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

94 O.R. (3d) 421

Court of Appeal for Ontario,

Juriansz, MacFarland and Watt JJ.A.

December 22, 2008

Criminal law -- Sex offender registration order -- Exemption -- Sentencing judge declining to impose Sex Offender Information Registration Act ("SOIRA") order following conviction for offences presumptively requiring registration -- Accused being first offender who posed low risk to re-offend -- Crown's appeal allowed -- Trial judge erring in finding that "model" being restricted to predatory stranger paradigm -- Impact on offender of charge, trial delay, conviction or characterization as sex offender not relevant when determining if offender meeting onus for exemption -- Offender required to show registration causing impact on offender "grossly disproportiate" compared to public interest and onus not met by evidence offender unlikely to commit further offences -- Sentencing judge overstating impact of sex offender registration on offender's privacy interest and not taking into account fact that offender could apply for termination order after ten years -- Crown appeal allowed and accused ordered to comply with SOIRA -- Sex Offender Information Registration Act, S.C. 2004, c. 10 -- Criminal Code, R.S.C. 1985, c. C-46, s. 490.012(1), (4).

The offender pleaded guilty to charges of sexual exploitation and making child pornography. He was 41 years old at the time of the offence and had no criminal record. The offences arose out of a consensual sexual relationship with a 15-year-old girl who was a member of a dance group for which the offender provided choreography. The offender was described in a psychiatric report (filed in relation to the impact of pre- trial delay) as posing a low risk of re-offending. The sentencing judge imposed a four-month custodial sentence (in addition to time served in pre-trial custody), but declined to impose a SOIRA order. The trial judge found that the model for the legislation was a predator who "hunted" his victims. He also relied on the unlikelihood that the offender would commit future offences. The Crown appealed the failure to direct sex offender registration.

Held, the appeal should be allowed. [page422]

The offences of which the offender was convicted are ones requiring presumptive registration under SOIRA unless the offender establishes that the impact on him or her will be "grossly disproportionate" to the public interest in registration. The sentencing judge's conclusion that the impact of sex offender registration on the offender was grossly disproportionate to the public interest was flawed in several respects. First, the SOIRA provisions are not restricted to the predatory stranger paradigm. Second, what must be balanced against the specified public interest is the impact of a SOIRA order on the offender, not the impact of the charge, trial delay, the conviction and its consequences, or the characterization of the offender as a sex offender. Third, the sentencing judge overstated the impact of registration on the offender's privacy interest. Furthermore, the application of the presumptive provisions of s. 490.012(1) of the Code and the availability of the exception in s. 490.012(4) do not turn on whether a convicted offender may reoffend in a way in which the information collected under SOIRA may prove useful to investigators. Finally, in taking into account as a relevant factor in the balancing exercise the 20-year duration of a SOIRA order, the sentencing judge failed to consider that an offender can apply after ten years for a termination order. The refusal to direct registration was set aside and a 20-year sex offender registration order was imposed.

APPEAL from the sentence imposed by Nordheimer J., [2007] O.J. No. 3429, 75 W.C.B. (2d) 176 (S.C.J.) for a refusal to impose sex offender registration order.

Cases referred to R. v. Dyck (2008), 90 O.R. (3d) 409, [2008] O.J. No. 1567, 2008 ONCA 309, 236 O.A.C. 26, 57 C.R. (6th) 275, 171 C.R.R. (2d) 187, 77 W.C.B. (2d) 802, 232 C.C.C. (3d) 450, consd Other cases referred to Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, [1984] S.C.C.A. No. 292, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, J.E. 84-770, 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 9 C.R.R. 355, 84 D.T.C. 6467; R. v. C. (R.), [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, 67 W.C.B. (2d) 92, EYB 2005-96964; R. v. C. (S.S.), [2008] B.C.J. No. 1148, 2008 BCCA 262, 234 C.C.C. (3d) 365, 59 C.R. (6th) 237, 257 B.C.A.C. 57, 78 W.C.B. (2d) 612; R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, [1988] S.C.J. No. 82, 55 D.L.R. (4th) 503, 89 N.R. 249, J.E. 89-77, 73 Nfld. & P.E.I.R. 13, 45 C.C.C. (3d) 244, 66 C.R. (3d) 348, 38 C.R.R. 301, 10 M.V.R. (2d) 1, 6 W.C.B. (2d) 78; R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, 131 N.R. 1, J.E. 91-1764, 5 B.C.A.C. 161, 61 B.C.L.R. (2d) 145, 67 C.C.C. (3d) 481, 8 C.R. (4th) 82, 7 C.R.R. (2d) 1, 31 M.V.R. (2d) 137, 14 W.C.B. (2d) 206; R. v. L. (R.), [2007] O.J. No. 1782, 2007 ONCA 347, 74 W.C.B. (2d) 11; R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97, 157 N.R. 321, [1993] 8 W.W.R. 287, J.E. 93-1673, 12 Alta. L.R. (3d) 305, 145 A.R. 104, 84 C.C.C. (3d) 203, 24 C.R. (4th) 47, 17 C.R.R. (2d) 297, 20 W.C.B. (2d) 591; R. v. Redhead, [2006] A.J. No. 273, 2006 ABCA 84, [2006] 6 W.W.R. 19, 56 Alta. L.R. (4th) 15, 384 A.R. 206, 206 C.C.C. (3d) 315, 69 W.C.B. (2d) 338 (C.A.); R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, 40 D.L.R. (4th) 435, 75 N.R. 321, [1987] 5 W.W.R. 1, J.E. 87-810, 15 B.C.L.R. (2d) 273, 34 C.C.C. (3d) 97, 58 C.R. (3d) 193, 31 C.R.R. 193, 2 W.C.B. (2d) 303; R. v. Turnbull, [2006] N.J. No. 328, 2006 NLCA 66, 261 Nfld. & P.E.I.R. 241, 214 C.C.C. (3d) 18, 44 C.R. (6th) 365, 71 W.C.B. (2d) 866 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 12 Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 Criminal Code, R.S.C. 1985, c. C-46, ss. 487.04 [as am.], 487.051(1)(b) [as am.], (2) [as am.], (3) [as am.], 490.011(1) [as am.], 490.012, 490.013, (2), (b), 490.014, 490.015(1)(b), (4), (5), 490.017, 490.023(2), 719(1) [as am.], 732(1) [as am.] [page423] Sex Offender Information Registration Act, S.C. 2004, c. 10, ss. 2(2), 4(1), (2), 5, (1), (2), 6(1), 16, 17(2)

