minicounsel

ONTARIO COURT OF JUSTICE DATE: 2021 09 17

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

D.C.

Before: Justice D.M. Porter

Heard on: February 5, May 25, July 13, 2021 and August 26, 2021

Reasons for Judgment released on: September 17, 2021

Counsel: R. Verboom, for the Crown A.D. Gold, for the Applicant D.C.

Porter, J.:

Overview

1In a Notice of Application dated February 19, 2020, the Applicant D.C. (“Mr. C”) seeks an order pursuant to s.490.02905(2) of the Criminal Code exempting him from the obligation, pursuant to s. 490.02901 of the Criminal Code, to comply with the Sex Offender Information Registration Act, (“SOIRA”), or for an order terminating Mr. C’s obligation to comply with SOIRA pursuant to s.490.02909(1) of the Criminal Code.

2In 2015 Mr. C was convicted of the rape of an intoxicated person under the Penal Code of California. Mr. C submits that the offence of which he was convicted is not “equivalent to” the offence of sexual assault, a designated offence under ss. 490.011(1)(a)(xvi), and therefore he is entitled to be exempted from the obligations under SOIRA pursuant to s.490.02905 (2) (a)(ii) of the Criminal Code.

3In summary, Mr. C submits that, under the applicable statute in California, the offence of which he was convicted may be committed by negligence with respect to the incapacity of the complainant to consent to sex, while the Canadian offence of sexual assault is a subjective mens rea offence.

4He submits that it is the Minister, not a judge, who determines whether the California offence of which he was convicted is equivalent to the offence of sexual assault in Canada. He submits that, accordingly, the determination of equivalency must be based upon an examination of the legal elements of the foreign offence and its alleged Canadian counterpart and not on an examination of the conduct of the offender which resulted in the foreign conviction.

5Mr. Gold submits, on behalf of Mr. C, that the Form 54 issued by the Minister compelling Mr. C to comply with SOIRA refers only to the statutory labels for the offences in California and Canada, and gives no indication of a further inquiry by the Minister into the conduct of Mr. C that resulted in his conviction. He submits that if Parliament had intended the decision on equivalency to be based on the facts of the particular offence, then Parliament would have assigned the task to a judge, and required that more information be provided as is the case in extradition proceedings.

6Mr. Gold submits that a person should not be required to register as a sex offender for an offence that would not result in registration in Canada under the Criminal Code. Focussing on the definition of rape in California, which permits conviction based on the negligence of the accused in determining whether the complainant was incapable of consenting to sex due to intoxication, he submits that the Minister wrongly required registration of Mr. C in this case.

7He submits that the extradition law’s conduct-based test of double criminality should not be used to determine equivalency in this context, as that is quintessentially a judicial function, which the Minister is not equipped to engage in.

8In summary, as the California definition of rape captures conduct that would not be criminal in Canada, he submits that the SOIRA registration was improper, and the exemption should be granted.

9In the alternative, he submits that, if Mr. C is bound to comply with SOIRA, the impact on him of the continuing obligation to comply is grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information related to sex offenders under SOIRA, and accordingly his obligations under SOIRA should be terminated under s.490.02909.

10He further argues that, if Mr C is bound by SOIRA, the duration of his reporting obligation should be reduced from 20 years to 10 years, on the basis that the offence of sexual assault in Canada, when prosecuted by summary conviction, has a maximum term of imprisonment of 18 months, and accordingly his obligations under SOIRA end 10 years after the order was made pursuant to section 490.02904(3).

The Position of the Crown

11Ms. Verboom submits, on behalf of the Crown, that the Minister’s determination of whether a foreign offence is equivalent to a Canadian offence under s.490.02902 does not restrict the Minister to a simple consideration of the language of the foreign statute under which the person was convicted, while ignoring the factual circumstances of the conviction.

12The Crown submits that nothing in the statute precludes the Minister from considering the factual circumstances underlying a foreign conviction. The Crown submits that it would be unreasonable to interpret the Minister’s task in the manner suggested by the Applicant. In particular, it would be unreasonable to exclude all persons convicted under section 261(a)(3) of the California Penal Code from obligations under SOIRA when it is clear that at least some of the conduct that would support a conviction under this section is clearly equivalent to the full mens rea offence of sexual assault under Canadian law.

13The Crown submits that it would be unreasonable to interpret s.490.02902 as intended to exclude from the SOIRA regime those persons convicted under the California statute in circumstances that would clearly result in a conviction for sexual assault in Canada.

