Court File and Parties
COURT FILE NO.: CR-23-30000027-00MO and CR-23-30000781 DATE: 20240723 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – RAZA HUSAIN
Counsel: Beverley Olesko, for the Crown Uma Kancharla, for Raza Husain
HEARD: July 3, 2024
Reasons on Application to Terminate SOIRA Order
HIMEL J.
[1] On September 12, 2011, Raza Husain entered pleas of guilty to charges of sexual assault (two counts) contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, as amended, attempt to procure a person under the age of 18 years to become a prostitute contrary to s. 212(1)(d), procuring services of a person under the age of 18 contrary to s. 212(4) and failure to comply with recognizance contrary to s. 145(3) of the Code.
[2] The facts supporting the convictions, which were admitted by the defence, were that in the summer of 2007, two young girls, ages 13 and 15, were interested in modelling and were introduced to Mr. Husain as a photographer. He picked them up to take them to a park along with two others for photography. A relationship developed over a period of 20 months. Mr. Husain contacted these two girls, brought them to his place, gave them alcohol, had sex with them and gave them money. He also asked them to have sex with his friends for money. Eventually, they went to police and Mr. Husain was charged in March 2009. He was released in April 2009 on a recognizance and was subject to a condition that he was prohibited from being in the company of anyone under the age of 18 years unless in the company of his surety. He subsequently had contact with a person under the age of 18 years without his surety present and was charged with fail to comply and detained in custody. He remained in custody until his trial date.
[3] Mr. Husain had a criminal record in the United States of America for possession of a machine gun, transfer of a machine gun and tampering with a witness for which he received a sentence of 71 months’ imprisonment in November 1999.
[4] Following the guilty pleas on the charges before me, I sentenced Mr. Husain on September 12, 2011, to a global sentence of 5 years and 2 months (62 months) imprisonment less credit on a 2 for 1 basis, which was 38 months credit for pre-trial detention. This resulted in a balance to be served of two years less one day. The sentence for each offence was imposed on a concurrent basis. I also made the following ancillary orders: an order that a sample of his DNA be taken, an order pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) for a period of 20 years, in accordance with s. 490.012 of the Code (as it then read), and an order for 10 years prohibiting him from attending at a public park, daycare centre, school ground, playground or community centre unless he was in the presence of a responsible adult with the exception of his own children. The sentence imposed was based on a joint submission of counsel, which I agreed was appropriate. I also recommended on the warrant of committal that Mr. Husain receive treatment for sexual addiction, a matter that his counsel had referenced in her submissions at the sentencing hearing.
[5] Mr. Husain appealed one count of sexual assault, the count of procuring and his sentence to the Ontario Court of Appeal and the appeals were dismissed: R. v. Husain, 2012 ONCA 697. He sought leave to appeal to the Supreme Court of Canada but that was also dismissed: R. v. Husain, [2012] S.C.C.A. No. 556.
[6] Mr. Husain has served his sentence for the offences outlined above. He received a pardon on June 23, 2021 from Pardons Canada. I am not aware of any breaches or further charges. He now applies to the court to terminate the SOIRA order imposed in 2011 as a result of the decision of the Supreme Court in R. v. Ndhlovu, 2022 SCC 38, 419 C.C.C. (3d) 285. The Crown opposes the application.
Evidence on the Application
[7] Ms. Kancharla, on behalf of the defence filed a copy of Mr. Husain’s certificate of completion of the Personal Support Worker course; a letter dated July 7, 2023 from Mafia Ejaz, who said that Mr. Husain was punctual, supportive and hardworking when working with their 70 year old disabled father from September 2021 to February 2023; a letter dated July 25, 2023 from the owner of Villa Pugliese Assisted Living Facility, who said that Mr. Husain has been working there since January 2023 and described him as “a very reliable, dedicated, friendly and honest person”; and a letter from Stanley Pacheco dated July 1, 2023, which said that Mr. Pacheco was a depressed alcoholic and Mr. Husain helped him move to a nicer place, get clothes and he assists him with his depression when he needs to talk to someone. Ms. Kancharla also filed a copy of the pardon from Pardons Canada.
