Court File and Parties
COURT FILE NO.: CR-05-744-00MO DATE: 2021/06/21 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. P.B.
BEFORE: Regional Senior Justice Calum MacLeod – by videoconference
COUNSEL: P.B. in person (Applicant) Christina Croteau, for the Crown (Respondent)
HEARD: June 21, 2021
Endorsement
Please note that pursuant to paragraph four of these reasons, the applicant is to be identified using a pseudonym and publication of information which might identfy the applicant is prohibited.
MacLeod, RSJ (Orally):
[1] This is an application pursuant to s. 490.015 (3) and s. 490.026 (4) of the Criminal Code of Canada pursuant to which the applicant asks that his name be removed from the registry maintained under the Sex Offender Registration and Information Act., S.C. 2004, c. 10 (SOIRA) and his reporting requirements under that act be terminated. The application is opposed by the Crown.
[2] The name of the applicant was placed on the registry on December 6, 2006 when he was sentenced for two counts of sexual assault, two counts of sexual exploitation and one count of assault. He was sentenced to nine months in jail and placed on the registry for 20 years. The SOIRA registration expires on December 4, 2026.
[3] In December of 2019, the applicant received a pardon under the Criminal Records Act. In accordance with that legislation, a pardon certifies that after making proper inquiries, the Parole Board of Canada is satisfied that the offender has remained free of any conviction since completing his sentence and appears to be a person of good conduct. As such, the record of conviction is kept separate and apart from other criminal records and any legal disqualification under Canadian law is removed. The pardon does not in itself remove a convicted sex offender from SOIRA, but it does trigger the sections of the Code permitting the applicant to seek this relief from a judge.
[4] Pursuant to s. 490.016 (1) and 490.027 (1) of the Code, the registration and the reporting requirement shall be terminated if the court is satisfied that the impact on the applicant of continuing the order or 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” under SOIRA. In short, removal from the registry is not automatic. The applicant has the onus of persuading the court that the impact of continued registration and reporting is disproportionate to the public purpose underlying the legislation. In that regard, it should be emphasised that the registry is not public but is intended to be an investigative tool for police authorities. Nevertheless, being placed on the registry involves an annual reporting requirement and permits a police officer to visit the applicant in his home each year to verify compliance. It also requires ongoing reporting if, for example, the applicant leaves the country for more than a week.
[5] I note that the applicant has asked that regardless of the outcome of this proceeding, there be a publication ban on the proceedings and that he be identified by a pseudonym. A temporary order was granted until today. I agree that a person exercising his statutory right to request he be removed from the registry should not, by so, doing be forced to expose the confidential information available only to law enforcement authorities and otherwise restricted by SOIRA itself. I am continuing the order made by Justice Boucher. The applicant will be identified only by the pseudonym P.B. and no information that may tend to identify him shall be published without leave of the court.
[6] The Court of Appeal reviewed the intent and purpose of SOIRA in 2008 in the decision of R. v. Debidin, (2008) 2008 ONCA 868, 94 OR (3d) 421. Although that case dealt with exemption in the first instance, it is still instructive. As the court points out, the impact on privacy and liberty issues is not the impact of being charged or convicted of a sexual offence or being stigmatized as a sex offender. Rather, the impact which must be assessed is the impact of the registration requirements on the offender’s current and prospective circumstances.
[7] Admittedly, the bar for exempting an offender from SOIRA registration in the first instance might justifiably be higher than terminating registration after 14 years on the registry and after having qualified for a pardon. On the other hand, parliament did not intend termination to be automatic, unlike the provincial legislation which serves a slightly different purpose. The Act and the Code permit an application to be made following a pardon, but the legislation still requires the court to be persuaded that the impact of registration is grossly disproportionate.
[8] The purpose of the legislation is not to punish the offender. It is designed as an investigative tool so that the police are aware of the whereabouts and circumstances of those who have been convicted of sexual offences. The utility of that may be less after 14 years of apparently law-abiding behaviour than it might be when passing sentence at a time when the prospect of rehabilitation and recidivism cannot be known. But parliament has not made it easy to be removed from the registry. The words used are “grossly disproportionate”.
[9] The applicant did not file an affidavit. He gave oral evidence and was cross examined. It appears he is gainfully employed. He shares joint custody of his 5 ½ year old son. He is fearful that visits to his home by police officers will tarnish his reputation in the community or may result in what he views as a shameful incident in his past being revealed to his son at a time which he does not control. He also chafes under the restriction of having to report his movements should he wish to vacation in the United States or elsewhere.
[10] The evidence does not persuade me that the high burden set out in the Code for displacing the public interest in registration has been met. See R. v. R.I., 2007 ONCA 347; R. v. S.S., 2018 ONCJ 123, R. v. Keltner, 2011 ONSC 2831. I accept that living with ongoing fear and anxiety of being re-stigmatized after having completed his sentence, lost his career and remaking his life, must be difficult. This however is the situation faced by anyone who is required to report and is kept on the registry including those who have received pardons.
[11] The evidence does not persuade me that the impact on this applicant is grossly disproportionate to the purpose of maintaining the registry. The registration will expire in five years.
[12] In conclusion, for the reasons given above, the application is dismissed.
Mr. Justice C. MacLeod
Date: June 21, 2021
COURT FILE NO.: CR-05-744-00MO
DATE: 2021/06/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: R. v. P.B.
BEFORE: Regional Senior Justice Calum MacLeod – by videoconference
COUNSEL: P.B. in person (Applicant)
Christina Croteau, for the Crown (Respondent)
HEARD: June 21, 2021
EDORSEMENT
Regional Senior Justice Calum MacLeod
Released: June 21, 2021