WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: February 23, 2018

Original Court File No.: Brampton 04-5393

Between:

Her Majesty the Queen

— AND —

S.S.

Before: Justice Sandra Caponecchia

Heard on: Monday, January 29, 2018

Reasons for Judgment released on: February 23, 2018

Counsel:

• Keeley Holmes, counsel for the Crown
• David North, counsel for the accused S.S.

Contents

• BACKGROUND
• CROWN POSITION
• ANALYSIS
  • I. Sex Offender Information Registration Act ("SOIRA")
  • II. Onus
  • III. Likelihood of Recidivism
  • IV. Decisions in Other Cases
  • V. This Case
    • a) The Nature of the Offence
    • b) The Risk to Re-offend
    • c) Criminal Record
    • d) Other Matters Personal to the Offender's Circumstances
• CONCLUSION

Reasons for Judgment

CAPONECCHIA J.:

Background

[1] The Applicant applies to terminate his registration under the Sex Offender Information Registration Act ("SOIRA") pursuant to 490.015(1)(b). The Applicant relies on his affidavit as well as other materials contained in the Application Record.

[2] Both the Crown and the Applicant agree that this motion falls within the definition of "proceedings" in s. 486.4 and that I can make an order restricting the publication of anything that could reveal the identity of the victim.

[3] The circumstances are that on May 9, 2005 the Applicant pled guilty to sexual interference.

[4] The Applicant sexually assaulted his step-daughter. The offence took place when the victim was between 9 and 14 years of age. The admitted facts included over 50 sexual encounters. The incidents occurred approximately once a month. The behavior included fondling the child above and below her clothes and having her touch his penis on one or two occasions.

[5] At the time of his sentencing Dr. Pallandi assessed the Applicant to be at a low risk to re-offend. He was sentenced to 6 months jail and 2 years' probation. A DNA order was granted, as was an order requiring the accused to comply with the Sex Offender Registry Act for a period of 20 years.

[6] After serving his jail sentence, the Applicant resumed his job. With the exception of the time he spent in custody for abusing his step child, the Applicant has been employed with the same employer for 19 years. His former partner and biological child relocated out of the province and he provides financial support for his child.

[7] He has been in a stable relationship with a woman for 10 years and is close with his family.

[8] In a more recent report dated December 28, 2016, Dr. Pollandi assessed the Applicant's risk of re-offending to be extremely low.

[9] The Applicant is currently 54 years of age. He has been meeting the requirements of the SOIRA legislation for the last 11 years. An individual can apply to terminate a 20 year SOIRA order after 10 years has elapsed. If a person applies and is refused, they are required to wait another five years before they can apply again.

[10] The Court is required to give reasons for its decision and these are my reasons.

Defence Position

[11] The defence acknowledges that the obligation to physically report is not particularly onerous. The Reporting Centre is easily accessible to the Applicant. It is located approximately 8 km from his home near a subway stop. The yearly visit only takes about 15 minutes. The random visits to the Applicant's home from time to time by officers who have the duty of enforcing and managing the SOIRA registration are also brief.

[12] The reasons the Applicant is asking for the SOIRA order to be terminated have to do with the side effects he has experienced as result of complying with his obligations. In his affidavit, the Applicant specified the following hardship:

1. He experiences stress and anxiety each year in the weeks preceding his annual visit to the Reporting Centre. On the day of the visit, he fears running into someone he met during his time in jail. Given the close proximity of the Reporting Centre to his home, he also fears running into someone he knows from work or his neighborhood.

2. Not knowing when officers will attend his residence also causes him stress. He becomes fearful that members of the public, neighbors and possibly from his work place, will come to learn he is on the Registry.

3. He is fearful that the Registry may be made public. He experienced stress and anxiety when he heard comments by the Federal and Provincial governments of their intention to do so. He was relieved when the Progressive Conservative party lost power in Ontario and the last Federal election but continues to fear the Registry could be made public while he remains on it over the next 9 years.

