012(1) applies and a SOIRA order will be made.

Likewise, what is offered by the offender may not demonstrate the extent of disproportionality required to engage the exception: disproportionate, but not grossly disproportionate. And so the presumption would remain unrebutted and the order made. [ 17 ] The Court in Debidin also discussed the impact of registration on the offender.

At para. 55, the Court describes the impact of registration on the offender’s privacy interests as “very modest”, and goes on to note in para. 56 that use and dissemination of information contained in the registry is tightly circumscribed by the Act . [ 18 ] Furthermore, while it is noted at para. 57 that the reporting requirements imposed on an offender affect the offender’s liberty interest, the Court concludes at para. 82: [82] The reporting requirements of the SOIRA . . . admittedly infringe, to some extent at least, the liberty interests of the respondent and others in similar circumstances.

Yet the restrictions are modest and do not prohibit the respondent from going anywhere, or doing anything . . . . [ 19 ] Finally, the Ontario Court of Appeal in Debidin notes, at para. 70 , that registration under the Act is not limited to likely recidivists or sexual predators, and that it is an error to enhance the impact on an offender of registration or to dilute the public interest in registration on the basis of diminished risk of recidivism.

The Court concludes as follows at para. 77: [77] . . . while it may be fair to say that one of the underlying rationales for the enactment of the SOIRA was to facilitate investigation of sexual offences by keeping track of sexual predators, s. 490.012(1), which creates a rebuttable presumption that a SOIRA order will follow conviction of a designated offence on the application of the prosecutor, is not restricted, in its terms or by necessary implication, to the sexual predator paradigm.

The subsection, as well it might, does not distinguish between the predatory stranger and the opportunistic friend, relative or custodian. [ 20 ] The Court of Appeal in Saskatchewan has also concluded that s. 490.012 is not limited only to predatory, repeat or high risk offenders. [4] [ 21 ] Furthermore, the Saskatchewan Court of Appeal has also determined that just as s. 490.012(1) is not directed to a particular type of offender, exceptions made under s. 490.012(4) are not to be granted solely on the basis that an offender is a low-risk offender. [5] [ 22 ] In T.C. , supra, the Saskatchewan Court of Appeal discussed whether a court, in deciding whether to grant an exemption

[22] In T.C., supra, the Saskatchewan Court of Appeal discussed whether a court, in deciding whether to grant an exemptionpursuant to s. 490.012(4), is empowered to consider the circumstances of the offence and the offender’s risk to re-offend. At paras. 38 to45 of the decision, the Court discusses this issue, and refers to the decision in Redhead, supra. The Court of Appeal notes that somecourts in Canada have said that Redhead stands for the proposition that the public interest in having all sex offenders registered as such is“fixed”.

However, the Court goes on to review subsequent decisions, including R v Turnbull, 2006 NLCA 66, which suggests that it isinconceivable that an offender could establish gross disproportionality without being able to have a court consider factors such as thecircumstances of the offence, the record of the offender, whether the offence was committed many years earlier and the record of theoffender in the interim. [23] In T.C., the Saskatchewan Court of Appeal concludes that it is not helpful to characterize the public interest in registration as“fixed”, and notes that the real issue is whether the Court can consider the circumstances of the offence and the offender when assessingthe impact of registration on the offender.

The Court concludes at para. 45: . . . in making or refusing to make an exception under s. 490.012(4), a court must consider all relevant factors including thecircumstances of the offence and the offender and practical matters, such as the effect of the reporting requirements on work. [24] The Saskatchewan Court of Appeal in T.C. then confirms, however that the burden on an offender seeking an exemption is aheavy one.

The Court concludes at para. 46: Given the nature of the standard, in most cases the balance will tip in favour of registration. [25] R v R.A.M., 2009 BCPC 169 , 2009 BCPC 0169, is a case where the accused was not granted an exemption fromregistration under s. 490.012(4).

The Court noted that the impacts of registration on the offender were minimal, and that there was noevidence that the reporting requirements of the Act would affect his employability. [26] R v G.E.W., 2006 ABQB 317, is a decision considering whether an offender was entitled to an exemption from registrationpursuant to s. 490.023(2) of the Criminal Code.

After acknowledging the decision in Redhead, supra, as the leading case in Alberta, theCourt held that the Applicant was entitled to an exemption because there was evidence that registration was having a disproportionateimpact on his marriage and was also having an affect on his employment prospects. Neither of those impacts are present in the casebefore this Court. [27] In R v Owusu, 2008 ABQB 715, the Court considered whether an offender was entitled to an exemption from registrationunder s. 490.012(4).