14According to the Crown, the Minister, or his or her delegate, is entitled to consider the particular facts of the case in determining whether the SOIRA notice (Form 54) should be served in a particular case. The Crown submits that it was entirely appropriate for the Minister to do so in this case.

15In any event, the Crown submits that whatever the Minister’s obligation, in an application for an exemption under s. 490.02905 the court has an independent obligation to determine whether the offence for which Mr. C was convicted in California is equivalent to the offence of sexual assault in Canada.

16The language of the section makes it clear that the onus is on the Applicant to show that the offence for which he was convicted is not equivalent to the offence of sexual assault in Canada.

17The Crown submits that the language of s. 490.02905(2) (b) demonstrates that the court must consider de novo whether the offence for which the Applicant was convicted is equivalent to a designated Canadian offence. The Crown submits that this is clear from the provision in subsection (b) of the section which states that the court:

“shall order that the notice be corrected if it is satisfied that the offence in question is not equivalent to the offence but is equivalent to another offence referred to in paragraph (a) of the definition “designated offence” in subsection 490.011(1).”

18The Crown submits that when the facts underlying the offence are considered in this case, it is clear that the offence committed by Mr. C was equivalent to the offence of sexual assault in Canada, and therefore that the application should be dismissed.

The Statutory Scheme

19On December 15, 2010 Parliament passed the Protecting Victims From Sex Offenders Act S.C. 2010, c.17 (“the Act”).

20The Act contained amendments to the Criminal Code, and the International Transfer of Offenders Act S.C. 2004, c. 21 to require persons convicted of sexual offences outside Canada to comply with the Sex Offender Information Registration Act.

21Section 490.02902(1) of the Criminal Code, added by the passage of the Act, states:

“The Attorney General of a province, or the minister of justice of a territory, may serve a person with a notice in Form 54 only if the person arrived in Canada after the coming into force of this subsection and they were convicted of or found not criminally responsible on account of mental disorder for an offence outside Canada…. that is, in the opinion of the Attorney General or minister of justice, equivalent to an offence referred to in paragraph(a) of the definition ‘designated offence’ in subsection 490.011(1).”

22Sexual assault, defined in s.271 of the Criminal Code, is a designated offence in s.490.011(1) (a)(xvi).

23Section 490.02905, added in 2010 by the Act, permits a person who is served with a Form 54 to apply for an order exempting him or her from the obligation to comply with SOIRA.

24It states in ss. (2):

“The court (a) shall make an exemption order if it is satisfied that the person has established that (i) they were not convicted of or found not criminally responsible on account of mental disorder for or were acquitted of the offence in question, or (ii) the offence in question is not equivalent to an offence referred to in paragraph (a) of the definition “designated offence’ in subsection 490.011(1); and (b) shall order that the notice be corrected if it is satisfied that the offence in question is not equivalent to the offence referred to in the notice but is equivalent to another offence referred to in paragraph (a) of the definition “designated offence” in subsection 490.011(1).”

The Minister’s Decision to Serve a Form 54 Notice on a Person Convicted of an Offence Outside Canada

25Included in the Protecting Victims From Sex Offenders Act, were amendments to The International Transfer of Offenders Act S.C. 2004,c.21 making the SOIRA regime applicable to Canadian offenders convicted of sexual offences outside Canada, who are permitted to serve their sentences in Canada pursuant to the International Transfer of Offenders Act.

26That transfer scheme is only available to Canadian citizens whose conduct, resulting in the foreign conviction, would have constituted a criminal offence in Canada.

27Section 4(1) of the International Transfer of Offenders Act states:

“Dual Criminality Subject to subsection (3), a transfer is not available unless the Canadian offender’s conduct would have constituted a criminal offence if it had occurred in Canada at the time the Minister receives the request for a transfer”

28Subsection 4(2) states:

Conduct Determinative “For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the foreign entity in the same way as it is in Canada”

29Section 15 of the International Transfer of Offenders Act states:

“For the purposes of the application of any Act of Parliament to a Canadian offender, the Minister shall identify the criminal offence that, at the time the Minister receives their request for a transfer, is equivalent to the offence of which the Canadian offender was convicted”

30Section 36.1 of the International Transfer of Offenders Act was added in 2010 by section 62 of the Protecting Victims From Sex Offenders Act and stated:

“If the criminal offence identified under s.15 or 36.3 is one referred to in paragraph (a),(c),(c.1),(d),or (e) of the definition “designated offence” in subsection 490.011(1) of the Criminal Code, the person is required to comply with the Sex Offender Information Registration Act.”