Crown Position

[13] Simply stated, the Crown's position is that the Applicant's fears have not materialized over 11 years and in any event, any hardship he has experienced does not amount to an impact that is grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature.

Analysis

I. Sex Offender Information Registration Act ("SOIRA")

[14] The Sex Offender Information Registration Act came into force on December 15, 2004. Upon its introduction to Parliament, it was described as providing improved protection from sexual abusers, with emphasis on protecting children and vulnerable persons from assaults by strangers. The Sex Offender Information Registration Act operates in a manner akin to Ontario's Christopher's Law.

[15] A SOIRA order is not a punishment. It is not defined as a sentence in s. 673 of the Code. In R. v. Redhead, 2006 ABCA 84, para. 12 (leave to appeal to S.C.C. refused, [2006] 2 S.C.R. x) the court held that, "[a] SOIRA order does not constitute a sentence." This is consistent with the Ontario Court of Appeal decision in R. v. Dyck which held that sex offender registration and reporting under Christopher's Law does not constitute punishment.

[16] A person convicted or found not criminally responsible (NCR) in respect of the enumerated offences is automatically subject to both registries. Both registries require in-person reporting, at least annually. The federal legislation imposes additional requirements. Any time a person subject to it is absent from their main residence for a period of seven or more days, he or she must notify the Registration Centre of his or her travel itinerary by registered mail or in person prior to departure. Non-compliance is punishable upon summary conviction or upon indictment by fines and up to two years in prison.

[17] Unlike Christopher's Law, the Sex Offender Information Registration Act does permit persons placed on the registry to apply to a court for an exemption. Christopher's Law has withstood Charter scrutiny.

II. Onus

[18] Currently, a SOIRA order made pursuant to 490.012(1) of the Code is mandatory upon a finding of guilty or NCR determination for certain designated offences. Originally, there used to exist an exemption provision for offenders who could establish the impact would be "grossly disproportionate." The exemption in 490.012(4) was subsequently repealed. Since the amendment an individual who wishes to be relieved of their obligation to report must apply to terminate the order.

[19] The applicable test for early termination of a SOIRA order is contained in s. 490.016(1) of the Criminal Code. It is the same test upon which an exemption could previously have been granted. S. 490.016(1) provides as follows:

The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the 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.

[20] The burden is on the Applicant to establish the "grossly disproportionate impact" on him or her 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.

[21] The standard of "grossly disproportionate" has been described by the Ontario Court of Appeal as a high threshold that requires the offender to establish more than a simple imbalance of individual impact over public interest.

[22] In R. v. Turnbull, 2006 NLCA 66, the court suggested that it was inconceivable that an offender could establish "gross disproportionality" without being able to have a court consider factors such as the circumstances of the offence, the record of the offender, whether the offence was committed many years earlier, and the record of the offender in the interim.

[23] In R. v. Redhead 2006 ABCA 64, leave to appeal refused [2006] S.C.C.A. No. 187 the Alberta Court of Appeal held that the "grossly disproportionate" standard is the same for both SOIRA and DNA decisions. The Alberta Court of Appeal concluded that the analysis of "grossly disproportionate" is restricted to the impact of a SOIRA order on the offender, including the impact on the offender's privacy and liberty interests. Other impacts on the offender may also be considered. In Redhead, the trial judge's reasons for declining to make the order included the fact that the respondent's judgment was clouded by alcohol at the time of the offence, he was not a pedophile, and he was not likely to re-offend. The decision was overturned on appeal.

[24] In R. v. Debidin, 2008 ONCA 868 the Ontario Court of Appeal also overturned a trial judge's decision declining to make a SOIRA order. The trial judge's reasons were based on the impact that the sexual offence charges had on the offender, including the unreasonable amount of time he spent awaiting trial and the impact it had on his physical and mental health, as well as on his ability to pursue his chosen career. On appeal the court held that prejudice that arises from the fact and nature of criminal charges, as well as the stigma associated with later becoming a convicted sex offender, are distinct from the impact of a SOIRA order.

