The Evidence Matters In Charter Litigation: The Supreme Court Of Canada Strikes Down Provisions Of Canada's Sex Offender Registry As Violating Section 7 Of The Charter

• Published date: 07 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Byron Shaw and Adam Kanji

Overview

On October 28, 2022, the Supreme Court of Canada released its decision in R. v. Ndhlovu, 2022 SCC 38, in which a 5-4 majority struck down section 490.012 of the Criminal Code of Canada, but unanimously struck down section 490.013(2.1) (collectively, the "Impugned Provisions"), both for having violated section 7 of the Canadian Charter of Rights and Freedoms.

While there are a number of interesting points of discussion in this case, such as the application of the Oakes test and its interplay with section 7 and the remedy ultimately ordered, our discussion will focus on the Court's section 7 analysis, the importance of non-speculative evidence in Charter litigation, and the consideration of Parliamentary intent.

The Facts

In 2004, Parliament passed the Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA") in an effort to help police investigate crimes of a sexual nature by creating a national sex offender registry. At the time, a sex offender was only placed on the registry if the Crown chose to apply to the court for an order requiring compliance with SOIRA. Sentencing judges also had 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. These were seen as two important safeguards to balance the rights of offenders and the public interest.

However, in 2011, Parliament enacted the Protecting Victims from Sex Offenders Act, S.C. 2010, c. 17 and changed when registration was to occur. Section 490.012 of the Criminal Code requires mandatory registration on the sex offender registry if a person is convicted of any one of 27 enumerated sexual offences under section 490.011(1)(a). Judicial discretion was removed. Moreover, for those offenders who are convicted of more than one sexual offence, section 490.013(2.1) requires that registration is for a lifetime. It was the mandatory and lifetime registration provisions that were at issue in this case.

Eugene Ndhlovu, a 19-year old at the time he was charged, pleaded guilty in 2015 to two counts of sexual assault against two complainants, stemming from incidents that occurred at the same party in 2011. The sentencing judge found that Mr. Ndhlovu was unlikely to reoffend but that, under the Criminal Code, Mr. Ndhlovu: (1) was required to register on the national sex offender registry, and (2) his registration would be for the rest of his life.

Registration on the list imposes several...