31In summary, in the same legislation in which it extended the application of the SOIRA legislation to persons convicted of sexual offences outside Canada, and enacted the application for an exemption in s.490.02905 of the Criminal Code, Parliament enacted provisions extending the application of the SOIRA legislation to Canadian offenders convicted outside Canada who applied to serve their sentences in Canada.

32For the latter category of offenders, the applicable legislation expressly required the Minister, defined in s.2 of the International Transfer of Offenders Act as the Minister of Public Safety and Emergency Preparedness, to determine equivalency between the foreign offence and the Canadian offence having regard to the offender’s conduct, not simply the definition of the foreign and Canadian offences: International Transfer of Offenders Act,ss.3, 4, 15, 36.1.

33Accordingly, I reject the Applicant’s submission that Parliament’s assignment to the Minister, rather than to a judge, of the task of determining equivalency in s.490.02902 of the Criminal Code meant that the Minister could only look at the definition of the foreign offence, and the Canadian offence, and not at the underlying conduct, in determining equivalency.

34Clearly Parliament considered an assessment of equivalency based on the underlying criminal conduct (rather than simply the name of each offence) to be a proper Ministerial function. An assessment of equivalency based on conduct, not the statutory definition of the offence, was precisely the assessment of equivalency applied by the Minister of Public Safety and Emergency Preparedness in determining the eligibility of Canadian offenders for transfers under the International Transfer of Offenders Act. It is clear that, contrary to the Applicant’s submission, Parliament considered this to be a proper Ministerial function.

35Accordingly, the fact that the assessment of equivalency in the initial decision to issue a Form 54 requiring compliance with SOIRA was a Ministerial decision, rather than a judicial decision, does not mean that equivalency must be decided based on the foreign and Canadian offences being identical, rather than an assessment of whether the conduct resulting in the foreign conviction would be an offence if it occurred in Canada.

The Proper Approach to Determining Equivalency

36In an application for an exemption order under s.490.02905,the onus is on the Applicant to establish either that he was not convicted or found not criminally responsible of the offence in question, or “the offence in question is not equivalent to an offence referred to in paragraph (a) of the definition ‘designated offence’ in subsection 490.011(1).” In this case, the onus is on the Applicant to prove that the California offence of which he was convicted is not equivalent to the offence of sexual assault in Canada.

37In my opinion, this determination requires the court to determine the meaning of “equivalent to” the applicable designated offence in this case, namely, sexual assault, having regard to the purpose of the SOIRA provisions in the Criminal Code, and the applicable principles of statutory interpretation.

The Principles of Statutory Interpretation

38Section 12 of the Interpretation Act R.S.C. 1985,c. I-21 states:

“Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

39In Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at p. 41 Iacobucci, J. adopted Driedger’s modern principle of statutory interpretation which states:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”

40In summarizing the application of the modern principle of statutory interpretation, Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed. states at s. 2.9:

“At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text;(b) its efficacy, that is, its promotion of legislative intent; and (c) its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable and just”.

41The purpose of a statutory provision may be inferred from several sources including the language of the legislation, the external context, and a consideration of the problem the legislation was intended to address.

42As Ruth Sullivan states in Sullivan on the Construction of Statutes, supra, at ss. 9.56 and 9.59:

“In many cases purpose is inferred by the court simply from reading the legislation to be interpreted. In such cases the role played by norms of plausibility in determining purpose is especially evident….

… legislative purpose is often thought of in terms of the mischief or social ill it is designed to remedy or the problem it is meant to address. This mischief or problem may be identified in an authoritative source such as the preamble to legislation, a Commission report, or a scholarly text. It may also be inferred by matching provisions in the legislation to conditions which existed at the time of the enactment and to which the provisions are a plausible response.”

43The expansion of the application of the SOIRA provisions to persons convicted of sexual offences outside Canada was the result of the passage of the Protecting Victims from Sex Offenders Act S.C. 2010,C. 17.

44The preamble to the Act states, in part:

“This enactment…. amends the Criminal Code and the International Transfer of Offenders Act to require sex offenders arriving in Canada to comply with the Sex Offender Information Registration Act”

45The purpose of the Act is clear from its title: protecting the public from persons convicted of sexual offences.

