His Majesty The King v. Leon Wasser, 2023 ONCJ 430

ONTARIO COURT OF JUSTICE DATE: 2023 10 03 COURT FILE No.: Toronto 4814-998-09-40005302-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

LEON WASSER

Before: Justice Christine Mainville

Heard on: September 12, 2023 Reasons for Judgment released on: October 3, 2023

Counsel: Neville Golwalla.................................................................................. counsel for the Crown Kayvan Vakili.................................................................................................. for Leon Wasser

Mainville J.:

[1] Mr. Wasser applied under s. 490.015 of the Criminal Code to terminate an order to register as a sex offender pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA). This 20-year order took effect on October 26, 2010, following his conviction for one count of criminal harassment.

[2] I granted this application on September 12, 2023, following evidence and submissions on the issue, and indicated that my reasons would follow. These are my reasons for terminating Mr. Wasser’s SOIRA order, effective September 12, 2023.

Background

[3] Mr. Wasser was convicted of criminal harassment on October 26, 2010, for following a young female and her grandmother from the grocery store to their home. He was ordered to comply with SOIRA for 20 years.

[4] Mr. Wasser had a prior conviction for failing to comply with a release order. He had communicated with an 11-year-old female while being prohibited from communicating with any person under the age of 18, except for members of his immediate family.

[5] Pursuant to the SOIRA order, Mr. Wasser was bound by the following obligations:

I. Report in person to the police on release from custody within seven days: s. 4(1), SOIRA.

II. Provide the police with the following information:

i. His given name, surname and every “alias” used;

ii. His date of birth and gender;

iii. The address of his main residence and any secondary address;

iv. The address of every place where he is employed, retained, or engaged in voluntary work, the name of his employer or the person who engages him in voluntary work, and the type of work that he does;

v. The address of every educational institution at which he is enrolled;

vi. The telephone number at which he can be reached at both home and work or volunteer work and the number of every mobile telephone or pager in his possession;

vii. His height, weight and a description of every physical distinguishing mark;

viii. The license plate, make, model, body type, year and colour of any vehicle that is registered in his name or which he uses regularly;

ix. The license number and issuing jurisdiction of every driver’s license that he holds;

x. The passport number and name of the issuing jurisdiction for every passport that he holds;

xi. Submit to a record of any observable characteristic that can assist in identification, including eye and hair colour and having their picture taken.

III. Provide this report in person every year, between 11 months and one year after his last report: s. 4.1(1)(c), s. 5(1), SOIRA.

IV. Regardless of any previous update, report to the registration centre in person within seven days of any change in residence, work or volunteer address, name or surname, driver’s license, or fifteen days of a change in passport: s. 4.1(1), SOIRA.

V. Prior to taking a trip of a week or longer, whether within or outside of Canada:

i. Provide the registration centre with the date of his departure, the date of his return and the address of every place at which he expects to stay.

ii. If a trip less than a week turns into one lasting a week or longer, notify the registration centre of all the relevant details within seven days of departure.

iii. If there are any changes to itinerary, he must notify the registration centre of such changes within seven days as well.

iv. Provide such notices by registered mail: s. 6, SOIRA.

[6] Pursuant to s. 490.031(1) of the Criminal Code, failure to comply with obligations under SOIRA is an offence punishable by indictment or summary conviction with a maximum term in prison of two years or a fine of up to $10,000.00.

[7] Mr. Wasser’s order was set to end on October 26, 2030. He has not accumulated any new charges since his 2010 conviction. And he has since been pardoned for the offence that led to the SOIRA order being imposed and his other criminal conviction. Indeed, he was granted a full record suspension on July 28, 2020.

Law

[8] Section 490.015(1)(b) enables a person to apply for the termination of a SOIRA order after ten years have passed. A termination order may also be obtained once the person is pardoned or receives a record suspension: s. 490.015(3).

[9] Mr. Wasser meets both pre-conditions.

[10] Pursuant to s. 490.016, 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 SOIRA. That is the test I must apply.

[11] In considering the public interest of maintaining the order, I am to examine the nature of the offence, the applicant’s criminal record, whether the offence was committed many years earlier, and any other factors that bear on the potential impact of the applicant not being registered, such as his risk to re-offend: R. v. Debedin, 2008 ONCA 868, at para. 69.

