Her Majesty the Queen v. Dyck, 2008 ONCA 309

Her Majesty the Queen v. Dyck [Indexed as: R. v. Dyck]

90 O.R. (3d) 409

Court of Appeal for Ontario,

Moldaver, Sharpe and Blair JJ.A.

April 25, 2008

Charter of Rights and Freedoms -- Benefit of lesser punishment -- Double jeopardy -- Requirement to register as sex offender not constituting "punishment" -- Sections 11(h) and 11(i) of Charter not applying to statute enacting Ontario Sex Offender Registry -- Canadian Charter of Rights and Freedoms, ss. 11(h), 11(i) -- Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1. [page410]

Charter of Rights and Freedoms -- Cruel and unusual treatment or punishment -- Requirement to register as sex offender under Christopher's Law (Sex Offender Registry) not constituting "punishment" -- Registration requirement not constituting cruel and unusual treatment -- Canadian Charter of Rights and Freedoms, s. 12 -- Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1.

Charter of Rights and Freedoms -- Fundamental justice -- Law enacting Ontario Sex Offender Registry not unconstitutionally overbroad -- Law not violating s. 7 of Charter by failing to give sex offenders opportunity to seek exemption registration or to apply for order terminating registration at any time prior to statutory end-date -- Canadian Charter of Rights and Freedoms, s. 7 -- Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1.

Constitutional law -- Distribution of legislative authority -- Law enacting Ontario Sex Offender Registry not being in pith and substance criminal law -- Federal sex offender registry not having occupied field so as to engage docrine of paramountcy -- Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 -- Constitution Act, 1867.

The accused was convicted of a sexual offence before Christopher's Law came into effect. Christopher's Law requires anyone convicted of a designated sex offence to register with the police as a designated sex offender for a period of ten years or for life. When he was charged in 2002 with failing to report under s. 11 of Christoper's Law, the accused challenged the validity of the statute under the Canadian Charter of Rights and Freedoms and on federalism grounds. The trial judge rejected the accused's federalism argument and found that Christopher's Law does not violate ss. 11, 12 or 15(1) of the Charter. The trial judge found that Christopher's Law violates s. 7 of the Charter on the ground of overbreadth and declared it to be of no force or effect. The Crown's appeal was allowed, and the summary conviction appeal court affirmed the constitutionality of Christopher's Law. The accused appealed.

Held, the appeal should be dismissed.

Christopher's Law is not inoperative on federalism grounds. It is not a colourable attempt by the province to enact legislation that is in pith and substance criminal law. Rather, as legislation designed to promote public safety and protection and to assist police in their investigatory efforts with a view to enhancing the prevention of crime, its enactment falls within the legislative competence of the provinces under ss. 92(13) (property and civil rights) and 92(14) (administration of justice) of the Constitution Act, 1867. The federal sex offender registry has not "occupied the field", so that the doctrine of paramountcy renders Christopher's Law inoperative. There is nothing preventing offenders from complying with both the federal and the provincial scheme.

The accused's right under s. 11(g) of the Charter not to be found guilty on account of an act or omission which was not criminal at the time it was committed was not engaged. While Christopher's Law was not in effect at the time the accused was convicted of the underlying sexual offence, that sexual offence was an offence under Canadian law when it was committed, and when the accused was charged with a breach of Christopher's Law, that infraction was an offence under Canadian law at the time. The accused's right under s. 11(h) not to be punished twice for the same offence and his right under s. 11(i) of the Charter to the benefit of the lesser punishment were not engaged, as the requirement to register does not constitute "punishment". [page411]

Assuming, without deciding, that the application of Christopher's Law may amount to treatment, the registration requirement does not constitute cruel and unusual treatment.

Christopher's Law does not infringe s. 7 of the Charter. While the accused's liberty interest was engaged by Christopher's Law, he was not deprived of liberty in a manner that did not accord with the principles of fundamental justice. Christopher's Law does not infringe the principles of fundamental justice for reasons of overbreadth. Overbreadth is a function of arbitrariness, and the standard for assessing it is gross disproportionality. In enacting Christopher's Law, the legislature acted rationally pursuant to the legitimate state interest of community protection. The adverse effects of the impugned legislation on the individuals subject to it are not grossly disproportionate to the state interest the legislature seeks to protect. The registration and reporting requirements are limited in their informational scope, do not prohibit the offender 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. Even if the Registry may incorporate a class of persons who may never re-offend, the Act is not overbroad because individualized risk assessment is not a Charter requirement. The impugned law does not violate s. 7 of the Charter because it fails to afford offenders affected by it an opportunity to make their case that they should be entitled to an exemption from registration, or to appeal or seek review of its automatic application, or to apply for an order terminating registration at any time prior to the statutory end-date for registration. The legislature was entitled to choose to include all offenders convicted of designated sexual offences in the Register, having regard to the general risk of recidivism in that group and the potential danger to victims.

APPEAL from the judgment of Hambly J., 2005 47771 (ON SC), [2005] O.J. No. 5313, 203 C.C.C. (3d) 365 (S.C.J.), allowing a Crown appeal from a declaration that Christopher's Law (Sex Offender Registry), 2000, S.O. 2002, c. 1 was of no force or effect.

Cases referred to R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, 120 D.L.R. (4th) 348, 174 N.R. 81, J.E. 94-1938, 50 B.C.A.C. 161, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133, 24 C.R.R. (2d) 189, 25 W.C.B. (2d) 438, distd R. v. Clay, [2003] 3 S.C.R. 735, [2003] S.C.J. No. 80, 2003 SCC 75, 233 D.L.R. (4th) 541, 313 N.R. 252, J.E. 2004-130, 181 O.A.C. 350, 179 C.C.C. (3d) 540, 16 C.R. (6th) 117, 114 C.R.R. (2d) 137, 59 W.C.B. (2d) 115; R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, 233 D.L.R. (4th) 415, 314 N.R. 1, [2004] 4 W.W.R. 407, J.E. 2004-131, 191 B.C.A.C. 1, 23 B.C.L.R. (4th) 1, 179 C.C.C. (3d) 417, 16 C.R. (6th) 1, 114 C.R.R. (2d) 189, 59 W.C.B. (2d) 116, apld Other cases referred to B. (K.) v. Winnipeg Child and Family Services (Chief Executive Officer), 1992 8577 (MB QB), [1992] M.J. No. 115, 90 D.L.R. (4th) 630, 80 Man. R. (2d) 319, 32 A.C.W.S. (3d) 907 (Q.B.); Canadian Western Bank v. 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No. 31]; R. v. Budreo (2000), 2000 5628 (ON CA), 46 O.R. (3d) 481, [2000] O.J. No. 72, 183 D.L.R. (4th) 519, 128 O.A.C. 105, 142 C.C.C. (3d) 225, 32 C.R. (5th) 127, 70 C.R.R. (2d) 203, 45 W.C.B. (2d) 50 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 542]; R. v. Burke, [2005] O.J. No. 4267, 2005 ONCJ 422, 67 W.C.B. (2d) 172; R. v. Chiasson, 1982 2959 (NB CA), [1982] N.B.J. No. 176, 135 D.L.R. (3d) 499, 39 N.B.R. (2d) 631, 66 C.C.C. (2d) 195, 27 C.R. (3d) 361, 7 W.C.B. 286 (C.A.); R. v. Cross, [2006] N.S.J. No. 87, 2006 NSCA 30, 263 D.L.R. (4th) 259, 241 N.S.R. (2d) 349, 205 C.C.C. (3d) 289, 37 C.R. (6th) 8, 138 C.R.R. (2d) 163, 68 W.C.B. (2d) 700 [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 161]; R. v. Epp, [2005] S.J. No. 519, 2005 SKPC 71, 267 Sask. R. 191, 66 W.C.B. (2d) 727 (Prov. Ct.); R. v. Hendry (2001), 2001 21168 (ON CA), 57 O.R. (3d) 475, [2001] O.J. No. 5084, 153 O.A.C. 167, 161 C.C.C. (3d) 275, 48 C.R. @@.(5th) 310, 52 W.C.B. (2d) 212 (C.A.); R. v. Lenart (1998), 1998 1774 (ON CA), 39 O.R. (3d) 55, [1998] O.J. No. 1105, 158 D.L.R. (4th) 508, 108 O.A.C. 1, 123 C.C.C. (3d) 353, 37 W.C.B. (2d) 522 (C.A.); R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 44 D.L.R. (4th) 193, 80 N.R. 161, J.E. 87-1123, 82 N.S.R. (2d) 271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 3 W.C.B. (2d) 62; R. v. Morgentaler (No. 3), 1993 74 (SCC), [1993] 3 S.C.R. 463, [1993] S.C.J. No. 95, 107 D.L.R. (4th) 537, 157 N.R. 97, J.E. 93-1654, 125 N.S.R. (2d) 81, 85 C.C.C. (3d) 118, 25 C.R. (4th) 179, 20 W.C.B. (2d) 585; R. v. Murrins, [2002] N.S.J. No. 21, 2002 NSCA 12, 201 N.S.R. (2d) 288, 162 C.C.C. (3d) 412, 1 C.R. (6th) 166, 92 C.R.R. (2d) 285, 52 W.C.B. (2d) 390 (C.A.); R. v. R.C., [2005] 3 S.C.R. 99, [2005] S.C.J. No. 62, 2005 SCC 61, 259 D.L.R. (4th) 1, 340 N.R. 53, J.E. 2005-1961, 237 N.S.R. (2d) 204, 201 C.C.C. (3d) 321, 32 C.R. (6th) 201, 135 C.R.R. (2d) 109; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, [2 @@.006] S.C.J. No. 15, 2006 SCC 15, 266 D.L.R. (4th) 101, J.E. 2006-910, 210 O.A.C. 200, 207 C.C.C. (3d) 225, 37 C.R. (6th) 1, 140 C.R.R. (2d) 1, 69 W.C.B. (2d) 741, EYB 2006-104246; R. v. Shubley, 1990 149 (SCC), [1990] 1 S.C.R. 3, [1990] S.C.J. No. 1, 65 D.L.R. (4th) 193, 104 N.R. 81, 37 O.A.C. 63, 42 Admin. L.R. 118, 52 C.C.C. (3d) 481, 74 C.R. (3d) 1, 46 C.R.R. 104, 9 W.C.B. (2d) 229; R. v. Troutlake (2002), 56 W.C.B. (2d) 100 (Ont. C.J.); R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, 45 D.L.R. (4th) 235, 81 N.R. 161, [1988] 1 W.W.R. 193, 24 O.A.C. 321, 61 Sask. R. 105, 28 Admin. L.R. 294, 37 C.C.C. (3d) 385, 60 C.R. (3d) 193, 32 C.R.R. 219, 3 W.C.B. (2d) 130; Reference Re Dairy Industry Act (Canada) S. 5(a), 1948 2 (SCC), [1949] S.C.R. 1, [1948] S.C.J. No. 42, [1949] 1 D.L.R. 433; Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 2000 SCC 31, 185 D.L.R. (4th) 577, 254 N.R. 201, [2000] 10 W.W.R. 1, J.E. 2000-1234, 82 Alta. L.R. (3d) 1, 261 A.R. 201, 144 C.C.C. (3d) 385, 34 C.R. (5th) 1, 97 A.C.W.S. (3d) 64, 46 W.C.B. (2d) 450; Reference Re Intoxicated Persons Detention Act (Man.), 1980 2646 (MB CA), [1980] M.J. No. 148, 116 D.L.R. (3d) 91, [1981] 1 W.W.R. 333, 55 C.C.C. (2d) 130, 5 A.C.W.S. (2d) 213, 5 W.C.B. 134 (C.A.); Ridley v. Children's Aid Society for County of Hastings, [1981] O.J. No. 174 (Div. Ct.); Rothman, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, [2005] S.C.J. No. 1, 2005 SCC 13, 250 D.L.R. (4th) 411, 331 N.R. 116, [2005] 9 W.W.R. 403, J.E. 2005-572, 257 Sask. R. 171, 137 A.C.W.S. (3d) 933; Schneider v. British Columbia, 1982 26 (SCC), [1982] 2 S.C.R. 112, [1982] S.C.J. No. 64, 139 D.L.R. (3d) 417, 43 N.R. 91, [1982] 6 W.W.R. 673, J.E. 82-812, 39 B.C.L.R. 273, 68 C.C.C. (2d) 449; [page413] Siemans v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, [2002] S.C.J. No. 69, 2003 SCC 3, 221 D.L.R. (4th) 90, 299 N.R. 267, [2003] 4 W.W.R. 1, J.E. 2003-270, 173 Man. R. (2d) 1, 47 Admin. L.R. (3d) 205, 2102 C.R.R. (2d) 345, 34 M.P.L.R. (3d) 163, 119 A.C.W.S. (3d) 564, 55 W.C.B. (2d) 609; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 2002 SCC 1, 208 D.L.R. (4th) 1, 281 N.R. 1, J.E. 2002-161, 37 Admin. L.R. (3d) 159, 90 C.R.R. (2d) 1, 18 Imm. L.R. (3d) 1, 110 A.C.W.S. (3d) 1104 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(g), (h), (i), 12, 15(1) Child Protection (Offender Reporting) Act 2004 (Queensland, Australia) Child Protection (Offenders Registration) Act 2000 (New South Wales, Australia) Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, ss. 2, 3, 7, 9, 10 [as am.], 11 Constitution Act, 1867 (U.K.), 30 & 31 Vic., c. 3, ss. 91, 92 Controlled Drugs and Substances Act, S.C. 1996, c. 19 Criminal Code, R.S.C. 1985, c. C-46, s. 151, ss. 179(1), 490.012(4) [as am.], 490.022(2) [as am.], 810.1 [as am.], 810.01 [as am.] Criminal Records Act, R.S.C. 1985, c. C-47, ss. 4(b)(i) [as am.], 4.1(2) [as am.] Education Act, R.S.O. 1990, c. E.2, s. 21 [as am.] Employment Insurance Act, S.C. 1996, c. 23, s. 138 Highway Traffic Act, R.S.O. 1990, c. H.8, s. 32 [as am.] Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 150(1) [as am.], 162 [as am.] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. 14071 Narcotic Control Act, R.S.C. 1985, c. N-1 [repealed S.C. 1996, c. 19, s. 94] Registry Act, R.S.O. 1990, c. R.20, ss. 18(6) [as am.], 20 [as am.], 21 [as am.] Sexual Offences Act 2003 (U.K.), 2003, c. 42 Sex Offenders Registration Act 2004 (Victoria, Australia) Sex Offender Information Registration Act, S.C. 2004, c. 10 Vital Statistics Act, R.S.O. 1999, c. V.4, ss. 8 [as am.], 9.1 [as am.], 19, 21 [as am.], 28 [as am.], 31 [as am.] Young Offender's Act, R.S.C. 1985, c. Y-1 [repealed S.C. 2002, c. 1, s. 199] Youth Criminal Justice Act, S.C. 2002, c. 1 Rules and regulations referred to O. Reg. 69/01, ss. 1.1, 2, (2) Authorities referred to Hogg, Peter W., Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007)

