Court and Parties
Date: November 12, 2024 Ontario Court of Justice
Between: His Majesty the King — and — Garnet Thomas
Before: Justice John North
Reasons Released: November 12, 2024
Counsel: Rachel Verboom, for the Crown Anthony Marchetti, for the Applicant
Introduction
1On July 9, 2014, Garnet Thomas (the Applicant) pleaded guilty in the State of Washington to the offence of communication with a minor for immoral purposes. [1] The sentencing judge imposed a sentence of 30 days imprisonment and 12 months of “community custody”. The judge also imposed some ancillary orders.
2On February 8, 2017, the Applicant received a notice of obligation to comply with the Sex Offender Information Registration Act (“SOIRA”)” for 20 years. [2] The notice stated that the Attorney General of Ontario identified the offence that the Applicant committed in Washington “as being equivalent to” the offence of “child luring”. [3]
3The Applicant brought an application pursuant to s. 490.02905 of the Criminal Code for an order exempting him from the obligation to register under SOIRA.
4In support of their positions on this application, the Applicant and the Crown advanced a number of arguments. At the outset, I will briefly summarize four of the arguments which I have concluded I need not decide.
5First, the Applicant argued that the “offence of which the Applicant was found guilty in Washington State is not equivalent to any other offence referred to in paragraph (a) of the definition of ‘designated offence’ in subsection 490.011(1) of the Criminal Code”, and, therefore, he should not be required to comply with SOIRA. [4] Second, the Applicant argued that the admissions he made before the sentencing judge in Washington did not make out the offence of “child luring”, as defined by the Criminal Code. Third, the Applicant asserted that if the procedure in Washington State permits a court to consider facts that the Applicant did not admit to, this would be a procedure which “does not accord with our notion of natural justice in guilty pleas” – and that a Canadian court should reject a finding of guilt in such a circumstance. Fourth, the Crown argued that the offence committed by the Applicant was, for the purpose of a Crown application pursuant to s. 490.02905(2.2), equivalent to another “primary offence” (other than child luring) that is listed in s. 490.011 (a) of the Criminal Code.
6In my view, it is not necessary to decide any of these issues. Assuming, without deciding, that the Applicant was found guilty in the State of Washington of an offence that is the equivalent to a designated offence in s. 490.011(1) of the Criminal Code – and that the admissions he made before the judge in Washington made out the offence of child luring contrary to s. 172.1 of the Criminal Code – I have concluded that the Applicant has established that the requirements of both s. 490.02905(2) (c) and s. 490.02905(2)(d) of the Criminal Code have been satisfied. [5] Consequently, for the reasons set out below, the application for an exemption order is allowed. [6]
Background
7In this section, I will provide a summary of what occurred when the Applicant pleaded guilty and was sentenced in Washington. [7]
8The transcript reveals that the prosecutor and defence counsel told the judge that they had a “plea agreement”. The parties agreed that this was a “heavily negotiated plea.”
9Defence counsel provided the judge with a document that was entitled “Statement of Defendant on Plea of Guilty to Sex Offence (Felony)”. The Applicant had signed this document. Defence counsel told the judge, “My client has reviewed that carefully, Your Honor, and I’ve gone over it with him.”
10The judge conducted a plea inquiry on the record. As part of this inquiry, the judge read out paragraph 11 from the Statement of Defendant on Plea of Guilty to Sex Offence (Felony). The Applicant confirmed that this was a true statement. Paragraph 11 states as follows:
“The judge has asked me to state what I did in my own words that makes me guilty of this crime. This is my statement: ‘During the period between 11-1-2012 and 2-18-2013, I had communication of a sexual nature over the Internet with [the victim] who was then 13 years old when I was 22 years old. This communication occurred when [the victim] was in Kitsap County, Washington’.” [Emphasis added.]
11In paragraph 11 of the Statement of Defendant on Plea of Guilty to Sex Offence (Felony) there is a box which was not checked by the Applicant, with the following statement next to it:
“Instead of making a statement, I agree that the court may review the police reports and/or statement of probable cause supplied by the prosecution to establish a factual basis for the plea.”