Elise Nakelsky, for appellant. Sam Goldstein, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: -- This is a sentence appeal. Crown counsel seeks to reverse the decision of a judge of the Superior Court of Justice who refused to order that the respondent, a mature first offender, register under the Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA") as a result of convictions recorded after entry of pleas of guilty to charges of sexual exploitation and making child pornography.

[2] For the reasons that follow, I would allow the appeal, quash the order refusing to require the respondent's registration and order that the respondent register under the SOIRA in compliance with ss. 490.012(1) and 490.013(2) of the Criminal Code, R.S.C. 1985, c. C-46. A. The Facts

[3] The circumstances in which the respondent committed the offences to which he pleaded guilty are fully set out in the agreed statement of facts filed before the sentencing judge. To provide context for the discussion that follows, however, some reference to what was acknowledged is essential. The absence of exquisite detail works no great mischief. 1. The principals

[4] The offences occurred over 11 months during the latter half of 2003 and the first half of 2004. The respondent was 41, the complainant in her mid-teens.

[5] The respondent was a self-employed dance teacher and choreographer with an excellent reputation in his chosen field. His company had a contract with the Toronto Blue Jays to provide choreography to two dance groups, the Junior Jays and the Senior Jays, who performed at baseball games and at other events. The Junior Jays comprised about 20 members, mostly female, from ages 12 to 16.

[6] The complainant, S.T., was 14 years old when she auditioned for and obtained a position with the Junior Jays. Her older [page424] sister was a member of the Senior Jays. S.T. hoped to become a professional dancer and considered the respondent a person who could help her achieve her goal. 2. The relationship of the principals

[7] The respondent acknowledged that he was in a position of trust towards S.T. as a result of their joint involvement in the Junior Jays' dance group.

[8] S.T. lived with her family, including her parents and older sister, east of Toronto. The family, in particular S.T.'s parents, reposed sufficient trust in the respondent that they permitted S.T., a teenager, to stay overnight at the respondent's home. By permitting these sojourns, the parents avoided early morning trips into Toronto from their home for S.T.'s dance practices and performances. 3. The sexual exploitation offence

[9] Sexual contact between S.T. and the respondent began during S.T.'s overnight stay in the respondent's home in July 2003. S.T. was 15 years old, the respondent almost 41. The respondent shared an alcoholic drink with S.T., then initiated sexual contact with her, including each performing oral sex on the other.

[10] In August 2003, the Junior Jays were to perform in Winnipeg. During rehearsals for and whilst in Winnipeg, S.T. and the respondent had sexual contact. S.T. performed oral sex on the respondent. A single act of intercourse involving partial penetration also occurred.

[11] In September 2003, S.T. performed oral sex on the respondent in a private area of Skydome during a baseball game. In an earlier conversation, with others present, the respondent had mentioned a long-standing fantasy: to have sex in the Skydome.

[12] In February 2004, both S.T. and her sister stayed overnight at the respondent's house with their parent's knowledge and agreement. The respondent and S.T. performed oral sex on each other while S.T.'s sister slept in an upstairs room.

[13] The final sexual contact between S.T. and the respondent took place in the respondent's home after a dance rehearsal in May 2004. The activities included oral sex, digital penetration and the use of a vibrator.

[14] Sexual contact between the respondent and S.T. occurred on at least six occasions over a period of 11 months. S.T. was at least 15 and at most 16 years old. The respondent was over 40 and in a position of trust towards S.T.

