Blog
Céline Dostaler
SCC makes laudable changes to sex offenders registry
The Supreme Court of Canada (SCC) should be commended for its decision to strike down a law that automatically added those accused of designated sexual offences to the national sex registry. This legislation was overly broad and did not give judges discretion to decide who should be included in that listing.
The automatic inclusion was part of former prime minister Stephen Harper's 2011 “tough on crime” strategy, which included having anyone convicted of two sexual offences or more remaining on the registry for life.
In explaining the reason for overturning the legislation, the court judgment notes, “The unproven premise is that police can only effectively prevent and investigate sex offences if all designated offenders are registered. The assumption appears to be that if some are good, more is better, and all is best."
Automatic inclusion is unconstitutional
It also stated why it is unconstitutional to maintain someone's inclusion in the sex offender registry for life if they were convicted of more than one offence.
"The measure captures some offenders who are not at a relatively greater risk of reoffending because their two or more offences were committed ... in a single transaction," according to the ruling.
Prior to 2011, Crown prosecutors had to apply for a Sex Offender Information Registration Act order and petition a judge to decide whether the offender should be added to the registry. The court would then consider if restricting the offender's privacy and liberty was in the public interest.
According to the RCMP, designated sex offences that once led to inclusion in the registry included invitation to sexual touching, sexual exploitation, incest, exposure and sex assault. Anyone listed in the registry must provide their name and address along with information such as:
- their employer’s name and address;
- photos of their face and any distinguishing marks or tattoos;
- their driver's licence number;
- passport information; and
- the licence plate, make and model for any vehicle they own or may use regularly.
Those on the registry must also report to authorities if they are going to be away from their main or secondary residence for seven days or more.
There are various levels of sexual assault
While I agree the registry serves an important purpose in tracking the whereabouts of serial sexual offenders and those who have committed serious sexual assaults, I agree with the Supreme Court’s determination that people who have committed minor sexual offences do not need to be included.
As the judgment notes, “the conduct captured by sexual assault includes everything from touching a complainant’s buttocks over clothing to prolonged, violent assaults.”
Being on the registry is a challenge. Offenders must register every year and they are paying for their crime until they succeed in receiving a termination order.
According to the RCMP, those releases are only given five years after a 10-year order was issued, 10 years after a 20-year order was issued or 20 years after a lifetime order was issued.
With the SCC decision to scrap arbitrary inclusion in the registry, judges will once again be given the liberty to look at the specific facts of the case before deciding if an offender should be in the registry.
This decision will change the advice I give my clients facing sexual assault charges. Before this ruling, they had no incentive to plead guilty to a charge since they knew they would be put in the registry upon conviction. Because of that, I would often tell them to roll the dice since they may not be found not guilty of a sex assault charge.
The only other option was for me to negotiate with the Crown and get them to accept a guilty plea to the charge of assault, thereby removing the sex offender registry option from the table.
This decision should speed up the overall court process since some sexual assault cases can now be settled with a plea instead of going to trial.
Our registry safeguards privacy
Canada’s sex offender registry offers offenders much more privacy than the one used in the United States. The National Sex Offender Public Website allows people to search for sexual offenders by name or they can enter their own address. They will then be given information about sexual offenders living from one to three miles from that residence.
Just to test it out, I entered the random address of 100 Elfreth’s Alley (the oldest residential street in that nation), Philadelphia, and found that 164 sex offenders lived within a one-mile radius. When I queried how many lived within two miles, the registry advised there were “Too many matching offenders. Refine your search criteria.”
Going back to the one-mile search, I was shown a mugshot of each man (I didn’t see any women), their name and their home address.
In Canada, the public cannot do a similar search. Only police agencies can access the registry, with the RCMP noting “agencies must use the personal information in the database only for police purposes and as authorized by law. There are criminal penalties for the misuse of the data either by persons authorized to have access to it or by third parties who may obtain the information.”
Contact me for assistance
If you are facing criminal charges, especially those of a sexual nature, you need an experienced lawyer at your side to guide you through your legal journey. The revocation of the automatic inclusion into the sex offenders registry gives defence counsel more room to manoeuvre when building a defence for clients. Contact me for a free consultation to discuss your case.