12The judge found the Applicant guilty of the offence of communicating with a minor for immoral purposes. The judge then said, “I’ve read all the materials, defense memorandum, as well as the attachments, the letters and psychological evaluations, counseling letter, and the presentence investigative report. Was there anything else I should have received or read prior to the sentencing?” Both lawyers told the judge that he had received all the materials.
13The Applicant’s lawyer did not state an objection on the record to the judge receiving these materials. However, he also did not clearly state that the Applicant was admitting or adopting the contents of the documents that had been provided to the Court. [8] Instead, the Applicant’s lawyer told the judge that that he disputed some of the facts. [9]
14The author of the pre-sentence investigative report wrote that the Applicant made the following statement to him: [10]
“[The victim] began talking to me on a social network, and we got to know each other over a few weeks. She told me she was a dancer in college and I told her about acting school. She told me she’d ended an abusive relationship, but had to go back to him if she didn’t find someone else. I told her we could try relationship [sic]. We did go on a few months before we met. She told me her parents were controlling and abusive, and they wouldn’t like us dating. Eventually they took away her phone and we stopped talking as much, but plan to meet over reading week. The one day her father called and told me she was 13, and I was shocked and afraid. Foolishly, I lied about my own age to him, but I did believe the relationship to be over. Instead [the victim] called me afterwards and told me her dad was lying to break us up. I wasn’t sure what to believe, and I didn’t want to hurt her anymore. Over the next two weeks she left numerous messages begging to talk to me and finally I did. She told me she was a dancer and was a danger to herself without me, and that she wouldn’t survive without me. I finally agreed to visit over reading week. We went to a movie with her friend, had coffee next day, went to the beach the next two days. I finally told her we couldn’t see each other anymore. We agreed to part ways. That evening police came to my hotel room and my worst fears were confirmed when they told me she was 13 and I was arrested.”
Admissions Made by the Applicant in the Washington State Court
15As I will explain, it is my view that, based on this record, it is not entirely clear what facts the Applicant admitted to when he pleaded guilty. To some extent, that is because, as Crown counsel stated, “Canada and the State of Washington have much different procedures for guilty pleas.”
16During their submissions before the sentencing judge, the prosecutor and the Applicant’s defence lawyer set out their positions regarding the circumstances surrounding the commission of the offence.
17I will provide a brief summary of the positions that the parties took regarding the circumstances surrounding the commission of the offence: [11]
The Applicant’s Position on the Circumstances Surrounding the Commission of the Offence
18In the fall of 2012, the Applicant was 22 years old. He met a 13 year old girl (the victim) through “various communication platforms including Facebook, Skype and Kik messenger”. The victim lived in Washington State. The Applicant lived in Calgary. At the time, the Applicant was “immature and sexually inexperienced”.
19The victim “lied about her age”. She told the Applicant that she was “a university student in her late teenage years.” Her images on Facebook “made her appear older than 13 years old”.
20The victim and the Applicant “fell in love”, while only communicating through the Internet.
21As a result of flowers and cards that the Applicant sent to the victim, her father became aware of the relationship. The victim’s father called the Applicant and told him that the victim was 13 years old, and that he must stop all communications with her.
22The victim’s parents cut off her Internet access at home, but she used a friend’s computer to contact the Applicant. The victim told the Applicant that her father was lying about her age and that he was “just trying to interfere in their relationship.” The victim told the Applicant that she would harm herself if he did not travel to Washington State to meet her.
23The Applicant agreed to meet with the victim in person, but they agreed “in advance that they would not have sex when they met.”
24The Applicant drove to Washington State and met the victim. The victim “apparently snuck away from home” on three consecutive days to meet with the Applicant. When they met each other, “they were often accompanied by a friend of [the victim], aside from one occasion on [February] 17th when [the victim] was alone with the Applicant”.
