Court File and Parties
COURT FILE NO.: CR-21-77
DATE: 20230113
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Albert Wray Fagan
BEFORE: Justice P. Moore
COUNSEL: S. Dickson, for the Crown P. Downing, for the Defendant
HEARD: January 11, 2013
DELIVERED ORALLY: January 13, 2013
Charter Decision on 24(1) [SOIRA](https://www.canlii.org/en/ca/laws/stat/sc-2004-c-10/latest/sc-2004-c-10.html) motion
Overview
On October 28, 2022, the Supreme Court of Canada released its decision R. v. Ndhlovu 2022 SCC 38 (“Ndhlovu”) declaring ss. 490.012 and 490.013(2.1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 unconstitutional. The section that is of concern on this case is s. 490.012 which provided that the Sex Offender Information Registration Act, SC 2004, c 10 (“SOIRA”) orders are mandatory for all offenders convicted of a designated offence which includes sexual assault. The Supreme Court suspended the declaration of invalidity of s. 490.012 for 12 months.
Mr. Fagan was convicted of one count of sexual assault on October 6, 2022. Sentencing submissions were heard on December 20, 2022. He was to be sentenced on January 11, 2023, but the sentencing was delayed in order to address this recent Charter application.
Mr. Fagan has applied pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“Charter”) for an exception to the suspension of the declaration of invalidity of s. 490.012 on the basis that he falls within the category of offenders that are captured by the overbreadth, or that the impact of the measure on his s. 7 rights is grossly disproportionate to its purpose.
Facts
Mr. Fagan was convicted of sexually assaulting H.P. on the front porch of his residence in London, Ontario. The sexual assault was witnessed by two people across the street from the residence. At the time of the sexual assault, H.P. who was an indigenous woman, was either unconscious or asleep due to drugs and/or alcohol and lacked the capacity to consent to any sexual activity. The sexual assault consisted of Mr. Fagan putting his penis in her mouth and using his hand to move H.P.’s head back in forth to fellate him for about a minute or so. He then reached down the front of H.P.’s pants to touch her vaginal area which lasted another couple of minutes. Mr. Fagan was drinking at the time of the offence, but no one described him as intoxicated.
At the time of the incident, Mr. Fagan was on probation for domestic assault regarding a different female. His criminal record included a total of four convictions of violence against two prior domestic partners, one assault police officer, as well as other offences.
There was a pre-sentence report ordered and the author of the report opined that Mr. Fagan’s denial of the sexual assault and minimization of problematic alcohol usage would contribute to difficulty rehabilitating the offender.
The pre-sentence report also indicated that Mr. Fagan had been adopted by foster parents at a young age and had a good upbringing. He is not currently employed and has not been for a number of years due to epilepsy and an inability to drive. The inability to drive is due to both the epilepsy and high insurance costs resulting from driving related criminal charges.
Mr. Fagan indicated in the PSR that he did not believe that alcohol was an issue for him. However, the report’s author indicated that Mr. Fagan’s files showed alcohol was involved in prior assaults and interfered with his ability to work. His counsel indicated in submissions that Mr. Fagan is an alcoholic and asked that there should be no terms that might include a no-alcohol condition.
The PSR also indicated that Mr. Fagan was co-operative with past probation orders, but prior counselling did not seem to impact his behaviour. Also, the files indicated that he seemed to have difficulties understanding expectations and procedures at times. He has experienced periods of homelessness in the past and the author commented that “managing his life takes his full attention but he appears to be able to do this better now that he has stable housing.”
Mr. Fagan was released on an undertaking after this offence and has not been charged with any breaches or new criminal offences. He has been volunteering with a café several hours a day for the last three years. He had to move from the residence where the offence occurred due to a fire but has a residence at another London housing building.
