CORAM:
ACTING CHIEF JUSTICE BENNETT
GLEASON J.A.
KANE J.A.
BETWEEN:
CORPORAL STEVEN O'DELL
Appellant
and
HIS MAJESTY THE KING
Respondent
Heard at Ottawa, Ontario, on February 26, 2024.
Judgment delivered at Ottawa, Ontario, on July 25, 2024.
REASONS FOR JUDGMENT BY:
ACTING CHIEF JUSTICE BENNETT
CONCURRED IN BY:
GLEASON, J.A.
KANE, J.A.
CORAM:
ACTING CHIEF JUSTICE BENNETT
GLEASON J.A.
KANE J.A.
BETWEEN:
CORPORAL STEVEN O'DELL
Appellant
and
HIS MAJESTY THE KING
Respondent
Order restricting publication: The order of the Court Martial issued pursuant to sections 179 and 183.5(1)(a)of the National Defence Act RSC 1985, c N-5 on 28 November 2022 remains in effect. No person shall publish, broadcast or transmit in any way any information that could identify any person described in these proceedings before the Court Martial Appeal Court of Canada as being a complainant.
REASONS FOR JUDGMENT
ACTING CHIEF JUSTICE BENNETT
1On 26 April 2023, Corporal Steven O’Dell was convicted by a General Court Martial of sexual assault contrary to s. 130 of the National Defence Act, R.S.C. 1985, c. N-5and s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced to 42 days detention and a Sex Offender Information Registration Act, S.C. 2004, c. 10 [SOIRA] order was imposed by the military judge. Cpl O’Dell appeals the conviction and the imposition of the SOIRA order. The reasons for sentence are indexed at R. v. O’Dell, 2023 CM 5004.
2I would dismiss the appeal against conviction and allow the appeal with respect to the imposition of the SOIRA order.
I. Background
3Cpl. O’Dell was charged with sexual assault between 1 November 2018 and 22 November 2018 in Prince Edward Island. An exercise involving engineering regiments was held in November 2018. The complainant, A.B., was a member of the high-risk search section. There were 11 or 12 members in a section. Members were paired for searches of explosive devices as part of the training. Master Corporal Scott was the 2IC and Master Corporal MacLellan was the 3IC A.B. did not know either of them before the exercise.
4The military judge described the circumstances of the offence as follows at paras. 5-7:
During X-ray training, Cpl O’Dell was attached to A.B.’s section. She had a very brief first interaction with him. Cpl O’Dell mentioned to her during this interaction that he was an explosive ordnance driver. Later, during a building search tasking, when she was with her search pair, Cpl Chung from 1 CER, she had another interaction with Cpl O’Dell. There was a find, which implied that an improvised explosive device or other explosive devices were located. In accordance with the safety protocol, A.B. took cover in the nearby vehicle, a Cougar, and waited to receive the signal for the all-clear so she could leave the vehicle. Leaving the vehicle before receiving the all-clear would constitute a violation of the safety protocol. Cpl O’Dell went into the Cougar as well, but Cpl Chung did not follow. During the waiting period that lasted between five to fifteen minutes, the offender and A.B. were alone in the vehicle and had a brief conversation which ended when the all-clear signal was given.
A day or two later, A.B.’s section was given a 48-hour tasking in Summerside, PEI. Cpl Simon, a member of 4 ESR, was assigned as A.B.’s search partner for the duration of this tasking. While conducting the search of a building, A.B. and her search partner were informed of a find by another team. As a result, A.B. took cover in the nearby Light Armoured Vehicle (LAV). Cpl O’Dell was in the vicinity and took cover in the same LAV, entering first, followed by A.B., Cpl Simon and a fourth person unknown to A.B. The four section members entered using the hatch in the middle of the ramp because the ramp was shut. It was tight quarters inside the LAV because on the right side, on the floor at the back entry, there were duffle bags, search equipment, personal gear, bags of glow sticks, and coffee urns piled up and unsecured, which made the right-side bench not visible. Cpl O’Dell sat on the floor, while A.B. and the other members were seated on the bench.
