Did the Supreme Court Strike Down the Canadian Sex Offender Registry?

Posted by  on September 26, 2023
Did the Supreme Court Strike Down the Canadian Sex Offender Registry?

Blog by Arun S. Maini

Earlier this year, the Supreme Court of Canada struck down certain parts of the sex offender registry law for violating the constitution. This will have an impact on people convicted of sexual offences, but also on the police forces that investigate them, and public perceptions about the safety of their communities. 

What is the sex offender registry?

The federal sex offender registry is a database of offenders who have been convicted of sexual offences. The law that deals with the registry is known as SOIRA (Sex Offender Information Registration Act).

Who is required to register?

Persons who are convicted of a sexual offence in Canada are required to be registered in the database. There are many types of sexual offences that require registration: sexual assault, sexual interference, child pornography, human trafficking, and many others. 

What information does the sex offender database require?

The SOIRA database seeks to keep track of convicted sexual offenders. An offender must provide a great deal of information, including their name (and any aliases), date of birth, address and contact information; employment, and photo ID. 

The registry will also contain details about the offender’s crimes, such as dates, methods and court history.

An offender must report every year in person to a specialized reporting centre, and must report any absence from his home address of more than seven days, as well as any chance of occupation or address. In addition, if he obtains ID such as a passport or a driver’s licence, that must be reported as well. 

What is the purpose of the registry?

The purpose of the SOIRA registry is to help police investigate sex crimes by keeping track of known sexual offenders in Canada. Because sex crimes are often committed by repeat offenders, a database which lists these offenders and their characteristics, including the nature of their crimes, should help police to identify possible suspects. At least, it allows investigators to consider, and possibly eliminate, certain suspects from consideration. 

Can the public access the sex offender registry?

No. Only the police can access the registry, to maintain the privacy of those who are registered, and to ensure that the database is used only to investigate crimes. 

How is the sex offender registry different from the fingerprints database or the DNA database?

The SOIRA sex offender registry requires that sex offenders provide a great deal of personal information to the police. They are also required to report any changes to that information, and to report in person to the police. Those requirements are different from those imposed by the fingerprints registry or the DNA database. 

Almost everyone charged with a crime is required to have their fingerprints and photograph (mugshot) taken by police. This allows the police to investigate crimes by comparing fingerprints found at a crime scene with fingerprints in the database. However, anyone who is found not guilty of a crime, or who has served a waiting period following a conviction (usually 5 or 10 years), can apply to have their fingerprints and mugshot destroyed. And unlike the sex offender registry, the fingerprints database does not require further information or continued reporting. 

The DNA database, like the sex offender registry, only applies to persons found guilty of a criminal offence. But the DNA database covers a wider range of offences, and like the fingerprints database, does not require that the offender provide further information or continue to report. 

It is the ongoing obligations imposed on sex offenders, and the impact that this has on their liberty and privacy interests, that caused a problem which the Supreme Court addressed in the Ndhlovu case. 

If the sex offender registry is so important, why did the Supreme Court strike it down? 

The Supreme Court did not strike down the whole law; they only found certain parts of it to be unconstitutional. The sex offender registry itself still continues to operate, and will continue to do so after Parliament makes a few adjustments required to bring the law into compliance with the Constitution. 

What did the Supreme Court find objectionable?

When the registry was first introduced, judges had the authority to decide whether an offender should be required to register. In 2011, for political reasons of appearing to be “tough on crime”, the government removed the ability of judges to decide whether someone convicted of a sexual offence needed to be included in the database. 

Inclusion in the sex offender registry became automatic for anyone found guilty of a sexual offence. And anyone found guilty of more than one offence, even if it related to the same person or incident, was automatically required to be registered for life.

The Supreme Court, in a case called Ndhlovu, found that the law was “overbroad”, which means that by including everyone found guilty of a sex offence, it cast a net wider than its intended purpose, which is to investigate sex crimes. The Court found that a large number of offenders who were automatically required to register did not pose an ongoing or future danger to society, so that the requirement that they be monitored and be subjected to annual in-person reporting constituted an unwarranted infringement of their liberty.

In other words, investigating sex crimes is important, and police need to have the tools to do so. One of those tools is the SOIRA sex offender database. But the Constitution required that laws limit the infringement on personal liberty or privacy only to the extent necessary to achieve the objective, which in this case is the investigation of sex crimes. For people who do not pose any greater risk of committing a sex crime than a member of the general public, there is no investigative purpose to including them in the database and requiring them to comply with its onerous requirements. Forcing them to do so is unfair and goes beyond the scope of the law, which is what makes those provisions unconstitutional. 

So how can the law protect the public and also respect the Constitution? 

There is a simple solution to this: restore the ability of judges to decide which offenders need to be included in the SOIRA database because they pose a risk of reoffending. Judges have the knowledge, training and tools to make that decision. That filtering process will ensure that people who do not pose a risk are not automatically captured by the registration requirements. Such a process of assessing and deciding who to include, rather than automatically, will respect the Constitution because it involves a process of balancing various factors, which limits the risk of abuse, and limits the infringement on liberty and privacy. 

What is the government doing to fix the problem? 

The federal government has moved fast to address this issue. They have tabled new legislation that will restore the ability of judges to analyze and consider who needs to be included in the database, while keeping in place the strict requirements that offenders who pose a risk of re-offending are registered. 

What if I was automatically included in the registry before the Supreme Court’s decision? Can I be removed?  

You might qualify to have your registration shortened or removed, particularly if you are a first offender or can prove through a risk assessment that you do not pose a potential danger to society. This can be done by bringing an application for relief under the Charter of Rights, or through a process that the new law may permit, once it receives royal assent. 

Keep in mind, however, that the government continues to place a high priority on investigating and prosecuting sex crimes, and in the current political climate, any loosening of restrictions will be limited only to what the government is forced to do by the courts. 

Also, depending on which province you are in, you may be subject to a provincial sex offender registration which has not been struck down by the court (at least not yet). 

If you are included in the SOIRA sex offender registry and wish to find out whether you qualify to be removed, consult a lawyer for advice and information on this fast-changing area of the law. 

Arun S. Maini at the Defence Group has been a criminal lawyer for over 25 years. If you or a loved one are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830 or email us through the Contact Us link throughout our website.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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