Stephen F. Gehl and Valeria Ruoso, for appellant. John Pearson, Michel Hélie and Deborah Krick, for respondent. Vanora Simpson, for intervenor the Criminal Lawyers' Association (Ontario). [page414]

The judgment of the court was delivered by

BLAIR J.A.: -- Overview

[1] On April 23, 2001, the Ontario Sex Offender Registry came into effect. It requires anyone convicted of a designated sex offence to register with the police as a designated sex offender for a period of ten years or for life, depending on the nature and number of convictions involved.

[2] The law establishing the Sex Offender Registry was enacted in response to the public outcry following the abduction, brutal sexual assault and murder of 11-year-old Christopher Stephenson by a multiple sex offender who was on parole at the time of the attack. A coroner's inquest into Christopher's death was held and the jury recommended that convicted sex offenders be required to register with the police. The Ontario legislature responded and the legislation that was enacted is known as "Christopher's Law" [See Note 1 below] in memory of this tragedy.

[3] Abram Dyck was convicted of sexual interference in September 2000, and in February 2002 was charged with failing to report under s. 11 of Christopher's Law. Although he admitted to facts that would justify a conviction under Christopher's Law, he challenged its constitutional validity before Justice Hearn in the Ontario Court of Justice both on Charter and federalism grounds. He asserted that Christopher's Law violated his rights under ss. 7, 11(g), 11(h), 11(i), 12 and 15(1) of the Canadian Charter of Rights and Freedoms. He also asserted that the province does not have the constitutional authority to enact this legislation because it is in pith and substance criminal law and therefore falls within the competence of the federal government by virtue of s. 91 of the Constitution Act, 1867. Mr. Dyck succeeded at trial on the ground that Christopher's Law violated his s. 7 liberty rights because it was overl y broad. The trial judge declared Christopher's Law to be of no force and effect.

[4] On appeal to the summary conviction appeal judge -- Justice Hambly of the Superior Court of Justice -- the Crown successfully overturned the trial judge's finding of unconstitutionality, however. Mr. Dyck cross-appealed. On the cross-appeal, he renewed his Charter arguments (with the exception of his s. 15 argument) but revised his federalism argument. As the federal government had recently enacted the [page415] Sex Offender Information Registration Act ("SOIRA"), [See Note 2 below] Mr. Dyck argued that not only is Christopher's Law criminal law but that the federal government's new registry had already "occupied the field" and was thus paramount. He was unsuccessful on all grounds, however, and the constitutional validity of the Sex Offender Registry was upheld.

[5] In this court, Mr. Dyck renews his challenge and makes the same arguments he put forward in the court below.

[6] The Criminal Lawyers' Association (Ontario) was granted leave to intervene. It supported the appellant in challenging the constitutionality of the legislation but limited its submissions to the issues arising under s. 7 of the Charter.

[7] For the reasons that follow I would dismiss the appeal.

Facts

Background

[8] On September 12, 2000, the appellant was convicted of sexual interference under s. 151 of the Criminal Code and sentenced to 11 months in prison plus three years' probation.

[9] On April 23, 2001, Christopher's Law came into force. Mr. Dyck had been released from custody the previous day. He was nonetheless required to register under the terms of the Act because he was still serving the probationary portion of his sentence, and he did so on May 10, 2001. The genesis of this appeal arises from the fact that continuing to comply with the reporting provisions of the Act in a timely fashion proved to be troublesome for Mr. Dyck.

[10] Mr. Dyck's breaches were not egregious. One of the reporting requirements of Christopher's Law -- I will outline the provisions of the Act in more detail below -- is that the offender must notify the police within 15 days of any change in address. The appellant reported late on three occasions -- six days late in October 2001; 23 days late in January 2002; and again six days late in February 2002. He was warned on the first two occasions that he had to comply and that he could be charged if he did not. On February 22, 2002 -- after the third infraction -- he was charged with failure to comply with Christopher's Law.

[11] The trial proceeded on an agreed statement of facts. However, both the Crown and the defence filed considerable amounts of written material and called viva voce evidence to assist the court in understanding the framework of the legislation. [page416]

[12] The Crown called three witnesses: Detective Staff Sergeant Charles Young, Dr. Peter I. Collins and Detective Sergeant Bradley Moore. Detective Staff Sergeant Young explained how the Registry operates. At the time, he was the manager of the Ontario Sex Offender Registry. Detective Sergeant Moore testified about the spatial and geographic behaviour of offenders and how this dovetails with the operation of the Registry. At the time, he was the manager of the Geographic Profiling Unit of the Ontario Provincial Police. Dr. Peter Collins testified as an expert in the area of sexually deviant behaviour and gave evidence about the typical behaviour of sex offenders, including their offence patterns, prognosis for rehabilitation and risk of recidivism. He was a forensic psychiatrist with the Law and Mental Health Programme, Centre for Addiction and Mental Health, The Clarke Institute Division in Toronto.

[13] The defence called Ms. Barbara Hill, the Director of Policy Development for the John Howard Society of Ontario. She explained the Society's opposition to the creation of a sex offender registry and the Society's view that scarce public resources were better expended on the treatment of offenders than on what the Society views as an ineffective registry system.

[14] In addition, the trial judge was provided with a dossier of materials which counsel agreed should be considered as evidence. These materials included the verdict of the jury from the coroner's inquest into the death of Christopher Stephenson; literature on the operation of the Sex Offender Registry and comparable registries in other parts of the world (particularly the United States); reports of the legislative debates and Committee hearings in Ontario; and Hansard and other related reports on the enactment of SOIRA.

Christopher's Law and how it works

[15] Christopher's Law requires any Ontario resident who is convicted of a designated sex offence (or found not criminally responsible for such an offence on account of mental disorder) to register with the police. Section 2 provides that:

2. The ministry shall establish and maintain a registry containing the names, dates of birth and addresses of offenders, the sex offences for which, on or after the day section 3 comes into force, they are serving or have served a sentence or of which they have been convicted or found not criminally responsible on account of mental disorder and such additional information as may be prescribed.

[16] Section 3 stipulates how, where, and when offenders are required to report. According to that section, an offender is [page417] required to report to the police in person and to do so within 15 days of:

(a) being released from custody after serving the custodial portion of a sentence in respect of a designated sex offence;

(b) being convicted of a designated sex offence, if the offender is not given a custodial sentence;

(c) receiving an absolute or conditional discharge in respect of a designated sex offence if found not criminally responsible on account of a mental disorder;

(d) changing his or her address; and

(e) becoming, or ceasing to be, a resident of Ontario.

[17] In addition, offenders are required to report annually.

[18] Under s. 7, the reporting obligation continues for a period of ten years (where the maximum sentence for the sex offence in question is ten years or less) or for life (where the maximum sentence is more than ten years or where the offender has been convicted of more than one sex offence).

[19] A "sex offence" for the purposes of the Act is quite broadly defined. [See Note 3 below] It includes convictions for sexual assault, sexual assault with a weapon, aggravated sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, incest, bestiality, parent or guardian procuring sexual activity, exposure, luring a child by means of a computer system, living off the avails of prostitution of a person under the age of 18, purchasing sexual services of a person under the age of 18, and making, distributing, possessing, or accessing child pornography. In addition, it includes offences that were the predecessors of some of the foregoing, such as rape, indecent assault, gross indecency and sexual intercourse with a female under the age of 14 or between the ages of 14 and 16.

[20] Subsection 3(2) of the legislation requires the offender, on presentation, to provide the police with satisfactory proof of his or her identity, name, date of birth and address, and such other information as may be prescribed. Pursuant to s. 2(2) of O. Reg. 69/01, that other information includes particulars of aliases used; proof of current address and mailing address (if different); home, personal and business telephone and fax numbers; employment and [page418] volunteer work addresses; the name and addresses of any educational institutions where the offender is or has enrolled, attended, or worked; and any changes in the foregoing information. It also requires the offender to provide an up-to-date photograph.

