Last week the Supreme Court of Canada ruled that the mandatory and lifetime registration on the sex offender registry is unconstitutional. Now Alberta's Justice Minister, Tyler Shandro is voicing his deep disappointment.

“The Supreme Court’s decision will make our country a more dangerous place. The decision to end automatic registration on the sex offender registry will make it harder to ensure that these crimes are not repeated," Minister Shandro wrote in a press release. “This decision will have an outsized impact on women, who are overwhelmingly the victims of sex crimes. We are calling on the House of Commons to reconvene immediately and invoke the notwithstanding clause to restore automatic registration to the sex offender registry.”

The Supreme Court's decision stemmed from the 2015 case of Eugene Ndhlovu, who pled to two counts of sexual assault against two people at a party in 2011 when he was 19 years old. The judge in that trial sentenced Ndhlovu to six months in jail, to be followed by three years of probation. Though the judge who had reviewed Ndhlovu's history and the evidence did not think it was likely he would re-offend, he was automatically subject to a lifetime registration on the national sex offender registry.

The automatic registry onto the national sex offender database was due to a 2011 amendment to the law that was passed by Parliament. Prior to 2011, in order for an offender to be placed on the registry, a Crown prosecutor had to apply for a “SOIRA (Sex Offender Information Registration Act) order” and the judge would then decide to grant the order or exclude the offender from the registry. Judges had the discretion to determine if the effect of the order on the offender’s privacy or liberty would exceed the public interest in protecting society. After the amendment in 2011, the Crown and the sentencing judge no longer had discretionary powers.

"Since then, section 490.012 of the Criminal Code [of Canada] has required the mandatory registration of anyone found guilty of a sexual offence. This means the personal information of every sex offender must be added to Canada’s national registry. Section 490.013(2.1) also imposed a mandatory registration for life, for those who committed more than one such offence."

After his sentencing, Ndhlovu challenged the constitutionality of sections 490.012 and 490.013(2.1) of the criminal code and a judge in that appeal found that the provisions with regard to the national offender sex registry in the Criminal Code of Canada violated section 7 of the Canadian Charter of Rights and Freedoms, which guarantees everyone the right to life, liberty and security of the person.

When the Crown prosecution asked the court to decide if the provisions could be acceptable under section 1 of the Charter, which permits courts to find otherwise unconstitutional laws justifiable in a free and democratic society, the judge found that even that section would not justify the registration and the judge ultimately found that Ndhlovu would not have to register. 

After the crown prosecution appealed that decision to the Court of Appeal of Alberta, which found the provisions were constitutional, the case went to the Supreme Court. Writing for a majority of the judges, Justices Andromache Karakatsanis and Sheilah L. Martin said the two provisions of the Criminal Code violate section 7 of the Charter in a way that cannot be justified in a free and democratic society.

"Because registration has a serious impact on the freedom of movement and of fundamental choices of people who are not at an increased risk of re‑offending. Registering offenders who are not at risk of committing a future sex offence is disconnected from the purpose of registration, which is to capture information about offenders to help police prevent and investigate sex offences," the majority opinion read in part.

According to the Supreme Court, it will take one year for section 490.012 of the criminal code to become invalid, while the finding for section 490.013(2.1) takes effect immediately and is considered invalid from the time it was enacted in 2011.

"As for Mr. Ndhlovu, the judges granted him an exemption to section 490.012 pending its declaration of invalidity. This means he does not have to register in the sex offender registry."

Minister Shandro underlined that the dissenting argument of the Supreme Court points out that the majority decision was made using an exceptional case.

"[It] ignores the ‘rampant misuse of judicial discretion prior to the amendment.’ Prior to automatic registration, the registry’s low inclusion rate undermined its effectiveness. The risk of reoffending is not clear at sentencing and therefore Parliament was right in casting a wide net."

The Sex Offender Information Registration Act (SOIRA) came into force in 2004 and created a national sex offender registry. 

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