25Although it appears that the Applicant acknowledged that there was some physical contact between himself and the victim, he did not admit to touching the victim for any sexual purpose.
26The Applicant did “not admit that he traveled to Washington State to meet with the victim for the purpose of committing an offence, but instead only admitted that he did so because the victim had threatened to hurt herself if he did not”.
27The victim never entered the Applicant’s motel room.
The Prosecution’s Position on the Circumstances Surrounding the Commission of the Offence
28The Washington State prosecutor said that the Applicant had sexual communications with the victim, and that these communications continued even after the victim’s father told the Applicant that she was 13 years old.
29The prosecutor said that the Applicant “arranged a meeting” with the victim.
30The Applicant drove from Calgary to meet with the victim in Washington “in order to have sex.”
31The prosecutor told the Court that while the Applicant and the victim did not have “sex”, there was physical contact of a sexual nature.
32On this Application, Crown counsel stated that “while there may not have been an arrangement to have sex”, there was evidence of communication for a sexual purpose.
Conclusion – What Admissions did the Applicant Make?
33Other jurisdictions have different procedures for guilty pleas and sentencing hearings than those used in Ontario.
34Based on this record, I have concluded it is possible that, under the laws of the State of Washington, the Applicant admitted the contents of the documents that were before the judge. [12]
35However, in my view, the reasons of the Court in State of Washington v. Demarco Lamont Parker, 2022 Wash. App. LEXIS 718, provide compelling support for the conclusion that, according to Washington State procedure, where a defendant does not check the box under paragraph 11 in the Statement of Defendant on Plea of Guilty to Sex Offence (Felony), the factual basis for a plea will usually be limited to what the defendant wrote in paragraph 11. [13]
36Further, in my view, the submissions of counsel at the sentencing hearing do not make it clear which parts of the material that had been put before the court the defence had admitted.
37After considering the record on this Application as a whole, I am not satisfied that the Applicant admitted or adopted all of the contents of the documents (or the statements made by the prosecutor during her submissions) which were before the Washington State court. [14]
38I am satisfied that the evidence establishes the Applicant made the following admissions. The Applicant admitted that he had communications of a sexual nature with the victim. At the time, the victim was 13 years old. The Applicant admitted that the victim’s father told him that the victim was 13 years old, and that the Applicant must not have any further contact with the victim. After speaking with the victim’s father, the Applicant had additional contact with the victim. The Applicant admitted that he drove from Calgary to Washington State to see the victim.
39I am not satisfied that the Applicant admitted that he met with the victim for a sexual purpose. I am also not satisfied that the Applicant admitted that he had physical contact with the victim for a sexual purpose.
Evidence Relevant to the Likelihood of the Applicant Committing Another Offence [15]
Pre-Sentence Investigative Report
40The author of the pre-sentence investigative report noted that the Applicant had no criminal record.
41The author wrote that “it was clear [the Applicant] has strong family support.”
42The author observed that “often during the pre-sentence interview [the Applicant] seemed in a state of shock.”
43The author wrote that the Applicant “reported he began suffering from anxiety attacks just prior to all of his court appearances.”
44The author noted that the Applicant began attending family and weekly personal counselling in March, 2013. The author stated that Dr. Lynda Snyder of the Calgary Counselling Center conducted an assessment of the Applicant. The author summarized some of Dr. Snyder’s conclusions in the pre-sentence investigative report. I will address Dr. Snyder’s conclusions in the next section.
45In the conclusion section of the pre-sentence investigative report, the author wrote that the Applicant “does not appear to be a further threat for further sexual misconduct.” [Emphasis added.]
Dr. Lynda Snyder’s Report
46Dr. Lynda Snyder of the Calgary Counselling Center prepared a report, dated April 22, 2013, which summarized her assessment of the Applicant.
47Dr. Snyder wrote that after the Applicant was arrested, he struggled with “disrupted sleep, intrusive thoughts, panic attacks and increased social isolation due to a number of his friends choosing not to have contact with him following the coverage of [the Applicant’s] situation by the local media”.