[8] Following the hearing of the application, counsel for Mr. Husain wrote to the court and the Crown on July 22, 2024, a day before the ruling was to be made. She advised of two issues raised on the appeal to the Court of Appeal: (1) whether Mr. Husain had sexual contact with the complainant within the relevant time period when she was not yet of the age of consent, and (2) certain facts which were included in the sentencing decision regarding Mr. Husain providing oxycontin to the girls on occasion and that he approached a third girl, which matters were not in the Agreed Statement of Facts. The first of these issues was addressed by the Court of Appeal in its decision at para. 9 where the court found that Mr. Husain’s guilty plea was “informed and unequivocal” and upheld the conviction for sexual assault. The second was not directly addressed in the reasons of the Court of Appeal but the court wrote at para. 14 that it saw “no basis for interfering” with the sentence. The matters raised by counsel on behalf of Mr. Husain regarding the Court of Appeal decision either upholding the convictions or regarding the factual issues raised have no bearing on the issues before me today which is to determine the application to terminate the SOIRA order.
Positions of the Parties
[9] Ms. Kancharla, counsel for Mr. Husain, acknowledges that the onus is on Mr. Husain to satisfy the requirements for a termination of the order on a balance of probabilities. She submits that Mr. Husain has been pardoned for the offences and that the impact of continuing the order would have a disproportionate impact on him. It has been over 10 years since the order was made. Following his convictions and sentence, he was on social assistance and helped vulnerable friends with mental health challenges. He completed a Personal Support Worker (PSW) designation and wishes to work with elderly patients. Counsel submits that Mr. Husain has rehabilitated himself since the convictions. She says that he is a long way from the person he was before and is not the same person. He received a pardon which is a demonstration that he is rehabilitated and that he has changed. Furthermore, she argues that if the SOIRA order is not terminated, the pardon would be of no consequence.
[10] Mr. Husain is now 64 years old, has adult children and they are in touch with him. Ms. Kancharla advised the court in oral submissions that they reside in the United States and come to visit Mr. Husain. He has a brother who resides in Barrie, Ontario and is close to cousins. He also has a mother who is elderly and resides in the United States. She was in Canada recently to visit him. He cannot enter the United States because of the conviction. However, if the order was terminated, he may be able to travel to see her.
[11] Ms. Kancharla argues that there is no public or societal interest in requiring him to comply with the sex offender registry order. He has strictly complied with the SOIRA reporting requirements and other obligations. Counsel says that he cannot be gainfully employed due to the ongoing SOIRA reporting/registration. Ms. Kancharla submits that Mr. Husain cannot work in the long-term care sector while he is on the SOIRA registry.
[12] Counsel for the applicant submits that there is no benefit to keeping him on the registry as he does not pose a risk. He is a productive member of society and terminating the order would promote his rehabilitation. He wants to return to a life of normalcy. While he is on the registry, he must report where he is living, where he is working or volunteering and where he is travelling. The Supreme Court has said that this is an invasion of privacy: Ndhlovu, at para. 45. There have been no further criminal charges and the impact on him is grossly disproportionate to the public interest in protecting society through the reporting requirements in light of Mr. Husain’s age, health and rehabilitation.
[13] Ms. Olesko, on behalf of the Crown, submits to the court that the application for termination of the SOIRA order should be dismissed. Ms. Olesko says that the government responded to R. v. Ndhlovu with Bill S-12, which received Royal Assent on October 26, 2023. The framework for applying for a termination order is set out in s. 490.016 of the Code. Even under Bill S-12, the applicant’s situation would have been subject to a mandatory SOIRA order under s. 490.012(1) at the time of sentencing due to the following factors: (a) the designated offences were proceeded on by indictment, (b) the sentence for the designated offences was a term of imprisonment of two years or more and (c) the victims of the designated offences were under the age of 18. In the circumstances, she says, the court would have been required to make a 20-year order under SOIRA, regardless of the Supreme Court decision. When the Court held in Ndhlovu that the legislation was overbroad, it was focused on a low-risk offender who was 19 years old and had committed digital penetration. Parliament responded to the decision with legislation that preserved SOIRA as a valid means of policy and public safety for designated offences such as the ones committed by Mr. Husain.