[21] Section 2 of the regulations sets out in detail what information may be included in the Sex Offender Registry. This includes not only the information provided by the offender, but additional information obtained from the provincial and federal governments. Together this information forms the "cumulative and permanent record" of the Registry. The list of additional information provided for in s. 2 is lengthy. It includes, but is not limited to, particulars about an offender's convictions and sentences, the circumstances of the sex offences, fingerprint registration, and details about an offender's registration under SOIRA.

[22] Section 11 of the Act makes it an offence to fail to comply with the Act without reasonable excuse or to provide false information. An offender is liable for a first offence to a fine of not more than $25,000 or to imprisonment for not more than one year (or to both). For a subsequent offence, an offender is liable to a fine of not more than $25,000 or to imprisonment for not more than two years less a day (or to both).

The testimony

[23] The only witness called by the defence was Barbara Hill. She testified that, in the view of the John Howard Society, Christopher's Law did not meet the standards of effectiveness and justice, did not reflect good social policy and represented a response to a distorted picture of sex offenders and offences. The information contained in the Sex Offender Registry is largely a duplication of information already available elsewhere and the focus of public policy should be on the treatment of sex offenders rather than on the creation of such a registry, in the Society's view. It was Ms. Hill's opinion, based on her review of the literature and statistics, that the number of sex offences has declined since 1993. Further, she testified that contrary to the view that sex offenders are predatory strangers, it is only a minority of sex offences (approximately 23 per cent) that involve strangers. She disputed the "common belief" that all sex offenders re- offend sexually. Her testimony, as the trial jud ge noted, was in some respects "at odds" with that of Dr. Collins.

[24] The Crown called Detective Staff Sergeant Charles Young of the Ontario Provincial Police to explain how the Registry worked in practical terms. He was the manager of the Ontario Sex Offender Registry and responsible for its day-to-day operation. He [page419] explained that where an offender meets the compliance criteria, he or she is required to report to the local police at specified intervals, as outlined above. Offenders who are subject to the Act are personally served with a Notification of Duty to Register -- as Mr. Dyck was in this case -- and must then provide the police with an up-to-date photograph and certain personal information (also as outlined above). According to Detective Staff Sergeant Young, the registration process takes approximately 15 to 20 minutes. The data gathered by the police is then entered into the computerized, province-wide Sex Offender Registry and can be accessed by police throughout Ontario.

[25] An offender who fails to comply with the obligations imposed by Christopher's Law may be subject to a penalty. Detective Staff Sergeant Young testified that the emphasis is on compliance, however, not punishment. "It is not about enforcement", he said, "it is about compliance". He noted that there is a high rate of compliance in Ontario (in excess of 93 per cent), and attributed this to the fact that, unlike in various American jurisdictions, the contents of the Registry are not public.

[26] Detective Staff Sergeant Young testified that the purpose of establishing the Registry was to enhance community safety and crime prevention. The Registry was created to provide the police with the necessary information and tools to investigate crimes of a sexual nature and to monitor sex offenders -- all as part of what he described as a multi- disciplined approach to "managing high-risk offenders". Both Detective Staff Sergeant Young and Dr. Collins emphasized the importance of a quick police response in child abduction cases, and the advantages of the Registry -- which provides the police with particulars of known sex offenders within a certain radius -- in that regard.

[27] The trial judge found Dr. Collins to be well qualified to give opinion evidence as to the role of registering sex offenders in the promotion of safety and prevention of crime. He cited several key portions of Dr. Collins' evidence.

[28] In substance, Dr. Collins testified that the Registry is a valuable investigative tool because knowing the area in which sex offenders live enhances the odds that repeat offenders will be located and victims will be found alive. He testified that sex offenders are prolific in their offending and are at risk of re-offending when in the community. He also testified that actual recidivism rates among sex offenders are higher than reported, and that sex offenders often live in close proximity to the children they will eventually assault. The Registry enables police to react quickly to a child abduction and conduct a radius search with their efforts focused on known sex offenders residing in [page420] that search area. And timing is essential where children are abducted by non-parental offenders, since 44 per cent of such victims are killed within an hour of abduction, 74 per cent within three hours, and 91 per cent within 24 hours.

[29] Finally, the Crown called Detective Sergeant Bradley J. Moore. He gave evidence about the spatial behaviour of offenders and the use that can be made of the Registry in relation to geographic profiling. He testified that a large percentage of offenders are "hunters" who commit crimes in areas close to their "anchor point" (which can include their home, work, or social locations). In his view, geographic profiling is valuable because it allows police officers to focus their investigative efforts on geographic areas that are likely to result in the identification of the offender.

The trial judge's findings

[30] After reviewing the testimony of Detective Sergeant Moore regarding the use of geographic profiling as an investigative support technique to assist in predatory crime investigation and the use to which the data contained in the Sex Offender Registry can be put in that regard, the trial judge concluded at para. 28 [2004 ONCJ 103, [2004] O.J. No. 2842 (C.J.)] of his reasons:

After hearing the evidence of Detective Sergeant Moore I am satisfied that the Ontario Sex Offender Registry can provide police with information concerning the location of registered sex offenders located within a particular jurisdiction or radius from a specific location and that this information can assist in the preparation of a geographical profile. I am also satisfied that geographic profiling is a valuable investigative technique and the Ontario Sex Offender Registry provides information concerning addresses of previously convicted sex offenders and the Registry can be used as a starting point for investigators.

[31] The trial judge then went on at para. 29 to make the following findings of fact:

1. That sexual offences are particularly prevalent in our society and victimize mostly women and children and can have substantial physical, psychological and emotional impact on the victims and can on occasion lead to murder.

2. That sex offenders as a group are prolific in their offending and sex offenders are likely to reoffend and that a prior conviction for such offences is a reliable indication of risk and a proper method of assessing that risk.

3. That sexual offenders, particularly serial stranger sex offenders, commit crimes within close proximity to their own home.

4. That in the case of child sexual offences where an abduction occurs time is of the essence in the conducting of police investigations. [page421]

5. That the creation of a sex offender registry which requires those convicted of a designated sexual offence to register with the police and provide particulars of address and other information as well as provide a photograph and to keep that information current is a valuable investigative tool to aid the police when a sexual offence occurs, including the ability of the police to conduct a radius search and investigate by means of geographic profiling.

6. That the requirements for registration can itself be a deterrent to offenders repeating sexual offences which is particularly of importance given the fact that at some point after release many of such offenders may not be under the supervision of either parole or probation officers.

7. That there is no other mechanism in place which provides current and updated address information for the offenders of the prescribed sexual offences in the legislation for the period of time also set out in the legislation.

8. That the registration requirements provide a useful tool to the police for investigative purposes allowing such investigations to be conducted quickly, efficiently and allow reliance on current information and as a result the effect of the legislation is, among other things, to promote public and community safety. Such objective, i.e. the promotion of public and community safety, is very clear from the evidence of the witnesses called by the Crown, but also to some extent, from the evidence of Barbara Hill. (Emphasis added)

[32] The Crown submits that these findings are dispositive of the issues on this appeal.

SOIRA

[33] At the time of the trial the federal government had not yet enacted legislation putting a national sex offender registry in place. It did so on April 1, 2004, amending the Criminal Code, R.S.C. 1985, c. C-46 by passing SOIRA. This led to counsel for Mr. Dyck advancing a paramountcy argument on the summary conviction appeal.

[34] SOIRA is quite similar to Christopher's Law in the reporting obligations it imposes on designated sex offenders. Indeed, as can be seen from O. Reg. 69/01, quoted above, the Ontario Registry incorporates information from the federal one. The federal registry system is distinct in at least one important respect, however. It does not provide for automatic inclusion on the federal registry upon conviction for a sex offence. Rather, the court may make an order requiring a person to comply with SOIRA upon application of the prosecution and, significantly, the offender is entitled to resist his or her inclusion on the registry on grounds of gross disproportionality. Section 490.012(4) of the Criminal Code, as amended by SOIRA, states: [page422]

490.012(4) The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on 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.

[35] A person who is subject to an order to comply with SOIRA may apply for termination of the order after five years (where the order was made for a ten-year period), after ten years (where the order was made for a 20-year period), or after 20 years (where the order was made for life). The same test of gross disproportionality applies. Rights of appeal exist for both the Crown and the offender. Christopher's Law contains no such provisions.

Issues

[36] The appellant attacks Christopher's Law on both federalism and Charter grounds. His federalism attack is twofold: first, he argues that Christopher's Law is in pith and substance criminal law and therefore is within the exclusive jurisdiction of Parliament; secondly, he contends that SOIRA takes precedence over Christopher's Law on paramountcy grounds. In terms of the Charter, the appellant submits that the impugned legislation violates his rights under ss. 11(g), 11(h), 11(i), 12 and 7.

Analysis

Federalism

Pith and substance

[37] The appellant submits that Christropher's Law is a colourable attempt by the province to enact legislation that is in pith and substance criminal law. He argues that maintaining the Registry will not be effective in protecting the public and that it is "in reality" simply another form of punishment for sex offenders. I do not accept this argument.

[38] Christopher's Law is not in pith and substance criminal law. It is legislation designed (i) to promote public safety and protection and (ii) to assist police in their investigatory efforts with a view to enhancing the prevention of crime. Its primary purpose and effect is not to impose prohibitions and penalties for a criminal law purpose, but rather to create a regulatory registry scheme. Christopher's Law is a valid exercise of the legislature's power and its enactment falls within the legislative competence of the provinces under ss. 92(13) (property and civil rights) and 92(14) (administration of justice) of the Constitution Act, 1867. [page423]

[39] There are two steps to follow when determining whether a particular piece of legislation falls within the legislative competence of Parliament or of the provincial legislatures. First, the court must determine the essential character or "pith and substance" of the statute. This involves an examination of its purpose and effect. Secondly, having determined its pith and substance, the court must then determine whether the impugned legislation falls within one of the enumerated heads of federal legislative powers under s. 91 or one of the enumerated heads of provincial powers under s. 92. See Reference Re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, at paras. 15-16, 25-27 (the "Firearms Act Reference"). As we shall see, there are areas of overlapping jurisdiction.

[40] The trial judge followed this two-step procedure and determined -- correctly, in my view -- that Christopher's Law falls within the legislative purview of the province. The summary conviction appeal judge came to the same conclusion, although by a different chain of reasoning.

[41] The first step of this analysis involves determining the "pith and substance" of the law by examining its purpose and effect. In ascertaining the purpose and effect of legislation, courts will consider the provisions of the statute itself -- including any statements of purpose in the preamble or elsewhere -- and may have regard as well to the reports of legislative debates surrounding the enactment of the legislation. Here, that exercise supports the conclusion that the essential character of Christopher's Law is to protect the public through the suppression and prevention of crime, not to stiffen the criminal law in a "colourable" fashion.

[42] Evidence of this can be found in the express purpose of the Act. The preamble to Christopher's Law states:

The people of Ontario believe that there is a need to ensure the safety and security of all persons in Ontario and that police forces require access to information about the whereabouts of sex offenders in order to assist them in the important work of maintaining community safety. The people of Ontario further believe that a registry of sex offenders will provide the information and investigative tools that their police forces require in order to prevent and solve crimes of a sexual nature. (Emphasis added)

[43] The trial judge found that the legislative purpose of Christopher's Law is clearly expressed in its preamble. He concluded at para. 44 that the pith and substance of the law "is directed to community safety and protection of the public". His determination of both the purpose and effect of the legislation is reflected in the following passages at paras. 41-44 of his reasons: [page424]

Christopher's Law requires persons convicted of enumerated sexual offences to register and maintain as current particulars of their address and other basic information. This effectively permits what the Crown has referred to as "tracking" of the residence of such offenders. This requirement permits a timely disclosure to the police of the addresses of registered sex offenders which, in the investigation of sexual offences based on the evidence presented, can serve as a valuable investigative tool, particularly so when a child is the victim.

