Court File and Parties

Court File No.: CR-10-40000117-0000 Date: 2023-01-23 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent And: Bismark Addo-Binney, Applicant/Defendant

Counsel: Arooba Shakeel, for the Applicant/Defendant Allison MacPherson, for the Respondent/Crown

Heard: September 14, 2022 and December 12, 2022 (remotely by Zoom)

Molloy J.:

Reasons for Decision

Application to Terminate SOIRA Order

Introduction

[1] On April 8, 2011, after a two-day judge alone trial, I convicted Bismark Addo-Binney of one count of sexual assault. I sentenced him on June 15, 2011 to 12 months’ imprisonment and two years’ probation. I also imposed a Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) order for a period of 20 years, as was required by s. 490.012 of the Criminal Code at the time. (See R. v. Addo-Binney, 2011 ONSC 2865).

[2] Mr. Addo-Binney appealed unsuccessfully to the Court of Appeal. (See R. v. Addo-Binney, 2012 ONCA 792). He then served the sentence I imposed, including his probation period. Since his release from custody in March 2013, he has been complying with the SOIRA requirements. There have been no breaches. On September 3, 2020, he was granted a pardon/record suspension by Pardons Canada.

[3] Mr. Addo-Binney now applies before me for a termination of the SOIRA order I made in 2011. The Crown is opposed. The matter was argued before me on September 14, 2022, at which time I reserved my decision. On October 28, 2022, the Supreme Court of Canada released its decision in R. v. Ndhlovu, 2022 SCC 38, which considered the constitutionality of two Criminal Code provisions relating to SOIRA: one, s. 490.012, provided no judicial discretion to exempt offenders from the registry upon conviction for certain designated offences, including sexual assault; and one, s. 490.013(2.1), made a lifetime registration mandatory for those convicted of more than one designated offence. The Supreme Court found those provisions to be of no force or effect, pursuant to s. 52(1) of the Constitution Act, 1982. Because of the potential impact of that decision on this matter now before me, I contacted counsel and invited them to make further submissions as to the impact of the Supreme Court’s decision. Those submissions were made before me remotely on Zoom on December 14, 2022.

[4] Having considered the matter since then, I am satisfied that Mr. Addo-Binney has met the test required to terminate the SOIRA Order.

The Test

[5] The right to apply for termination of a SOIRA order arises under s. 490.15(3) of the Criminal Code when the offender has received a pardon or record suspension. The test, as set out in s. 490.016(1), is whether the applicant “has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention of investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders”.

Impact on Mr. Addo-Binney

[6] Mr. Addo-Binney filed an affidavit on this application and he was examined and cross-examined before me. I accept his evidence that he has suffered considerable anxiety as a result of the SOIRA registration. I also accept the submission of the Crown that the actual impact on Mr. Addo-Binney’s life has been minimal and that the problem is more his subjective fears about what might happen. However, I do not discount his fears. They are not extreme or irrational. The officers who have checked up on him have been discreet. Nobody has come to his place of work. When he has checked in periodically as required, nobody who knows him has recognized him and realized where he was going. However, he lives constantly with the fear that this could happen, and that is not an irrational fear.

[7] Likewise, although the registration itself has not impeded his ability to pursue a career or have meaningful relationships with women, his fear of the registration becoming known has prevented him from doing some of these things. Again, his worry about the humiliation that would follow when a friend or co-worker learns that he is a registered sex offender is not unrealistic. He feels that he should not have children while on the sex offender registry. I can understand that anxiety as well.

[8] In Ndhlovu, Karakatsanis and Martin JJ. (writing for the majority) commented on the extent to which SOIRA registration interfered with the freedom rights of individuals as follows:

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.

[T]he 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).

The impact of a SOIRA order on an offender’s liberty can only fairly be described as serious. The most obvious impact on liberty is the risk of prosecution and imprisonment for failure to meet the reporting requirements without “reasonable excuse”.

But the mandatory measures also involve constraints on liberty that are insidious and pervasive for all those who must comply. That offenders must report to a registration centre within tight timelines to provide the information of any changes in primary or secondary address, or name, as well as if they receive a driver’s licence or passport, under threat of penalty, is a clear deprivation of liberty. It compels offenders to structure their travel and residency on an ongoing basis to remain in compliance with SOIRA (see, e.g., R. v. G.E.W., 2006 ABQB 317, 396 A.R. 149, at paras. 19 and 25, where the court considered the impact on an offender who worked in the trucking industry). There are burdens associated with the ongoing obligations to maintain the currency of the information on the registry. The potential of imprisonment makes the deprivation even more severe (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 515). [Emphasis added.]

[9] The majority judgment in Ndhlovu recognized that the impact of compliance with SOIRA would vary from individual to individual, noting that the consequences would be particularly severe for “offenders whose job requires regular, prolonged travel” (and for those who experience homelessness, substance abuse issues and cognitive or mental health challenges). The court specifically overruled earlier appellate decisions that had described the reporting requirements as “minimal” or “modest”.

