Opinion: Changes to Canada's sex offender registry shouldn't be seen as controversial
Written for Daily Hive by Sarah Leamon, a criminal lawyer living in Vancouver, BC who works on high-profile cases. Leamon founded the Sarah Leamon Law Group in 2018.
The Supreme Court of Canada, last week, struck down parts of the national sex offender registry.
In a 5-4 ruling, the court said that the mandatory registration of sex offenders with more than one conviction on the sex offender registry for life is unconstitutional. Although it sounds like a somewhat controversial decision at first blush, it is anything but.
In order to understand why this decision is not quite as controversial as it seems, we should start with a basic understanding of the facts in the case that was before the Court.
The offender, Eugene Ndhlovu, pled guilty to sexually assaulting two women at a party in 2011. Ndhlovu, who was 19-years-old at the time, assaulted two women by groping them on their buttocks without their consent. Later in the evening, he further assaulted one of the complainants by digitally penetrating her while she was asleep.
For his crime, Ndhlovu was sentenced to six months in jail followed by three years of probation. He was also added to the national sex offender registry for life.
While the judge decided on Ndhlovu’s sentence, his addition to the sex offender registry was an automatic function of the Criminal Code. This means that the judge had no discretion with respect to whether he should be added to the registry or not.
It also means that the judge could not consider relevant information about Ndhlovu that should have factored into whether he needed to be added to the registry for a life term, or at all.
This included his propensity to re-offend or other mitigating factors on sentencing. The judge was obligated to make the order in spite of the fact that there was evidence to show that Ndhlovu was unlikely to re-offend, he took responsibility for his actions, expressed remorse, engaged in rehabilitative measures, and had no prior criminal history.
This mandatory nature of the provision – characterized by a total lack of discretion for sentencing judges – was an important factor in the court’s ultimate decision.
After all, it is generally accepted that sentencing judges are in the best position to determine a fit and appropriate sentence for an offender after having regard to the circumstances of the offence and the offender’s unique personal circumstances. This also best keeps in line with principles of sentencing, including denunciation, deterrence and rehabilitation.
In fact, prior to 2011, this is exactly how the law with respect to the sexual offender registry functioned. Judges weighed the evidence and decided whether enrollment on the registry was necessary, and if so, for how long.
In 2011, though, parliament changed the law and created a more onerous scheme. This included mandatory enrollment for all offenders with more than one conviction for life.
And, as the court noted in this case, the consequences associated with such an enrollment are not insubstantial in nature.
Aside from the stigmatizing aspect of such a designation, there are onerous reporting requirements for registrants. These include the obligation to file personal information with the database, report changes in personal circumstances and complete annual in-person checks. Failure to comply with these requirements can result in serious penalties, including large monetary fines and even further jail time.
An entry can also severely limit a person’s employment and volunteer opportunities, as well as their ability to travel freely or reside where they wish. Marginalized offenders, including those who experience displacement, substance misuse or mental health issues, may also have increased difficulty complying with the onerous conditions associated with the database.
Of course, cumbersome reporting measures and restrictions like these are more than warranted for some offenders, including those with a likelihood to re-offend. They could be necessary to protect the public and to minimize the chances of further re-offending.
However, just as the Supreme Court held in this case, they are not necessary or even appropriate for all offenders. This is particularly so for those who have a very low risk of re-offending.
Moreover, while the primary purpose of protecting the public through the use of a national registry is objectively valiant, the Court found that there was actually little to no evidence about how it actually works in reality. Over twenty years have passed since the registry was created, but the Court still found that there was little to no concrete evidence about the extent to which it assists police or prevents offences of a sexual nature.
This was another key factor in their decision to declare the law overbroad and therefore unconstitutional.
With the law now struck down, the court has given parliament one year to rewrite it.
Only time will tell whether they will decide to return to the pre-2011 era or if they write new rules to govern how offenders are added to the registry. Either way, they would be wise to keep the courts’ comments in mind when doing so.
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