[14] In respect of the nature and seriousness of the offences, Crown counsel submits that sexually assaulting two different young women, one who was under the age of 14 years, and attempting to procure the 14-year-old to become a prostitute, are extremely serious. Moreover, the fact that this was a violation of the personal bodily integrity of each victim, that the victims were under the age of 18 and that the applicant was in a position of power with the victims are relevant factors. Further, with respect to the personal characteristics and circumstances of the person, the applicant says the SOIRA order has a disproportionate impact on him because he wants to work in the field as a PSW. However, there is no information as to whether the order would come to light in a vulnerable person sector check or how it would make it difficult for him to obtain a job in the area. On the issue of the person’s criminal history, he would have been roughly 50 years of age at the time of convictions, received a pardon in 2021 and has not committed any offences since released from jail. The factor of the opinion of experts who have examined the person is not applicable and there are no other relevant factors in this case, counsel argues.
[15] Ms. Olesko points to the test for the termination of an order set out in s. 490.016(1) of the Code. She argues that Mr. Husain has not met the test that (a) there is no connection between continuing an order and helping police prevent or investigate crimes of a sexual nature or (b) that the impact is grossly disproportionate as opposed to the needs for public safety. She says that Mr. Husain committed the offences when he was 52 years old, and the offences carried over a 20-month period with vulnerable young people. Unlike the accused in Ndhlovu, Mr. Husain did not have a younger and undeveloped brain. Ms. Olesko submits that the continuation of the SOIRA order for the remainder of the 20-year period is not grossly disproportionate to the public interest in protecting society as the continued presence of the applicant on the registry contributes to him not re-offending, the requirements are not that onerous and it is not a lifetime order. Further, there is a connection between him remaining on the Sex Offender Information Registry and the purpose of helping police services investigate or prevent crimes of a sexual nature.
[16] Crown counsel also submits that working as a PSW involves working with vulnerable persons. While working as a PSW in the past has involved working with an older population for Mr. Husain, there could also be a younger person with a disability who requires assistance. She submits that given the type of offences for which he was convicted, having him on the registry assists the police in knowing the whereabouts of those on the registry and deters offenders from committing offences.
[17] Ms. Olesko also argues that there is no evidence that the impact on Mr. Husain of being on the registry is grossly disproportionate. He has managed to support himself following the serving of his sentence after he was on social assistance. If he cannot get work as a PSW, he could get work in other fields. She recognizes that he has not been in trouble since he served his sentence. However, Crown counsel points out that if he wishes to work with a vulnerable population, he would still be subject to a criminal record check, which would note that he had a pardon for something. The notation would enable a member of a police force to determine if the record is relevant and may be disclosed with the permission of the Minister.
Analysis and the Law
[18] In the case of R. v. Ndhlovu, the Supreme Court held that ss. 490.012 and 490.013(2.1) of the Criminal Code were overbroad and unconstitutional. In the decision, the court referenced the purpose of the Act. The legislation is designed to capture information about offenders that may assist police to prevent and investigate sex offences: Ndhlovu, at para. 69. The court outlined the provisions, which subject registered offenders to many reporting requirements, including notifying the registration centre of changes in employment or volunteering information, notifying if they intend to be away from their residence for more than seven days consecutively and being subject to random compliance checks to verify information on the registry. Non-compliance with any of the conditions may result in prosecution with penalties of up to two years of imprisonment, up to $10,000 fines, or both.