[12] Given the many changes in Mr. Wasser’s circumstances since being convicted of the index offence more than a decade ago, I begin with considering the public interest in continuing the order.

Public Interest

[13] Much time has passed since Mr. Wasser’s last conviction or indeed involvement with the criminal justice system. Over the past 13 years, he has led a productive life and been a contributing member of society. He was fully pardoned in 2020 and thus no longer has a criminal record. He also no longer has a provincial obligation to report under Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1. Only his SOIRA obligations remain.

[14] Most importantly, Mr. Wasser has taken very significant steps toward rehabilitation. He benefits from valuable family support. His risk of reoffending is significantly reduced from what it once was, which of course bears on the public interest in having the order continue.

[15] As set out below, the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38 recently recognized the inherent hardships on individuals of having to register under SOIRA. If the public interest in having the order in place is nil or very low, this will generally make the order grossly disproportionate to its unquestionable impact on the offender.

[16] Indeed, the Supreme Court in Ndhlovu opined at paragraph 85 that “[i]n certain cases, an offender’s personal circumstances mean they are not at an increased risk of reoffending, undermining any real possibility that their information on the registry will ever prove useful to police. [A] rough proxy like a prior conviction for a sex offence does not readily account for those circumstances.”

[17] Moreover, it found at paragraph 95 that it is inaccurate to say that all sexual offenders are at an enhanced risk of reoffending: “while a previous conviction for a sexual offence is a risk factor, about 10 percent of the individuals with a prior conviction for a sex offence are not, at time of sentencing, at an enhanced risk of reoffending when compared to the general criminal population. Focusing only on the commission of a past sexual offence inevitably detracts the focus from the other variables affecting an offender’s recidivism risk. This is hardly surprising, considering that sexual offences cover a broad range of conduct and that sex offenders are not a uniform group.”

[18] In the present case, Mr. Wasser’s offending fortunately did not lead to any sexual assault, sexual interference or sexual exploitation of a young person. There is also little question that he is rehabilitated. The steps he has taken to achieve this rehabilitation are substantial.

[19] After his conviction, he went through extensive counselling for sexual offenders for approximately four years and successfully completed the programs. He participated in both individual and group counselling. He also completed approximately three years of couples counselling with his wife to mend their relationship.

[20] In 2020, the federal government granted him a full pardon. At this time, the Parole Board of Canada wrote the following in respect of his rehabilitation:

Overall, the Board believes that you have made positive changes in your life by addressing the psychological and emotional issues that contributed to your offending, and by focusing on your career and pro-social community activities. The Board is satisfied that you have demonstrated sustained rehabilitation.

[21] The Board noted that Mr. Wasser had been of good conduct and had, through his therapy, acquired skills and tools to lead a healthier lifestyle. It considered Mr. Wasser’s acknowledgement that his behaviour was inappropriate and wrong, and his expressions of regret for his mistakes.

[22] I was also provided a 2013 letter sent to Mr. Wasser’s parole and probation officer by a medical practitioner from an organization that provides counselling services, who confirmed the details of Mr. Wasser’s rehabilitative efforts. At the time, Mr. Wasser had attended 202 therapy sessions over three years. The letter described how the writer of the letter had witnessed Mr. Wasser undergo a significant transformation during his therapy process, and his active engagement in the process.

[23] Mr. Wasser has gone on to become a contributing member of society. He is pardoned – that is, rehabilitated in the eyes of the law.

[24] Since 2021, as indicated above, he also no longer has any reporting obligation under Ontario’s Christopher’s Law. It is no longer viewed as necessary for him to register under provincial law.

[25] In my view, Mr. Wasser is at this point no more at risk of offending sexually than a random person pulled off the street.

[26] In these circumstances, as in G. v. Ontario (Attorney General), 2019 ONCA 264, at paragraph 156, I see little to no public or societal interest in requiring him to comply with the sex offender registry order.

Impact of the Order on Mr. Wasser

[27] The Supreme Court in Ndhlovu, at paragraph 135, accepted the “deleterious” impact on anyone who is subject to the reporting requirements of a SOIRA order as being clear and considerable. It cited, at paragraph 45, the scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment, to state that SOIRA conditions are “onerous” and that “[t]he requirements impact privacy and liberty, personal interests that are fundamental to society: liberty of movement and choice, mobility, and freedom from state monitoring or intrusion in our personal lives.” See also paragraph 54.