The Law
Section 7 – Life, Liberty and Security of the Person
- Section 7 states that everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In order to demonstrate a violation of s. 7, the onus is on a claimant to establish that the law interferes with, or deprives them of, their life, liberty or security of person. Next, a claimant must show that the deprivation in question is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55 (“Carter”). Those principles require that a law must not be arbitrary, overbroad or grossly disproportionate: Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 SCR 1101, at para. 96 (“Bedford”).
Section 24(1) Individual Remedies
The courts have held that where there has been a declaration of invalidity under s. 52(1) of the Charter, and that declaration of invalidity is suspended for a period of time, individual remedies under 24(1) may be “appropriate and just” during the period of suspension: R v Albashir, 2021 SCC 48, at paras. 62-71 (“Albashir”).
Generally, recourse to s. 24(1) will be limited so as not to undermine the compelling public interest that required suspending the declaration. A personal remedy that undermines the purpose for suspension will not be “appropriate and just”. However, where the individual remedy will not undermine the compelling public interests underlying the suspension, 24(1) can be a flexible vehicle for someone whose Charter rights are breached: Alabashir, at para 66.
The claimant who originally brings an application which results in a s. 52(1) finding of unconstitutionality is in a special position when considering whether to grant an individual remedy as they have done a public service in ensuring an unconstitutional law is taken off the books. They should be granted an individual remedy unless there are compelling reasons not to do so. Such reasons include endangering public safety, or if a large group or class of claimants comes forward and it may not be practical or possible to conduct the individual assessments necessary to grant them all individual exemptions: Ontario (Attorney General) v. G, 2020 SCC 38, at paras. 142-152.
In summary, a court considering a 24(1) application must consider whether the granting of an individual remedy:
i) Will undermine the compelling public interests that required the suspending of the declaration.
ii) Is appropriate in the individual case. The application judge will determine this by deciding if the individual accused before them falls within or outside of the unconstitutional overbreadth or if they have established that the inclusion of the applicant on the registry impacts them in a manner that is grossly disproportionate to the objective of s. 490.012.
In Ndhlovu, the majority of the Supreme Court found that the suspending of the declaration was necessary as to do otherwise would effectively preclude courts from imposing SOIRA orders on any offenders including those at high risk to of recidivism: at para 139. Granting an immediate declaration could therefore endanger the public interest in preventing and investigating sexual offences committed by high-risk offenders, undermining public safety.
The Court specifically addressed the issue of making the declaration of invalidity prospective and suspending its implementation for twelve months: Ndhlovu, at para. 140. The Court held that any offenders that were registered under the mandatory registration since 2011 would not be unduly prejudiced as they would be able to seek a personal remedy under 24(1) and be removed from the registry if they could demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012. The objective of mandatory registration being “to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”: Ndhlovu, at para. 65.
Offenders falling into the Overbreadth Category
It is important to understand the court’s finding of unconstitutional overbreadth in relation to s. 490.012. The Supreme Court, citing Canada (Attorney General) v Bedard, 2013 SCC 72, held that overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. A law is overbroad if it overreaches in only a single case: Ndhlovu, at paras. 77-78.
In Ndhlovu, the accused was 19 years old with no previous record and had entered a guilty plea to touching two women at a party including digital penetration of one. The trial judge noted he took responsibility for his actions and was remorseful. There was excess alcohol consumption involved in the offences and he has stopped drinking to excess. The sentencing judge found that she had no concerns that the accused would re-offend.
The Crown called expert evidence on the s. 1 analysis before the sentencing judge which demonstrated that there was no perceptible difference in sexual recidivism risk at the time of sentencing between the lowest-risk sexual offenders – the bottom 10 percent – and the population of offenders convicted of non-sexual offences.
The majority of the Supreme Court relying on this expert evidence went on to find that:
[92] Mandatory registration is overbroad to the extent it sweeps in these lowest risk sex offenders. As a result of their risk profile, there is no connection between subjecting them to a SOIRA order and the objective of capturing information that may assist the police prevent and investigate sex offences because they are not at an increased risk of reoffending. The purpose of the provision is not advanced by including these offenders.