[19] The majority of the court held that a mandatory provision for the 20-year order was grossly disproportionate in that the impact on privacy and liberty and personal interests is considerable and could not be saved under s. 1 of the Charter. While Ndhlovu did not strike down s. 490.016, it did determine that the provisions for issuing the SOIRA order were overbroad because “registering offenders who are not at an increased risk of reoffending bears no connection” to the purpose of mandatory registration, which is “to capture information about offenders that may assist police to prevent and investigate sex offences”: at para. 79. As Justice Molloy wrote in R. v. Addo-Binney, 2023 ONSC 547, at para. 11:
In Ndhlovu, the Supreme Court found that mandatory registration pursuant to s. 490.012 of the Criminal Code was overly broad because it required that all persons convicted of sexual assault be subject to registration, regardless of whether they were likely to reoffend. The court held that registering offenders who are not at an increased risk of reoffending bore no connection to the purpose of the legislation.
The court also recognized that the impact of compliance with the Act would vary as the consequences could be more severe for some, for example, those whose job requires travel: Ndhlovu, at para 46.
[20] In response to the decision in Ndhlovu, Parliament enacted a new regime, which was given Royal Assent on October 26, 2023. The relevant change to the case at bar is the change to s. 490.016(1), which governs the requirements to terminate a SOIRA order. While the old version of the section had only one route to a termination order, which was gross disproportionality between the impact on the applicant including on their privacy and liberty and the public interest in protecting society, the new version provides a new route to a termination order: a lack of connection between the continuation of the order and the purpose of police prevention and investigation of sex offences in addition to the gross disproportionality test.
[21] The test for termination of an order under SOIRA is set out in Section 490.016(1) of the Criminal Code which says:
490.016(1) The court shall make a termination order if it is satisfied that the person has established that
(a) there would be no connection between continuing an order or obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or
(b) the impact on the person 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 that Act.
In addition, Parliament legislated the factors for the court to consider in making the determination on connection and/or gross disproportionality in s. 490.016(1.1) as follows:
(1.1) In determining whether to make the termination order, the court shall consider
(a) the nature and seriousness of the offences that is the basis of an order or obligation;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
[22] While the new scheme preserves the old threshold for “gross disproportionality”, it adds new criteria for the court to consider in determining the issue. In the decision of R. v. Tremblay, 2024 BCPC 75, Guild J. of the Provincial Court of British Columbia considered the application of an offender who, after an unsuccessful Charter application, pleaded guilty to two counts of possessing and accessing child pornography. He was sentenced to 18 months of imprisonment followed by two years of probation and a 10-year SOIRA order. He brought an application to terminate the SOIRA order on November 30, 2023 under subsection (a), that is, that there would be no connection between continuing this obligations under the SOIRA order and the purpose of helping police services prevent or investigate crimes of a sexual nature. The court held that the onus was on the applicant and that there was good reason to apply a standard of a balance of probabilities to the application. It also provided guidance on statutory interpretation and the legislative history, analyzed the new provisions and determined that the order should be terminated.
[23] In his reasons, Guild J. wrote at para. 24, that the new parts of the SOIRA regime are remedial provisions and that they must be liberally interpreted according to the Interpretation Act. He said that “no connection” is not the same as “insufficient connection” or “no reasonable connection”. Even a minimal connection to the purpose of prevention or investigation is sufficient: at para. 40. However, as was stated in Ndhlovu, the law should only capture those with an increased risk of recidivism: at para. 79. Thus, Guild J. held that “no connection means no risk of recidivism, that is, the same risk level as the general population; it does not mean an increased but low risk relative to the general criminal population”: Tremblay, at para. 55. He wrote at para. 72 as follows:
The most reasonable conclusion, taking into account Charter values, is that Parliament intended to respond to the majority position in Ndhlovu and incorporate the direction that there was no connection to the purpose where the person was not at an elevated risk of reoffending relative to the general criminal population, while at the same time maximizing as far as possible, the number of offenders that are required to register, and be kept on the registry in accordance with the original order. That leads me to conclude that Parliament intended that offenders have a fairly high onus in establishing that their registration is no longer necessary. It also means that terminating registration must be a realistic possibility for some offenders, where they can demonstrate that it is more probable than not that there is no connection between their registration and the provisions’ purposes.