During the ten to fifteen minutes that Cpl O’Dell was inside the LAV, A.B. put her head back with her feet up staggered slightly higher up on the equipment across the aisle in order to give Cpl O'Dell space, with her legs above the offender's general knee area. There was no physical contact between A.B. and the offender at that time. Cpl O’Dell then put his hand on her ankle, on top of her boots and asked if it was okay. She responded “yeah, whatever”. At that time, the other members were resting or “racking out”. While A.B. had her eyes closed, she felt a sensation, a light pressure from the inside of her knee, sliding all the way up to her genitals. This lasted one to two seconds. She did not feel the sensation lower because she was wearing mid-calf boots. She was startled. She leaned forward, opened her eyes, saw the palm surface of the four fingers of Cpl O’Dell’s right hand touching her genitalia, fingers pointing towards the ceiling. She pushed his hand off and whispered: “what the fuck are you doing?” to which he whispered back: “is that not okay”? She answered, still whispering: “why the fuck would it be okay?” She whispered because she saw the other members were either sleeping or resting with their eyes closed and she did not want them to be aware of what was going on, because she did not want them to perceive her as an object. She was embarrassed. The interaction ended when the all-clear signal was heard. Cpl O’Dell and A.B. left the vehicle as if nothing had happened.
5Cpl. O’Dell testified as set out in the military judge’s reasons for sentence at para. 9:
Cpl O’Dell testified in support of his defence, denying the allegations. He claimed that it was A.B. who laid her foot on his genitals twice, and that he pushed her away. He also told the Court that after the all-clear, he grabbed A.B.’s thigh and the leg of another soldier on the other side of the vehicle in order to stand up to leave the LAV, which is a normal thing to do to. His testimony also contradicted A.B.’s testimony on some collateral aspects of the case regarding the layout of the LAV as well as who was in the LAV at the material time and where they were seated. He testified being allowed to walk around during cover, to get a breadth of experience with explosive ordnance disposal (EOD) personnel. His testimony did not align on some key aspects with his prior statement to the military police (MP). Cpl O’Dell contended that these discrepancies can be explained by the fact that he had years to reflect and now remembers the details he had omitted to mention during the investigation.
6After the task was completed, A.B. reported the incident to the 3IC MCpl. MacLellan. She told MCpl. MacLellan that Cpl. O’Dell had moved his hand up her leg to her vagina and she was “felt up.” She denied telling MCpl. MacLellan that when Cpl. O’Dell put his hand on her leg to get up, his hand got “a bit close, a bit too high” on her thigh.
7The next day, MCpl. MacLellan spoke with Cpl. O’Dell to “get his side of the story.” The two men were long time friends.
8Initially, A.B. did not wish to pursue the matter, however, in 2020, she advised the Military Police (“MPs”) that she wished to proceed with charges. The convening order was dated 18 August 2022.
9During the trial, Cpl. O’Dell sought to tender his prior statement through the evidence of MCpl. MacLellan. MCpl. MacLellan gave the following evidence:
Q. …Okay. So you say that from your understanding and when I interrupted you there were approximately, well the full section which would be approximately nine people including Corporal O’Dell if he were on the floor. And so carry on with what you would have been told by [A.B.]?
A. So basically what I was told the best of my remembering is that the stories were actually quite similar. Corporal O’Dell was laying on the floor, everyone else was on their seats and they were all racked out. And for anyone who is unsure what racked out means in the military, it means that you are asleep.
Q. Okay?
A. So everyone is sleeping on the way to a task and when they arrive, they either arrived at the task or they hit a bump or something, it woke up Corporal O’Dell, he was under the impression I guess that they were there. He sat up, but with all of his FFO on, you are laying on a LAV floor, you need to grab something and pull yourself up, you can’t just sit up. Grabbed a leg on either side. Her version of the story was that the grabbed a little too close for comfort and she kind of swatted his hand away and said what are you doing get away from there kind of thing. And she said he asked, “Is that not okay?”, and she said, “No obviously that’s not okay” and then he moved his hand and that was he end of it. That’s her version of events.
