Court Information
Ontario Court of Justice
Date: June 7, 2016
Court File No.: 16-0571
Parties
Between:
Her Majesty the Queen
— And —
Joseph Joël Bérubé
Before the Court
Justice Julie I. Bourgeois
Heard on: June 1 and 7, 2016
Reasons for Judgment released on: June 7, 2016
Counsel
Robert Thomson — counsel for the Crown
Mr. Joseph Joël Bérubé — on his own behalf (Susan Morris as Duty Counsel)
Judgment
BOURGEOIS J.:
Application and Background
[1] This is an Application by Mr. Bérubé pursuant to s. 490.016 for an Order terminating his registration obligations made on May 13, 2010 pursuant to s. 490.012(2), following his conviction for an indecent act contrary to s. 173(1)(a) that had taken place in Red Deer, Alberta on April 4, 2010. After his arrest, he was also charged and apparently plead guilty to a mischief for throwing fecal matter in the RCMP detachment. Section 173(1)(a) was, at that time, a straight summary offence.
[2] Mr. Bérubé testified on this Application and the Crown filed, with the consent of Mr. Bérubé, documentation relevant to this matter: a copy of the front page of the Information charging Mr. Bérubé pursuant to s. 173(1)(a) and s. 430(4); the SOIRA Order in Form 52, along with the Acknowledgement of Order indicating Mr. Bérubé's refusal to sign; Mr. Bérubé's criminal record; and the Affidavit of M.J. Goderre, a member of the OPP, authorized to consult the information contained in the SOIRA database and his Exhibit A to his Affidavit, a printout record of his search on the National Sex Offender Registry database.
Legal Framework
[3] The Order being made pursuant to s. 490.012(2) for the designated offence of indecent act pursuant to s. 173(1)(a) means that the Crown, upon conviction, must have established, beyond a reasonable doubt, that Mr. Bérubé committed the indecent act with the intention to commit an offence referred to in parag. 490.011(a), (c), (c.1), (d) or (e). This is the only way a conviction pursuant to s. 173(1)(a) – indecent act, will attract a SOIRA Order. Contrary to s. 490.012(1), parag. 490.012(2) does not use the mandatory language in the same manner. These two paragraphs also make a clear distinction between s. 173(1) – indecent act and s. 173(2) – exposure, for sexual purpose to persons under the age of 16 years old in their treatment as designated offences. Paragraph 173(2) is a designated offence listed under parag. 490.011(a), while parag. 173(1)(a) is a designated offence listed under parag. 490.011(b).
[4] Therefore, the classification of s. 173(1)(a) – indecent act, makes it such that the only manner in which a SOIRA Order in Form 52 can be issued is if the Crown established, beyond a reasonable doubt, that the offence was committed with the intent to commit one of the offences described in one of the other 5 paragraphs under s. 490.011, listing the designated offence. Looking briefly at those paragraphs, in this case the historical sections of the criminal code do not apply therefore paragraphs (c), (c.1) and (d) are not applicable, leaving us with the offences listed in paragraphs (a) – of sexual nature; or (e) – attempt or conspiracy to the offences listed in paragraph (a).
Applicant's Evidence
[5] A large portion of the testimony of Mr. Bérubé was in relation to the circumstances surrounding the offence of indecent act and the procedure surrounding his guilty plea. In the end, Mr. Bérubé readily admits the indecent act but not as particularized on the Information. He states he was urinating and not masturbating a few yards away from the public kitchen soup. He testified about a previous experience in court in the province of New Brunswick that led him to believe this underlying allegation of masturbation was only a joke being played on him in court and therefore he thought it best not to voice his exception to it as he thought no harm came to him from it. It seems to me that for our purposes, the particularization of that count does not affect the analysis required.
Eligibility for Termination
[6] Pursuant to s. 490.015(1)(a), an offender can make an application to terminate the Order in Form 52 after 5 years have elapsed since it was made. In this case, the Order was made just over 6 years ago.
[7] My role is not to review or question the making of the Order in the first place. I am to apply the analysis pursuant to s. 490.016(1) – Terminating the Order. But I cannot leave it under silence nor repeat it enough, this Application and the Order it relates to was made strictly pursuant to s. 173(1)(a). No other designated offence accompanied it. Interestingly enough, he was sentenced to 15 days jail on that count and 40 days on the mischief count. The Crown did not provide me with any case law in relation to an Order being made after a conviction for s. 173(1)(a). And I was only able to find case law where a SOIRA Order was made following not only a s. 173(1)(a) conviction but also accompanied by another conviction, for example under s. 173(2) or s. 271 involving children (and that was R. v. Berhe, 2011 ONSC 6815 but the Court of Appeal ordered a new trial on the issue of necessity to conduct voir-dires to establish the identity of the perpetrator; and R. v. Jenik, 2015 ABPC 107 ordered in the context of guilty pleas pursuant to s. 271 and the new regime of s. 173(1)(a) where the Crown proceeded by Indictment and it was ordered in the context of a long-term supervision order. Interestingly enough, however, the court only made the DNA order for s. 271 specifically.)