48The Applicant and his family commenced family counselling with Dr. Snyder in March, 2013. On April 1, 2013, the Applicant commenced individual sessions with Dr Snyder.
49In April, 2013, Dr. Snyder conducted two standardized clinical tests on the Applicant. Dr. Snyder wrote that it was her opinion that the results of these tests would be helpful in “assessing [the Applicant’s] psychological well-being and sexual history.”
50The first test was the Personality Assessment Inventory (PAI). Dr. Snyder explained that the PAI “assesses adult psychopathological syndromes and provides information relevant for clinical diagnosis, treatment planning, and screening for psychopathology.” Dr. Snyder wrote that the Applicant’s “PAI clinical profile reveals no elevations that should be considered to indicate the presence of clinical psychopathology.” Dr. Snyder concluded as follows:
“In summary, [the Applicant’s] PAI results indicate no signs of psychopathology. However, [the Applicant’s] results on the PAI do indicate he has experienced some traumatic stressors.”
51The second test was the Clarke Sex History Questionnaire for Males-Revised (SHQ-R). Dr. Snyder wrote that the SHQ-R “examines a number of conventional as well as deviant sexual behaviours in adult males.” According to Dr. Snyder, the SHQ-R is:
“…useful for examining men presenting with common sexual disorders or facing criminal charges involving sexual offences such as child sexual abuse or sexual assault on adults. Scales on the SHQ-R examine sexual outlets with adults, adolescents, and children of both genders.”
52Dr. Snyder wrote that the SHQ-R has two validity measures that are used to determine if a respondent is answering in a forthright manner. According to Dr. Snyder, the Applicant’s responses suggested that he answered the questions in a forthright and consistent manner.
53Dr. Snyder wrote that the Applicant’s scores strongly suggest that his “sexual behaviour and preferences are “NOT strongly correlated with those of known sex offenders.” [Emphasis in original.]
54It was Dr. Snyder’s opinion that the Applicant’s overall profile on the SHQ-R indicates that he “has limited sexual experience with adult females, no sexual involvement with male or female children 12 years of age or younger and no sexual contact with pubescent males or females (ages 13 to 15 years old) since he was 21 years of age.”
55According to Dr. Snyder, she discussed the results of the SHQ-R test with the Applicant and he “clearly stated that he did not consider himself to have ever had any sexual contact with either pubescent males or females.” [Emphasis in original.]
56Dr. Snyder wrote that the results of the standardized tests “suggest that [the Applicant] has limited sexual experience and that he might have difficulty standing up for himself even when assertiveness would be warranted.”
57Ultimately, Dr. Snyder concluded as follows:
“Finally, based on my assessment and experience with [the Applicant], I do not see [the Applicant] as posing a danger to anyone through sexual misconduct, stalking or harassing behaviour.”
Character Evidence
58At the sentencing hearing, defence counsel filed character and reference letters. The authors of these letters included close family members, friends, teachers, professors and employers.
59Included in these materials was a letter that had been co-authored by the Applicant’s parents on July 3, 2013. The Applicant’s parents suggested that the Applicant “found himself quite isolated” when he committed this offence. It was their view that the “poor judgment [the Applicant] exhibited in February, 2013, sprang, in part from his perceived need to deal with an issue on his own, without seeking out advice as he would have done in the past.” His parents wrote that since the time of the offence he has had the support of his family and his friends. This letter also addressed the steps that Applicant had taken since his arrest. His parents wrote that the Applicant has “found a life trajectory that is positive in every way.”
Evidence Regarding the Impact of a SOIRA Order on the Applicant
60The Applicant submitted an affidavit on this application. The Crown did not cross-examine the Applicant on the contents of the affidavit.
61In the affidavit, the Applicant wrote that he prepared the affidavit to “provide evidence of hardship I experience as a result of being required to comply with SOIRA”.
62He stated that he was currently self-employed.