Q. And you say that this was explained to you that Corporal O’Dell put a hand on two different people?
A. Yeah, so it was explained to me that basically he was trying to get up, sit up in the LAV and that he grabbed the first-you know what I mean, you wake up and you grab to pull yourself up and that’s what he had done, but he was a bit too close for comfort with [A.B.]. So my immediate reaction to the story was well, if this happened then I will bring it up the proper chain of command. You know, alert the proper avenues and I said would you like me to go higher with this, would you like me to let the OC or sergeant major know, would you like me to inform the MPs, is there anything I can do to help as she said no, that’s fine, I don’t want to pass this on, you know, it’s over. I just don’t want to work with Corporal O’Dell for the rest of the exercise. And I said perfect, I can make that happen. So I still informed the sergeant because I felt like that was my job, so he knew what was happening. Unclear if he informed the warrant or not and then that was it for me. We just made sure that they didn’t work together for the rest of the exercise.
Q. At any point after that did you discuss the matter with Corporal O’Dell?
A. Yes. So.
Q. And before you go into that discussion, how much approximately, how much time had lapsed between when you first told by [A.B.], versus when you went to speak to Corporal O’Dell?
A. I think it was the next morning, if I remember properly, I think I was told by her during the evening and if I remember correctly I spoke with Sergeant Hoogendorf and we talked to Corporal O’Dell the next morning. And he gave his version of events. Which were pretty similar.
10At this point, the prosecutor objected on the basis that the defence was about to introduce precisely what Cpl. O’Dell had said to MCpl. MacLellan regarding his version of the events. The military judge ruled the evidence inadmissible in accordance with rule 35 of the Military Rules of Evidence, C.R.C., c. 1049 [MRE].
11The panel found Cpl. O’Dell guilty.
12At the sentencing hearing, Cpl. O’Dell challenged the mandatory SOIRA order required by s. 227.01(1) of the NDA. The military judge concluded that she did not have to impose the mandatory order and had the discretion to grant a personal remedy as a result of the decision in R. v. Ndhlovu, 2022 SCC 38, which had issued a declaration of invalidity in relation to certain aspects of the SOIRA. However, she concluded that she did not have a sufficient evidentiary base to impose a personal remedy and granted the mandatory order, which required Cpl. O’Dell to register as a sex offender for a twenty-year period.
II. Issues on Appeal
13Cpl. O’Dell raises two issues on appeal: that the military judge erred when she excluded his prior consistent statement and erred when she refused to grant a personal remedy pursuant to the SOIRA.
III. Exclusion of Self-Serving Evidence
a. Standard of Review
14The standard of review for an error in relation to the admission of evidence is correctness.
b. Legal Framework
15Rule 35 of the MRE addresses the admission and exclusion of self-serving evidence:
(1) For the purposes of this section, self-serving evidence means any extra-judicial statement of the accused, or evidence of any other nature manufactured, created or arranged by the accused, that tends to exonerate him of the charge.
(2) Except to the extent that it may be admissible under section 27, 28, 29, 30 or 60, and subject to the right of the accused to give evidence, self-serving evidence is not admissible when submitted by an accused.
16The definition of “extra-judicial statement” is found under rule 2 of the MRE:
[E]xtra-judicial statement means in any proceedings of a court martial a hearsay statement that has been made by a declarant, other than in the course of those proceedings or in the course of taking evidence taken on commission for that court martial, and includes
(a) words, oral or written, used by him
(b) the adoption, in some way, in whole or in part, of meaningful words uttered by another person as an accurate expression of the declarant’s own observations or experience, and
(c) the expression, in an intelligible manner, of the declarant’s observations or experience.
17A court martial judge is also bound by the common law rules in relation to self-serving evidence. Prior consistent statements are presumptively inadmissible, with certain exceptions. Justice Abella articulated the rationale for exclusion, writing for the majority, in R. v. Ellard, 2009 SCC 27 at para. 31:
…It is true that prior consistent statements are presumptively inadmissible (R. v. Béland, , [1987] 2 S.C.R. 398, at pp. 409-10, and R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5). The rationale for excluding them is that repetition does not, and should not be seen to, enhance the value or truth of testimony. Because there is a danger that similar prior statements, particularly ones made under oath, could appear to be more credible to a jury, they must be treated with caution.