Test for Termination
[8] But what am I to consider in the analysis pursuant to an Application for termination order under s. 490.016(1), in the context of an Order made pursuant to s. 490.012(b) for a period of 10 years as per s. 490.013(2)(a)?
[9] Section 490.016(1) reads:
The court shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
[10] The burden on the Applicant is on a balance of probabilities to establish the grossly disproportionate impact on him of continuing the order, including but not limited to his privacy or liberty against the public interest in protecting society through prevention and investigation of crimes of sexual nature. Indeed, R. v. Debidin 2008 ONCA 868, parag. 51, 65-70 but specifically in R. v. Turnbull (2006), 2006 NLCA 66, 214 C.C.C. (3d) 18 (N.L.C.A.) at para. 33 reviewed some of the relevant factors to consider in assessing the individual interest against the specified public interest:
33 There is no conceivable way that an offender could establish gross disproportionality between:
• the impact on him or her of making an order requiring registration, and
• the public interest in protecting society through the effective investigation of crimes of a sexual nature
without establishing either: no impact, or a very low level of impact, on the public interest of his or her not being registered. That, essentially, requires consideration of such factors as: the record of the offender; the nature of the offence; circumstances surrounding the offence; whether the offence was committed many years earlier and the record of the offender in the interim; and any other factors bearing on the potential impact of that specific offender not being registered.
[11] The Applicant can succeed only after presenting evidence that address these factors and satisfies the court that such an impact would be "grossly disproportionate" to the public interest in protection of society. – R. v. R.L. 2007 ONCA 347, para. 7.
Analysis of Evidence
[12] The evidence available on this record in relation to the impact on the Applicant of the continuing order can be summarized as such:
Criminal record: mostly violence related but not sexual in nature;
Nature of the offence: he was either urinating or masturbating in a public place but in either case it equated to an indecent act in the presence of adults and not children. I am satisfied in this case, the offence for which the Applicant was convicted did not involve a child based on the nature of the conviction; the information found at p. 2 of Exhibit A of Cst Goderre's Affidavit; and the testimony of the Applicant;
Circumstances surrounding the commission of the offence: he was homeless and is a recipient of financial social assistance since an accident resulted in the amputation of his left arm; he had been awaiting the opening of the soup kitchen when he decided to urinate or masturbate at 6:30am;
Time elapsed: the offence was committed 6 years ago, more than half of the order having elapsed;
Subsequent conduct: the Applicant has incurred other convictions since the SOIRA order was made but none in relation to a designated offence pursuant to s. 490.011 and has been incarcerated as a result of those convictions;
DNA database: he is on the DNA known offender database and has convictions attracting mandatory DNA orders;
Compliance: he has never complied with the SOIRA obligations, in fact, refused to sign the Acknowledgement of Order after it was issued and was found guilty by this court for failing to comply with the order in May 2016;
Mental health impact: the Applicant has had bad dreams about this order and certainly seems to experience mental health issues or instability and expressed his decision to stay incarcerated should the Order remain in effect because he feels so distraught about the stigma the Order puts on him. From his perspective, being identified as a sexual offender, he could not return within the community.
Court's Assessment
[13] On this last point, our Court of Appeal in R. v. Dyck, (2008) 2008 ONCA 309, 90 O.R. (3d) 409 addressed it at para. 81 and in Debidin, supra, at para. 78. The Applicant here is not challenging the SOIRA regime. He is simply seeking a Termination Order, 6 years after it was imposed, pursuant to a conviction for an offence under s. 173(1)(a). He refused to sign the order in 2010 and he testified that he attempted to appeal that order but his financial means at the time did not allow him to return to Red Deer from Ontario in time for the hearing. The combinations of those elements of the evidence tend to establish, on a balance of probabilities that he attempted to oppose the order once he realized it had been ordered. Also, based on his evidence, I am satisfied it is the stigma of the SOIRA Order and the identification as a sexual offender and not of the conviction that caused him grief.
[14] I believe that the DNA databank is the better tool in this case to investigate the violent crimes Mr. Bérubé accumulates on his record.
[15] It appears to me, based on the available evidence on this record and in the narrow circumstances of this case, if this Applicant is unable to succeed in terminating the order then I don't know who could and under which circumstances. Yet, s. 490.012(4) allowed for situations where an offender could establish an exception at that time and s. 490.015(1) allows for a person to make an application for termination after five years has elapsed since the order was made.
[16] If this Application does not succeed than it might as well be said that a SOIRA Order is always mandatory, automatic and final. But as we know such is not the case or the aim of SOIRA legislation. Even the Court of Appeal for Alberta recognized this at para. 44 of R. v. Redhead 2006 ABCA 84. Even "a very stringent and demanding standard, one not easily satisfied, something rare and unique" – Debidin, supra, at para. 63) can be met and such is the case at bar.
Conclusion
[17] As such, in balancing the specified public interest and the impact of the continuing order on the Applicant, I am satisfied the Applicant met his onus on a balance of probability and I grant his Application and terminate the order issued against him on May 13, 2010.
Released: June 7, 2016
Signed: Justice Julie I. Bourgeois