[24] Guild J. listed 23 factors in three categories that may help a judge decide whether there is a connection. He had the benefit of expert opinions regarding the offender’s risk of offending at the time of sentencing and at the time of the application to terminate. There was also evidence that Mr. Tremblay had completed a Maintenance Program for sexual offenders and had continued with appropriate treatment.
[25] The decision of R. v. Tremblay is the only reported decision thus far considering the application of s. 490.016 since this new version of the legislation was passed. However, there are some cases where the same language is used in a similar context. For example, the new version of s. 490.012 contains the same “no connection” language and factors in ss. 490.012 (3-4).
[26] Further, Parliament introduced a new provision in s. 490.04 to allow an offender to apply for an exemption from their SOIRA order if it was made between April 11, 2011 and October 26, 2023. It uses the same tests as s. 490.016, applied to the original sentencing. In other words, the court may make an exemption order if it is satisfied that the person has established that “at the time the order was made or the obligation began there was no connection between the order or obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act” or, “the impact of the order or the obligation on the person, including on their privacy or liberty was 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 that Act.” Section 490.04(6) lists the factors to consider in deciding whether to make the exemption order.
[27] There have been some recent decisions dealing with the question of connection and gross disproportionality. In R. v. Al-Handani, 2024 ONCJ 314, the Crown was seeking a SOIRA order under s. 490.012(3). The court determined that the offender still posed a risk to reoffend given the details of the interaction (sexual touching of a client by a massage therapist), the absence of counselling and, most importantly, the lack of evidence related to future offending (at para. 64), such that the defence onus was not met and the court imposed the SOIRA order.
[28] In R. v. C.K., 2024 ABKB 62, the offender was seeking an exemption from a SOIRA order under s. 490.012(3) where the offence involved penetrative sexual assault and a high level of violence and no remorse. There was no expert report, short letters of support and the trial evidence and sentencing submissions did not contain evidence that the offender was not at increased risk of reoffending. The court held that the defence did not meet the onus and made a SOIRA order.
[29] In the decision of R. v. Coleman, 2024 PESC 12, the Crown was seeking a SOIRA order under s. 490.012(3) where the offender was guilty of penetrative sexual assault with a weapon. The court noted that the defence bears the burden of demonstrating that an order wasn’t necessary and held that because of the serious offence, an extensive criminal record and no expert evidence presented, the order should be made.
[30] In R. v. Haroff, 2024 BCSC 318, the court considered whether the offender should be registered under SOIRA where the offender was guilty of making and transmitting child pornography. There was no psychological assessment but the isolated circumstances of the offence and the offender’s personal circumstances suggested no increased risk of reoffending. He was young, a first-time offender, with no indication of sexual attraction to children, there was no intention to exploit a child or pedophilic sexual motivation and there was little to no risk. The court held that it was unlikely that the registration would assist police. The court declined to make a SOIRA order.
[31] Finally, in R. v. D.D., 2024 ABCJ 98, the offender was seeking exemption from a SOIRA order. He was elderly and forcibly kissed his adult granddaughter. The court held there was no connection because the offender who was not very mobile and there was no risk of committing another offence. The court held that the registration was grossly disproportionate and granted the exemption.
Decision
[32] I have considered the notice of application filed, the factum and evidence submitted by the applicant and the Crown’s response along with oral submissions made. In an application to terminate a SOIRA order, I am to consider the two-pronged test I have outlined above. I first consider whether there would be no connection between continuing an order or obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the legislation.
[33] I have reviewed the nature of the sexual offences committed on girls who were 13 and 15 years old at the time. I am mindful that no evidence was submitted that Mr. Husain received sexual addiction counselling, as I had recommended to the prison authorities at the time of the sentence based upon his counsel’s submission that he may have a sexual addiction, that Mr. Husain did not present an affidavit outlining any progress he has made in this regard and that no expert evidence was filed with respect to the risk of Mr. Husain reoffending. I recognize that he has received a pardon for those offences but the criteria applied by Pardons Canada may not be the same as those criteria that I am to apply under the new SOIRA statutory scheme, and there was no evidence before me as to why the pardon was granted. I am not satisfied that there is no connection between continuing an order and the purpose of the legislation.
