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(3) 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(3), read as follows:
486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
CITATION: R. v. Cusick, 2023 ONCJ 170
COURT FILE NO.: 13-1016
DATE: 2023 04 19
ONTARIO COURT OF JUSTICE
RE: HIS MAJESTY THE KING, Respondent
– and –
FRED CUSICK, Applicant
BEFORE: JUSTICE P.T. O’MARRA
COUNSEL: Helena Gluzman, for the Respondent Kevin Kaczmara, for the Applicant
Endorsement
[1] The Applicant seeks an order under section 24(1) of the Charter exempting him from section 490.012 of the Code which mandates his registration on the Registry established by the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”).
[2] On February 7, 2022, the Applicant pleaded guilty to the offence of possession of child pornography. On December 15, 2022, I issued my Reasons for Judgment on sentence.[^1] However, on October 28, 2022, and after submissions had been made by counsel, the Supreme Court, in its decision in R. v. Ndhlovu,[^2] held that mandatory SOIRA orders, sections 490.012 and 490.013(2.1) of the Criminal Code, violate s. 7 and cannot be saved under s. 1. The provisions are of no force and effect. The declaration in respect of s. 490.012 is suspended for one year and applies prospectively.
[3] The Crown conceded that individuals such as Mr. Cusick may be granted an exemption where they can show that inclusion on the Registry bears no relation to or is grossly disproportionate to the objective of s. 490.012 of the Code and that granting the exemption would not undermine the purpose of suspending the declaration.[^3]
[4] The onus to establish that a provision is overbroad and in violation of section 7 of the Charter rests with the Applicant. The Applicant will have to demonstrate that the SOIRA impacts on their liberty bears no relation or is grossly disproportionate to the objective of section 490.012. The Court stated that "[t]here is a heavy onus on the party alleging that the legislation is overbroad."[^4]
[5] For the Applicant to meet his burden to establish a breach of section 7 of the Charter, he must show that the imposition of the SOIRA order amounts to deprivation of his liberty and that the deprivation does not accord to the fundamental principles of liberty.[^5] The Crown concedes that the SOIRA amounts to a deprivation of liberty.
[6] The purpose of section 490.012 is to capture information about offenders that may assist police in preventing and investigating sex offences. In Ndhlovu, the Court found that “registering offenders who are not an increased risk of reoffending bears no connection” to that purpose.[^6] Therefore, the core issue for me to determine is whether Mr. Cusick is an increased risk of committing a future sex offence.
[7] At the urging of the Crown, and with the consent of the Applicant, I ordered a psychiatric assessment, Form 6 Order of Assessment on the Applicant. The assessment was completed by Dr. Paul Benassi at CAMH. Dr. Benassi submitted his report dated February 21, 2023. That report will be marked as an exhibit to these proceedings.
[8] After my review of the report, the agreed statement of facts, exhibits, the reasons for sentence, caselaw, submissions and materials from both counsel, I am not persuaded that the Applicant is not an increased risk of committing a future sex offence and should be exempt from registering for the following reasons:
The commission of the offence of child pornography is “one of many empirically validated predictors of increased sexual recidivism.”[^7]
Some of the Applicant’s collection fell into the fourth category on the scale of depravity - penetrative sexual activity between children and adults.[^8] The greater degree of depravity, the greater the risk posed by the Applicant.
Based on the Applicant’s allocution and forensic analyst, the Applicant has had an active interest in child pornography for a period of 10 years leading up to his arrest in 2012.
The Applicant placed and retained his collection of child pornography on 6 CDs or DVDs.
On Page 9 of Dr. Benassi’s report he concluded that, “there is evidence of pedophilic and hebephilic sexual interests.” On Page 10, the Applicant acknowledged to Dr. Benassi a sexual interest in prebuscent girls and sought out pornography that depicted girls younger than 13 years old, for sexual stimulation. Dr. Benassi wrote the following:
Based on the totality of available information, Mr. Cusick likely has hebephilic orientation. There is objective evidence that he experiences sexual interests and arousal to pre-pubescent children, suggestive of a pedophilic interest and orientation. There is insufficient information to determine if it meets the threshold of pedophilic disorder…
[9] I have considered and recognize that the Applicant’s case has unusual circumstances. For example, the Applicant’s matter has been the subject of two appeals. He was sentenced approximately 10 years after his arrest. However, his circumstances are dissimilar in the Ndhlovu decision, in describing where a sexual offender has been convicted many years removed from the events and are at an advanced age and have highly limited mobility.[^9] The Applicant is 59 years old and is employed as a delivery driver.
[10] I cannot say with any degree of certainty it is not “remote or implausible” that the Applicant’s information “will ever prove useful to the police.”[^10]
[11] In conclusion, the Applicant has failed to establish a breach of section 7 of the Charter. The Application is dismissed.
[12] The Applicant must be included in the SOIRA Registry for a period of 10 years.
Justice P.T. O’Marra
DATE: April 19, 2023
[^1]: R. v. Cusick, 2022 ONCJ 590. [^2]: 2022 SCC 38. [^3]: R. v. Albashir, 2021 SCC 48 at paras. 66-67. [^4]: Ndhlovu, para. 172. [^5]: Ndhlovu, paras. 51-51; 77-78. [^6]: Ndhlovu, paras. 76 and 79. [^7]: Ndhlovu, para. 94. [^8]: R. v. Jonat, 2019 ONSC 1633 at para. 11. [^9]: Ndhlovu, para. 86. [^10]: Ndhlovu, paras. 9 and 109.