Further, the evidence supports the proposition that the registration in itself can act as a deterrent to the sexual offender by the very act of registration. The legislation appears to be tailored to very laudable goals regarding the protection of the community, the promotion of public safety and as a valuable investigative tool readily available to the police to assist in the investigation of sexual offences.

Given the evidence concerning the nature and commission of such offences, and the proclivity of sexual offenders to reoffend, such legislation properly drafted is, I find, valuable in protecting the community from such offences by not only assisting in their investigation but also by suppressing conditions which could lead to such offences by police presence and offender awareness.

The pith and substance of Christopher's Law, I conclude, is directed to community safety and protection of the public.

[44] I agree.

[45] Further evidence of the purpose of the Act -- although perhaps not strictly necessary in the circumstances of this case, given the clear statement of purpose in the preamble -- is found in the Reports of the Legislative Assembly of Ontario during the debates leading up to its enactment. These confirm that the emphasis of the legislation is on community safety and protection through the establishment of a registry system for sex offenders.

[46] Not surprisingly, in view of the impetus provided for the legislation by the murder and sexual assault of Christopher Stephenson, many of these statements were couched in terms of the need "to protect our children". However, the preamble to the Act itself, as well as statements made in the legislature, make it clear that the intended reach of Christopher's Law went beyond protecting the safety of children alone (although it clearly encompassed that goal) to the protection of the citizens of Ontario as a whole. For example, Mr. Frank Mazzilli, who spoke about the legislation on behalf of the Solicitor-General in the course of second reading on December 22, 1999, stated:

In considering the bill, we need to keep one primary objective in focus: to protect our children, wherever they may be, from sexual predators. Our children, no matter what age, have the right to feel safe and to be safe, and parents to know that legislation is in place to protect their children and their families. [page425] But he also said:

Quick passage conveys a clear message that our government and this province have zero tolerance for anyone who poses a threat in our communities. The proposed registry is a crucial step in enhancing public safety and honouring our commitment to make Ontario a safer place for people to work and raise a family. . . . . .

For those who want to prey upon the most vulnerable victims in our society, we have another clear message. They will be closely monitored and failure to register will result in significant consequences for sex offenders. (Emphasis added)

[47] Similar sentiments were echoed by other members of the assembly, and repeated again by Mr. Mazzilli on February 28, 2000.

[48] The appellant argues, however, that Christopher's Law is ultra vires the province because it will not be effective in protecting the public. I agree with the trial judge that the court is not concerned with the wisdom or efficaciousness of the enactment but only with whether or not it falls within the constitutional sphere of either the federal government or the provinces. As Dubin C.J.O. noted in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1991), 1991 7068 (ON CA), 2 O.R. (3d) 65, [1991] O.J. No. 378 (C.A.), at p. 69 O.R.:

Before giving my reasons for arriving at that conclusion, I wish to make clear something that is not always understood. The court is concerned solely with the constitutionality of the Act in issue. In resolving such an issue, it is not for the court to pass judgment whether the Act is a wise Act or an unwise Act, or, indeed, whether it conforms to the private preference of any member of the court. The wisdom of the legislation and its underlying policy considerations are for the legislative body which has the jurisdiction assigned to it by the distribution of powers in the Constitution to determine. The constitutionality of such legislation, and only the constitutionality, is for the court to determine.

[49] The Supreme Court of Canada reiterated this theme in the Firearms Act Reference at para. 18, noting that "[w]ithin its constitutional sphere, Parliament is the judge of whether a measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court's division of powers analysis."

[50] I turn next to the second step of the "legislative competence" analysis. I have held that the essential character of Christopher's Law is directed at the protection of the community, the promotion of public safety, and the creation of a valuable investigative tool to assist police in the investigation of sex offences. The key question now is the proper classification of that essential character "by reference to the heads of power [page426] under the Constitution Act, 1867 in order to determine whether the law comes within the jurisdiction of the enacting government": see the Firearms Act Reference, at para. 15.

[51] I will begin by considering whether Christopher's Law has been validly enacted under a provincial head of power. In my view, it has been. Specifically, it could have been enacted under either ss. 92(13) (property and civil rights) or 92(14) (administration of justice).

[52] The provincial power under s. 92(14) (administration of justice) has been interpreted broadly and, in my view, is a clear source of authority allowing the province to enact Christopher's Law. In Ontario (Attorney General) v. Chatterjee (2007), 2007 ONCA 406, 86 O.R. (3d) 168, [2007] O.J. No. 2102, 221 C.C.C. (3d) 350 (C.A.), at para. 30, leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 414, this court recently stated, while upholding provincial legislation providing for civil forfeiture of proceeds of crime, "It is well established that the suppression of conditions likely to favour the commission of crimes falls within provincial competence." Further, this head of power grants the provinces the authority to establish policing services and the Registry assists the police in their duties by creating a tool designed to suppress conditions likely to favour the commission of crime.

[53] Additionally, I see little difference between the establishment of a sex offender registry by a province and the establishment of a provincial child abuse registry by a province. The latter has been upheld as valid provincial legislation in Manitoba: see B. (K.) v. Winnipeg Child and Family Services (Chief Executive Officer), 1992 8577 (MB QB), [1992] M.J. No. 115, 80 Man. R. (2d) 319 (Q.B.).

[54] In Ontario, the Divisional Court considered a challenge by individuals objecting to their names being placed on the province's child abuse registry, without adverse comment on the validity of the legislation in Ridley v. Children's Aid Society for County of Hastings, [1981] O.J. No. 174 (Div. Ct.). The court noted at para. 20 that "[i]n establishing a central child abuse registry . . . the legislature sought, on the one hand, to protect the civil rights of individuals named and, on the other, to protect and safeguard children". This suggests a constitutional basis for the province's child abuse registry in both ss. 92(13) (property and civil rights) and 92(14) (the administration of justice) of the Constitution Act, 1867.

[55] In addition, there are numerous other areas in which coercive provincial measures against individuals who pose risks to public safety have been sustained. These include: [page427]

(a) the compulsory treatment of heroin addicts: see Schneider v. British Columbia, 1982 26 (SCC), [1982] 2 S.C.R. 112, [1982] S.C.J. No. 64, 68 C.C.C. (2d) 449;

(b) the regulation of hunting and "the protection of life and limb": R v. Chiasson, 1982 2959 (NB CA), [1982] N.B.J. No. 176, 66 C.C.C. (2d) 195 (C.A.);

(c) the use of an assessment order under mental health legislation requiring a 30-day inpatient assessment without the patient's consent for the purposes of sentencing in a criminal proceeding: R. v. Lenart (1998), 1998 1774 (ON CA), 39 O.R. (3d) 55, [1998] O.J. No. 1105 (C.A.);

(d) the detention of individuals who pose a danger to themselves or society by reason of intoxication: Reference Re Intoxicated Persons Detention Act (Man.), 1980 2646 (MB CA), [1980] M.J. No. 148, 55 C.C.C. (2d) 130 (C.A.);

(e) the prohibition of conduct likely to produce breaches of the peace: R. v. Beattie, [1969] O.J. No. 264, 7 C.R.N.S. 116 (C.A.); and

(f) the automatic suspension of a driver's license upon conviction for driving while intoxicated: Prince Edward Island (Secretary) v. Egan, 1941 1 (SCC), [1941] S.C.R. 396, [1941] S.C.J. No. 20, 76 C.C.C. 227.

[56] Mr. Gehl argues on behalf of the appellant, however, that Christopher's Law has not been properly enacted by the provincial legislature but is a colourable attempt to legislate criminal law, a matter falling within the exclusive jurisdiction of the federal government under s. 91(27) of Constitution Act, 1867. He submits that the penalty provisions of the Act and its general stigmatizing or punitive effects are evidence of this. I disagree.

[57] The colourability doctrine is invoked by the courts when a statute bears the "formal trappings" of a matter falling within one jurisdiction, but in reality is addressed to a matter in another jurisdiction: see Peter W. Hogg, Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007) vol. 1, at 15-19 and R. v. Morgentaler (No. 3), 1993 74 (SCC), [1993] 3 S.C.R. 463, [1993] S.C.J. No. 95. In the Firearms Act Reference at para. 18, the Supreme Court described a colourable law as one that "may say that it intends to do one thing and actually do[es] something else".

[58] The Supreme Court of Canada also commented on the general characteristics of "criminal law" in the Firearms Act Reference. [page428] As a general rule, it said at para. 27 "legislation may be classified as criminal law if it possesses three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty". See also Reference Re Dairy Industry Act (Canada) S. 5(a), 1948 2 (SCC), [1949] S.C.R. 1, [1948] S.C.J. No. 42, at p. 50 S.C.R.

[59] Christopher's Law is not a colourable attempt to enact criminal law. It may impose a penalty for non-compliance with its registration requirements, but it does not have a criminal law purpose nor does it prohibit anyone from doing anything. As I indicate later in these reasons -- in the portion dealing with the arguments under ss. 11(h) and 11(i) of the Charter -- neither the requirement to register and report under the Act nor any stigma attaching to the registration constitute punishment. As the trial judge found, the Act's primary purpose is to protect the community and enhance public safety. Christopher's Law is not aimed at stiffening the criminal law or creating a new criminal offence or imposing punitive consequences: see Schneider, at p. 467 C.C.C. Its dominant characteristic is not a prohibition coupled with a penalty for a criminal law purpose. Rather, Christopher's Law establishes what is predominantly a regulatory sch eme.

[60] In any event, to the extent that Christopher's Law may overlap with a federal head of power, this is constitutionally permissible. The jurisprudence supports the existence of a concurrent authority between the federal government and the provinces with respect to the suppression of conditions giving rise to crime and the prevention of crime: see Schneider; Di Iorio v. Montreal (City) Common Jail, 1976 1 (SCC), [1978] 1 S.C.R. 152, [1976] S.C.J. No. 113, 33 C.C.C. (2d) 289; and O'Hara v. British Columbia, 1987 45 (SCC), [1987] 2 S.C.R. 591, [1987] S.C.J. No. 69, 38 C.C.C. (3d) 233. This is sometimes known as the "double aspect" doctrine. Dickson J. put it this way in Di Iorio at p. 207 S.C.R., p. 327 C.C.C.:

Implicit in the grant to the provinces of exclusive authority in respect of Administration of Justice and in the grant to the federal government of exclusive legislative authority in respect of criminal law and procedure is an acceptance of a certain degree of overlapping. One should not expect to be able to draw a fine line between the two heads of power nor should one attempt to do so. Time and again the Courts have given effect to what was said by Duff C.J. in Re Combines Investigation Act ... 1929 90 (SCC), [1929] S.C.R. 409 at p. 413:

Matters, however, which in one aspect and for one purpose fall within the jurisdiction of a Province over the subjects designated by one or more of the heads of s. 92 may in another aspect and for another purpose, be proper subjects of legislation under s. 91, and in particular under head 27. [page429]

Thus, a matter which for some purpose may fall within the scope of the federal power over criminal law and criminal procedure may also fall within the legitimate concern of the Provinces as pertaining to the Administration of Justice. (Emphasis added)

[61] Later, in Schneider at p. 134 S.C.R., p. 468 C.C.C. Dickson J., albeit in dissent, returned to the same theme:

The interface between criminal law and provincial legislation which might be seen as impugning upon the federal jurisdiction in the field of criminal law has not been closely drawn. As Professor Hogg notes in Chapter 16 of his work, Constitutional Law of Canada, the dominant tendency of the case law has been to uphold provincial penal legislation; recent cases have been generous to provincial power, and "The result is that over much of the field which may loosely be thought of as criminal law legislative power is concurrent" (at p. 292). [See Note 4 below] (Emphasis added)

[62] So it is here, in my view, with Christopher's Law.