[15] The respondent did not use physical force, utter threats or offer inducements to S.T. to engage in the sexually exploitative behaviour charged. [page425] 4. Disclosure by the complainant

[16] As a result of a conversation between another dance teacher and S.T.'s mother about the relationship between S.T. and the respondent, S.T.'s older sister spoke to S.T. about the relationship. S.T. told her sister about the relationship. Within days of this disclosure, the incident was reported to the police, a video statement taken from S.T. and the respondent charged. 5. The child pornography charge

[17] Police searched the respondent's home after his arrest. There, they found a videotape made by the respondent with S.T.'s knowledge. The videotape shows the respondent digitally penetrating and using a vibrator on S.T. and each performing oral sex on the other. S.T. was under 18 years of age at the time the video was made. 6. The victim impact statements

[18] S.T. and her mother filed victim impact statements.

[19] S.T., who was 19 years old when she completed her victim impact statement, reported a loss of valued friendships and a decline in academic performance as a result of the offences committed against her. Court attendances forced her to decline a job offer on a cruise ship and a lifetime chance to travel to Europe. She no longer feels safe in placing her trust in others, especially men in positions of power. 7. The respondent's character

[20] Several letters describing the respondent's character were filed with the sentencing judge. Each described the respondent as a highly respected, hard-working member of the dance community. None observed any deviant tendencies. Each testimonial described what occurred as out-of-character for the respondent.

[21] The sentencing judge was satisfied that the respondent was genuinely remorseful for his conduct with S.T. 8. The psychiatric report

[22] A psychiatric report prepared for an application to stay proceedings for unreasonable delay was filed at the sentencing hearing. A forensic psychiatrist, Dr. Julian Gojer, concluded that the respondent did not suffer from any major mental illness, sexual deviation, personality disorder or psychopathy. Dr. Gojer characterized the respondent's conduct as "a boundary violation", associated with a loss of physical activity due to injury, a sense of lowered sexual attractiveness and depression. [page426] This combination of factors, according to Dr. Gojer, impaired the respondent's judgment.

[23] Dr. Gojer reported that the respondent had attended both individual and group therapy sessions since July 2004. At the time of sentencing, the respondent was involved in the relapse prevention phase of group therapy. Dr. Gojer did not view the respondent as a risk to any child and considered him a low risk to re-offend.

[24] Dr. Gojer strongly recommended that the respondent continue in therapy, in particular, in a group counselling program. The doctor expressed the view that the respondent's continued participation in therapy could be supervised through a probation order. B. The Positions of the Parties on Sentence 1. The position of the prosecutor

[25] At the sentencing hearing, the prosecutor sought a custodial sentence of two years less one day (less credit for pre-trial custody) followed by three years' probation, including some additional terms relating to the respondent's employment. The prosecutor also requested a DNA order, an order forfeiting the video that was the subject of the child pornography count and an order requiring the respondent to register under the SOIRA. 2. The position of the respondent

[26] Counsel for the respondent invited the sentencing judge to impose a conditional sentence of between three and six to eight months in duration, but made no mention of a further period of probation. In response to the inquiries of the sentencing judge, counsel for the respondent (who was also counsel on appeal) acknowledged the propriety of a DNA order, but resisted registration under the SOIRA in these terms:

With respect to the Criminal Code, the 90, the section, I think there is the allowance under the section that Mr. Debidin is charged under where the defendant can prove is disproportionate you are allowed not to grant it. I'm going to suggest that it's going to be disproportionate, given all the other things he suffered; the analysis in some of the other cases where you see here where they talk about -- look this guy has already has already suffered the publicity, economic loss, et cetera. Et cetera. It's disproportionate. I think that's the case with Mr. Debidin. With respect, that's the Federal registration.

C. The Reasons for Sentence 1. Overview

[27] On August 23, 2007, the sentencing judge imposed custodial sentences of six months' imprisonment on each charge and directed that the sentences be served concurrently. He made DNA [page427] and forfeiture orders, but declined to impose any period of probation or direct that the respondent register under the SOIRA.

[28] The sentencing judge also acceded to a request of counsel for the respondent that the respondent not be required to surrender into custody to begin serving his sentence of imprisonment until after the Labour Day weekend of 2007.

[29] When the parties returned to court on September 4, 2007, the sentencing judge "amended" the custodial sentences he had earlier imposed, reducing them to concurrent terms of four months each, to take into account time spent in pre-disposition custody. 2. The refusal to include a term of probation

[30] The sentencing judge concluded that it was not necessary to include a period of probation in the sentences imposed. The respondent was a first offender, a mature adult whose conduct was an isolated incident in an otherwise unblemished life. He was unlikely to recidivate and had voluntarily undertaken individual and group therapy while on judicial interim release. The coercive terms of a probation order were unnecessary to ensure that he continued with his program and psychiatric treatment. 3. The refusal to order SOIRA registration

[31] The sentencing judge considered the purpose of SOIRA registration to further public safety by permitting police to keep tabs on sex offenders living or working in the community. The "model" for the registration scheme is the predatory stranger offender who "hunts" victims near his home or place of work. The respondent didn't fit the model for whom registration was designed.

