Court File and Parties
COURT FILE NO.: 09-10421 DATE: 2022/07/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN, Respondent and AFG, Applicant
BEFORE: Mr. Justice Robert L. Maranger HEARD: July 20, 2022
COUNSEL: Keara Lundrigan, for the Applicant D’Arcy Wilson, for the Respondent Crown
Endorsement
[1] This was an application pursuant to section 490.015(3) and section 490.026 (4) of the Criminal Code of Canada whereby the applicant requests that his name be removed from the registry maintained under the Sex Offender Registration Information Act., S.C.2004 c. 10 (SOIRA) and that his reporting requirements under that act be terminated. The Crown opposes the application.
[2] Given the privacy interests expressed by the applicant in the circumstances of this case, I would order a publication ban on information that could tend to identify him, and he will be referred to in this decision by the initials AFG to protect his anonymity.
[3] On September 29, 2010, AFG pled guilty to one count of possession of child pornography and one count of distributing child pornography contrary to section 163.1(4) and 163.1(3) of the Criminal Code of Canada. He was sentenced to 18 months imprisonment together with 18 months of probation. As part of his sentence, the applicant’s name was registered pursuant to the SOIRA for a period of 20 years, it is set to expire in September of 2030.
[4] In February 2022 the applicant was granted a record suspension (formerly known as a pardon) in relation of the offences that are the subject matter of this application. He now applies to have the SOIRA order and his reporting conditions thereunder terminated.
[5] 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.
[6] 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. It should be noted that the registry is not public but is intended to be an investigative tool for police authorities. That said, it still involves an annual reporting requirement, that the registered person advise of travel in certain circumstances and permits a police officer to visit the applicant in his home each year to verify compliance.
[7] The evidence supports the proposition that since he was sentenced more than a decade ago the applicant has commendably turned his life around. He is married with a young child, and after years of working as a labourer in a variety of jobs, he has found a niche in the hotel industry and is awaiting a final determination on whether he will obtain an assistant manager’s position which will greatly improve his career path and future opportunities.
[8] In the affidavit filed the applicant detailed how his criminal conviction and SOIRA reporting requirements have resulted in his being denied countless opportunities for employment and career advancement. He described how he was relegated to low-paying labourers’ positions particularly between 2011 and 2017.
[9] In 2018 he found employment in the hotel industry, an industry where through his hard work he has advanced to the point where he now awaits final confirmation of an assistant general manager position.
[10] He has indicated that to his knowledge none of the hotels that he worked for are aware of his SOIRA reporting requirements. He testified that he lives in constant fear that his reporting requirements will limit his ability to advance in the company and could ultimately result in him losing his current employment should they discover his reporting responsibilities and consequently his criminal history.
[11] He further expressed fear for his family’s safety and security should someone in his neighbourhood ever discover that he is subject to a SOIRA order. The applicant described it as a virtual “ball and chain”.
[12] The applicant has without doubt earned the pardon that the parole board granted him. I further found him to be sincere about his level of fear and anxiety caused by his SOIRA obligations. However, I am not convinced that the evidence he presented has met the high burden set out in the code for displacing the public interest in registration.
[13] The fundamental impact on the applicant is that he is anxious and fearful that people will find out that he has a criminal record for sexual offences. This anxiety and fear, however real, in my estimation does not constitute an impact that is grossly disproportionate to the purpose of maintaining the registry. If it did removal from the registry would be commonplace.
[14] Therefore, the application is denied.
Date: July 29, 2022
COURT FILE NO.: 09-10421 DATE: 2022/07/29
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen, Respondent and AFG, Applicant
BEFORE: Mr. Justice Robert L. Maranger COUNSEL: Keara Lundrigan, for the Applicant D’Arcy Wilson, for the Respondent Crown
endorsement Maranger J.
Released: July 29, 2022