46The statutory purpose of protecting the public from sex offenders, by assisting police in the investigation of sexual offences, and where possible the prevention of sex offences, was made clear during the Parliamentary debates on December 7, 2010 in which Mr. MacKenzie, the Parliamentary Secretary to the Minister of Public Safety, stated as follows with respect to the purpose of the Act, and its application of the SOIRA provisions to persons convicted of sexual offences outside Canada:

“It will help police prevent and investigate sex offences by having access to more complete information about convicted sex offenders. The result is quite simply that we can better protect our children, youth and adults…

…Bill S-2 also includes provisions to include in the national sex offender registry individuals who have been convicted of sex offences abroad and then returned to Canada. These measures requiring proper sharing of information are significant improvements over the existing legislation. They would ensure the registry is truly useful in protecting public safety.

Bill S-2 is an important piece of legislation, and the time has come to pass this bill and show Canadians that we are serious about ensuring their safety. This bill would ensure all sex offenders who should be on the national registry are on the registry, and it would provide police with the information they need to protect our children and other valuable members of our society from sex offences before they occur”: House of Commons Hansard, Number 112, December 7, 2010,12:05 pm.

47It is clear from the scheme of the Sex Offender Information Registration Act, and its amendment in the Protecting Victims From Sex Offenders Act, that the purpose of both statutes is to protect the public.

48The amendments in the Protecting Victims From Sex Offenders Act pursues this public protection purpose by, inter alia, expanding the national database of sex offenders to include persons who have committed sexual offences outside Canada that are equivalent to designated sexual offences in Canadian law.

49Having regard to the scheme of the legislation, and its public protection purpose, the objective of the legislation would be frustrated by ignoring the factual conduct that gave rise to a foreign criminal conviction in determining whether the “offence in question” is equivalent to the Canadian offence of sexual assault.

50Having regard to the public protection purpose, it would make no sense to exempt from the application of the Act a person whose conduct resulted in a foreign conviction, in circumstances where that same conduct would have resulted in a conviction in Canada, simply because the definition of the offence in the foreign jurisdiction included other circumstances (not applicable to the conduct at issue) which would not have constituted a crime in Canada.

51Accordingly, in determining whether the Applicant has satisfied his onus that the offence of which he was convicted is not equivalent to the offence of sexual assault in Canada, in my opinion, the court must review the factual circumstances of the offence, and if those circumstances would have constituted the designated offence of sexual assault in Canada, the application must be dismissed.

52This interpretation accords with the modern principle of statutory interpretation in seeking an interpretation which is reasonable and just in that it avoids the anomalous result that a singular focus on the wording of each statute could create.

The Facts

53On January 30, 2015 Mr. C entered a plea of no contest to count one in a felony complaint which read as follows:

“On or about March 1, 2014, in the County of Santa Barbara, the crime of RAPE BY USE OF DRUGS, in violation of PENAL CODE SECTION 261(a)(3), a Felony, was committed by [Mr. C] who did unlawfully have or accomplish an act of sexual intercourse with a person, to wit: JANE DOE #1,DOB 04/11/1996, not his/her spouse, where said person was prevented from resisting by an intoxicating, anesthetic, or controlled substance, and this condition was known, or reasonably should have been known by the defendant.”

54Section 261(a)(3) of the California Penal Code states:

“(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

…(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused”

55It is clear from the definition of this offence, that an accused may be guilty of the offence where the complainant is prevented from resisting as a result of the consumption of any intoxicating or anesthetic substance or any controlled substance, and this condition was not known, but it reasonably should have been known, by the accused. “Prevented from resisting” has been interpreted in California jurisprudence to refer to being incapable of providing legal consent to intercourse. In People v. Giardino, 82 Cal.App. 4th 454 (2000) the court states at paragraph 8, “ …section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication.”

56On the facts of the offence to which Mr. C pled no contest, it was stated:

“On or about March 1, 2014, in the County of Santa Barbara, I willfully and unlawfully had sexual intercourse with Jane Doe #1,D.R., Age 17, against her will in that she was too intoxicated to provide legal consent to the act of intercourse, and was prevented from resisting because of her level of intoxication, and I knew of her condition in violation of Count 1 (Penal Code, 261(a)(3).[emphasis added]” :Plea of Guilty/No Contest - Felony, p.6.