63The affidavit also contains the following information:
- The Applicant currently lives in a small town in Alberta. His parents and his wife’s parents live in a city in Alberta. He and his wife “try to visit them regularly but [the Applicant] cannot spend 7 days or longer with them without going and registering the trip with the local RCMP.”
- The Applicant “used to travel a lot for work”. He left a job in Vancouver “because of the difficulty travelling there for work obligations.” According to the Applicant, in his field, “most jobs are in Toronto or Vancouver, and even remote positions require travel. So, there is an aspect of it being difficult to work in my field due to the travel restrictions.”
- He has not travelled outside Canada “since registration, but [his] parents want to go on a family trip and [the Applicant has] no idea how to make that possible currently.” He wrote that, “I would have to clear every location with the RCMP in advance, which can be difficult with a trip that is outside my own control.”
- Complying with the SOIRA requirements, can make it difficult for him to travel within Canada (including visits to see family), particularly on a trip that lasts seven days or longer.
- It was the Applicant’s understanding that when he travels outside of Canada he must tell “the RCMP where I’m going every day of my travel including addresses where I’m staying down to the hotel room, which usually means calling them when I arrive and every stop along the way.”
Legislation
64Following the decision of the Supreme Court of Canada R. v. Ndhlovu, 2022 SCC 28, (which I address in the next section), Parliament amended SOIRA.
65In this section, I will briefly address the legislation which applies to this application.
66Section 490.02902 of the Criminal Code provides that the Attorney General of a province may serve a person with a notice in Form 54 if that person was found guilty of a criminal offence outside of Canada that is, in the opinion of the Attorney General, “equivalent to an offence referred to in paragraph (s) of the definition of ‘designated offence’ in s. 490.011(1)”.
67Section 490.011 of the Criminal Code, defines “designated offence” to mean a “primary offence or a secondary offence.” Pursuant to s. 490.011(1) of the Criminal Code, “luring a child”, contrary to s. 172.1 of the Criminal Code, is a “primary offence”.
68Section 490.02901 of the Criminal Code provides that a person who is served with a notice in Form 54 shall comply with SOIRA for the appliable period specified in s. 490.02904 unless a court makes an exemption order under subsection 490.02905(2).
69Following the release of Ndhlovu, s. 490.02905 was amended. This amendment expanded the grounds on which an exemption order by a court may be granted. [16]
70Sections 490.02095(1)(2)(2.1) and (2.2) are set out below:
(1) A person who is served with a notice in Form 54 under section 490.02903 may apply to a court of criminal jurisdiction for an order exempting them from the obligation within one year after they are served.
(2) The court shall make an exemption order if it is satisfied that the person has established that:
(a) they were not convicted of or found not criminally responsible on account of mental disorder for or were acquitted of the offence in question;
(b) the offence in question is not equivalent to an offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1);
(c) there is no connection between the obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or
(d) the impact of the obligation on the person, including on their privacy or liberty, 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 relating to sex offenders under that Act.
(2.1) In determining whether to make an exemption order under paragraph (2)(c) or (d), the court shall consider:
(a) the nature and seriousness of the offence that is the basis of the obligation;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
(2.2) If the court does not make an exemption order but is satisfied that the offence in question, though not equivalent to the offence referred to in the notice, is equivalent to another offence referred to in paragraph (a) of the definition primary offence in subsection 490.011(1), the court shall order that the notice be corrected.
R. v. Ndhlovu, 2022 SCC 38
71In R. v. Ndhlovu, 2022 SCC 38, the majority of the Supreme Court of Canada held that the mandatory SOIRA registration obligations found in s. 490.012 (which were then in force) violated s. 7 of the Charter and were of no force or effect.
72The majority stated, at paragraph 65, that SOIRA’s overall purpose was to “help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sexual offenders.”
