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Challenging Constitutionality of Sexual Offender Law

March 29, 2009

The University of Calgary Faculty of Law Blog on Developments in Alberta Law:
Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act.
Written by: Jennifer Koshan
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The Sex Offender Information Registration Act, S.C. 2004, c. 10 (”SOIRA“- Canada’s version of SORNA) came into force on December 15, 2004. The SOIRA and related amendments to the Criminal Code (R.S.C. 1985, c. C-46) require courts, on application of a prosecutor, to make an order requiring a person convicted of a designated sexual offence to report to a registration centre within a certain period of time after conviction, and again after moving, to provide information including their address, place of work, and other personal information. SOIRA orders last for a certain length of time (up to life), and must be made unless the impact of the order on the sex offender, “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” (Criminal Code, s. 490.012(4)). Two recent Alberta cases have come to different conclusions on the application of the exemption to the circumstances of the offender, and in a third case, leave to appeal the constitutionality of the SOIRA’s retroactive application was granted.

In R. v. Redhead, 2006 ABCA 84, the Alberta Court of Appeal (per Justices Anne Russell, Ellen Picard and Peter Costigan) declined to consider the constitutionality of the SOIRA because notice of a constitutional challenge had not been provided to the Crown (see also R. v. Aberdeen, 2006 ABCA 164). The overall constitutionality of the SOIRA has not yet been ruled upon by the Supreme Court of Canada or any provincial appellate courts. However, in R. v. Dyck, 2008 ONCA 309, the Ontario Court of Appeal ruled that a similar provincial sex offender registry, implemented via Christopher’s Law (Sex Offender Registry), S.O. 2000, c.1, was constitutional.

R. v. Warren, 2008 ABCA 436 raises the more specific issue of whether the retroactive application of the SOIRA is constitutional. Section 490.02(1) of the Criminal Code provides that a sex offender may be subject to the SOIRA if “on the day on which the Sex Offender Information Registration Act comes into force, they are subject to a sentence for, or have not received an absolute discharge under Part XX.1 from, the offence; …”

(4) The court is not required to make an order under this section if it is satisfied that the person has 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, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

In Redhead, the Court of Appeal first noted that SOIRA orders are not part of a convicted person’s sentence, so they should not be subject to the same deferential standard of review as sentencing decisions. The Court likened SOIRA orders to orders requiring convicted persons to provide a sample of their DNA, and held that a similar standard of review should apply: an appellate court “can alter a [SOIRA] order decision only where there is an error of principle, failure to consider a relevant factor, an over emphasis of appropriate factors, or a clearly unreasonable decision” (at para. 13).

Second, the Court considered what evidence the sex offender must put forward in order to make out their entitlement to an exemption. The Court found that while the evidentiary burden was on the offender he need not adduce evidence during the SOIRA application, and that evidence from the trial and pre-sentence report could be considered, or a court could take judicial notice of relevant evidence (at para. 25).

Third, the Court found that the exclusion of certain criteria from the SOIRA that were present in the provisions concerning DNA orders – including the offender’s criminal record and the circumstances of the offence – meant that these criteria were not intended to be included as relevant to whether a SOIRA order should be made. Rather, “[t]he focus … must be on the offender’s present and possible future circumstances, and not on the offence itself” (at para. 28). Factors that might be relevant here were said to include “unique individual circumstances such as a personal handicap, whereby the offender requires assistance to report…; the intangible effects of the legislation, including stigma, even if only in the offender’s mind; the undermining of rehabilitation and reintegration in the community; and whether such an order might result in police harassment as opposed to police tracking” (at para. 31). In a subsequent case, R. v. G.E.W., 2006 ABQB 317, economic impact on the offender was also found to be a relevant factor (as cited in R. v. Owusu, 2008 ABQB 715 at para. 5).

Overall, the impact on the offender must be “grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (s. 490.012(4) of the Criminal Code). In terms of the public interest, s. 2 of the SOIRA sets out its purpose: “to help police services investigate crimes of a sexual nature”, requiring “rapid access to certain information relating to sex offenders.” The Court in Redhead noted that “[t]he underlying assumption is that a sex offender will re-offend” (at para. 36, citing R. v. Have, 2005 ONCJ 27 at para. 16). Accordingly, “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” (at para. 42). “Grossly disproportionate” was said to be a high threshold requiring proof of a “marked and serious imbalance” between the interests of the offender and the public interest (at para. 43, citing R. v. J.D.M., 2005 ABPC 264 at para. 53). At the same time, the exemption should not be interpreted “so narrow[ly] that the SOIRA order is effectively mandatory,” or it will be rendered “meaningless” (at para. 44).

Redhead continues to be seen as the leading case in the application of the exemption under s.490.012(4) of the Criminal Code in Alberta and across Canada. Its guidelines were applied in both R. v. Owusu and R. v. Schultz, 2008 ABQB 679, although the judge in each case came to a different conclusion on the availability of the exemption in the circumstances.

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