18Prior consistent statements generally lack probative value. A lie repeated ten times does not make it any less a lie. If the statement is offered for the truth of its contents, it is hearsay and its admission depends on the application of the principled approach to hearsay evidence.
c. Position of the Parties
19Cpl. O’Dell bases his argument on statutory interpretation and submits that properly interpreted, MRE 35 does not exclude all extra-judicial statements of the accused. He contends that the extra-judicial statement must be “manufactured, created or arranged by the accused” for the purpose of trying to exonerate himself, in order to satisfy the test in MRE 35. He says in this case, there was no goal or purpose to manufacture, create or arrange anything to exonerate himself. Cpl. O’Dell submits that he was answering truthfully questions put to him by a senior ranked member, as he was required to do.
20In addition, Cpl. O’Dell submits that the evidence was necessary and reliable, and therefore admissible. He contends it is necessary to show that at the time he gave a statement, it was similar to that given by the complainant. He contends that reliability is met by the fact that if he had not made a statement, he would have been charged with a service offence.
21The prosecution submits that properly interpreted, MRE 35 clearly excludes the statement by Cpl. O’Dell. It further submits that the evidence does not fall within any exception to the admission of hearsay evidence, and it does not meet the standard of necessity or reliability.
d. Discussion
22The modern approach to statutory interpretation requires that the words of an Act are read in their entire context and in their grammatical and ordinary sense harmonious with the scheme and object of the Act and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para 21, ; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at 117).
23I repeat MRE 35 (1) for convenience:
For the purposes of this section, self-serving evidence means any extra-judicial statement of the accused, or evidence of any other nature manufactured, created or arranged by the accused, that tends to exonerate him of the charge.
24When MRE 35 is analyzed in the proper context, it is clear that it does not require that the extra-judicial statement of the accused be “manufactured, created or arranged by the accused”. The phrases “any extra-judicial statement of the accused” and “evidence of any other nature manufactured, created or arranged by an accused” are disjunctive, separated by commas and “or.” Thus, the meaning is simply: self-serving evidence means any extra-judicial statement of the accused … that tends to exonerate him of the charge AND self-serving evidence means evidence of any other nature manufactured, created or arranged by the accused that tends to exonerate him of the charge.
25The evidence that was excluded by the military judge was an extra-judicial statement that (purportedly) tended to exonerate him. In my view, the military judge correctly interpreted the statute.
26Cpl. O’Dell also relies on the principled approach to the admission of hearsay evidence to justify the admission of his prior statement. The purpose of tendering the statement was to show that Cpl. O’Dell, in his recitation of events to MCpl. MacLellan, gave a similar version of the events as A.B. gave at the time of the incident, prior to knowing what A.B. said to MCpl. MacLellan.
27Cpl. O’Dell contends that when two people give “similar versions” of events, prior to either knowing what the other would say, they both must be telling the truth. He relies on R. v. U. (F.J.), [1995] 3 S.C.R. 764, . The decision in U. (F.J.) involved a prior inconsistent statement of a witness, the accused’s daughter, who denied the truth of the statement given to the police alleging sexual offences against her father, U., when she testified. Her father had made a statement to the police that was similar to the statement given by his daughter and admitted the sexual offences but denied the truth of that statement when he testified. That initial admission by U. was admitted into evidence as tendered by the Crown. The Court was asked to admit, for the truth of its content, the first statement made by the daughter, as necessary and reliable. The necessity aspect of the test was established because the witness had recanted. The Court examined the issue of the similarity of the statements to determine if the statement was reliable. It concluded that where the statements were strikingly similar the prior inconsistent statement may be found reliable and substantively admissible, however, noted that those situations would be rare (U. (F.J.) at paras. 44-45).