[32] The sentencing judge considered that registration under the SOIRA would have a disproportionate effect on the respondent. In addition to the presumed impact of registration on any convicted offender, the psychiatric report revealed actual physical and mental deterioration as a result of the charges and characterized the risk of recidivism as low.

[33] The sentencing judge concluded his reasons for refusing to order registration in these words, at paras. 40-41:

Accordingly, the very rationale for collecting and maintaining the information in the Sex Offender Information Registry is absent in this case. As was noted both in Have and in Cook, a registry system that is overly inclusive in its reach is counter-productive to the very objectives of the system as it will only serve to obscure, in investigatory terms, those persons who pose a real risk.

In these particular circumstances, I am satisfied that the impact on Mr. Debidin, in terms of his liberty and his privacy, from making such an [page428] order greatly exceeds any small and theoretical benefit to society from maintaining the required information, especially given the very significant length of time during which the order would be operative. It seems to me that where, as here, the order will negatively impact the offender but will not achieve any real benefit in furtherance of the fundamental purpose of the legislation, the consequences of the order become grossly disproportionate. I therefore decline to make the order requested.

D. Analysis 1. The issue

[34] On the hearing of the appeal, Crown counsel indicated she was not seeking to have the respondent re-incarcerated, either through an increase in the length of the terms of imprisonment imposed or by an order that the sentences be served consecutively to one another, rather than concurrently as the sentencing judge had ordered. Further, Ms. Nakelsky abandoned the earlier claim that the term of imprisonment should be followed by a lengthy period of probation. And so it is that the only issue ripe for decision is the correctness or otherwise of the failure of the sentencing judge to direct registration under the SOIRA. 2. The statutory authority for SOIRA orders (a) The governing principles of SOIRA

[35] The purpose of the SOIRA is to help police investigate sexual offences by making available to them information provided by convicted sexual offenders required to register under the Act. This information may be of investigative assistance in the inculpation or elimination of various suspects.

[36] The SOIRA is to be carried out in recognition of and in accordance with several principles enumerated in its s. 2(2): (a) in the interest of protecting society through the effective investigation of crimes of a sexual nature, police services must have rapid access to certain information relating to sex offenders; (b) the collection and registration of accurate information on an ongoing basis is the most effective way of ensuring that such information is current and reliable; and (c) the privacy interests of sex offenders and the public interest in their rehabilitation and reintegration into the community as law-abiding citizens require that (i) the information be collected only to enable police services to investigate crimes that there are reasonable grounds to suspect are of a sexual nature, and (ii) access to the information, and use and disclosure of it, be restricted. [page429] (b) Registration requirements under SOIRA

[37] It is the SOIRA, rather than the Criminal Code, that determines what is involved in registration under the Act. As its name suggests, the SOIRA requires a convicted sex offender to provide certain information about him or herself to those charged with the responsibility of collecting information at a registration centre. Sections 4(1) and 4(2) of the SOIRA tell the offender when and where to report. Section 5(1) of the Act defines what information the offender must provide:

5(1) When a sex offender reports to a registration centre, they shall provide the following information to a person who collects information at the registration centre: (a) their given name and surname, and every alias that they use; (b) their date of birth and gender; (c) the address of their main residence and every secondary residence or, if there is no such address, the location of that place; (d) the address of every place at which they are employed or retained, or are engaged on a volunteer basis or, if there is no such address, the location of that place; (e) the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place; (f) a telephone number at which they may be reached, if any, for every place referred to in paragraphs (c) and (d), and the number of every mobile telephone or pager in their possession; and (g) their height and weight and a description of every physical distinguishing mark that they have. Under s. 5(2), the recipient of the information may also require the offender to provide the date and place of the underlying conviction. Section 6(1) imposes further reporting obligations on the offender in connection with absences from the jurisdiction.

[38] On the first occasion, an offender must report in person at the registration centre. Later, reports may be in person or in accordance with regulations passed under the Act. (c) Duration of SOIRA orders

[39] Section 490.013 governs the duration of SOIRA orders. In this case, s. 490.013(2)(b) applies and sets the term of the respondent's reporting obligations under the SOIRA at 20 years.

[40] Under s. 490.015(1)(b), anyone subject to a SOIRA order made under s. 490.013(2)(b) may apply to terminate the order after ten years of compliance. An unsuccessful applicant may also re-apply in accordance with ss. 490.015(4) and (5). [page430] (d) Code provisions governing SOIRA orders

[41] The authority for a sentencing judge to direct a person sentenced on conviction of a crime to register under the SOIRA resides in s. 490.012 of the Criminal Code. In general terms, what is required is an application by the prosecutor to the judge who imposes sentence on a person convicted of a designated offence.