57In the plea inquiry conducted by the prosecutor, the following exchange occurred at p 8 lines 11-22 of the Transcript of January 30, 2015:

“Mr. Lading: Do you understand also that the no contest pleas you’re about to enter are going to be treated by Judge Estrada - Mullaney and your sentencing judge the same way that they treat a guilty plea? Do you understand that? The Defendant: Yes Mr. Lading: On the bottom of page 6 of 8, there are your initials above the typewritten factual basis for your pleas. Did you put those initials there? The Defendant: Yes Mr. Lading: Did you read the factual basis for your pleas before you initialed that? The Defendant: Yes

58It is clear from the factual admissions made by Mr. C, at the time of his plea of no contest in the California criminal proceeding, that he admitted subjective knowledge that the victim in this case was too intoxicated to provide legal consent to the act of sexual intercourse. Accordingly, in the circumstances of this case, he admitted what under Canadian law would be regarded as subjective mens rea with respect to this constituent element of the offence of sexual assault.

59It was also acknowledged in the document signed by the accused entitled “Plea of Guilty/No Contest – Felony” that under California law this was a serious offence. It states at page 3:

“This is a serious “strike” felony conviction. A strike conviction means I must go to prison if I am convicted of a felony in the future, and it could result in a life sentence.”

60He also acknowledged at p. 4:

“This is a serious felony conviction which will add five years to a prison sentence if in the future I am convicted of a serious felony”

61It was further acknowledged by Mr. C at page 5 of the “Plea of guilty/No contest – Felony” document signed by him that:

“I understand that the legal effect of a no contest plea to any felony offense is the same as that of a guilty plea for all purposes.”

62The seriousness of the offence to which he entered a plea of no contest is apparent from the prosecutor’s summary of the plea agreement at page 3 lines 6 to 12 of the transcript dated January 30,2015:

“[Mr. C] is going to enter no contest pleas to Count 1, a violation of Penal Code Section 261(a)(3), and the added Count 8. He will be sentenced to three years in prison, with it being the low term of three years on Count 1 and the upper term of three years on Count 8, to be run concurrent. It will be three years at half-time. He’ll be required to register under PC 290 for life and be responsible for any victim restitution”

63It is clear from the prosecutor’s summary that PC 290 was California’s sex offender registration statute as the prosecutor stated at pages 5-6 of the transcript of the proceedings:

“You’ll be required to register as a sex offender for life and will make any victim restitution”. Is that your understanding? The Defendant: Yeah”

64Pursuant to s. 490.02905 of the Criminal Code, on an application for an order exempting a person from the SOIRA obligations resulting from a conviction outside Canada,

“(2) The court (a) shall make an exemption order if it is satisfied that the person has established that…(ii) the offence in question is not equivalent to an offence referred to in paragraph(a) of the definition ‘designated offence’ in subsection 490.011 (1)”

65The Applicant submits that “the offence in question” is not equivalent to the Canadian offence of sexual assault since the statutory definition of the offence in California makes it clear that the offence may be committed where the accused has sexual intercourse with a woman who is not capable of giving legal consent because of intoxication, “and this condition was known to the accused, or reasonably should have been known by the accused.”

66The Applicant submits that the offence of sexual assault in Canada is not equivalent to the California offence because sexual assault in Canada could not be committed where the accused is merely negligent with respect to the incapacity of the complainant to consent to sexual intercourse as a result of the consumption of drugs or alcohol.

67In R. v. Darrach, [1998] O.J. No.397, affirmed on other grounds at 2000 SCC 46, [2000] 2 S.C.R. 443, the Ontario Court of Appeal considered a constitutional challenge to the requirement in the Criminal Code in section 273.2 (b) that provided that it is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the sexual activity that is the basis of the charge where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”

68The Court rejected the Charter challenge and upheld the subjective fault requirement for the offence of sexual assault. The court stated at paragraphs 87-90:

“… I am prepared to decide this issue on the basis that the offence of sexual assault carries with it a sufficient social stigma as to require a subjective fault requirement on the part of the accused person. In my view, notwithstanding s. 273.2(b), the offence is still largely one based on subjective fault-at least to a level that would satisfy constitutional requirements.

No doubt, the provision can be regarded as introducing an objective component into the mental element of the offence but it is one which, in itself, is a modified one. It is personalized according to the subjective awareness of the accused at the time. The accused is to “take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”. In other words, the accused is not under an obligation to determine all the relevant circumstances-the issue is what he actually knew, not what he ought to have known……

The subjective mens rea component of the offence remains largely intact. The provision does not require that a mistaken belief in consent must be reasonable in order to exculpate. The provision merely requires that a person about to engage in sexual activity take “reasonable steps… to ascertain that the complainant was consenting”. Were a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis”.