28In my view, the U. (F.J.) decision does not assist Cpl. O’Dell. A.B. denied making the statement as described by MCpl. MacLellan, where he said Cpl. O’Dell’s hand came too close for comfort. She said she told him that she was “felt up” by Cpl. O’Dell. Cpl. O’Dell’s evidence was quite different than the “similar” statement he purportedly gave to MCpl. MacLellan, as noted above. Cpl. O’Dell testified that A.B. had placed her foot on his penis twice and he had rejected her advance. He did not tell MCpl. MacLellan that version of events. Cpl. O’Dell’s versions of what occurred changed significantly from his conversation with MCpl. MacLellan, his statement to the MPs and his evidence in court. The statements are not sufficiently similar to draw the inference sought by Cpl. O’Dell.
29Cpl. O’Dell also submitted that the principled exception to the hearsay rule was applicable because the evidence was necessary and reliable. Out-of-court statements tendered for the truth of their contents may be admitted if the evidence is necessary and reliable (R. v. Bradshaw, 2017 SCC 35 at para. 23). In my opinion, the statement does not meet either the necessity or reliability test. Cpl. O’Dell submits that the evidence was necessary for his defence. He submits that the statement was made before he knew what A.B. would say, and since the statements were similar, it weighed heavily in favour of the truthfulness of his statement, relying on U. (F.J.). As noted, I do not accept that submission.
30One difficulty with this submission is that necessity does not mean “necessary for the defence.” The necessity principle is flexible, depending on the circumstances, but generally it is satisfied if the witness or the evidence is not available. For example, prior statements have been admitted when they have been recanted (see R. v. K. (B.G.), , [1993] 1 S.C.R. 740 and R. v. Khelawon, 2006 SCC 57 at paras. 77-78). Cpl. O’Dell and A.B. both testified. Cpl. O’Dell gave his version of events. Nothing renders his prior consistent statement “necessary.”
31In addition, he submits that the reliability aspect of the test is established because he was under threat of a being charged with a service offence if he lied. The threat of a service charge if he lied does not, in these circumstances, satisfy the safeguards required to ensure a statement is reliable. This is apparent from the differing versions provided by Cpl. O’Dell over time.
32The prior consistent statement does not meet the necessity and reliability test and is therefore not admissible under the principled exception to hearsay evidence.
33In the charge to the panel, the military judge instructed them that if they found that MCpl. MacLellan reported accurately that A.B. said that Cpl. O’Dell had put his hand on her thigh and that of the other person to pull himself up, keeping in mind that she denied saying it and that MCpl. MacLellan did not take notes, they could only use that statement for the fact that the statement was made, and not for the truth of the contents. The military judge also told the panel that they had to disregard the evidence that MCpl. MacLellan thought that A.B. and Cpl. O’Dell’s versions were “similar.”
34The evidence of what MCpl. MacLellan says A.B. reported to him was before the jury, along with a careful instruction on how to use that evidence. Cpl. O’Dell testified to a different version of events than what he apparently told MCpl. MacLellan. While the Crown could have tendered Cpl. O’Dell’s statement to MCpl. MacLellan, it chose not to. In my view, the military judge correctly concluded that none of the exceptions to the admission of a hearsay statement are applicable in this case.
35I would not accede to this ground of appeal and would dismiss the appeal against conviction.
IV. Sex Offender Information Registry Order
a. Legal Framework
36At the time Cpl. O’Dell was sentenced, the applicable Criminal Code provisions, (then ss. 490.012 and 490.013(2)) and section 227.01(1) and 227.02(2) of the NDA combined to require the court to impose a mandatory twenty-year SOIRA order in this case. However, in Ndhlovu, the Court declared the provisions in relation to mandatory registration under s. 490.012 and life-time registrations under subsection 490.013(2.1) of the Criminal Code unconstitutional but suspended the operation of the declaration for one year. The Court granted a personal remedy to Ndhlovu, exempting him from the suspension of the declaration and no SOIRA order was imposed. In addition, the Court found that those who had been registered since the introduction of the unconstitutional provisions in 2011 are able to bring an application for a remedy pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [the Charter], to challenge the imposition and/or the length of their registration.