[42] Unlike s. 487.04, which distinguishes between primary designated offences and secondary designated offences for the purposes of DNA orders, s. 490.011(1) adopts the compendious "designated offence" without formal subdivision. However, s. 490.011(1) separates designated offences into six different paragraphs. The paragraph into which the predicate offence falls determines the conditions that must be met before registration under the SOIRA is required. Section 490.012(1) governs the offences listed in paras. (a), (c), (d) and (e). Section 490.012(2) presides over the offences listed in paras. (b) and (f).

[43] Since both sexual exploitation and making child pornography are listed in para. (a) of the definition of "designated offence" in s. 490.011(1), s 490.012(1) applies. Its terms are these:

490.012(1) A court shall, on application of the prosecutor, make an order in Form 52 requiring a person to comply with the Sex Offender Information Registration Act for the applicable period specified in subsection 490.013(2), (3) or (4) as soon as possible after it imposes a sentence on the person for an offence referred to in paragraph (a), (c), (d) or (e) of the definition "designated offence" in subsection 490.011(1), or renders a verdict of not criminally responsible on account of mental disorder for such an offence. (Emphasis added)

[44] Section 490.012(1) uses mandatory language: the presumptive "shall", not the permissive "may". When the conditions precedent in s. 490.012(1) have been met -- an application by the prosecutor and conviction of a designated offence -- the sentencing judge is required to direct that the accused register under the SOIRA. The order is to be made as soon as possible after the judge imposes sentence.

[45] Thus, in cases governed by s. 490.012(1), a SOIRA order is mandatory on application by the prosecutor after conviction of a designated offence, unless the convicted offender establishes a case for exception under s. 490.012(4). In cases to which s. 490.012(2) applies, a SOIRA order is only mandatory on application by the prosecutor after conviction of a designated offence and proof beyond a reasonable doubt that the designated offence was committed with the (further) intent to commit a designated offence governed by s. 490.012(1), unless the offender establishes a case for exception under s. 490.012(4). [page431]

[46] On its face, s. 490.012(1) does not distinguish recidivists from first offenders, or sexual predators from opportunistic relatives or friends. An application by the prosecutor and a conviction for a listed offence is all that is required to engage the presumptive order for which the subsection provides. (e) The Code exception from SOIRA orders

[47] The exception of s. 490.012(4) is in these terms:

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.

[48] The exception of s. 490.012(4) requires a balancing of competing, if not antagonistic, interests. On the one hand, the impact of registration on the offender's individual interest, including his or her interest in privacy or liberty. On the other hand, the value of registration of information about sex offenders to the public interest in protecting society through the effective investigation of sexual offences. It is only where the impact of registration on an offender's individual interests is grossly disproportionate to the public interest in effective investigation of sexual crimes by access to registration data that an exception to registration should be granted.

[49] Section 490.012(4) identifies the competing interests to be balanced and sets the standard to be met to engage the discretion to except an offender from registration. Yet the subsection contains neither an exhaustive nor an illustrative enumeration of the factors that inform the decision.

[50] It is worth emphasis that the first component of the test for an exemption under s. 490.012(4) involves an assessment of the impact of a SOIRA order on the offender, including the impact on the offender's privacy and liberty interests. The impact to be assayed is not the impact of being charged with or convicted of a sexual offence, or being stigmatized as a sex offender. Rather, what must be gauged is the impact of the registration requirements on the offender's current and prospective circumstances.

[51] To determine the impact of SOIRA registration on an offender requires consideration of all the circumstances that have a legitimate bearing on the issue framed by s. 490.012(4). The judge must consider, but is not restricted to, the impact of registration on the offender's privacy and liberty interests.

[52] The express language of both ss. 490.012(1) and 490.012(4) impose upon the offender the burden of establishing that the [page432] impact of SOIRA registration on him or her is grossly disproportionate to the specific public interest in effective criminal investigation of sexual offences. In the absence of any evidence about the impact of registration on the offender, the presumption of s. 490.012(1) applies and a SOIRA order will be made. Likewise, what is offered by the offender may not demonstrate the extent of disproportionality required to engage the exception: disproportionate, but not grossly disproportionate. And so the presumption would remain unrebutted and the order made.

[53] To determine the impact of SOIRA registration on a convicted offender, the sentencing judge is required to consider the impact of registration on the offender's privacy. In Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at p. 159 S.C.R., Dickson J. described privacy as "[the] right to be let alone by other people", including by agents of the state. Privacy includes territorial, personal and informational privacy: R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, [1988] S.C.J. No. 82, at pp. 428-29 S.C.R.

[54] A statute, like the SOIRA, may compromise informational privacy not only by requiring a person to provide information to an agent of the state, but also by permitting dissemination of the information to others. Sometimes, the information required reveals intimate details of the provider's lifestyle, but, on other occasions, this biographical core of personal information is left untouched by the statutory obligation to report: see R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97.