After acknowledging the decision of the Alberta Court of Appeal in Redhead, supra, as clarifying the law withrespect to SOIRA orders, the Court went on to grant the Applicant an exemption. In so doing, the Court noted that the reportingrequirement “may” affect the Applicant’s employability.

Without commenting on what seems to me to be the speculative nature of theevidence on that point in Owusu, I would simply note that there is no evidence of any effect on the employment of the Applicant in thecase before this Court. [28] R v J.M.S., 2013 BCPC 141 , 2013 BCPC 0141, is a case dealing with termination of a registration pursuant to s.490.027(1). In that case, in granting the order for termination the Court emphasized the risk of inadvertent or improper disclosure of theregistry information. At paras. 18 and 19 the Court noted the evidence of the Applicant on this point: [18] From Mr.

S.'s perspective, he is asking that this be terminated for several reasons. Some of those are more pertinent than othersalthough they all are realistic observations of what life on a SOIRA registration is like.

He described the reporting as being minor, but hehas an ongoing concern with respect to the maintenance of the confidentiality of the registration and registration information, simply that– and this applies not just to him but to any other person that would be required to report – there is a concern that confidentialinformation becomes known whether by malfeasance, misbehaviour or by accident. [19] It is a routine matter unfortunately these days that the information people believe to be confidential ends up being faxed to thewrong number or discarded at a garbage dump and somebody finds confidential medical records or all sorts of other records that are verydistressing if and when they are made public.

Of course there is a stigma attached to sex offending and were this information to be mademore broadly public that would be of significant concern for Mr. S. and would have a substantial impact on his life.

[29] The Court then concluded at para. 48: [48] To risk disclosure at this time so that he would risk losing employment or risk losing what is valuable to him in his private life I donot see as benefitting the public or protecting society. So for all of those reasons, I am terminating the SOIRA order as of today. [30] With respect, it is the view of this Court that the reasoning in J.M.S. is flawed. The Court’s emphasis on the risk of disclosureis entirely speculative. Even more importantly, that risk has been dealt with, and discounted, in a number of cases.

For example, inDebidin, supra, at para. 56, it is noted that the use and dissemination of information is tightly circumscribed by the Act. Likewise, in R vCasaway, supra, the Court noted at paras. 6 to 11 that the purpose of the Act is not to identify sex offenders to the community, but ratherto help police services investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders. As part of the principles of the Act, it is recognized in s. 2(2) that access to the information gathered, and the use and disclosure of it, isto be restricted.

There is no provision in the Act for publication of the information collected to the community at large; rather, a numberof provisions in the Act are aimed at keeping the registration and information confidential, and to restrict the use of same. Only certainpeople are permitted to consult the information collected. Furthermore, there are restrictions put on the disclosure and use of theinformation collected, and it is an offence to contravene the sections of the Act providing for who may consult the information, and bywhom and for what purposes it may be disclosed.

IV CONCLUSION [31] Having considered all of the above, I am of the view that the principles governing an application under s. 490.027(1) are as setout in cases such as Casaway, Redhead and Debidin, as well as Kasokeo and T.C. of the Saskatchewan Court of Appeal. Applying thoseprinciples, I have concluded that the Applicant has not met the burden of establishing that the impact on him of continuing hisobligations under the Act would be grossly disproportionate to the public interest in his continued registration. On the contrary, theevidence led on this application shows minimal, if any, impact on the Applicant.

He acknowledges that the obligations imposed on himhave had no impact on him personally or professionally, and have not impacted his employment or his ability to earn income. In suchcircumstances, I cannot even conclude that the impact on the offender is disproportionate, much less grossly disproportionate. As aresult, the application must fail and I cannot terminate the Applicant’s obligations under the Act. _______________________ B.D.

Wright, J [1] R v Casaway, [2005] NWTSC 37, at para. 12; R v Redhead, 2006 ABCA 84, at para. 43; R v Debidin, 2008 ONCA 868 , atparas. 61 - 64. [2] R v Redhead, supra, at para. 30. [3] R v Redhead, supra, at para. 33. [4] R v Kasokeo, 2009 SKCA 48, at para. 8. [5] R v T.C., 2009 SKCA 124, at para. 30.