37In striking down the legislation, the majority of the Court outlined the degree to which a SOIRA order will affect and interfere with a person’s life. The majority concluded at paragraphs 5, 41, 45-46 of Ndhlovu:
[5] As a result, like all other such offenders, he would be required to report to a police station and forced to supply extensive personal information which would be placed on Canada’s national sex offender registry. SOIRA also imposes ongoing reporting requirements which are numerous, invasive and extensive; including that offenders must keep their information up to date, report their plans for any travel lasting seven or more consecutive days and report any change to their home or employment address. He would have to report annually to the police and be subject to random police checks. Non-compliance with any of the reporting obligations associated with registration carries the threat of prosecution, a maximum of two years’ imprisonment, a fine, or both (Criminal Code, s. 490.031(1)). His presence in the database would mean he would be among the list of persons police may consider to be of interest in their investigations, which may generate further interactions with the police. The impact on Mr. Ndhlovu and anyone subject to these provisions is considerable. The scope of the personal information registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the state, and the threat of prosecution and imprisonment all interfere with what it means to be free in Canada.
[41] Moreover, offenders must notify the registration centre within seven days of any change regarding their employment or volunteering information (ss. 5(1)(d) and 5.1). They must also notify the registration centre if they intend to be away from their primary or secondary residence for seven or more consecutive days (s. 6(1)). Specifically, offenders must notify the registration centre, before departure, of their departure and return dates and of every address or location at which they expect to stay, whether the addresses or locations are in or outside Canada (s. 6(1)(a)). Similar reporting requirements are imposed on offenders who decide, after departure, not to be at their primary or secondary residence for seven or more consecutive days (s. 6(1)(b)).
[45] With respect, we cannot agree. Rather, the impact on anyone subject to SOIRA’s reporting requirements is considerable. The requirements impact privacy and liberty, personal interests that are fundamental to society: liberty of movement and choice, mobility, and freedom from state monitoring or intrusion in our personal lives. The scope of the personal information registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the state, and, of course, the threat of imprisonment make the conditions onerous. They simply cannot be compared to reporting requirements that “routinely occur as part of the everyday life” such as those associated with filing income tax forms, obtaining a driver’s licence or a passport, or registering with banks or telephone companies (see Dyck, at para. 110).
[46] Additionally, the cost of compliance varies from offender to offender based on their life circumstances. While SOIRA’s reporting requirements are always serious, offenders whose job requires regular, prolonged travel will frequently need to take additional measures to remain in compliance. Even worse, offenders who experience homelessness, substance use issues, and cognitive or mental health challenges may find compliance extremely difficult (see, e.g., R. v. J.D.M., 2006 ABCA 294, 417 A.R. 186, at para. 9; R. v. Desmeules, 2006 QCCQ 16773, at paras. 25-27). Quite simply, we must recognize the full scope of the restrictions that are imposed by SOIRA orders — both physical and informational — to properly assess the constitutionality of ss. 490.012 and 490.013(2.1).
38At the time Cpl. O’Dell was sentenced, the suspension of the declaration was in effect. However, a number of Courts Martial have applied the decision in Ndhlovu, as did this military judge (See: R. v. Luis, 2022 CM 4016; R. v. Sutherland, 2022 CM 5922 and R. v. Levesque, 2023 CM 2001). The Crown, on appeal, properly, did not take the position that the decision and ability to impose a personal exemption in Ndhlovu did not apply. It submits that there was no reviewable error in the decision of the military judge, and thus, this Court should not interfere with her decision.
39In my view, the decision in Ndhlovu applies to s. 227 of the NDA. The wording is the same, the constitutional flaws are the same and the amendments removing judicial and prosecutorial discretion are the same. Indeed, Bill C-66, An Act to amend the National Defence Act and other Acts, 1st Sess., 44th Parl., 2024, (first reading 21 March 2024) [Bill 66] contemplates amending the NDA in accordance with the decision in Ndhlovu.
40Therefore, the issue is whether the military judge erred by refusing to allow for a personal remedy pursuant to s. 24(1) of the Charter.
b. Standard of Review
41The standard of review for an error of law is correctness (Housen v. Nikolaisen, 2002 SCC 33 at para. 8) and for an error of fact the standard of review is “palpable and overriding error” (Housenat para. 10).