[25] Referring to Redhead and the decision in R. v. C. (S.S.) (2008), 2008 BCCA 262, 234 C.C.C. (3d) 365 (B.C.C.A.) para. 87, the Ontario Court of Appeal in Debidin considered the following factors as relevant circumstances to be taken into account in determining whether an exception to reporting should be granted:

a) the nature of the offence

b) the risk to re-offend

c) the offender's criminal record

d) other matters personal to the offender's circumstances

[26] The Applicant can succeed only after presenting evidence that addresses these factors and satisfies the court that the impact would be "grossly disproportionate" to the public interest in protection of society.

III. Likelihood of Recidivism

[27] 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. Several appellate courts have emphasized that SOIRA registration is not limited to likely recidivists or sexual predators. It is an 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.

[28] In 2006 the Alberta Court of Appeal in Redhead dealt with the issue of offenders who are of low risk to re-offend and whether their inclusion in the registry would dilute the registry and make it less effective, rather than serve the public interest. The Court concluded that a case-by-case analysis of whether there exists a public interest in registering an offender was not appropriate. The public interest is presumed. The Court stated at para. 42:

…had Parliament intended that courts should determine whether there exists a public interest in registering an offender on a case-by-case basis, factoring in all of the individual circumstances surrounding each offender and his or her offence, it could have made that intention clear in the wording of the provision. Instead, Parliament has pronounced that there is a public interest in having those who commit the prescribed offences registered. The language of s. 490.012(4) presumes a "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," but questions whether the impact on the offender would be grossly disproportionate to that public interest. Thus, the focus of the inquiry is not on whether there is a public interest in having the offender registered, but rather on whether the impact on the offender would be grossly disproportionate to the public interest.

[29] The Court in Redhead rejected the notion that the purpose and value of the Act is related to the investigation of "predatory stranger" offenders. The Court of Appeal stated as follows:

[38] … The language of s. 490.012 does not suggest its application is so limited. Rather, the absence of such limiting language reflects Parliament's recognition of predictable repetitive behaviour of sexual offenders, and the inordinate consequences of sexual offences for victims of any age.

[30] Subsequent to Redhead, in Ontario in R. v. L. (R.) 2007 ONCA 347 the only reason given by the trial judge for refusing to make the SOIRA orders was "because I have determined that [the respondent] does not present an ongoing risk to the community." On appeal it was argued that if recidivism is unlikely, registration serves little public purpose and the respondent should be granted an exemption, having regard to the fact the offender has no prior criminal record, has lived his entire life in one area had a steady job and good character references. The Court of Appeal disagreed. It held that the only circumstance in which a court would not make an order under this section is if the impact on the offender's privacy and liberty interests is grossly disproportionate to the public interest. There was no evidence as to the effect on the offender's privacy and liberty interests other than the normal inconvenience he would incur in complying with the requirements of registration. There was no evidence to displace the public interest in registration. Moreover, the Court of Appeal held that it was not necessary to attempt to define all of the factors that make up the public interest because the public interest in registration is deemed to be significant. The trial judge erred by minimizing the public interest in registration in all the circumstances of this case and did not undertake the balancing exercise he was required to perform.

[31] In 2008 the Ontario Court of Appeal in Debidin held that registration under the Act is not limited to likely recidivists or sexual predators, and that it is an error to enhance the impact on an offender of registration or to dilute the public interest in registration on the basis of diminished risk of recidivism. The court concluded as follows:

[77] . . . 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.

[32] More recently in R. v. Titchener, [2010] B.C.J. No. 2064 (B.C.C.A.), a chiropractor was convicted for sexually touching multiple patients during treatments. The trial judge declined to make a SOIRA order. One of the reasons for doing so is that he was at low risk to re-offend. The trial judge was found to have erred in granting the exemption for that reason.