73The majority noted that an offender who is subject to a SOIRA order is required to report to a police station and is forced to supply extensive personal information on an ongoing basis. This information is placed on the national sex offender registry. [17]
74The majority rejected the suggestion that the ongoing reporting requirements under SOIRA were “minimal” or “modest”, and instead found that they were “onerous” and “numerous, invasive and extensive.” [18] The majority also found that the mandatory measures involved “constraints that are insidious and pervasive for all those who must comply.” [19]
75Failing to comply with any of the reporting conditions “carries the threat of prosecution, a maximum of two years’ imprisonment, a fine or both.” [20] The majority concluded that “the threat of imprisonment makes the conditions onerous.” [21]
76At paragraph 79, the majority agreed with the sentencing judge that mandatory registration is “overbroad as it leads to the registration of offenders who are not at an increased risk of committing a future sex offence.” The majority held that registering offenders who are not at an increased risk of committing a future sex offence has no connection to the purpose of the legislation.
77At paragraph 85, the majority observed that, in some cases, an offender’s personal circumstances “mean they are not at an increased risk of offending, undermining any real possibility that their information on the registry will ever prove useful to police.”
78The majority also noted, at paragraph 91, that the expert evidence which was accepted by the sentencing judge, “made clear that there is no perceptible difference in the sexual recidivism risk at the time of sentencing between the lowest risk sexual offenders – the bottom 10 percent – and the population of offenders with convictions for non-sexual criminal offences.” Consequently, the majority found at paragraph 92 that the purpose of the provision is not advanced by requiring such offenders to be subject to mandatory registration under SOIRA. The majority held that the provision is overbroad as some sex offenders are not at an increased statistical risk of reoffending.
79The majority recognized, at paragraph 94, that “the commission of a sexual offence is one of many empirically validated predictors of increased sexual recidivism.” However, as the majority also observed, at paragraph 94, a valid risk assessment must consider a range of risk factors and there is no single factor that, on its own, determines an offender’s recidivism risk. As the majority noted at paragraph 94, some of the other validated predictors of increased sexual recidivism include “age, unusual or atypical sexual interests, sexual preoccupation, lifestyle instability or poor cognitive problem solving (to name a few)”.
80The majority recognized, at paragraph 94, that “recidivism also varies depending on the pattern of offences: for instance, whether the offence is a non-contact sexual offence, or whether it is committed against a child, a stranger, an acquaintance or a family member.”
The Applicant Has Satisfied the Requirements of s. 490.02905(2)(c) and s. 490.02905(2)(d)
Section 490.02905(2)(c)
81I will start by explaining why I have concluded that the Applicant has satisfied the requirements of s. 490.02905(2)(c).
82As previously stated, in Ndhlovu, the Court found that the registration of offenders who are not at an increased risk of reoffending does not assist police prevent and investigate sex offences. The Court concluded that mandatory registration under SOIRA is overbroad to the extent that it “sweeps in these lowest-risk sex offenders” – because, as a result of their risk profile, there is no connection between subjecting them to a SOIRA order and the objective of capturing information that may assist police prevent and investigate sex offences.
83In the case at bar, Crown counsel fairly took the position that the evidence supports the conclusion that there is a “very, very low likelihood” that the Applicant would re-offend.
84After considering all the relevant risk variables, I agree with counsel for the Applicant’s position that the Applicant falls into the category of offenders that was described by Supreme Court at paragraphs 91-92 of Ndhlovu (the “lowest risk sexual offenders – the bottom 10 percent”). The evidence that supports this conclusion includes the opinion of Dr. Snyder that:
- The Applicant does not pose a danger to anyone “through sexual misconduct, stalking or harassing behavior”;
- that the Applicant’s scores on standardized testing “strongly suggest that [the Applicant’s] sexual behaviors and preferences are not strongly correlated with those of known sexual offenders”; and
- that the Applicant’s scores on standardized testing revealed no signs of psychopathy.
85Further, the Applicant committed the offence in Washington State in 2013. He was 22 years old at the time. He is now 34 years old. The Applicant has not been charged with any new criminal offences in Canada or the United States in close to 12 years.
86The Applicant had no criminal record in Canada or the United States before 2014.