42The failure to consider a required element of a legal test is an error of law and subject to a standard of correctness (Housen at para. 36).
c. Discussion
43In Nhdlovu, the majority set out the basis on which a remedy under s. 24(1) of the Charter would be available at para. 140:
A declaration of invalidity is presumed to operate retroactively (R. v. Albashir, 2021 SCC 48, at paras. 34 and 38). However, in this case, a retroactive application of the declaration at the conclusion of the suspension could frustrate the compelling public interests that require a period of transition, creating uncertainty and removing the protection that justifies the suspension in the first place (paras. 46, 52 and 72). Specifically, a retroactive declaration would undermine the purpose of the suspension (i.e., ensuring high-risk offenders are registered on SOIRA for public safety). Moreover, a prospective declaration of invalidity would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated. Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012.
44That test permits a remedy pursuant to s. 24(1) when an applicant’s Charter rights are breached during the suspension of the declaration (R. v. Albashir, 2021 SCC 48 at paras. 62-67).
45The military judge denied Cpl O’Dell’s application pursuant to s. 24(1) of the Charter. She set out the test she applied at para. 36 of her reasons for judgment:
When such application is presented, the burden is on the offender to demonstrate that based on the facts of his case, the imposition of the SOIRA order is grossly disproportionate or bears no connection to the SOIRA’s purpose of assisting police in the prevention and investigation of sex offences. (See paragraphs 79 of Ndhlovu).
46She concluded that Cpl. O’Dell failed to meet his burden to establish that he was at a low risk of reoffending. She said, at paras. 41-42 in the reported decision:
However, considering the record and the evidence adduced at sentencing, I find that the offender failed to meet his burden of proof because little evidence was adduced to demonstrate that he is at a low risk of reoffending. While I agree that an assessment of a clinical and forensic psychologist is not always required to assess risks of recidivism, I was presented with little evidence on this aspect of the case. His service in the CAF, his matrimonial situation, the presence of some of his peers in the courtroom, peers who may or may not have attended to support the offender, and the fact that he is a first-time offender, are not sufficient to convince the Court that he presents a low risk of reoffending. Ultimately, the argument of Cpl O’Dell is that, by virtue of their military service, first-time CAF offenders in a marital relationship should automatically be granted an exemption. Accepting this contention would have the effect of relieving Cpl O’Dell from having to meet his burden of proof. While it is true that the offence was, subjectively, at the lower end of gravity, this is only one of many factors that I need to consider in order to determine whether this offender is at a low risk of reoffending. As confirmed in Ndhlovu, a risk assessment is an individualized exercise involving many variables. Having received little to no evidence on this aspect, I find that the offender did not prove on a balance of probabilities, that he should be exempted from the suspension of the declaration.
In sum, I do not have a sufficient evidentiary basis to grant Cpl O’Dell the remedy he is seeking based on the evidence presented at the sentencing hearing regarding his character and personal situation, in particular his risk of recidivism. Therefore, a SOIRA registration will be imposed for a period of twenty years, as required in the NDA1.
47The evidence and submissions before the military judge were that Cpl. O’Dell was thirty years old, was in a common-law relationship, had no prior criminal record or military conduct sheet, had nine years of service at the time of sentencing, remains in the regular force as a Combat Engineer, has been scheduled for Explosive Ordnance Disposal (EOD) training and is scheduled for promotion upon becoming fully qualified in EOD, the offences occurred over four years ago (at the time of sentencing) with no further recurrence, and that the travel restrictions in the SOIRA order could significantly hamper his ability to deploy and could potentially end his military career.
48The military judge focussed exclusively on the issue of whether Cpl. O’Dell was a risk to reoffend. She acknowledged that there was no requirement in every case for expert evidence. She also acknowledged that the offence was on the less serious end of the scale for sexual assault. She noted that there were many factors that came into play when assessing whether a s. 24(1) remedy was suitable. It is not clear to me what other evidence she required to conclude that Cpl. O’Dell was a low risk to reoffend. However, it is not on that basis that I find error.
49In my view, the military judge approached the test in s. 24(1) too narrowly. The burden is on the applicant to demonstrate why a remedy under s. 24(1) is appropriate by showing that the SOIRA order’s impact on their liberty bears no relation or is grossly disproportionateto the objective in s. 490.012 of the Criminal Code (Ndhlovuat para. 140). The military judge failed to consider the effect of the SOIRA order on Cpl. O’Dell. She only considered the risk to reoffend.