69While it is clear that in particular circumstances, an accused prosecuted in California under section 261(a)(3) of the California Penal Code could be convicted of rape because he should reasonably have known of the incapacity of the complainant, and did not, that is not the offence to which Mr. C plead no contest.

70In the particular circumstances of Mr. C’s case he admitted that he had sexual intercourse with Jane Doe #1 against her will in that she was too intoxicated to provide legal consent to the act of intercourse, and was prevented from resisting because of her level of intoxication, and he knew of her condition…[emphasis added]

71It is clear that, based on these facts, had these acts occurred in Canada, and been admitted by Mr. C, or found to have been proven beyond a reasonable doubt by a court, he would be guilty of sexual assault.

72Accordingly, in my opinion, “the offence in question” in this case, in the circumstances of this case, is equivalent to sexual assault, which is a designated offence in subsection 490.011(1).

The Application for a Termination Order

73Mr. C also applies for an order terminating his obligation under SOIRA, under s. 490.02909(1) which requires the court to make an order terminating the obligation,

“if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act”

74In his affidavit filed on the application, Mr. C states that he has worked in social work positions for 13 years since 2007 when he was 22 years old. It is clear from his affidavit that his work has included a number of positions caring for persons in disadvantaged and vulnerable circumstances, most recently as a support worker at a leading hospital in Ontario.

75He states in his affidavit that his employment was previously terminated “when my past employer learned of my criminal charges in California. I assumed that upon SOIRA registration my current employer would be forced to terminate me, given the nature of my employment”.

76Mr. C states as follows in paragraph 44 of his affidavit:

“… Accordingly, I resigned from my full time position when I was served with the Form 54 [requiring compliance with SOIRA as a result of the California conviction]. I believed my employer would terminate my employment once I was registered with SOIRA. I was working with individuals who have been found not criminally responsible on account of mental disorder and assisting these individuals reintegrate into the community. I am saddened that I had to end this work, but this way, I do not have to report ‘previous employment terminated’ when applying to jobs in the future, and I have maintained a positive reference”

77Mr. C deposes that his employment has been significantly reduced as a result of his resignation from his full-time position, and that he currently works for approximately 25 hours per month. This has caused him to suffer financial hardship, requiring him to break his rental agreement with his landlord, and return home to live with his parents.

78He deposes that he is currently applying for other jobs “but this is extremely challenging, given that my entire work experience is in the field of social work, which requires a vulnerable sector screening check”.

79Under prior section 490.012 (4), repealed in 2010 in the Protecting Victims From Sex Offenders Act, S.C. 2010,c.17, when sentencing an accused for a designated offence, the court was permitted to decline to make an order of compliance with SOIRA “ if it is satisfied that the person has established that, if the order were made, the impact on them including their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act”:

80In R. v. Debidin (2008) 2008 ONCA 868, 94 O.R. (3d) 421, the Court of Appeal summarized the requirements of the “grossly disproportionate” standard, at paragraphs 61-63 as follows:

“To rebut the presumption of a SOIRA order by establishing the exception under section 490.012(4), the offender must establish more than a simple imbalance between the impact of an order on him or her and the public interest described in the subsection. A simple preponderance of individual impact over public interest is not sufficient to rebut the presumptive effect of section 490.012(1). It is only where the balance reveals that the individual impact is grossly disproportionate to the public interest that the presumption of s. 490.012(1) is rebutted.

In everyday speech,” grossly” means plainly, obviously, excessively, to a startling degree, flagrantly or glaringly. The term “disproportionate” means simply out of or lacking proportion.

The phrase “grossly disproportionate” is familiar in connection with claims of infringement of the guarantee against cruel and unusual treatment or punishment in s.12 of the Canadian Charter of Rights and Freedoms. Those authorities teach that “grossly disproportionate” is a very stringent and demanding standard, one not easily satisfied, something rare and unique [references omitted].

The phrase “grossly disproportionate” also appears in the exception s.487.051(2) makes to presumptive DNA orders for certain primary designated offences. DNA orders follow conviction of primary designated offences unless the offender establishes that the impact of the order on the offender’s privacy and personal security would be “ grossly disproportionate” to the defined public interest. To establish the exception and thus gain exemption from the presumptive order, an offender must show that the public interest is clearly and substantially outweighed by the offender’s privacy and security interests [references omitted].”