In Ndhlovu, after find that mandatory registration was overbroad and therefor breached s. 7, the court had to consider whether it was saved by s. 1: at para. 122. The court found that although the prevention and investigation of sex crimes is a pressing and substantial purpose and that the measures were rationally connected to their objectives, the measures chosen in the impugned sections were not minimally impairing of an offender’s rights. The analysis turned on whether there were alternative, less drastic means of achieving the objective in a real and substantial way.
Since the overbreadth focused on the bottom 10 percent who are not at increased risk to reoffend, the Crown had not demonstrated how restoring judicial discretion, which would allow for a 90 percent inclusion rate of offenders in the registry, would not substantially achieve s. 490.012’s purpose of capturing information that assists police prevent and investigate sex offences. Further, the Crown provided no evidence or plausible argument to explain why a discretion to exclude offender’s from SOIRA where the impacts are likely too onerous or unrelated to s. 490.012’s purpose would not substantially achieve Parliament’s aim: at para. 124.
Gross Disproportionality
Unlike with the finding of overbreadth where the court has already made a finding and defined the degree of overbreadth and done a s. 1 analysis, the constitutionality of s. 490.012 based on gross disproportionality is still an open question.
Gross disproportionality describes the deprivation of, or interference with life, liberty or security of the person that is grossly disproportionate to the law’s objective and “cannot rationally be supported. The rule against gross disproportionality applies only in extreme cases where the seriousness of the deprivation is totally out of sync with the objective measure”; so extreme that it is disproportionate to any legitimate government interest: R v Bedford, at paras. 109, 120; R v. Ndhlovu, 2020 ABCA 307, at para. 50 (Ndhlovu CA).
The Supreme Court in Bedford at paras 108-109 explained that overbreadth and gross disproportionality are directed against two different evils. The fist evil is the absence of a connection between the infringement of rights and what the law seeks to achieve. The second evil lies in depriving a person of life, liberty or security of person in a manner that is grossly disproportionate to the law’s objective. The law’s impact on the s. 7 interest is connected to the purpose, but the impact is so severe that it violates our fundamental norms.
The sentencing judge in Ndhlovu had found the legislation to be grossly disproportionate, determining that the reporting requirements were not minimal, but rather that the cumulative effect was “onerous”, and the information provided to SOIRA was “significant”. She found that the deleterious effects on offenders included “the effects of random compliance checks, including the risks of information being divulged during the checks. She also found that there are potentially far-reaching effects on an offender’s privacy when their name is generated on a list of suspects for sex crime or even for simply suspicious behaviour: Ndhlovu, at para. 14.
On appeal, Mr. Ndhlovu argued that the reporting requirements are significant, and removal of judicial discretion to exempt an offender, particularly a low-risk offender like himself, is proof that gross disproportionality will sometimes exist between the purposes and the effect of the legislation. He further argued that the Crown could not meet its burden under s. 1, particularly where gross disproportionality had been found under s. 7: Ndhlovu CA, at para. 35.
The Alberta Court of Appeal, including Khullar J.A. – who dissented on the issue of overbreadth – found that s. 490.012 was not grossly disproportionate and did not violate s. 7. The majority concluded that “the impugned provisions are not grossly disproportionate in their effect on the respondent, or any other sex offender who is unable to establish that the seriousness of the deprivation of their individual s. 7 rights is totally irreconcilable with the purpose of the legislation...”: Ndhlovu CA, at para. 142.
The majority of the Supreme Court, having concluded that the mandatory registration and lifetime registration measures breached s. 7 by being overbroad did not go on to consider if there were grossly disproportionate, but did not foreclose that possibility. The Court noted that the impact on anyone of a SOIRA order is considerable and includes personal information registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the state, and the threat of imprisonment which make the conditions onerous: Ndhlovu CA, at paras. 45, 116
The Court also noted that the cost of compliance varies from offender to offender based on their life circumstances. Compliance can be difficult on persons who travel or even extremely difficult for offenders who experience homelessness, substance use issues and cognitive or mental health challenges: Ndhlovu CA, at para. 46.