87The Applicant has the support of his family.
88Based on all the evidence before the Court (including the nature and circumstances surrounding the commission of the offence) and taking into account the guidance provided at paragraph 94 of Ndhlovu that “there is no single factor that, on its own, yields an offender’s recidivism risk”, I have concluded that the likelihood of sexual offence recidivism by the Applicant is low. [22]
89However, as Justice Henderson stated in R. v. Harding, 2024 ABKB 144, at para. 82, “having a low risk of reoffending does not, on its own, permit a conclusion that the offender has met the onus to avoid a SOIRA order”. That is because, “it is still necessary to consider all of the circumstances…”. [23]
90In this case, in deciding to make an exemption order under s. 490.02905(2)(c) I have considered all the factors set out in s. 490.02095(2.1). The Applicant’s personal characteristics, the fact that he had no previous criminal record, the fact that he has committed no other criminal offences since 2013, in my view, provide further support for the conclusion that an exemption order should be made.
91Having said that, in this case, not all the factors under 490.02095(2.1) support the granting of an exemption order. For example, the Applicant had multiple conversations of a sexual nature with the victim and he drove hours to see her. [24] The victim’s age at the time of the offence also weighs against the granting of an exemption order: R. v. Friesen, 2020 SCC 9, [2020] 1 SCR 424. [25]
92However, after considering all the factors set out in s. 490.02095(2.1), and my conclusion that there is low risk that the Applicant will reoffend, in my view, the objectives of SOIRA orders would not be advanced by requiring the Applicant to comply with SOIRA obligations.
93While being subject to a SOIRA order “can have a deterrent effect on an offender, which is consistent with the SOIRA’s purpose”, given the Applicant’s low risk of reoffending, in my view, specific deterrence is not an important consideration in this case. [26]
94The Applicant has established that there is no connection between the obligation and the purpose of helping police prevent or investigate crimes of a sexual nature by requiring the registration of information relating to the Applicant under SOIRA. I have concluded that the Applicant has met his onus under s. 490.02905(1)(c).
Section 490.02905(2)(d)
95“Grossly disproportionate” is a very high standard. [27] In the context of an application under s. 490.02905(2)(d), it clearly requires that an applicant establish much more than the impact of the order on them would be merely disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature. [28]
96When considering the impact of the SOIRA order on the Applicant, it is worth recalling that the majority in Ndhlovu found that the impact on any offender who is subject to SOIRA obligations is “serious” and “considerable”. Once again, the majority stated that SOIRA obligations involve “constraints on liberty that are insidious and pervasive for all those who must comply.” [29]
97In this case, there is evidence regarding the impact that the SOIRA order had on the Applicant. He was required to structure his travel and residency on an ongoing basis to comply with SOIRA. The SOIRA requirements made it difficult for him to work in his field. The Applicant left one job that required frequent travel. Crown counsel accepted that the SOIRA order could make it difficult, in the future, for the Applicant to secure a job that requires more frequent travelling. The Applicant described how travelling to see family members has been difficult as a result of the SOIRA order.
98As I previously stated, the evidence establishes that there is a low likelihood that the Applicant will re-offend. In my view, given all the circumstances, the registration of the Applicant’s information under SOIRA does not meaningfully serve the purpose of the provision – which is protecting society through the effective prevention or investigation of crimes of a sexual nature.
99After applying all the factors set out in s. 490.02095(2.1), I have concluded that the significant impact on the Applicant’s privacy and liberty interests is grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature – as the public interest would not be served by the registration of the Applicant’s information (particularly since there is a low likelihood that he will reoffend). [30]
100The requirements of s. 490.02905(d) have been met.
Conclusion
101The Application for an exemption order pursuant to s. 490.02905 is allowed.
102Pursuant to s. 490.016(3), I direct that Crown counsel notify the Commissioner of the Royal Canadian Mounted Police and the Attorney General of Ontario of my decision.
NORTH J.