[55] The registration and reporting requirements under the SOIRA do not differ significantly from those imposed under Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 ("Christopher's Law"), the "Ontario Act" as defined in s. 490.011(1) of the Criminal Code. The respondent is also subject to this Act, under which registration is mandatory. The impact that registration under Christopher's Law has on an offender's privacy interests has been described as very modest, no more demanding or intrusive than the type of information routinely required of individuals in today's society for a host of regulatory and private needs that are the stuff of everyday life: R. v. Dyck (2008), 2008 ONCA 309, 90 O.R. (3d) 409, [2008] O.J. No. 1567 (C.A.), at para. 109.

[56] Informational privacy may also be imperiled by the dissemination of information acquired by the state under a reporting obligation. As with Christopher's Law, use and dissemination of information contained in the registry is tightly circumscribed by the enabling statute: SOIRA, ss. 16 and 17(2): see, also, Dyck, at para. 119.

[57] Section 490.012(4) also requires the sentencing judge to consider the impact that SOIRA registration would have on the [page433] convicted offender's liberty. Doubtless, the reporting requirements of the SOIRA affect the liberty interests of those required to report. But the requirements do not prohibit the respondent from doing anything or going anywhere, are no more intrusive than other state-imposed registration requirements, impose minimal stigma and are not publicly known: Dyck, at para. 106. (f) The onus of proof in establishing the exception

[58] Since an order will be made under s. 490.012(1) upon the application of the prosecutor on conviction for a designated offence described in the subsection, any convicted offender who seeks to avoid registration must seek and satisfy the requirements for an exception under s. 490.012(4). In other words, it falls to the offender to satisfy the presiding judge that the exception applies by establishing that the impact of the registration on the offender is grossly disproportionate to the specified public interest.

[59] The effect of s. 490.012(1) is to create a rebuttable presumption that a SOIRA order will be made on application of the prosecutor on conviction for a designated offence. The presumption is rebuttable by evidence that satisfies the requirements of s. 490.012(4): R. v. L. (R.), [2007] O.J. No. 1782, 2007 ONCA 347, 74 W.C.B. (2d) 11, at para. 7; R. v. Redhead, 2006 ABCA 84, [2006] A.J. No. 273, 384 A.R. 206 (C.A.), at para. 26.

[60] The evidence upon which the convicted offender may rely to invoke and to satisfy the exception may emerge from the trial or sentencing proceedings, but it must be relevant to the issue framed for decision on the application: the impact of registration on the offender and the balancing of the competing interests required by s. 490.012(4). (g) The "grossly disproportionate" standard

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

[62] In everyday speech"grossly" means plainly, obviously, excessively, to a startling degree, flagrantly or glaringly. The term "disproportionate" means simply out of or lacking proportion. [page434]

[63] The phrase "grossly disproportionate" is familiar in connection with claims of infringement of the guarantee against cruel and unusual treatment or punishment in s. 12 of the Canadian Charter of Rights and Freedoms. Those authorities teach that "grossly disproportionate" is a very stringent and demanding standard, one not easily satisfied, something rare and unique: R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, at p. 502 S.C.R.; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, at p. 1072 S.C.R.

[64] The phrase "grossly disproportionate" also appears in the exception s. 487.051(2) makes to presumptive DNA orders for certain primary designated offences. DNA orders follow conviction of primary designated offences unless the offender establishes that the impact of the order on the offender's privacy and personal security would be "grossly disproportionate" to the defined public interest. To establish the exception and thus gain exemption from the presumptive order, an offender must show that the public interest is clearly and substantially outweighed by the offender's privacy and security interests: R. v. C. (R.), 2005 SCC 61, [2005] 3 S.C.R. 99, [2005] S.C.J. No. 62, at para. 31. (h) The relevant factors in determining "grossly disproportionate"

[65] Apart from its mention of "privacy or liberty", s. 490.012(4) is silent about the factors or circumstances a sentencing judge should consider in ascertaining the impact of registration on the convicted offender, or in balancing that impact against the public interest to determine whether the exception has been made out.

[66] In C. (R.), the Supreme Court of Canada considered the application of the former s. 487.051(2), which allowed for exceptions to the presumptive DNA order for all primary designated offences. As provided by the section, the individual interest to be considered and weighed against the specified public interest was "the impact on the person's or young person's privacy and security of the person". After describing the inquiry as highly contextual, Fish J. added, at paras. 30-31:

Some of the factors that may be relevant to this inquiry are set out in s. 487.051(3): the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission, and the impact such an order would have on the offender's privacy and security of the person.

This is by no means an exhaustive list. The inquiry is necessarily individualized and the trial judge must consider all the circumstances of the case. What is required is that the offender show that the public interest is clearly and substantially outweighed by the individual's privacy and security interests. (Citation omitted) [page435]

[67] The factors identified by Fish J. as relevant to the inquiry under the former s. 487.051(2) for primary designated offences are the same as those enumerated in the former s. 487.051(3), which applied only to secondary designated offences and permissive DNA orders under former s. 487.051(1)(b).