Brown J. dissenting, did discuss gross disproportionality: Ndhlovu CA, at paras. 165-171. At para 171, he quotes from Khullar J.A. that “[t]his is not the kind of case where the objective is simply not important enough to warrant the level of infringement of liberty that it imposes” (Ndhlovu CA, at para. 232) and goes on to state “SOIRA imposes a burden on offenders, but that burden is not “totally out of sync” with the objectives (Bedford, at para. 120). He also agrees that characterizing the reporting obligations as “grossly disproportionate” in this context risks trivializing that term (at para. 61).
He goes on to find that another consideration militating against the argument for gross disproportionality is the availability of a termination order under the SOIRA regime. The termination allows judges to assess the impacts of SOIRA at a later date when the offender can demonstrate they have been in the community without offending, rather than making “speculative predictions of future dangerousness” based on limited evidence at sentencing: Ndhlovu CA, at para. 170.
Position of the Parties
The applicant’s counsel submits that Mr. Fagan should be exempt as he is not at a high risk to offend and that his personal circumstances would make the impact of the ongoing requirements of a SOIRA registration grossly disproportionate to its purpose.
More specifically, the applicant contends that since he does not have prior convictions for sexual assault, that the nature of the sexual assault in this case was brief in nature and that he has remained on release without incident, demonstrates that he is caught by the overbreadth of the section and that he should be exempt.
In the alternative, the applicant submits that his personal circumstances including his age, unstable housing, substance use and the comments in his PSR in relation to his coping skills would demonstrate that mandatory registration would be grossly disproportionate.
The Crown submits that the applicant bears the onus to demonstrate that an individualized remedy is appropriate and that he has not done so. It is the Crown’s position that that there is no evidence to show that the applicant is at low risk to offend or that his personal circumstances make registration grossly disproportionate
Analysis
Availability of an Individual Remedy
- When considering if an individual remedy is available, I must first determine if granting an individual remedy would undermine the compelling public interest that required the suspension of the declaration. As indicated above, the court found that the declaration should be suspended to ensure high risk offenders are registered on SOIRA for public safety pending legislative amendments and that a retroactive declaration would undermine the purpose of the suspension. It is clear that the Supreme Court in finding that the declaration should be prospective and in suspending its effect for 12 months turned its mind to individual remedies being available. In fact, one of the bases for finding that the declaration should be prospective and could be suspended was the availability of such remedies: Ndhlovu, at paras. 139-140. Therefore, I find that individual remedies pursuant to s. 24(1) would not undermine the compelling public interest that required the suspension and are available if a judge determines such a remedy would otherwise be appropriate.
Overbreadth based on risk
In submissions, counsel for the applicant submitted that because Mr. Fagan is not in the top 20% of people likely to offend, he should be exempt. I take issue with this proposition. While the Supreme Court did discuss the reality that 75 to 80 percent of sexual offenders never reoffend (Ndhlovu, at para. 9), I do not interpret the decision to mean that the majority of sexual offender’s rights are breached by s. 7 and that for them, SOIRA registration bears no relation to the objective of s. 490.012. I also would note that the 75-80 percent statistic only captures offenders who are convicted of re-offending.
The Court is clear that the finding of overbreadth is based on the inclusion of the bottom 10% of offenders who are at the lowest recidivism risk to reoffend: Ndhlovu, at paras. 91, 92, 95, 111, 124, 135. The Court agreed with the lower court finding that inclusion of offenders who are not at an increased risk of reoffending on the registry bears no connection to a mandatory registration’s purpose.
I have no expert evidence of Mr. Fagan’s specific risk to sexually reoffend.