[63] I am satisfied, therefore, that Christopher's Law is valid provincial legislation enacted by Ontario under heads 13 and 14 of s. 92 of the Constitution Act, 1867.

Paramountcy

[64] SOIRA had not been enacted at the time of trial and, as a result, the trial judge did not have to deal with the argument -- raised before the summary conviction appeal judge and again in this court -- that Christopher's Law is inoperative because of the effect of the federal sex offender registry. The summary conviction appeal judge ruled that the doctrine of paramountcy did not render Christopher's Law inoperative. I agree.

[65] As noted earlier, there are numerous areas in which the federal and provincial governments may enact overlapping legislation. Such an eventuality is to be expected in a federal system of government. In the Firearms Act Reference at para. 26, the Supreme Court observed:

The determination of which head of power a particular law falls under is not an exact science. In a federal system, each level of government can expect to have its jurisdiction affected by the other to a certain degree. As Dickson C.J. stated in General Motors of Canada Ltd. v. City National Leasing, 1989 133 (SCC), [1989] 1 S.C.R. 641, at p. 669, "overlap of legislation is to be expected and accommodated in a federal state". Laws mainly in relation to the jurisdiction of one level of government may overflow into, or have "incidental effects" upon, the jurisdiction of the other level of government. It is a matter of balance and of federalism: no level of government is isolated from the other, nor can it usurp the functions of the other. [page430]

[66] In Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, [2007] S.C.J. No. 22, at para. 69, Justices Binnie and LeBel recently sketched out the parameters of the doctrine of federal paramountcy -- one of the constitutional doctrines used to balance the federal dynamic in this country -- as follows:

According to the doctrine of federal paramountcy, when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility.

[67] They went on at para. 71 to reinforce as "the fundamental test for determining whether there is sufficient incompatibility to trigger the application of the doctrine" the impossibility of dual compliance standard enunciated by Dickson J. in Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161, [1982] S.C.J. No. 66, at p. 191 S.C.R.:

In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other.

[68] Justices Binnie and LeBel continued at para. 72 to state that duplication does not necessarily mean incompatibility:

Thus, according to this test, the mere existence of a duplication of norms at the federal and provincial levels does not in itself constitute a degree of incompatibility capable of triggering the application of the doctrine. Moreover, a provincial law may in principle add requirements that supplement the requirements of federal legislation (114957 Canada Ltée (Spraytech, Société d'arrosage)). In both cases, the laws can apply concurrently, and citizens can comply with either of them without violating the other.

[69] That is the case with Christopher's Law and SOIRA. There is nothing preventing offenders from complying with both pieces of legislation. Indeed, each regulatory scheme recognizes and contemplates compliance with the other. SOIRA anticipates the continued operation of the provincial Registry, at least to the extent that it authorizes the Attorney General of Ontario to serve notices on provincial registrants triggering their obligation to register under the federal legislation. The Ontario regulations contemplate compliance with SOIRA. Moreover, even though the federal legislation provides for different lengths of reporting obligations than does Christopher's Law, s. 490.022(2) of the Criminal Code -- part of the provisions giving effect to SOIRA -- provides federal registrants with the benefit of any shorter period provided under the provincial scheme. This acknowledges that the federal government contemplated Christopher's Law remaining in operation notwithstanding the enactment of the federal registry. [page431]

[70] Further, numerous authorities have held that the courts should facilitate attempts to harmonize the legislative agendas of different levels of government in circumstances of attempted federal-provincial co-operation: see Siemans v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, [2002] S.C.J. No. 69, at paras. 34-35; Rothman, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188, [2005] S.C.J. No. 1, at para. 26. As Justices Binnie and LeBel observed in Canadian Western Bank v. Alberta at para. 24:

The [constitutional doctrines which the courts have developed as guiding principles of our constitutional order] must also be designed to reconcile the legitimate diversity of regional experimentation with the need for national unity. Finally, they must include a recognition that the task of maintaining the balance of powers in practice falls primarily to governments, and constitutional doctrine must facilitate, not undermine what this Court has called "co-operative federalism". (Emphasis added)

[71] Finally, the fact that SOIRA contains a mechanism whereby an offender may obtain an exemption from the obligation to register or a termination of that obligation after a period of time, whereas Christopher's Law calls for automatic offence- based registration, does not trigger the doctrine of paramountcy, in my opinion. The stricter requirements of Christopher's Law neither conflict with nor frustrate the objectives of the federal registry legislation.

[72] Accordingly, I would not give effect either to the appellant's division of powers argument or to his paramountcy submissions. I turn now to the Charter challenges he raises.

The Charter challenges

Sections 11 and 12

[73] The appellant argues that Christopher's Law violates his rights under ss. 11(g), 11(h), 11(i) and 12 of the Charter. Those sections provide as follows:

11. Any person charged with an offence has the right . . . . . (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and [page432] (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[74] The appellant submits that the requirement to register and to report under Christopher's Law "brands" a person a sex offender and constitutes punishment. He argues that the registration requirement generates stigma, and that the stigma arises not from the conviction but from the subsequent labelling. He analogizes the situation to the old puritanical concept of branding an adulterer with a giant "A" on his or her forehead and the overwhelming social stigma that such a mark carried with it.

[75] This punishment and stigmatization violates his Charter rights, the appellant submits. The mandatory registration and reporting requirements are not only punishment, on this argument; they constitute cruel and unusual punishment in violation of s. 12 of the Charter. In addition -- since Christopher's Law was not in force when the appellant committed the underlying sexual offence -- its operation is retrospective and a violation his ss. 11(g), 11(h) and 11(i) rights.

[76] There are several responses to these submissions.

[77] First, s. 11(g) has no application here. The fact that Christopher's Law was not in effect at the time Mr. Dyck was convicted of the underlying offence is of no moment. The underlying crime -- sexual interference -- was an offence under Canadian law when the appellant committed it. Further, when the appellant was charged with a breach of Christopher's Law, that infraction was an offence under Canadian law at the time. Thus, Mr. Dyck has not been found guilty of an act or omission that was not an offence in Canada at the time the act or omission was committed.

[78] Secondly, ss. 11(h) and 11(i) of the Charter also have no application to these facts because neither the requirement to register and report nor the stigma, if any, arising from the registration are punishment within the meaning of ss. 11(h) and 11(i) of the Charter. To characterize registration under the Act as punitive, the appellant would have to show that its purpose, being criminal in nature, is "to mete out criminal punishment" or that it has a "true penal consequence": see R. v. Shubley, 1990 149 (SCC), [1990] 1 S.C.R. 3, [1990] S.C.J. No. 1, 52 C.C.C. (3d) 481, at pp. 20-21 S.C.R., p. 494 C.C.C.; and R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, at p. 559 S.C.R. A true penal consequence, according to the Supreme Court of Canada in Wigglesworth, at p. 561 S.C.R. is "imprisonment or a fine which by its magnitude [page433] would appear to be imposed for the purpose of redressing the wrong done to society a t large".

[79] Additionally, as Charron J. noted in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 207 C.C.C. (3d) 225, at para. 63, "punishment" as contemplated in ss. 11(h) and 11(i) of the Charter does not necessarily encompass "every potential consequence of being convicted of a criminal offence, whether that consequence occurs at the time of sentencing or not". She went on to say:

As a general rule, it seems to me that the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is imposed in furtherance of the purpose and principles of sentencing. (Emphasis added)

[80] Here, the trial judge found that Christopher's Law is not in pith and substance punitive legislation. The summary conviction appeal court judge agreed, as do I. The requirement to report and register with police is not a sanction imposed in furtherance of the purpose and principles of sentencing for the index offence. Nor is it a "true penal consequence": see Wigglesworth, at p. 559 S.C.R. Rather, it is a protective measure designed to safeguard the public from recidivist sex offenders and to equip the police with an important investigative tool.

[81] Moreover, to the extent 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 NSCA 30, [2006] N.S.J. No. 87, 205 C.C.C. (3d) 289 (C.A.), at para. 55, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 161. 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. In any event, even if there is some stigma attached to registration, it does not render the pith and substance of the law punitive. As Laskin J.A. observed in R. v. Budreo (2000), 2000 5628 (ON CA), 46 O.R. (3d) 481, [2000] O.J. No. 72, 142 C.C.C. (3d) 225 (C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 542, at para. 28:

Some aspects of s. 810.1 are punitive or coercive: the availability of an arrest warrant; detention pending a hearing unless the defendant is released on bail; and jail on the defendant's refusal to enter into a recognizance. These coercive aspects, however, are necessary to preserve the integrity of the s. 810.1 proceedings. By themselves, they do not turn s. 810.1 into a punitive provision. Nor does the stigma that undoubtedly accompanies a s. 810.1 proceeding make the proceeding punitive. That stigma will attach whether the section is preventive or punitive. (Emphasis added) [page434]

[82] The Nova Scotia Court of Appeal applied the same reasoning in Cross, where Bateman J.A. concluded that the provisions of SOIRA calling for registration and reporting of designated sex offenders did not constitute punishment. The requisites of SOIRA and of Christopher's Law are similar in most respects, except for the potential for a sex offender to obtain an exemption. I see no difference in principle between the two regimes in terms of whether the legislation is punitive or not. Christopher's Law is, as I say, preventive not punitive in pith and substance, and the registration requirement does not constitute punishment.

[83] This conclusion is consistent with the law as it has developed in similar areas. For example, a DNA databank order is not punishment: see Rodgers, at para. 64 and R. v. Briggs (2000), 2001 24113 (ON CA), 55 O.R. (3d) 417, [2001] O.J. No. 3339, 157 C.C.C. (3d) 38 (C.A.), at para. 71, leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 31. Neither is an order requiring that a person enter into a recognizance pursuant to s. 810.01 of the Criminal Code: see Budreo, at paras. 29-31.

[84] Therefore, ss. 11(h) and 11(i) of the Charter are not engaged. The appellant is not being "punished" for the same offence twice and there is no disparity in "punishments" in play.

[85] This conclusion, by itself, does not preclude the operation of s. 12, however. Although the application of the Registry to persons in the position of the appellant is not punishment, it may well constitute "treatment" within the meaning of that provision. Justice Charron was of the view in Rodgers, at para. 63, for example, that DNA sampling ordered as a result of conviction would constitute "treatment". I am prepared to assume for these purposes, without deciding, that the application of Christopher's Law may amount to "treatment". However, even if it does, s. 12 is of no assistance to the appellant here because the requirements of registration and reporting do not constitute "cruel and unusual" treatment.