IV. Decisions in Other Cases

[33] In R. v. M.J.S., [2010] O.J. No. 4711 (C.A.), the respondent pled guilty to sexual interference. He was 20 at the time of the offence, had unprotected intercourse with a 13 year-old girl. The trial judge declined to make the Sex Offender Registry Order. The offender presented no evidence indicating any particular impact a registration order would have on him. On appeal, the court held that the standard of grossly disproportionate is a high threshold and requires the offender to establish more than a simple imbalance of individual impact over public interest. There was simply no evidence capable of meeting the high statutory threshold and the sentencing judge's conclusion that registration "would be a serious detriment" amounted to impermissible speculation.

[34] R. v. J.M.S., 2013 BCPC 141, is a case dealing with termination of a registration pursuant to s. 490.027(1). In granting the order for termination, the Court emphasized the risk of inadvertent or improper disclosure of the registry information. With respect, it is the view of this Court that the reasoning in J.M.S. is flawed. The emphasis on the risk of disclosure was entirely speculative and the decision is not binding.

[35] In R. v. Owusu, 2008 ABQB 715, the Court considered whether an offender was entitled to an exemption from registration under s. 490.012(4). After acknowledging the decision of the Alberta Court of Appeal in Redhead, the Court went on to grant the Applicant an exemption. In so doing, the Court noted that the reporting requirement "may" affect the Applicant's employability. Without commenting on what seems to me to be the speculative nature of the evidence on that point in Owusu, this Court would simply note that there is no evidence of any impact on the employment of the Applicant in the case before this Court.

[36] R. v. R.A.M., 2009 BCPC 169, is a case where the accused was not granted an exemption from registration under s. 490.012(4). The Court noted that the impact of registration on the offender were minimal, and that there was no evidence that the reporting requirements of the Act would affect his employability. In this case there has been no impact on the Applicant's employability as a result of the SOIRA order.

[37] R. v. G.E.W., 2006 ABQB 317, is a decision considering whether an offender was entitled to an exemption from registration pursuant to s. 490.023(2) of the Criminal Code. Following the decision in Redhead, the Court held that the Applicant was entitled to an exemption because there was evidence that the registration was having a disproportionate impact on his marriage and was also having an effect on his employment prospects. Neither of those impacts are present in the case before this Court.

[38] In R. v. Nassereddine, [2016] A.J. No. 1206, an application to terminate was granted. There was evidence regarding the stigma he experienced on account of being labelled a sex-offender and the stress that this label put him under. The offender experienced feelings of low self-worth. In addition to the mental consequences, the court accepted his physical impairments and how the registration affected the offender's ability to work and why he is reluctant to purchase a new vehicle. The offender was concerned about travelling to the Middle East and was fearful that Middle East countries may identify him as a sex-offender which would result in mistreatment. Finally, the offender wanted to immigrate to Lebanon which was not possible because he was required to check in with Canadian authorities on a yearly basis. The facts on this case are distinguishable to those of the Applicant.

[39] In R. v. Bérubé, [2016] O.J. No. 2995, an application to terminate was granted for an individual who was homeless and a recipient of financial social assistance since an accident resulted in the amputation of his left arm. He was convicted of indecent assault for either urinating or masturbating while awaiting the opening of the soup kitchen at 6:30 a.m. Over the course of 6 years, the Applicant never complied with the SOIRA obligations. He refused to sign the Acknowledgement of Order after it was issued and was found guilty for failing to comply with the order. His reasons for not complying had to do with his mental instability. He had bad dreams about the order and expressed his decision to stay incarcerated should the Order remain in effect because he felt so distraught about the stigma the Order puts on him. From his perspective, he could not return to his community upon being identified as a sexual offender. None of the unique factors present in the case before this Court.

[40] In T.L.B., 2007 ABCA 135, the Court found that it was grossly disproportionate to the public interest to require a mother who had sexually assaulted her son to be registered under SOIRA. She was found to have had a genuine and unique psychological profile as well as physical challenges in reporting, which balanced against the public interest, persuaded the court that the very high test for an exemption from SOIRA is met. Neither of the unique factors are present in the case before this Court.