[1] Contrary to RCW 9.68A.090. [2] This notice is also known as a “Form 54”. [3] Contrary to s. 172.1 of the Criminal Code. [4] I note that Crown counsel acknowledged that the Washington State offence of communicating with a minor for an immoral purpose is broader than the Canadian equivalent offence of child luring: Crown Factum, at para. 3. [5] Section 490.02905(2) provides that a court shall make an exemption order if the requirements of s. 490.02905(1)(c) or (d) have been met. [6] On October 22, 2024, I allowed the Application, with reasons to follow. These are those reasons. [7] A transcript of the proceedings from July 9, 2014, was made an exhibit on this application. [8] Other than the Statement of Defendant on Plea to Sex Offence (Felony). [9] The Applicant’s lawyer told the Court that he disputed that the Applicant and the victim “agreed to have sex as part of it.” The Applicant’s lawyer told the judge that “the police report showed that they agreed not to have sex when they came down here.” The Applicant’s lawyer also stated that the victim never went to the Applicant’s motel room. [10] On this Application, the Applicant did not dispute that he made this statement. [11] Some parts of this summary are from material that was before the judge in Washington. [12] The opinion of a Washington State prosecutor, which was admitted into evidence on this application, regarding what information a judge can properly consider in a guilty plea and sentencing provides some support for this position. See also RCW 9.94A.530.2. [13] Based on my reading of the reasons of the Court in State of Washington v. Demarco Lamont Parker, it appears that in the State of Washington, for information contained in other documents to become the basis upon which a guilty plea is entered, an offender must check the box under paragraph 11 on Statement of Defendant on Plea of Guilty to Sex Offence (Felony). While Crown counsel on this Application did not agree with this interpretation of the reasons in State of Washington v. Demarco Lamont Parker, during submissions she acknowledged that the “way it was worded in the documents [regarding the purpose of the box in paragraph 11 of the Statement of Defendant on Plea to Sex Offence] that were signed by Mr. Thomas is very, very unclear.” [Emphasis added.] [14] Other than the Statement of Defendant on Plea to Sex Offence (Felony) and what the Applicant told the author of the pre-sentence investigative report. [15] In addition to the offence itself and the circumstances surrounding the offence. [16] See s. 490.02905(2)(c)(d) and s. 490.02905 (2.1). [17] Ndhlovu, at paras. 5, 37, 44-45 [18] Ndhlovu, at para. 5. [19] Ndhlovu, at para. 55. [20] Ndhlovu, at paras. 5, 45. [21] Ndhlovu, at para. 45. [22] To be clear, exact predictions of future dangerousness are “impossible to make”: R. v. Morales (1992) 77 CCC (3d) 91, at p. 108. Further, an assessment of the likelihood of future conduct is not the same as predicting future harm: R. v. Soungie, 2003 ABPC 121, at paras 22-26. [23] Harding, at para. 82. [24] In considering the fact that the Applicant travelled to see the victim, it worth remembering that the Applicant did not admit that he travelled to see the victim for a sexual purpose. [25] In R. v. D.M.W., 2024 BCPC 82, at para. 45, Wolf J. noted that the victim in that case was 13 years old at the time of the offence, and stated as follows: “If I were to consider only this one factor, I would be inclined to create a SOIRA order.” After considering all the factors, Wolf J., at para. 64 concluded that the accused had met his onus and declined to impose a SOIRA order. [26] R. v. CK, 2024 ABKB 62, at para. 22. [27] R. v. Redhead, 2006 ABCA 84, at para. 43 [28] R. v. CRN, 2024 ABKB 15, at para. 93. In CRN, Justice Funk considers many cases that assessed individual offenders and the impact of a SOIRA order upon them. However, as Justice Inglis notes in R. v. Hutton, 2024 ABKB 251, at para. 45, “each case is very specific to the offender”. [29] Ndhlovu, at para. 55. [30] On this question, my reasoning is similar to that of Justice Henderson’s, at paragraph 82, in Harding.