[86] The registration and reporting requirements of Christopher's Law are relatively minimal in terms of their intrusion and effect on the privacy and liberty of the appellant. To qualify as "cruel and unusual" treatment or punishment, a disposition must be "grossly disproportionate" to what is appropriate in the circumstances. I shall return to the issue of the effect and impact of the requirements of the Act, and to the notion of "gross disproportionality" in the next portion of these reasons. Suffice it to say that the requirements of Christopher's Law fall far from the high standard called for by such a test. Section 12 of the Charter is therefore not engaged in these circumstances either. [page435]

Section 7

[87] Mr. Dyck argues that Christopher's Law violates his liberty interests contrary to s. 7 of the Charter. Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[88] His s. 7 attack is two-pronged. First, he submits that Christopher's Law runs afoul of the principles of fundamental justice because it is overbroad and therefore constitutionally flawed. Secondly, he contends that the Act violates the principles of fundamental justice on procedural fairness grounds in at least two ways: (i) it is impermissibly retrospective; and (ii) it deprives the appellant and others in his position of the right to a hearing or resort to some mechanism whereby they may seek an exemption from registration, or a review of the requirement for registration, or a termination of the requirement at some point short of its statutory expiration date.

[89] The Crown acknowledges that the provisions of the Act requiring attendance at a police station at designated times, on pain of penalty, restrict the offender's liberty. Counsel submit, however, that the restriction is limited and that s. 7 is not infringed because Christopher's Law is carefully tailored to achieve its objectives in a proportionate and restrained fashion, consistent with the principles of fundamental justice.

[90] In order to succeed in a challenge under s. 7 of the Charter, an applicant must demonstrate (a) that there has been a deprivation of life, liberty or security of the person, and (b) that the deprivation was not in accordance with the principles of fundamental justice. Here, since the Crown concedes that there has been a deprivation of the appellant's liberty interest -- however minor it may be -- the appeal turns on whether that deprivation is in accordance with the principles of fundamental justice. I do not accept the appellant's arguments that it is.

Overbreadth

[91] The proscription against overbreadth, as a principle of fundamental justice, has its roots in the notion that legislation must not be arbitrary or unnecessarily broad in terms of the objectives it seeks to achieve. As Cory J. said in R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, 94 C.C.C. (3d) 481, at p. 764 S.C.R., p. 516 C.C.C.:

If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have [page436] been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate. (Emphasis added)

[92] Here, the appellant argues that Christopher's Law is broader than necessary to accomplish its objectives because it sweeps into the Registry all offenders convicted of designated sex offences without regard to whether they are likely to re- offend or not and without regard to whatever other legitimate reasons may exist in their individual case for an exemption.

[93] I disagree. In my view, Christopher's Law does not infringe the principles of fundamental justice for reasons of overbreadth. In enacting Christopher's Law, the legislature acted rationally pursuant to the legitimate state interest of community protection, and the adverse effects of the Act are not "grossly disproportionate" to the state interest.

[94] In R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, [2003] S.C.J. No. 80, 179 C.C.C. (3d) 540, the Supreme Court of Canada returned to the overbreadth theme first enunciated by Cory J. in Heywood. Clay -- along with its companion decision, R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 179 C.C.C. (3d) 417 -- considered the constitutionality of the provisions under the Narcotic Control Act, R.S.C. 1985, c. N-1 (since repealed and replaced by the Controlled Drugs and Substances Act, S.C. 1996, c. 19) criminalizing the simple possession of marihuana. In addressing the notion of overbreadth in the context of s. 7 of the Charter, Justices Gonthier and Binnie reiterated that overbreadth was a function of arbitrariness and explained that the standard for assessing a s. 7 infringement on this basis was gross disproportionality. This standard, in turn, they said, captured the measure of deference to which legislatures are ent itled in choosing measures to protect their state interests within the parameters of their legislative authority. At paras. 37-39, Justices Gonthier and Binnie stated:

The analysis of overbreadth in relation to s. 7 was considered in R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761 at p. 793, where Cory J. observed that:

The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

Overbreadth in that respect addresses the potential infringement of fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grossly disproportionate to the state interest the legislation seeks to protect. Overbreadth in this aspect is, as Cory J. pointed out, related to arbitrariness. In Heywood, he went on to note, at p. 793:

In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. [page437] While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices.

The appropriate degree of deference referred to in Heywood is built into the applicable standard of "gross disproportionality", as explained in Malmo-Levine and Caine. (Emphasis in original)]

[95] The Supreme Court of Canada did not deal directly with the concept of overbreadth in Malmo-Levine. In considering whether criminalization of the possession of marihuana infringed the principles of fundamental justice under s. 7, however, the court reaffirmed the ultimate standard of "gross disproportionality". [See Note 5 below] At para. 143, Justices Gonthier and Binnie -- again writing for the majority -- said:

In short, after it is determined that Parliament acted pursuant to a legitimate state interest, the question can still be posed under s. 7 whether the government's legislative measures in response to the use of marihuana were, in the language of Suresh [Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3], "so extreme that they are per se disproportionate to any legitimate government interest" (para. 47 (emphasis added)). As we explain below, the applicable standard is one of gross disproportionality, the proof of which rests on the claimant. (Emphasis in original) [page438]

[96] Since gross disproportionality is the ultimate standard, the threshold for striking down legislation on the ground of overbreadth is clearly high. Thus, a law will not fail a constitutional challenge on this ground simply because it goes further than is strictly necessary or even because it is merely disproportionate to the objective at issue, as opposed to "grossly" disproportionate. According to Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, at para. 47, the question that must be asked is whether the legislative measures are "so extreme that they are per se disproportionate to any legitimate government interest". Malmo-Levine makes it clear, in the passage cited above, that the applicable standard in this regard is one of gross disproportionality, the proof of which rests on the claimant.

[97] The standard of gross disproportionality also reflects the high degree of deference that is due to legislators in relation to s. 7 issues. Cory J. commented on this as well in Heywood, at p. 793 S.C.R., p. 517 C.C.C.:

In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator.

[98] These statements were echoed by Justices Gonthier and Binnie in Clay, at para. 4:

The task of the Court in relation to s. 7 of the Charter is not to micromanage Parliament's creation or continuance of prohibitions backed by penalties. It is to identify the outer boundaries of legislative jurisdiction set out in the Constitution. Within those boundaries, it is for Parliament to act or not to act. . . . The Court's concern is not with the wisdom of the prohibition but solely with its constitutionality.

[99] In enacting Christopher's Law, in my view, the legislature acted rationally pursuant to the legitimate state interest of community protection. The trial judge found that sex offences are particularly prevalent in our society and that they cause physical, psychological and emotional harm to their victims. The valid state objective of Christopher's Law is to address this harm and protect the community from recidivist sex offenders. The means developed by the Act to accomplish this objective is the creation of a sex offender registry that can track the whereabouts of past sex offenders.

[100] I ground my opinion that the means used are rationally connected to the legitimate state interest in the findings of the [page439] trial judge. The trial judge found (i) that sex offenders are prolific offenders who are likely to re-offend; and (ii) that a prior conviction for a sex offence is a reliable indication of risk and a proper method of assessing that risk. He also accepted the evidence of Dr. Collins that, although the numbers are uncertain, "as a group sex offenders are always going to be at risk" and that "if a person has offended sexually they are going to be a greater risk than the rest of the population for engaging in that activity". There is therefore a presumptive risk of harm to potential victims of all ages posed by persons convicted of sex offences, even though there may be numerous offenders amongst that group who ultimately do not re-offend at all. These findings underpin the conclusion that it was open to the legislature to enact Christopher's Law as a logical respo nse to the risk caused by recidivist sex offenders.

[101] Having determined that the legislature acted rationally pursuant to a legitimate state interest, the question is now whether the adverse effects of the impugned legislation on the individuals subject to it are "grossly disproportionate" to state interest the legislature seeks to protect.

[102] The answer to this question in relation to Christopher's Law, in my opinion, is no.

[103] The intervenor submits that the impairment on a registrant's s. 7 rights extend "far beyond" what could be classified as modest or limited. It argues that the extent of the information that must be provided is an intrusion into the subject's privacy rights. It also contends that the reporting and registering requirements under Christopher's Law can be distinguished from other governmental reporting requirements (for example, passport or voting registration) because in those circumstances information is provided on a voluntary basis. I disagree.

[104] While the reporting requirements of Christopher's Law admittedly infringe the liberty interests of the appellant and others in his position to some extent, these restrictions -- both physically and informationally -- are modest when compared to the important state interest sought to be achieved by the legislation. The restrictions are particularly modest given that the appellant has already been tried and convicted of a designated sex offence.

[105] On the one hand, the state interest sought to be achieved by the legislation -- community safety and protection for the public -- is very important. This is made clear by the trial judge's findings of fact and by his conclusions regarding the purpose and effect of Christopher's Law. I have recited these at length earlier in these reasons, at paras. 30-31. I especially underscore the following findings of the trial judge: [page440]

(a) That sexual offences are particularly prevalent in our society and victimize mostly women and children and can have substantial physical, psychological and emotional impact on the victims, even occasionally leading to murder;

(b) That sex offenders as a group are prolific in their offending and are likely to re-offend, and that a prior conviction for such offences is a reliable indication of risk and a proper method of assessing that risk; and

(c) That the creation of a sex offender registry requiring those convicted of a designated sexual offence to register with the police and provide particulars of address and other information, including a photograph, and to keep that information current, creates a valuable investigative tool to aid the police when a sexual offence occurs, including the ability of the police to conduct a radius search and to investigate by means of geographic profiling.

[106] On the other hand, 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. Further, even if, as the trial judge found, the Registry may incorporate a class of persons who may never re-offend, the Act is not overbroad because, as I will explain later in these reasons, individualized risk assessment is not a Charter requirement.

[107] The registering and reporting requirements of the Act are limited in scope and not time consuming. As discussed above, an offender who meets the compliance criteria must:

(a) report personally to the police on registration and on an annual basis thereafter (or each time the offender moves);

(b) supply a current photograph; and

(c) provide up-to-date information regarding his or her identity; name (and any aliases); date of birth; current addresses and mailing address (if different); telephone and fax numbers (home, personal and business); employment and volunteer work addresses; the name and addresses of any educational institutions where the offender is or has enrolled, attended, or worked; and any changes in the foregoing information. [page441]

[108] In short, designated sex offenders have to tell the police who they are, where they are, and how they may be located or contacted. According to the evidence, the entire reporting process takes no more than 15 to 20 minutes.

[109] Moreover, to the extent that the appellant's privacy interests are impacted by these requirements, the impact is very modest in my view. The type of information called for on registration under Christopher's Law is routinely required of individuals in today's society for a host of regulatory and private needs that are the stuff of everyday life -- health care advantages, driving permits and other licensing benefits, passport applications, credit card applications, telephone or cable or satellite television services, and so forth.

[110] I take the point of counsel for the intervenor that information is provided in these latter circumstances on a voluntary basis, whereas here the offender is forced by the state to provide the information to the state for state purposes. However, I make these observations in response. I query how "voluntary" the furnishing of extensive personal information really is in the cases I have mentioned above, and in any event the point is not so much the voluntariness of supplying the information as it is the perceived intrusiveness of requiring it in today's society. Furnishing the information called for is not particularly intrusive, in my view. I agree with counsel for the Crown who state at para. 33 of their factum:

Neither the physical nor the information duties [imposed by the requirement for registration] can fairly be described as onerous. The data reveals very little about the personal details and lifestyle choices of the individual . . . Moreover, the reporting obligations under the Act are similar to those routinely undertaken by citizens as an incident of day-to-day life. For example, all births, stillbirths and adoptions must be registered with the state. [See Note 6 below] All citizens are required by law to register in school from ages 6 through 16 (where educational records are kept). [See Note 7 below] Persons who wish to work must register with the Employment Insurance Commission at which time they receive a social Insurance Number (which is then used to ensure that each job is registered). [See Note 8 below] Citizens must register annual earnings by filing income tax forms. [See Note 9 below] They must report changes of name and purchases of real property. [See Note 10 below] Basic contact information is required when obtaining or renewing a driver's licence, [See Note 11 below] passport, health c ard, licence plate validation tag, or when registering to vote. Citizens must update this information at specified intervals and report changes. In short, in the ordinary course of regulated human [page442] activities in modern society, the State already compels an extensive amount of "registration" and recordkeeping. Personal data is also routinely furnished to private entities such as banks, telephone companies, credit card companies and video rental stores, to cite but a few examples. Against this backdrop, the burden imposed by Christopher's Law cannot be characterized as excessive or intolerable.