I do take into account the following non-exhaustive list of circumstances that courts often consider when looking at likelihood of rehabilitation and risk of re-offence in general including those mentioned by the court at para. 94:
i. Does the offender have a criminal record?
ii. Is the record for the same or similar offences?
iii. Is the record recent or is there a large gap?
iv. Does the offender have remorse for their offence?
v. Does the offender demonstrate insight into their offending behaviour?
vi. Has the offender taken steps to address the behaviour or factors underlying the behaviour such as alcohol or substance use?
vii. Does the offender have positive community support?
viii. Is there any expert evidence of risk?
ix. What is the offender’s age and physical health/mobility?
x. Any unusual or atypical sexual interests or sexual preoccupation?
xi. Is there lifestyle instability?
xii. Are there poor cognitive skills?
- When considering the individual circumstance of Mr. Fagan and how they may increase his risk to re-offend sexually, I note the following:
i. Mr. Fagan has a criminal record that spans 19 years.
ii. He was on probation at the time of this offence.
iii. Although he has no convictions for sexual offences, he has 4 prior offences (2 entries) for violence against females.
iv. Alcohol has been a factor in many of his past offences and was involved in this offence. It does not appear that any steps have been taken to address this issue. It is not even acknowledged as a problem.
v. As indicated in the PSR, Mr. Fagan shows little insight into his offending behaviour.
vi. Mr. Fagan may have difficulty understanding expectations and procedures.
vii. Mr. Fagan has limited family and community supports.
On the other hand, in considering factors the minimize risk, I take into account the fact that Mr. Fagan does not have any prior sexual offences, has been out of trouble since his arrest, and has some community support by the St. Leonard Society and through his volunteer work.
In consideration of all the factors, I find that he does not fall into the category of offenders that I would conclude are at the lowest risk to re-offend or where the risk is such that it would be “remote” or “implausible” that his information will ever prove useful to the police: Ndhlovu, at para 109. In fact, with the evidence I have, and without the benefit of expert evidence, I find that he would likely fall in the moderate risk to reoffend sexually.
While the majority of the Supreme Court found that mandatory SOIRA registration was overbroad and breached s. 7 rights in that it captured individuals that were at no increased risk to re-offend, courts must be cautious to not grant exceptions without an evidentiary foundation that the offender falls into this lowest category. The example provided by the court of someone potentially in this category included an offender who is convicted of a historical offence and is now at an advanced age and has mobility issues. Another specific example was the case of R v T.L.B. (cite omitted) where the offender was wheelchair bound and had a caregiver. In addition, the offender no longer had access to children and had been assessed by a clinical and forensic psychologist as very low risk to reoffend: Ndhlovu, at para. 88.
Gross disproportionality
As indicated above, the constitutionality of s. 490.012 on the basis of gross disproportionality has not been established at the appellate level. The sentencing justice’s finding of gross disproportionality was overturned by all the judges on the Alberta Court of Appeal and was not addressed by the majority of the Supreme Court of Canada. Certainly, the minority at the Supreme Court would have found that the section was not grossly disproportionate.
The applicant is relying on the statement of the Supreme Court that an offender can ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the Registry (or exempted from registration) if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012.
Prior to the amendments in 2011 removing prosecutorial and judicial discretion in making a SOIRA order, a court could exempt the offender if they were “satisfied that the person had established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature”: Ndhlovu, at para. 32.
However, it is not appropriate to skip over the constitutional analysis or s. 1 analysis on the issue of gross proportionality and revert directly to the prior exemption.
The parties did not engage in a full constitutional analysis of s. 490.012 on the basis of gross disproportionality. The applicant in his materials and in oral argument took the position that his life circumstances fell into the category of people mentioned by the majority of the Supreme Court as being persons who would find compliance with the reporting conditions more difficult and that therefore he has established that the law is grossly disproportionate.
The onus is on the applicant to establish a breach of his s. 7 rights on the basis of gross disproportionality.
Based on the Supreme Court’s overbreadth analysis, it is clear that s. 7 is engaged as the impact on an offender’s liberty interest can be serious and includes personal information being registered, the frequency with which the offender is required to update the information and the possibility of imprisonment. However, the question is not only whether the offender’s s. 7 interests are impacted, but whether that impact is so severe that it violates our fundamental norms.