[28] The Court went on to explain, at paragraph 55, the mandatory measures that also involve “constraints on liberty that are insidious and pervasive for all those who must comply” before concluding that “[l]iberty is obviously undermined when personal information is collected, under threat of imprisonment, for the very purpose of monitoring a person in the community and promptly identifying the person’s whereabouts in the course of a criminal investigation”: Ndhlovu, at para. 57.

[29] Further, it recognized at paragraphs 46 and 56 that “the cost of compliance varies from offender to offender based on their life circumstances”.

[30] I have evidence before me of the impacts of the order on Mr. Wasser. Some are the ones that necessarily flow from it, and which impact every registered offender, as presumed by the Supreme Court. Others flow from Mr. Wasser’s particular circumstances, including his family and work situation.

[31] Mr. Wasser highlights in his evidence the stressful nature of the annual reporting process. In an affidavit filed in support of this application, and on which he was cross-examined, he describes extreme anxiety leading up to it, feeling significant embarrassment going into the reporting centre and constantly fearing being recognized, the intrusion on his privacy of the personal questions and photographs, which he finds very unsettling, and the palpable feeling of stigma attached to being on the registry.

[32] But more intrusive than that are the home check-ins after the annual reporting. Mr. Wasser explains that these are unannounced visits by the police. As such, he never knows when they will show up and proceed to ask him a series of questions. This causes a significant amount of stress for him and his wife. They are concerned and embarrassed about their neighbours witnessing two police officers attending their home on a regular basis and are worried about having guests including family at their house.

[33] Mr. Wasser describes a loss of travel and financial opportunities resulting from his decision to avoid travelling to avoid complications resulting from the SOIRA order. Some of these complications are referenced by the Supreme Court in Ndhlovu, at paragraphs 46 and 55. Not travelling has precluded him from attending to his mother during health incidents, from attending family functions abroad, and from travelling for work purposes.

[34] Although avoiding travel entirely is a choice Mr. Wasser has made, the difficult choice offenders face as it relates to travel is itself an impact of the SOIRA regime. The alternative is to take cumbersome measures ahead of and sometimes while traveling, and risk additional complications. In the circumstances, I accept that deterring traveling is one impact of the SOIRA order on Mr. Wasser that is relevant to the present assessment.

[35] Mr. Wasser has also been barred from attending the religious establishment where he used to worship, until his name is fully cleared, though he has been able to attend a different establishment instead.

[36] Mr. Wasser describes the reporting obligations as being a constant reminder of the horrible mistakes he once made and how he is consistently made to relive the worst moments of his life. The emotional distress is revived every time he needs to report.

[37] I find that the impacts of ongoing SOIRA obligations on Mr. Wasser’s privacy and liberty have been significant.

Required Balancing

[38] I recognize that the offence of criminal harassment that led to the SOIRA order being imposed back in 2010 is concerning and that there was at least some reference at that time to Mr. Wasser’s high-risk behaviour. However, that has since changed.

[39] There has been no re-offending or further incident whatsoever. He has taken every step to rehabilitate himself, and the steps taken seem to have borne fruit. He has been officially pardoned by the Parole Board of Canada who underscored his good conduct and rehabilitation. The Crown did not suggest that Mr. Wasser posed any further risk to society.

[40] As stated by Crown counsel at this hearing, the principles of sentencing came to fruition in this case. One of the objectives of sentencing is to assist in rehabilitating offenders. This is one such story of rehabilitation.

[41] I conclude that the impacts on Mr. Wasser of an ongoing reporting obligation and other requirements under SOIRA are grossly disproportionate to the low public interest in the effective prevention or investigation of crimes of a sexual nature that is achieved by maintaining him on the registry.

[42] The application is therefore granted.

[43] The Crown will be notifying the Ontario Provincial Police, whom I am advised administers this program in Ontario. We understand that the OPP will ensure that the requirements of s. 490.016(3) are abided by.

Released: October 3, 2023 Signed: Justice Mainville