81As the Alberta Court of Appeal noted in R. v. Redhead 2006 ABCA 84 at para 28:

“The assessment of how reporting obligations might disproportionately impact an offender requires an evidentiary foundation. The focus of that inquiry must be on the offender’s present and possible future circumstances, and not on the offence itself”

82In describing the standard of the “gross disproportionality” test, the Alberta Court of Appeal stated in R. v. Redhead, supra, at para.43:

“Courts agree that the standard for this aspect of the test is very high and the offender must establish more than a mere disproportionate impact [reference omitted]. Something more is required than the “mere imbalance in the competition between requirements of the SOIRA legislation and the privacy and security rights of the offender”: JDM, supra at para.53. The term grossly means a “marked and serious imbalance”: J.D.M. ibid.”

83In R. v. D.D. 2020 BCCA 169, the British Columbia Court of Appeal considered an appeal from the dismissal of the appellant’s application to terminate his registration under SOIRA under s.490.027 of the Criminal Code. His obligation to be registered under SOIRA arose as a result of his conviction in 2003 in Canada of the sexual assault of a female family member between 1993 and 2000.

84The test for the termination of an order under section 490.027 for a person convicted in Canada is the same as the test applicable to Mr. C under section 490.02909. In dismissing the appeal from the denial of the termination of the appellant’s SOIRA registration, the Court stated at paragraph 19:

“S.S.C., Redhead, and Debidin address sections other than termination under s. 490.027 (1) of a registration already in place. Nonetheless, they provide guidance on the scheme of securing sex offender information and we may draw the following principles from them:

The question is whether the impact of the registration requirements on the offender’s current and prospective circumstances is grossly disproportionate;
The burden is on the applicant to establish that the test of “gross disproportionality”, provided in s. 490.027, is met;
The standard of “grossly disproportionate” is a high standard which requires the offender to establish more than merely disproportionate impact and more than a “simple imbalance of individual impact over public interest”;
The risk of recidivism is not determinative of a termination application;
There is no presumption of impact arising from the length of the reporting obligation alone;
In determining whether termination is appropriate, the nature of the offence, the risk to reoffend, the offender’s criminal record, and other matters personal to the circumstances should be taken into account.

To this we may add the judge’s observation at para. 38 made after his review of the jurisprudence that “normal inconvenience to an offender’s privacy or liberty interests are not sufficient to warrant making an order”.

85In R. v D.D, supra, at paras.23 and 27 the court stated:

“In my view the public interest in registration is fixed by the legislation and it is the impact on the applicant that is the pertinent factor that must be examined”.

“The standard of gross disproportionality is a high one and requires a marked and serious imbalance between the objective of the legislation and the impact of the registration on the registrant. In the context of s.7 of the Canadian Charter of Rights and Freedoms, gross disproportionality has been described as ‘totally out of sync with the objective of the measure’: Canada (Attorney General) v. Bedford 2013 SCC 72. In Debidin, Justice Watt observed at para. 63 that “grossly disproportionate” is a very stringent and demanding standard, one not easily satisfied, something rare and unique”.

86In my opinion, the evidence of the impact of the registration requirements on Mr. C’s current and prospective circumstances falls far short of establishing that the impact on him of continuing the obligation, including on his privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

87In describing the impact of the restrictions on liberty and privacy resulting from the similar reporting requirements in Christopher’s Law, Blair, J. A. stated in R. v. Dyck 2008 ONCA 309, at para 106:

“….. the registering and reporting requirements imposed by Christopher’s Law are quite modest in comparison. The requirements are limited in their informational scope, do not prohibit the appellant from going anywhere or doing anything, are no more intrusive than other state-imposed registration requirements, impose minimal stigma on the offender, and are not publicly known.”

88Watt, J. A. in R. v. Debidin, supra, at para.79, adopted this analysis and applied it to the effect of SOIRA reporting on a person’s privacy interest. He stated:

“The court in Dyck was concerned with the impact of similar reporting requirements under Christopher’s Law, where registration is mandatory. The court considered the impact on an offender’s privacy to be minimal in connection with the nature of the information required and its closely circumscribed dissemination: Dyck, at paras.106-109,119.”

89While it is unfortunate that Mr. C has suffered financially as a result of the reduction in the hours of employment he has each month, it is noteworthy that he chose to resign from his full-time position when he was served with the form requiring him to register under SOIRA.