[10] Mr. Addo-Binney does not fall into the category of those most severely affected by the reporting requirements. He has a home, he does not have a substance abuse problem, and he does not have cognitive or mental health issues. However, he does have travel requirements for his work, including international travel, and is very anxious about the difficulties of crossing borders while a registered sex offender. This was a factor recognized by the Supreme Court as being particularly troublesome. I believe that Mr. Addo-Binney’s ability to develop his engineering career is critical to his sense of self-worth and rehabilitation. Some of the SOIRA requirements are interfering with that. Further, although Mr. Addo-Binney has been able to comply with the reporting requirements, he experiences frequent and ongoing anxiety because of the constant reporting and interacting with the police and the fear of being exposed as a registered sex offender. I find this to be a real and pervasive problem for him. The impact on him has been “serious and considerable”.

The Public Interest in Protecting Society

[11] The purpose of SOIRA is “to capture information about offenders that may assist police prevent and investigate sex offences.” In Ndhlovu, the Supreme Court found that mandatory registration pursuant to s. 490.012 of the Criminal Code was overly broad because it required that all persons convicted of sexual assault be subject to registration, regardless of whether they were likely to reoffend. The court held that registering offenders who are not at an increased risk of reoffending bore no connection to the purpose of the legislation.

[12] This is the provision that applied when I required Mr. Addo-Binney to be registered under SOIRA for a period of 20 years. That provision was found to be unconstitutional by the Supreme Court, but the s. 52(1) declaration of invalidity was suspended for a one-year period, and it would then only apply prospectively. As such, the court’s finding of unconstitutionality has no direct impact on my SOIRA registration order in Mr. Addo-Binney’s case. He is still required to meet the test set out at s. 490.016(1) for my SOIRA order to terminate. However, many of the Supreme Court’s findings in Ndhlovu are relevant to the decision now before me.

[13] The majority decision in Ndhlovu held that although there was statistically some risk that anyone convicted of a sex offence would re-offend, the expert evidence did not support imposing the same restrictions on everybody, including those whose personal circumstances made it highly unlikely that they would commit another sex offence. The court held:

In the end, the evidence — accepted by the sentencing judge — demonstrates that s. 490.012 catches offenders who, at the time of their release, are no longer at significant risk to reoffend. The commission of a past sexual offence, therefore, is an inexact proxy for those offenders whose information may assist police. A proxy of such a broad nature, which applies to a large number of people and a broad range of conduct, inevitably captures individuals who are not at an increased risk of committing the criminal conduct that Parliament sought to prevent and investigate with the registry.

[14] The court in Ndhlovu also recognized that risk assessments are often made by trial judges and could be used in determining whether a SOIRA registration would be helpful. The court held:

Moreover, judges make risk assessments routinely, including those informed by expert assessments. Notwithstanding these assessments may not be certain, they are capable of being well informed by an individual’s personal circumstances and the best expert evidence. Clearly, there are instances where a sentencing judge can reasonably conclude that it is remote or implausible that an offender’s information will ever prove useful to police.

[15] I did not have any expert evidence before me as to Mr. Addo-Binney’s likelihood of re-offending. Nevertheless, I can say without hesitation that, at the time of sentencing, I did not consider him to be at a risk to commit further sex offences, and at the present time, I consider that risk to be even lower. In determining whether continued registration is necessary for the protection of society, it is important to look at Mr. Addo-Binney’s personal circumstances, as well as the circumstances of his crime. Mr. Addo-Binney was 23 years old at the time of this offence. He is now 35. During trial, he was attending college as a member of the Canadian Armed Forces. He was immediately thrown out of the military upon his conviction for sexual assault. However, since then, he has completed a bachelor’s degree in Mechanical Engineering and a master’s degree in Applied Science, and he is enrolled in a PhD program. While working on his PhD, he has also been employed as a project engineer for an HVAC company. He has a promising career ahead of him as an engineer.

[16] I do not mean to diminish the serious nature of the crime at issue here, nor to minimize its impact on the complainant. She had been in an intimate relationship with Mr. Addo-Binney, and he violated her in her own home in circumstances where she was very clear about not consenting. However, for purposes of a motion such as this, it is important to see the circumstances of the offence within the context of the public interest purposes underlying the creation of SOIRA. In my reasons for finding Mr. Addo-Binney guilty, I summarized the circumstances as follows:

I have considered the whole body of the evidence including the testimony of Mr. Addo-Binney, the testimony of IC, and the electronic messages between IC and Mr. Addo-Binney (which for the most part corroborated IC and contradicted Mr. Addo-Binney). Based on the whole of the evidence, and putting the burden of proof on the Crown, I am fully satisfied beyond a reasonable doubt that Mr. Addo-Binney forced sexual intercourse on IC in her bedroom that morning, knowing she was not consenting. Although she had told him the relationship was over and that she did not want to have sex with him, he came to her apartment intent on changing her mind and confident that he would be able to do so. He was arrogantly of the view that she could not break up with him and that she would never be able to resist him. When he was not successful in persuading her, he went ahead anyway. It is to his credit that he ceased the worst part of the assault, actual vaginal intercourse, after only a minute or two, apparently upon realizing the magnitude of his conduct. It is also somewhat to his credit that he did apologize thereafter, albeit not in very fulsome way. However, there is no question that his conduct did constitute sexual assault. (See R. v. Addo-Binney, 2011 ONSC 2865, at para. 95).