This involves a weighing of the impact on the offender and of the public interests in facilitating the prevention and investigation of sexual offences.
The Supreme Court found that the SOIRA registration requirements for all offenders are considerable and as stated above, the impact on some offenders, especially marginalized offenders can be even greater.
The Applicant submits that the impact on his s. 7 interests is significant given his prior history of homelessness, his alcohol use and the comments in the PSR regarding his difficulty understanding expectations and procedures at times and that managing his life takes his full attention.
Other than the PSR, I have no evidence on Mr. Fagan’s particular issues.
From the PSR, I know that he has experienced homelessness in the past but has been housed for the last three years. The PSR author indicated that he experiences some difficulty in understanding expectations and procedures at times, but it is better when he has housing. Despite his difficulties, he has no breaches of probation on his record for non-compliance despite being placed on probation on four occasions. Previously, Mr. Fagan worked in construction, was married for 10 years and then with another partner for 10 years. He has epilepsy, which is controlled. He is mobile and functional enough to volunteer multiple days of the week for the last three years at the cafe.
Given my finding as to his level of risk and the pressing objective of s. 490.012 to help police services prevent and investigate crimes of a sexual nature, I am unable to find on the evidence before me that the impacts on Mr. Fagan’s s. 7 rights are so severe that they would violate our society’s fundamental norms. Although, I find that the impact on Mr. Fagan may be greater than on other individuals, I do not find that it reaches the level to be grossly disproportionate.
One of the other submissions made to the court was that Mr. Fagan was not a “predator” and that the sexual offence in question was not planned and was brief in nature.
Courts must be alive to the temptation to expand the exemptions based on assumptions or on myths and stereotypes. Brown J. writing for four justices in dissent in Ndhlovu, cautions that in the past judges have granted exemptions based not on the impact of the registration of the offender (as required by the statutory provisions at the time) but on whether the offender was the type of person for who the Registry was intended – in other words, a “real” sex offender. Past exemptions included people who offended against people they knew, child pornography users, opportunistic offenders and historic offenders. Exemptions were made even where the risk of re-offence was high, including against-stranger cases, predatory behaviour and breaches of trust: Ndhlovu, at paras. 145, 177, 182-191
Brown J. was very critical of the past decisions where courts granted exemptions because the offence “was at the lower end of the spectrum” (para. 184) because the offender was not a “predatory stranger” (paras. 183, 185, 189), or did not directly harm the victim such as child pornography possession (para. 183) and gave examples of such cases. He found that the sentencing Judge’s analysis was flawed as it presupposed that the registration is for tracking predators and that those who commit “minor” sexual offences are less likely to reoffend despite the expert evidence that the seriousness of an offence is a poor predictor of recidivism on its own: para. 192.
He predicted at para. 194 that “given what appears to have been a persistent, routine failure to appreciate the seriousness of these offences, it can be confidently predicted that the rampant misuse of judicial discretion prior to the amendment will recur once automatic registration is removed”.
The majority held that while judges in the past may have improperly exempted offenders on the basis of gross disproportionality by relying on myths and stereotypes about sexual assaults, such decisions are subject to appellate review and guidance, and cannot render an unconstitutional law constitutional: para 10.
In summary, although the finding of unconstitutionality means that judges will be called upon to exercise their discretion under s. 24(1) (and potentially under whatever new legislation is enacted) to ensure that offender’s s. 7 rights are protected, that exercise of discretion must be made on an evidentiary basis and not on assumptions about risk or on myths and stereotypes about sexual assault.
Conclusion
- For these reasons, I find that the applicant has not established that the impacts on his s. 7 rights bear no relation to or are grossly disproportionate to the objective of s. 490.012. His application for an exemption is dismissed.
“Justice P. Moore”
Justice P. Moore
Date – Delivered Orally: January 13, 2023