[41] In the case of R. v. Keltner, [2011] O.J. No. 2098, an application was brought to terminate the offender's SOIRA order after he was granted a pardon. Mr. Keltner was 75 years of age and had no further criminal record. Notwithstanding these facts, he did not show that the reporting section of the Act caused him undue hardship and the application was denied.

V. This Case

a) The Nature of the Offence

[42] The offence that the Applicant committed was serious. It involved an abuse of trust over a young girl, his step-daughter. The crime was opportunistic. There were numerous instances which took place over a prolonged period of time.

[43] As emphasized in R. v. K.R.J., 2016 SCC 31, at para. 66:

As Laskin J.A. wrote in R. v. Budreo (2000), 46 O.R. (3d) 481 (C.A.), "Children are among the most vulnerable groups in our society. The sexual abuse of young children is a serious societal problem, a statement that needs no elaboration" (para. 37). Providing enhanced protection to children from becoming victims of sexual offences is vital in a free and democratic society.

b) The Risk to Re-offend

[44] In this case, it is argued that any impact on the Applicant complying is sufficient to result in a finding that such impact is grossly disproportionate to the public interest in his continued registration because the Applicant is an extremely low-risk to re-offend. Therefore, according to the defence, there is either diminished or no legitimate public interest in this case in requiring him to continue to comply with his obligations under the Act.

[45] However, the risk of recidivism is not determinative of any termination application. Appellate courts have repeatedly emphasized that SOIRA registration is not limited to likely recidivists or sexual predators and it is an 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.

c) Criminal Record

[46] The accused has not reoffended and has a minor unrelated historical conviction for drugs.

d) Other Matters Personal to the Offender's Circumstances

[47] This Court accepts that the Applicant experiences ongoing fear and anxiety with respect to the maintenance of the confidentiality of the registration. However, at present, dissemination of information contained in the registry is tightly circumscribed by the Act. I expect his fear is shared by others on the Registry and is not so unique to the Applicant. In any event, this fear alone, without anything more, does not make out the "grossly disproportionate" standard. If it did, I expect the Registry would be depleted.

[48] The offender is 54, steadily employed and is in stable relationship. During the last 11 years, he has been cooperative when it comes to reporting obligations. At this point in his life he wants to be able to move forward away from the restrictions and away from the risk of disclosure of this history to those in his life: his friends, family, partners, neighbors, employers, and other persons with whom he has dealings in his life.

[49] The Court accepts that he lives with ongoing fear and anxiety that his friends, neighbors, or co-workers will learn he is on the Sex Offender Register and of the Registry being made public. This Court also accepts that there is a stigma attached to sex offending and were this information to be made more broadly public that would be of significant concern for the Applicant and this would have an impact on his life.

[50] That said, the concerns expressed apply not just to the Applicant but to any other person that is required to report - there is a concern that confidential information becomes known whether by malfeasance, misbehavior or by accident. However the impact to be assessed on this application is not the impact from others learning he is a convicted sexual offence, nor 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] Moreover, to date the Applicant's fears have not materialized. And I find that the anxiety the Applicant has experienced in the last 11 years has not been so debilitating or had any permanent or detrimental impact on him, his family, his relationships, or his employment. There is no evidence that his reporting requirement has resulted in harassment, interference at work or at home. He has not experienced any dislocation in his employment or living conditions.

Conclusion

[52] A decision whether to terminate an order 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.

[53] The standard of "grossly disproportionate" has been described as a high threshold which requires the offender to establish more than a simple imbalance of individual impact over public interest. The Ontario Court of Appeal has emphasized that the standard is a high statutory threshold which does not permit impermissible speculation. It is a very stringent and demanding standard, one not easily satisfied, something rare and unique.

[54] Applying these principles, I have concluded that the Applicant has not met the burden of establishing that the impact on him of continuing his obligations under the Act would be grossly disproportionate to the public interest in his continued registration. As a result, the application must fail.

Released: February 23, 2018

Justice Sandra Caponecchia