[111] Another reason for concluding that the registration requirements of Christopher's Law are not grossly disproportionate to the state interest they are designed to protect is that they do not prohibit anyone from doing anything or from going anywhere. Christopher's Law places no restrictions on the freedom to make independent choices or to engage in a full range of lawful activities. It is thus quite unlike the legislation under consideration in such cases as Heywood (a vagrancy provision preventing those convicted of certain sexual offences from loitering in or near a school ground, playground, public park or bathing area), Malmo-Levine and Clay (criminal prohibitions against the possession of marijuana), or Budreo (a s. 810.1 order subjecting persons "likely to commit" certain enumerated offences to the terms of a recognizance).

[112] In addition, the informational component of the registration requirement of Christopher's Law is certainly no more intrusive than the informational component of other state- imposed registrations. The constitutionality of both DNA registration (see Briggs and R. v. Murrins, 2002 NSCA 12, [2002] N.S.J. No. 21, 162 C.C.C. (3d) 412 (C.A.)) and fingerprint registration (see R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, 45 C.C.C. (3d) 57) has been upheld. If an offender may have a DNA sample taken and be subjected to fingerprinting -- and have both his or her DNA profile and fingerprints kept on record -- I do not see why requiring that offender to reveal limited information about what he or she looks like and where he or she can be contacted renders Christopher's Law constitutionally infirm.

[113] I am not persuaded by the intervenor's submission that -- unlike the information collected through the Sex Offender Registry -- fingerprints and DNA have "no inherent informational content" because they can only provide a profile that can be compared against other samples. This distinction, Ms. Simpson submits, supports the constitutional validity of fingerprint and DNA legislation but undermines that of Christopher's Law.

[114] I do not agree. I should think that the obligation to furnish data that will positively identify a past offender as a future offender (and, in the case of DNA, possibly do a great deal more) is potentially much more intrusive than the information gathered under Christopher's Law, which merely enables to police to identify the likely whereabouts of a possible suspect. [page443]

[115] I recognize that the use of DNA databanks is presently subject to strict operational requirements. For example, only "junk" DNA that cannot reveal the personal characteristics of an individual is to be used in the DNA profile. The investigating police do not have access to the DNA profile or the original DNA sample, although the data continues to be maintained in the DNA bank. Exemptions are allowed, and it is an offence to use a DNA profile or sample in an impermissible way. See Briggs, at paras. 13-14, 16. Nonetheless, the Supreme Court of Canada has sounded a note of caution about the latent invasiveness of DNA, which holds the key to reveal the entirety of a person's genetic makeup and predisposition towards certain behaviours and diseases. As Fish J. noted in R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, [2005] S.C.J. No. 62, 201 C.C.C. (3d) 321, at paras. 27-28:

An individual's DNA contains "the highest level of personal and private information": S.A.B., [(2003), 2003 SCC 60, 178 C.C.C. (3d) 193 (S.C.C.)] at para. 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person's biological makeup... [T]he potential intrusiveness of a DNA analysis is virtually infinite.

[116] This caution echoed earlier concerns expressed by Weiler J.A. in Briggs and Rosenberg J.A. in R. v. Hendry (2001), 2001 21168 (ON CA), 57 O.R. (3d) 475, [2001] O.J. No. 5084, 161 C.C.C. (3d) 275 (C.A.). At para. 20 of Hendry, for example, Justice Rosenberg said:

Thus, use of the DNA data bank information resembles the use of fingerprint information that law enforcement agencies collect and have collected for many years under the Identification of Criminals Act, R.S.C. 1985, c. I.1, with this important difference. So far as I am aware, fingerprint information can only be used for comparison purposes. It does not provide any personal information about the offender. A DNA profile is different. It is capable of providing the most intimate details of the person because it can show the person's genetic make-up. The DNA sample can be analyzed to determine, for example, if the person carries certain genes that make the person more susceptible to disease. It is not beyond the realm of possibility that in the future scientists may claim to be able to isolate genes that make a person more prone to violence. To guard against abuse, it is the policy of the DNA data bank to only use "non-coding" or "junk" DNA, that is, only that part of the DNA that does not predict an y medical, physical or mental characteristics. This policy or convention is not, however, written into the legislation.

[117] In spite of this potential, however, the court ruled in Hendry, at para. 25, that DNA databank orders are to be made "in the vast majority of cases" where they are open to the courts under the Criminal Code. As I have said, the Christopher's Law requirements are certainly no more intrusive than the requirement to provide a DNA sample.

[118] The appellant argues that there is a liberty-infringing "stigma" attached to the requirement to register. For the reasons [page444] outlined earlier in this decision, I do not accept this argument. The fact of registration is confidential, except to police authorities, and therefore not widely known. But in any event, as Charron J. noted in Rodgers, at para. 64, any stigma that arises flows more from the conviction for the predicate designated sex offence than from the requirement to register and report under Christopher's Law.

[119] It is important to note that the use of information contained in the Registry is strictly limited to use by police personnel for crime prevention or law enforcement purposes. Subject to that use, s. 10 of Christopher's Law prohibits disclosure of information obtained from the Registry except as provided for in the Act for the purpose of "crime prevention or law enforcement purposes".

[120] Counsel for the intervenor argues that permitting use "for crime prevention or law enforcement purposes" cuts a broad swath and offers little protection to the offender obliged to register. She submits that by using the information obtained from the Registry, the police can investigate past offenders by visiting their homes, their neighbourhoods and their workplaces; they can question people in those places; and they can even post informational signs in these various places. All of these activities can create problems for innocent people and potentially result in a significant invasion of their privacy: see R. v. Burke, 2005 ONCJ 422, [2005] O.J. No. 4267, 67 W.C.B. (2d) 172 (C.J.); and R. v. Epp, 2005 SKPC 71, [2005] S.J. No. 519, 267 Sask. R. 191 (Prov. Ct.).

[121] However, while I agree that those investigative tactics may cause embarrassment to ultimately innocent suspects and impact on their privacy rights, I do not accept that those consequences necessarily flow from registration under Christopher's Law. The fact of registration, as noted above, is not public. People contacted have no reason to believe that registration may have triggered the investigation. Moreover, exactly the same consequences may flow from the fact of conviction for the predicate sex offence or from the record of any other serious criminal offence once the police become aware of the whereabouts of the suspected offender.

[122] Finally, Christopher's Law is not constitutionally flawed in terms of the scope of persons that are captured by its provisions, in my opinion. The trial judge concluded that Christopher's Law failed on overbreadth grounds because it required all persons convicted of designated sex offences to register regardless of whether that particular offender posed a risk to re-offend. He also concluded that requiring all designated sex offenders to register without any opportunity on the part of the convicted person to seek an exemption or, at some point in time, the termination of registration, was procedurally unfair, and therefore a [page445] deprivation of liberty not in accordance with the principles of fundamental justice. I shall return to the procedural fairness point in the next portion of these reasons.

[123] I agree, however, with the Crown's submission that individualized risk assessment is not a Charter prerequisite. This is demonstrated by the decisions upholding the constitutionality of the national DNA databank: see for example Briggs and Rodgers. Although the DNA databank legislation does contain provisions for exemptions on certain bases, there is no suggestion in these authorities that inclusion in the databank requires a finding that the individual involved is likely to re-offend. In fact, in both Briggs, at para. 23, and Hendry, at para. 17, this court recognized that the application of the DNA databank legislation does not turn on whether the offender in question may commit a subsequent offence regarding which the DNA sample may prove useful.

[124] Once legislators have determined there is more than a minimal risk of harm, Parliament and the legislatures are entitled to make policy choices within a reasonable range of options. In Malmo-Levine, at para. 133, Justices Gonthier and Binnie put it this way:

We do not agree with Prowse J.A. that harm must be shown to the court's satisfaction to be "serious" and "substantial" before Parliament can impose a prohibition. [See Note 12 below] Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is "not [in]significant or trivial", the precise weighing and calculation of the nature and extent of the harm is Parliament's job. Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do. A "serious and substantial" standard of review would involve the courts in micromanagement of Parliament's agenda. The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected . . . (Emphasis added)

[125] It is clear on the evidence called at trial that a conviction for a designated sex offence attests to a significant risk of recidivism. There is no way to know in advance which sex offenders will re-offend and which will not, and that is why all are included on the Registry. What these findings mean, in the context of the enactment of Christopher's Law, is that the choice of the legislature to include all persons convicted of designated sex offences in the Registry was logical, rational and not grossly disproportionate to the state objective. [page446]

[126] I am therefore satisfied that Christopher's Law is not constitutionally flawed based on either the Heywood/Clay notion of overbreadth or the two-stage Malmo-Levine analysis.

Procedural fairness

[127] The second prong of the s. 7 attack made by the appellant and the intervenor is founded on notions of procedural fairness as a principle of fundamental justice. They submit that Christopher's Law is constitutionally flawed because it fails to afford the offenders affected by it an opportunity to make their case that they should be entitled to an exemption from registration, or to appeal or seek review of its automatic application, or to apply for an order terminating registration at any time prior to the statutory end-date for registration. In addition, the appellant argues that the application of Christopher's Law to the appellant is particularly unfair because the Act was not in effect when he was convicted and sentenced for the predicate offences. In these circumstances, he submits, the consequences of registration could not even have been contemplated, much less addressed, by counsel for the defence at that time.

[128] The appellant and the intervenor point to SOIRA as a piece of legislation that is properly tailored because it contains provisions for exemptions, appeals, reviews and applications for termination of registration in particular cases. They argue that the standard for exemption from registration under SOIRA, found in s. 490.012(4) of the Criminal Code, is whether the impact of registration on the offender would be "grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature". They point to numerous decisions of courts across the country concluding that gross disproportionality had been established in those cases.

[129] I do not accept these contentions.

[130] The appellant's primary submission is the natural justice argument that a person should be entitled to be heard when a judicial decision is made affecting that person's interests. Indeed, the appellant goes so far as to submit that "whenever there is an impairment of a liberty or security interest within the meaning of Section 7 the principles of fundamental justice require a hearing of some sort". The intervenor states that where a "law engages the s. 7 interests of the individual, he or she must be allowed some forum to challenge this imposition by the law". These propositions are themselves overly broad, however, in my view.

[131] Fairness may generally require notice and participation when a person's interests are affected. However, notice and [page447] participation are not constitutional prerequisites and are not themselves principles of fundamental justice. The constitutional norm is "procedural fairness". What is required for procedural fairness always depends on context. Writing for the majority in Rodgers, at para. 47, Charron J. dealt with this very question:

However, it is important to note at the outset that the fallacy in Mr. Rodgers' argument is that it presupposes that notice and participation are themselves principles of fundamental justice, any departure from which must be justified in order to meet the minimal constitutional norm. As I read his reasons, Fish J. adopts the same reasoning. With respect, it is my view that this is not the proper approach. The constitutional norm, rather, is procedural fairness. Notice and participation may or may not be required to meet this norm -- it is well settled that what is fair depends entirely on the context . . . (Emphasis added; citations omitted)

[132] Therefore, the right to a hearing and to participate in the decision-making process -- important as that principle of natural justice is -- is not a constitutional requirement. Whether it is required to shore up a legislative scheme depends on the circumstances and context. In my view, it is not necessary in the context of the Sex Offender Registry established by Christopher's Law.

