In December 2004, the Canadian Government enacted the Sex Offender Information Registration Act (SOIRA) and established a legal requirement under the Criminal Code ss. 490.011 that persons who are convicted of a designated sex crime must register with the National Sex Offender Registry (NSOR). NSOR was initially established for the purpose of enabling authorities and police to investigate sex crimes.
The following sex crimes are among the designated offences that may result in placement on Canada’s Sex Offender Registry:
Since the Sex Offender Registry was established in 2004, several key changes in the law governing sex crimes were enacted, as follows.
The NSOR (‘the Registry’) includes substantial personal information for each person who has been registered. This information is managed by the RCMP and stored on an online sex offender database. Unlike the U.S., information on Canada’s Sex Offender Registry is not available to the public.
Once a SOIRA order has been made, requiring an offender to be added to the Registry, the offender must report in person, within 7 days, to the registration centre in the area where they mainly reside. The offender cannot leave the country until they have reported. Further, if the offender’s home address or given name have changed, or they have received a driver’s licence or passport, these changes must be reported to the registration centre within 7 days.
The Registry database includes the following details for each offender:
Persons registered on Canada’s National Sex Offender Registry must check in with local police once a year and provide police with their current personal information, including their address and employer. And, police officers have the right to visit the offender at any time to ensure they are residing at the given address.
The offender’s information is retained on the Registry indefinitely. However, the information may be removed and destroyed if the offender is acquitted of all offences connected to the order requiring the offender to be included on the Registry, or if the offender receives a free pardon or Exemption order. In rare cases (so far), an offender has been successful in applying to have their information removed from the Registry many years after the offence occurred, by providing substantial evidence that they have become a responsible citizen and present no threat to the public.
As noted above, Canada’s Criminal Code mandates that persons convicted of the designated sexual offences must be registered in the NSOR, typically for life. However, critics have challenged whether the mandatory lifetime registration is constitutional and constitutes ‘cruel and unusual punishment’, particularly for lesser offences.
Is the law unconstitutional when it doesn’t allow judges to decide whether a person should be placed on the Sex Offender Registry, based on the circumstances of the case?
In R. v. Ndhlovu (2016), a young man (who had pled guilty on two counts of sexual assault) challenged the constitutionality of lifetime registration mandated under SOIRA for designated offences. Justice Moen considered this question and decided that Canada’s Criminal Code is “overbroad and grossly disproportionate, and therefore unconstitutional” when the law removes a judge’s discretion to consider all the circumstances of a case and not order an offender to be added to the Registry, when they have no risk of re-offending.
The offender in Ndhlovu grew up in Zimbabwe and was 19 years old at the time of the offence. He was persuaded to attend a party which was advertised on the complainant’s Facebook page as a “highly sexualized” Jersey Shore DTF party with a stripper pole available. The offender initially declined the invitation because he had to work the next day, but the complainant (R.D.) persuaded him to come, arranged a ride for him and told him he could stay overnight. The party attendees began drinking at 7:30 and later that night, the offender reportedly sexually touched R.D. and another young woman a few times without their consent, either on their buttocks or thighs. R.D. also testified that, in the morning hours, she was awakened when the offender’s fingers were in her vagina. She told him to stop and he tried a second time, saying it would ‘feel good’, but after pushing him away, the offender complied and left the house.
The offender had no memory of the entire night, but expressed remorse for his actions and pled guilty to one charge of sexual assault against each of the young women. He was sentenced to 6 months in prison and 3 years of probation. However, the judge declined to order the offender to be placed on the Sex Offender Registry because the circumstances of this case indicated to the judge that the offender is not a threat to public safety and very unlikely to re-offend – he had no criminal history; the incident was related to alcohol consumption and he has since stopped drinking entirely; and he expressed remorse and took responsibility for his actions.
Justice Moen asserted that the legal requirement to place this offender on the Registry will unfairly and to no purpose place him “on police radar for the rest of his life anytime a sexual offence is committed by a black man of average height in his neighbourhood”. The judge also stated that requiring him to register will not assist police in investigating or preventing sex crimes. Justice Moen concluded that SOIRA infringes on section 7 of the Charter of Rights and Freedoms in allowing judges no discretion in deciding whether an accused person must be placed on the Registry.
In R. v. Ndhlovu (2018), the prosecution sought to prove that the provisions under SOIRA in the Criminal Code are constitutional. However, Justice Moen upheld her original decision and asserted that removing judicial discretion from the Criminal Code with respect to the registration of sexual offenders is unconstitutional and accordingly, she struck down s. 290.012 of the Code. The judge also ruled that a lifetime on the Registry is unconstitutional for persons convicted of more than one offence and she struck down the offending section. Further, Justice Moen declined to order Mr. Ndhlova to be added to the Registry.
In R. v. Ndhlovu (2018), the Crown applied to the Alberta Court of Appeal for a stay on the declaration of invalidity. The Appeal Court stated that they have no authority to stay a superior court judge’s decision (including that of Justice Moen’s) on the issue of whether the Criminal Code ss 490.012 and 490.013(2.1) are unconstitutional. However, the Court held that “the declaration of invalidity of the provisions in question be stayed pending this court’s decision following the hearing of the appeal”. The final appeal in the Ndhlovu case has not been concluded; however, it must be noted that the decision in Ndhlovu was exceptional and constitutional challenges to SOIRA have generally been dismissed.
If you have been charged with sexual assault or another sex offence, get strong representation from an experienced Toronto sex crimes lawyer at the Law Firm of Ted Yoannou.
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