50The risk of reoffending is important, but it is not the only factor that is to be considered when determining whether to grant the personal remedy under s. 24(1) of the Charter. The other consideration is whether the order is grossly disproportionate to the objective. Although the military judge refers to gross disproportionality in the test noted above, she failed to consider the factors that would render the SOIRA order grossly disproportionate in the context of Cpl. O’Dell’s circumstances. She failed to balance, along with his personal history, the effect that the SOIRA order would have on him. One of the factors on which the declaration was based was the interference with the ability to travel. The rigorous restrictions on travel, as noted above, are likely to have considerable consequences to Cpl. O’Dell’s ability to work in the Canadian Armed Forces. The military judge did not consider that element when assessing whether to grant the personal remedy under s. 24(1) of the Charter.
51All of the required elements must be considered when granting a 24(1) remedy. A failure to consider a required element of a legal test is an error in law. In my opinion the military judge committed a legal error by treating the likelihood of reoffending as a dispositive factor without considering the other elements (Housen para. 36).
52In my view the evidence and submissions before the military judge satisfy the test set out in para. 140 of Ndhlovu. The evidence and submissions demonstrate that the imposition of a SOIRA order on his liberty would be grossly disproportional to the objective of s. 490.012 of the Criminal Code, in the circumstances of this offence and this offender.
53I note that since the declaration of invalidity, a survey of cases where the remedy has been sought subsequent to the Ndhlovu decision shows that most applications have been granted, including some where the factual basis is graver than this offence (Luis; Sutherland; Levesque; R. v. C.R.N., 2024 ABKB 15; R. v. H.P., 2023 ONSC 4808; R. v. Rozell, 2023 ABKB 505; R. v. A.L., 2023 ABKB 505; R. v. T.C.S.T., 2023 BCSC 1656; R. v. Towler, 2023 BCSC 1209; R. v. Capot Blanc, 2023 NWTTC 7; R. v T.S., 2023 ABKB 157; R. v. J.(J.)K., 2023 NWTCC 8; R. v. Shokouh, 2023 ONSC 1848; R. v. O.R., 2023 MBKB 32; R. v. J.S., 2023 MBKB 26; R. v. Hart, 2023 BCSC 933.).
54The military judge did not have the benefit, as I have, of most the case law in relation to the s. 24(1) personal remedies that have been granted.
55I would dismiss the appeal against conviction. I would allow the appeal against sentence and set aside the SOIRA order.
“Elizabeth A. Bennett”
______________________
Acting Chief Justice
“I agree.
Mary J.L. Gleason, J.A.”
“I agree.
Catherine M. Kane, J.A.”
COURT MARTIAL APPEAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
CMAC-638
STYLE OF CAUSE:
CORPORAL STEVEN O'DELL v. HIS MAJESTY THE KING
PLACE OF HEARING:
Ottawa, Ontario
DATE OF HEARING:
February 26, 2024
REASONS FOR JUDGMENT BY:
actIng chief justice bennett
concurred in by:
gleason, j.a
KANE, J.A.
DATED:
JuLY 25, 2024
APPEARANCES:
Lieutenant(N) Brian D. Wentzell
For The Appellant
Lieutenant-Colonel Karl Lacharité
Major Emmanuelle Léonard-Dufour
For The Respondent
SOLICITORS OF RECORD:
Defence Counsel Services
Gatineau, Quebec
For The Appellant
Canadian Military Prosecution Services
Ottawa, Ontario
For The Respondent
Footnotes
- When the oral reasons for judgment are compared with the reported version, it is apparent that there are significant changes. These discrepancies were not raised as a ground of appeal and I do not approach them as such. However, the law is clear that only minor editing is permissible: See R. v. Veeken, 2020 BCCA 54 at paras. 7-19; R. v. Wang, 2010 ONCA 435 at paras. 9-11; R v Schell, 2004 ABCA 143 at paras 43, 45. I add that it is not suggested that the reasons were edited to defeat the appeal.