[133] Once it is accepted -- as I have done -- that the legislature was entitled to choose to include all offenders convicted of the designated sexual offences in the Register, having regard to the general risk of recidivism in that group and the potential danger to victims, there is no basis to hold that a hearing is constitutionally required. As Rosenberg J.A. observed in Hendry, at para. 23, "[t]he legislation has already struck a balance by limiting the reach of the DNA data bank orders to persons convicted of serious offences . . .". Similarly, Christopher's Law has already struck a balance by limiting the reach of Sex Offender Registry orders to those convicted of sex offences.

[134] In any event, a convicted sex offender has a reduced expectation of a hearing in these circumstances. An offender does not become subject to registration unless and until he or she has been convicted of a designated sex offence after a full and fair trial. Although it cannot be said to have been so in the appellant's case, it is now the reality that registration is a consequence of such a conviction -- the potential for which is well known to the accused from the moment the charge is laid. In Hendry, at para. 18, this court noted -- albeit in the DNA context -- that "[h]aving been convicted of a designated offence, the offender already has a reduced expectation of privacy". I would extend this to encompass a reduced expectation that he or she would be entitled to the full panoply of "natural justice" remedies when facing the non- penal consequences of such a conviction. [page448]

[135] Moreover, there is at least some minimal screening built into the operation of Christopher's Law. The registration requirements do not apply (with two exceptions) to young persons within the meaning of the Young Offenders Act, R.S.C. 1985, c. Y-1 (repealed) or the Youth Criminal Justice Act, S.C. 2002, c. 1. Further, they apply only to persons "convicted" of a designated sex offence. Accordingly, they do not catch those who receive absolute or conditional discharges. Discharges are available for a number of the designated offences, including sexual assault, sexual exploitation and sexual interference. Although such a disposition may be unusual where there has been a finding of guilt for a sexual offence -- simply because of the seriousness of the crime and the implications of a finding of guilt -- it is likely to be imposed in exactly the kind of situations where an exemption from registration might otherwise be thought to be appropriate. Indeed, in at least one case a conditional discharge was granted expressly for the purpose of avoiding the application of Christopher's Law: see R. v. Troutlake (2002), 56 W.C.B. (2d) 100 (Ont. C.J.). [See Note 13 below]

[136] Additionally, pursuant to s. 9, the Act does not apply to offenders who have received a pardon for all sex offences. If a pardon is obtained, according to s. 9(3) the "ministry shall delete every reference to and record of the offender from the sex offender registry". Pardons may be obtained under ss. 4(b)(i) and 4.1(2) of the Criminal Records Act, R.S.C. 1985, c. C-47. According to these provisions, a pardon shall be granted where a person has been convicted of an offence punishable on summary conviction, three years have expired after the completion of any punishment for that offence and the offender has not been convicted of another offence during that period. In the case of indictable offences, a pardon may be granted after five years if the offender has not been convicted of another offence during that period and has been of good behaviour.

[137] In Heywood, Justice Cory concluded at pp. 797-98 S.C.R., pp. 519-20 C.C.C. that the potential availability of a pardon was not sufficient to save the vagrancy prohibition under s. 179(1) of the Criminal Code from the infirmity of overbreadth. In the case of Christopher's Law, however, the legislature has seen fit to make the granting of a pardon for the predicate sex offences a specific ground for deletion from the Registry. As is the case with discharges discussed above, those circumstances where the Crown proceeds summarily with sex offences -- and thus facilitates the [page449] mandatory granting of a pardon -- are more likely to be circumstances where an offender could make an argument for an exception to or termination of registration. Thus, while the availability of a pardon may be insufficient, alone, to defeat the appellant's overbreadth argument, the specific reference to it in Christopher's Law as a ground for deletion of the offender's name from the Registry is at least a factor to be considered in the overall mix in determining whether the Act is constitutionally infirm on that basis.

[138] It is of some relevance as well, in my view, that in several of the jurisdictions around the world where sex offender registrations have been established there is no review mechanism or discretion in terms of initial registration. Some jurisdictions do provide for a later review and possible termination after a period of time. In the United Kingdom, the Sexual Offences Act 2003 (U.K.), 2003, c. 42 permits no discretion and contains no review mechanism. In the United States of America, various states have enacted sex offender registration programs complying with at least the minimum standards set out in the federal Wetterling Act. [See Note 14 below] There is no discretion or right to review with respect to initial registration, but some states permit an application to terminate registration after the initial ten-year reporting requirement where the offender is found not to endanger public safety any longer. In Australia, three states have sex offender registry legislation [See Note 15 below] which permits those requi red to report for life to apply after 15 years for a suspension or exemption, but which do not provide for initial exemptions.

[139] Finally, I acknowledge that in Heywood the vagrancy provisions in s. 179(1)(b) of the Criminal Code were struck down, at least in part because their prohibition against loitering in or near various public areas applied for an indefinite period without any possibility of review. At pp. 794-99 S.C.R., pp. 518-20 C.C.C., Cory J. concluded that this characteristic made the prohibition overly broad and, therefore, a violation of s. 7. He placed considerable emphasis on the analogy between a lifetime prohibition against loitering in the places mentioned without any right of review, and the indeterminate sentence of a person declared to be [page450] a dangerous offender. He noted that the indeterminate sentence of a dangerous offender was saved from violating s. 12 of the Charter by the existence of the parole process (i.e., the right to a subsequent review): see R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 37 C.C.C. (3d) 1, at p. 31 C.C.C. Heywood, however, is distinguishable from the present case in a number of ways.

[140] First, Christopher's Law impinges on an offender's liberty far less than the vagrancy provisions did in Heywood. In Heywood, Cory J. was of the view that the s. 179(1)(b) prohibition constituted "a very significant limit on an individual's freedom of movement" (although less, he conceded, than the indeterminate sentence imposed upon a dangerous offender). Christopher's Law, as noted previously, does not prohibit anybody from doing anything and only imposes very minimal restrictions on an individual's freedom of movement when registration is required. For the reasons already explained, Christopher's Law impinges relatively little on a sex offender's liberty in comparison to the public protection objective it seeks to achieve.

[141] Secondly, Heywood must be read in the light of subsequent developments in the Supreme Court of Canada's jurisprudence. In Malmo-Levine and Clay, the Supreme Court elaborated on the principles of rationality, arbitrariness and overbreadth. In these cases, the Supreme Court's principal focus was on the standard of "gross disproportionality" and the recognition of the right of legislators to make choices between a range of constitutional options. Moreover, in Rodgers the Supreme Court held that notice and the right to participate by way of a hearing are not constitutional norms in and of themselves, but depend on context for their application.

[142] Finally, Justice Cory recognized the significance of context in Heywood itself, noting that attendance by the public at parks and the other places mentioned in s. 179(1)(b) was not generally regulated in Canada and observing that a "different conclusion regarding the need for review [of a lifetime s. 179(1)(b) prohibition] might have been reached if the prohibition was in respect of a regulated activity such as driving or the possession of firearms". Here -- apart from the requirement to attend at the police station -- the information required in relation to registration on the Registry is information commonly called for and provided in relation to many regulated and non-regulated activities in modern society. The context of Christopher's Law simply does not mandate as a constitutional minimum that an offender convicted of a designated sex offence be afforded a hearing or a right of review before he or she may be required to register on the Registry.

[143] One point remains to be addressed. The appellant argues that his not being entitled to a hearing or resort to some mechanism [page451] for review before being placed on the Registry is doubly unfair in his circumstances because Christopher's Law was not in effect at the time of his trial and sentencing. I do not think this changes the procedural fairness analysis, however. He had a trial. He was convicted after a full and fair hearing. The consequence of registration is not penal. For the same reasons as I have just articulated, a hearing or review procedure is not constitutionally mandated by the Christopher's Law context.

Disposition

[144] In the end, therefore, I conclude that Christopher's Law is intra vires the province and that it is not a colourable attempt to legislate criminal law. Nor is it rendered ineffective by the doctrines of paramountcy. For the reasons articulated above, I reject the argument that the appellant's rights under ss. 11(g), 11(h), 11(i) and 12 of the Charter have been violated. Finally, while registration in accordance with Christopher's Law may infringe an offender's liberty interest, the offender -- in this case Mr. Dyck -- is not deprived of that liberty interest in a manner that contravenes the principles of fundamental justice. Accordingly, there is no breach of s. 7.

[145] I would therefore dismiss the appeal.

Appeal dismissed.

Notes

Note 1: Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1.

Note 2: S.C. 2004, c. 10.

Note 3: See Christopher's Law, s. 1 and Christopher's Law (Sex Offender Registry), 2000, O. Reg. 69/01, s. 1.1.

Note 4: Currently Peter W. Hogg, Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007) vol. 1, at 18.13.

Note 5: It may be that Clay and Malmo-Levine take slightly different routes to arrive at this destination. The former simply follows the Heywood disproportionality approach in the context of "overbreadth", whereas the latter -- without reference to overbreadth -- adopts a two-staged approach. In Malmo-Levine, the Supreme Court calls for an initial assessment of "arbitrariness or irrationality" in the context of whether there is a rational connection between the impugned legislation and the reasonable apprehension of harm or the state interest sought to be protected. If this threshold is crossed, the second level of enquiry consists of an assessment of disproportionality (sometimes also couched in terms of "arbitrariness"), with "gross disproportionality" again being the ultimate yardstick.

Professor Peter Hogg suggests that the Supreme Court may have created a new doctrine in Malmo-Levine, namely a doctrine of "disproportionality", different from although perhaps a "sister" to overbreadth. This doctrine calls on the court, when ascertaining whether legislation is in accordance with the principles of fundamental justice, to determine (1) whether a law pursues a "legitimate state interest"; and, if it does, (2) whether the law is grossly disproportionate to the state interest. Indeed, Malmo-Levine may stand for two propositions, according to Professor Hogg, one of arbitrariness and one of disproportionality. His text deals with overbreadth, disproportionality and arbitrariness as separate concepts.

It is not necessary to expand on these differences for purposes of this appeal, as I am satisfied that Christopher's Law survives the s. 7 challenge on either approach.

Note 6: Vital Statistics Act, R.S.O. 1990, c. V.4, ss. 8, 9.1, 19, 21, 28 and 31.

Note 7: Education Act, R.S.O. 1990, c. E.2, s. 21.

Note 8: Employment Insurance Act, S.C. 1996, c. 23, s. 138.

Note 9: Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 150(1), 162.

Note 10: Registry Act, R.S.O. 1990, c. R.20, ss. 18(6), 20 and 21.

Note 11: Highway Traffic Act, R.S.O. 1990, c. H.8, s. 32.

Note 12: For "prohibition", in the context of the case here under appeal, read "the inclusion of all persons convicted of designated sex offences".

Note 13: We are not to be taken as commenting on the correctness of the sentence or the reason for imposing it.

Note 14: Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Title XVII of the Violent Crime Control and Law Enforcement Act of 1994), 42 U.S.C. 14071.

Note 15: In New South Wales, the sex offender registry legislation is the Child Protection (Offenders Registration) Act 2000; in Queensland it is the Child Protection (Offender Reporting) Act 2004; and in Victoria it is the Sex Offenders Registration Act 2004.