90He states in his affidavit that “I believe my employer would terminate my employment once I was registered with SOIRA”. It is hard to understand this conclusion in light of the fact that under s. 16(4) of SOIRA the disclosure of SOIRA registration is prohibited, with certain exceptions generally related to police investigations, none of which would make the SOIRA registration information available to Mr. C’s employer.

91In my opinion, the reduced employment circumstances of Mr. C cannot be said, on the evidence before me, to be the result of his obligation to register under SOIRA, but rather are the result of his voluntary decision to resign his previous employment.

92Furthermore, concern that an employer would have about his continuing employment in working with vulnerable individuals would likely be affected by the fact of Mr. C having engaged in the conduct which he plead no contest to in California, and for which he received a lifetime sex offender reporting obligation under California law, rather than from the ancillary obligation to report in Canada under SOIRA.

93In this regard, I adopt the comments of Blair, J.A. in R. v. Dyck 208 ONCA 309, at para. 81 concerning the effect of registration under Ontario’s sex offender registration legislation entitled Christopher’s Law as applicable to registration under SOIRA:

“Moreover, to the extent that there is any “stigma” associated with registration, in my view any such stigma flows more from the conviction for the underlying sex offence than from registration and the requirement to report: see Rodgers at para.64; and R. v. Cross (2006) 2006 NSCA 30, 205 C.C.C. (3d) 289 (N.S.C.A.) at para. 55, leave to appeal to S.C.C. refused. This is particularly so in the context of Christopher’s Law- and in contrast to similar regimes in foreign jurisdictions-because the fact of registration remains confidential to police officials only and thus is not widely known in the community.”

94In my opinion, the evidence does not establish on the very high standard which is required that Mr. C’s continued registration under SOIRA has an impact on him which is grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by his continued registration under SOIRA.

The Duration of the SOIRA Reporting Obligation

95The Applicant submits that the registration period applicable to Mr. C should be fixed at 10 years, rather than 20 years, pursuant to section 490.02904(3), because the offence of sexual assault under the Criminal Code is a hybrid offence which may be prosecuted summarily. The maximum sentence for sexual assault prosecuted summarily, in relation to a 17-year-old complainant is 18 months in jail: s. 271 (b).

96The Applicant submits, accordingly, that section 490.02904(3)(a) applies to limit the reporting obligation to 10 years. That section states that where an exemption order has not been made under subsection 2, the obligation

“ends 10 years after the person was sentenced or found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years”.

97The Applicant notes that, for Canadian convictions, section 490.013(2) establishes a 10 year reporting obligation “if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years,” and that the reporting obligation ends 20 years after the order was made “if the maximum term of imprisonment for the offence is 10 or 14 years”

98The offence of sexual assault in Canada is a hybrid offence; it may be prosecuted summarily or by indictment: s. 271 Criminal Code.

99Section 34(1) (a) of the Interpretation Act R.S.C. 1985, c.I-21 states:

“Where an enactment creates an offence, (a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment”.

100As Fish, J. noted in the Supreme Court in R. v. Dudley 2009 SCC 58, at para. 21:

“…hybrid offences are deemed to be indictable unless and until the Crown elects to proceed summarily”

101Accordingly, the offence of sexual assault is deemed to be an indictable offence, for which the maximum term of imprisonment is 10 years where the complainant is at least 16 years of age: s. 271 (a) Criminal Code.

102As a result, s.490.02904 (3)(b) applies and the SOIRA obligation for Mr. C. applies for 20 years.

103I would reach the same conclusion without the deeming provision in s.34 of the Interpretation Act.

104Mr. C was prosecuted for a felony offence. The serious nature of the offence was described in his “plea of guilty/no contest – felony”. Suffice to say the circumstances of this offence, including its description as a “serious strike felony conviction,” which created a possibility of a life sentence in relation to a future felony conviction, the particular facts of the case including a vulnerable 17-year-old complainant who was raped while too intoxicated to provide legal consent, make the particular offence in this case analogous to a sexual assault prosecuted by indictment under Canadian law.

105Sexual assault prosecuted by indictment is subject to a maximum sentence of 10 years, in relation to a 17-year-old complainant: s. 271 (a).

106Accordingly, in my opinion the duration of this order must be determined under section 490.02904(3) which establishes a reporting obligation of 20 years “if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years”.

107Accordingly, in my opinion, the reporting period of 20 years currently in place in respect of Mr. C is the reporting period lawfully required pursuant to section 490.02904(3)(b).

Conclusion

108For the reasons noted above Mr. C’s application is dismissed.

Released: September 17, 2021 Justice D.M. Porter