[34] Secondly, the legislation provides that this court shall make a termination order if I am satisfied that Mr. Husain has demonstrated that the impact on him of continuing an order including on his 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 that Act. To determine this issue, I must consider a number of factors set out in s. 490.016(1.1) which I have listed above. I conclude the following:
(a) The offences are serious sexual assaults upon young old girls after grooming them and acting under the pretext of him being a photographer who would further their modelling; (b) The victims were 13 and 15 years old respectively at the time of the offences; (c) The offender was a photographer who met them at a park and developed a relationship over 20 months before inviting the girls to his home, where he sexually assaulted them; (d) Mr. Husain was 52 years old at the time and is now 64 years old. He has daughters and a brother and elderly mother with whom he has a close relationship. He was on social assistance after he completed his sentence and now works as a Personal Support Worker with vulnerable adults. He has filed letters outlining his good work ethic and performance in the job. (e) The applicant had an unrelated criminal record from 1999 in the United States of America when he was sentenced to 71 months for possession of a machine gun, transferring a machine gun and tampering with a witness. He has received a pardon in 2021 for the sexual offences to which he pleaded guilty in 2011. So far as I am aware, he has not committed any further offences since his imprisonment for the sexual offences. (f) There are no opinions of experts filed who examined Mr. Husain. (g) There is no evidence from the applicant or anyone at the institution where he served his sentence or anyone since his release from imprisonment outlining that Mr. Husain received treatment for sexual addiction or other counselling. (h) There are submissions before me that Mr. Husain cannot obtain work in his field as a Personal Support Worker so long as he is under the SOIRA requirements, but evidence was filed that he is working already as a PSW and did so in 2023. In the materials filed, there is nothing to suggest to me that Mr. Husain has not been able to obtain work in what is now his chosen profession. How the reporting requirements have affected his work or travel or any other activities is not before me in the evidence filed on his behalf. His counsel stated in submissions that the requirements under SOIRA are onerous and that he cannot travel to see his elderly mother. However, counsel also advised me that his mother travelled to see him recently and that he has family in Barrie, Ontario with whom he visits.
In light of the serious nature of the crimes and the lack of evidence regarding the impact on Mr. Husain and his likelihood of re-offending, I find that Mr. Husain has not met his onus to prove that the impact on him is grossly disproportionate to the public interest.
[35] In summary, applying these criteria, I conclude that there is a connection between continuing an order or obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Act. I also conclude that the impact of continuing an order including the effect on Mr. Husain’s privacy or liberty is not grossly disproportionate to the public interest in protecting society through effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under that Act. In making this determination, I have considered the impact of the reporting requirements upon Mr. Husain’s privacy and liberty interests and the public interest in protecting society. I find that Mr. Husain’s personal circumstances are not such that the impact of the registration requirements on Mr. Husain’s current and prospective circumstances is grossly disproportionate.
[36] Again, I acknowledge that Mr. Husain has received a pardon for his criminal convictions in Canada. I do consider that he has a prior criminal record, that he may have a sex addiction, but I am not aware of any new criminal charges or breaches of the orders that I imposed on sentence. He has shown he can be a productive member of society by taking courses and becoming a Personal Support Worker. However, I am not satisfied that the test for terminating a SOIRA order has been met. I cannot say that the reporting requirements have had a negative impact on Mr. Husain. I cannot say that the registration with SOIRA serves no purpose. The impact on Mr. Husain is not grossly disproportionate to the public interest in protecting society by assisting police in the prevention and investigation of sex crimes through the sex offender registration.
[37] For these reasons, the application for an order terminating the SOIRA order is dismissed.
Himel J. Released: July 23, 2024