[68] In Redhead, the trial judge had refused to make a SOIRA order for a primary designated offence because the respondent had no prior record for sexual assault, was not a pedophile and had committed the offences under the influence of alcohol. The Alberta Court of Appeal held that none of the factors relied upon by the trial judge were relevant to the impact of the order on the respondent. The court considered the absence of any reference in the exception to the offender's record and the circumstances of the offence, as is the case under s. 487.051(3), to indicate Parliament's intention that those factors were not determinative in the case of SOIRA orders: Redhead, at para. 27.

[69] In R. v. C. (S.S.), 2008 BCCA 262, [2008] B.C.J. No. 1148, 234 C.C.C. (3d) 365 (C.A.), the British Columbia Court of Appeal considered: -- the nature of the offence; -- the risk to re-offend; -- the offender's criminal record; [and] -- other matters personal to the offender's circumstances as relevant circumstances of the offender to be taken into account in determining whether an exception should be made under s. 490.023(2), which is in equivalent language to s. 490.012(4): C. (S.S.), at para. 87.

[70] At least three appellate courts, including this court, have emphasized that SOIRA registration is not limited to likely recidivists or sexual predators: see Redhead, at para. 21; C. (S.S.), at paras. 43 and 87; and L. (R.), at paras. 5 and 6. It is error to enhance the impact on an offender or to dilute the public interest in registration on the basis of a diminished risk of recidivism. Indeed, it may be open to question whether accurate forecasts of the unlikelihood of recidivism can even be made: Dyck, at para. 125. 3. The standard of review

[71] Section 490.014, which confers on the prosecutor and offender the right to appeal the refusal or grant of a SOIRA order and describes the dispositive authority of the appeal court, is silent about the standard of review that prevails. Similar language [page436] appears in s. 487.05(4), which governs appeals from grants or refusals of DNA orders. In each case, an appeal court may alter a decision only where the sentencing judge has: (i) erred in principle; (ii) failed to consider a relevant factor; (iii) overemphasized an appropriate factor; or (iv) made a clearly unreasonable decision. Redhead, at para. 13; C. (R.), at paras. 48-49; R. v. Turnbull, 2006 NLCA 66, [2006] N.J. No. 328, 261 Nfld. & P.E.I.R. 241 (C.A.), at para. 21. 4. Discussion

[72] The sentencing judge recognized that a SOIRA order was mandatory unless the respondent demonstrated that the exception of s. 490.012(4) applied. Contrary to the submissions of the prosecutor, however, the sentencing judge concluded that the impact of SOIRA registration on the respondent was grossly disproportionate to the public interest described in s. 490.012(4), thus he declined to order registration.

[73] The sentencing judge considered that the model for SOIRA registration and the rationale underlying the Act was the predatory stranger who hunts victims in the vicinity of his residence or workplace. The respondent, the trial judge reasoned, thus fell outside the paradigm for whom registration was intended.

[74] The sentencing judge concluded that the impact of registration on the respondent would be significant. Registration would preclude any sense of finality and delay the respondent's emotional recovery. To the contrary, registration would continue and exacerbate a psychological stress engendered by the proceedings themselves. Registration would also have a significant impact on the respondent's liberty interest.

[75] In addition to the impact that registration would have on anyone convicted of a designated offence, the sentencing judge identified several factors unique to the respondent as enhancing the impact of registration on him. These factors were mentioned in materials filed in support of an application to stay proceedings for unreasonable delay. The materials included an affidavit from the respondent and the report of Dr. Julian Gojer, a forensic psychiatrist. The affidavit recites the physical and mental deterioration of the respondent as a result of the then outstanding charges and the delay in the commencement of trial proceedings. The report of Dr. Gojer confirms the unlikelihood of [page437] recidivism and describes the respondent as no risk to any child and no threat to society.

[76] In my view, the sentencing judge's conclusion that the impact of SOIRA registration on the respondent was grossly disproportionate to the public interest is flawed in several respects.

[77] To begin, while it may be fair to say that one of the underlying rationales for the enactment of the SOIRA was to facilitate investigation of sexual offences by keeping track of sexual predators, s. 490.012(1), which creates a rebuttable presumption that a SOIRA order will follow conviction of a designated offence on the application of the prosecutor, is not restricted, in its terms or by necessary implication, to the sexual predator paradigm. The subsection, as well it might, does not distinguish between the predatory stranger and the opportunistic friend, relative or custodian.

[78] Second, what must be balanced against the specified public interest is the impact of SOIRA registration on the convicted offender, not the impact of the charge, any delay in awaiting trial, the conviction and its consequences, or the characterization of the respondent and others in similar circumstances as convicted sex offenders: Dyck, at para. 81.

[79] Third, without the benefit of this court's decision in Dyck, the sentencing judge overstated the impact of SOIRA registration on the respondent's privacy interest. The court in Dyck was concerned with the impact of similar reporting requirements under Christopher's Law, where registration is mandatory. The court considered the impact on an offender's privacy to be minimal in connection with the nature of the information required and its closely circumscribed dissemination: Dyck, at paras. 106-109, 119.