[17] Although I had no hesitation in finding Mr. Addo-Binney guilty of sexual assault, I struggled to find an appropriate sentence for him. He had no criminal record, a supportive family, and a promising career ahead of him. However, I considered a conditional discharge inappropriate given the nature of the offence and a 90-day intermittent sentence also inadequate. On the other hand, I was also of the view that rehabilitation was an important factor in sentencing Mr. Addo-Binney and that a term of imprisonment would be counter-productive to that. A conditional sentence would have been ideal, but was not available for this offence under the Criminal Code at the time. I held as follows at sentencing:

I have struggled with determining the appropriate sentence in this case. Essentially, I agree with Ms. Penman that Mr. Addo-Binney would have been an ideal candidate for a conditional sentence. I do not see him as a threat to society, although he would likely benefit from some counselling with respect to his attitude towards, and relationships with, women. Sexual assault, particularly when it progresses to actual intercourse is a serious crime and must be sentenced as such. However, there is nothing to be gained in this situation by putting Mr. Addo-Binney in jail. Neither the complainant nor the community needs to be protected from him. To me, the best solution would be to severely curtail his freedom in the community for something close to two years and ensure he takes part in counselling about the circumstances of his offence and his attitude towards women, while at the same time ensuring that he gets started on his career. (See R. v. Addo-Binney (June 15, 2011), Toronto, Court File # 10-40000117-0000 (Ont. S.C.)).

[18] While on probation, Mr. Addo-Binney successfully completed six sessions of counselling under the Sexual Offence Relapse Program, which included education around consent and relationships. While in custody, he completed a counselling program for anger management and relationships. He also attended counselling provided by the military. In his affidavit, he stated that these programs provided him “with helpful tools to build healthy relationships, regulate emotions, and avoid future offending behaviour.”

[19] In addition to these training programs, Mr. Addo-Binney now has the advantage of more life-experience and maturity. The role of specific deterrence is also not to be minimized. This entire experience has been life-altering for Mr. Addo-Binney, and he has suffered considerably from the repercussions of his prior offending conduct. He is an intelligent man. He knows the inevitable consequences if he were to re-offend. I do not see him as being at any risk of committing such an offence in the future.

[20] I also note that the offence in this case was not an assault on a stranger, but rather was within an established relationship. Registration of this kind of offender is of limited utility to the police in investigating sex offences, as his identity is already known to the complainant. As was noted by Duncan J. in R. v. Have, 2005 ONCJ 27:

This information may be useful in the investigation of future sex related crimes by identifying individuals who, by reason of past convictions, may be considered suspect in such crimes. The model is the predatory stranger offender who “hunts” from areas close to his home or work. Registration is particularly valuable to enable quick response in cases of child abduction by a stranger, where time is of the essence to prevent murder.

In summary, the assumption underlying the scheme is that a person who has committed this type of offence in the past may have a propensity to commit a similar offence in the future. Registration of such persons is valuable in cases of offences committed locally by strangers to the victim. The value of a registry to investigation of other types of sex related offences is less apparent. [Emphasis added.] (See R. v. Have, 2005 ONCJ 27, at paras. 15-16).

[21] I find it highly unlikely that Mr. Addo-Binney will reoffend. This one offence has changed his life significantly. He is more mature, has more insight into his relationships with women, and has been educated on the meaning of consent and how to behave in relationships. He has a good support system and a meaningful life, with a promising future. In my view, he falls within that category of people referred to by the Supreme Court when it found that s. 490.012 is overly broad in mandating that every sex offender is required to register regardless of their risk of recidivism. Indeed, although I recognize this is not the test I have to apply at this stage, if I had the discretion at the time of sentencing Mr. Addo-Binney, I would not have made a SOIRA Order. Such an order is even less justified now.

[22] Further, even if Mr. Addo-Binney were to re-offend in the same manner, registration under SOIRA is of no moment. His adult victim would already know him.

Conclusion

[23] Thus, I find that all the requirements have been met to warrant terminating the SOIRA order at this stage. The negative impact on Mr. Addo-Binney has been significant. His registration under SOIRA serves little purpose. The impact on him is grossly disproportionate to the negligible public interest in protecting society by assisting police in the prevention and investigation of sex crimes through sex offender registration. Accordingly, my order requiring registration is terminated.

Molloy J. Released: January 23, 2023