[80] Further, the application of the presumptive provisions of s. 490.012(1) and the availability of the exception in s. 490.012(4) do not turn on whether a convicted offender may re- offend in a way in which the information collected under the SOIRA may prove useful to investigators: Dyck, at para. 123; L. (R.), at paras. 5-7.

[81] The sentencing judge relied upon the report of Dr. Gojer and the affidavit of the respondent in his assessment of the impact of SOIRA registration on the respondent. While these documents were made part of the record at the sentencing hearing, their focus was not on the impact of SOIRA registration. Neither mentions SOIRA registration. Each explains the impact that the sexual offence charges and allegedly unreasonable amount of time spent awaiting trial had had on his physical and mental health, as well as on his ability to pursue his chosen career. But prejudice that arises from the fact and nature of criminal charges, as well as the stigma associated with later becoming a convicted [page438] sex offender, have nothing to say about the impact of a SOIRA order: Dyck, at para. 81.

[82] The reporting requirements of the SOIRA, like those under Christopher's Law, admittedly infringe, to some extent at least, the liberty interests of the respondent and others in similar circumstances. Yet the restrictions are modest and do not prohibit the respondent from going anywhere, or doing anything: Dyck, at paras. 104, 106-108. The registration and reporting requirements of the SOIRA are at once limited in scope and in the time required to complete them.

[83] Another influential factor in the sentencing judge's decision to refuse to order SOIRA registration was the duration of the order: 20 years. But under s. 490.015(1)(b), the respondent can apply after ten years for a termination order. Adverse decisions may be appealed under s. 490.017. Further applications are permitted, governed by s. 490.015(4).

[84] In the result, I am satisfied that the trial judge's refusal to direct SOIRA registration reflects error and cannot stand. 5. A procedural post-script

[85] Since Ms. Nakelsky for the appellant made it clear that she was not seeking to have the respondent re-incarcerated after he had served the custodial component of the sentence imposed by the trial judge, I have not considered whether the quantum of the sentences imposed, as well as the manner in which they should be served (concurrently rather than consecutively), reflects error. At all events, I do not wish to be taken as holding that either decision is free of error.

[86] Two procedural anomalies that occurred during sentencing proceedings warrant brief mention although neither was raised on appeal.

[87] The first has to do with commencement of custodial sentences and comes up in this way. On August 23, 2007, the trial judge imposed sentences of imprisonment for six months on each count and ordered that the sentences be served concurrently with each other. After these sentences had been imposed, counsel for the respondent entreated the trial judge to permit the respondent to surrender into custody to begin service of the sentence "after the long [Labour Day] weekend". The prosecutor offered no opposition to the request. The sentencing judge acceded to the proposal. The respondent was directed to return to court on September 4, 2007 to surrender into custody to begin service of the sentence.

[88] When the respondent appeared on September 4, 2007, his counsel, again for the first time, asked the sentencing judge whether the sentences imposed on August 23, 2007 had included [page439] credit for the one month that the respondent had spent in pre-disposition custody. The sentencing judge indicated that the sentences he had imposed did not include credit for pre-disposition custody. In the result, the sentencing judge "altered" the sentence on each count to four months' imprisonment and directed that the sentences be served concurrently with each other.

[89] In this case, at the very least, a custodial sentence was a realistic likelihood. If there were some legitimate basis, beyond mere preference or personal convenience, why the respondent could not begin to serve the custodial sentence on the day on which it was imposed, counsel for the respondent should have drawn this to the attention of the prosecutor and the sentencing judge before, not after sentence was imposed. The sentencing judge would then have been in a position to determine the date upon which he would impose sentence.

[90] Section 719(1) of the Criminal Code enacts a general rule that a custodial sentence begins when it is imposed. To postpone the commencement of a custodial sentence, [See Note 1 below] as occurred here and seems to have occurred elsewhere, is at once at odds with s. 719(1) and, on a practical level, easily avoidable.

[91] Where credit is sought for time spent in pre-disposition custody in the sentencing decision, counsel on both sides should make their position on this issue clear in their sentencing submissions. In the result, the sentencing judge will be well-equipped to determine the sentence to be imposed based on all relevant sentencing objectives, principles and factors, including any credit that counsel suggest should be awarded for pre-disposition custody, in determining the actual sentence to be imposed. E. Disposition

[92] For the reasons given, I would allow the appeal, [See Note 2 below] set aside the sentencing judge's refusal to direct SOIRA registration and direct that the respondent register in accordance with s. 490.012(1). The order begins on the date on which this judgment is released and ends 20 years later under s. 490.013(2)(b). In all other respects, I would grant leave to appeal but dismiss the appeal.

Appeal allowed.

Notes

Note 1: Apart from sentences to be served intermittently under s. 732(1) of the Criminal Code.

Note 2: Leave to appeal is not required under s. 490.014 of the Criminal Code.