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Supreme Court of Canada invalidates mandatory lifetime registration in the Criminal Code


In R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada, in a 5-4 split decision, recently held that sections 490.012 and 490.013(2.1) of the Criminal Code infringe section 7 of the Charter, and declared that they were of no force or effect.

This case originates from two sexual assaults committed by the accused at a party in 2011 when he was 19 years old. In 2015, the accused pled guilty to two counts of sexual assault. The accused was sentenced to six months’ imprisonment and three years’ probation. Despite the sentencing judge finding that the accused was unlikely to re-offend, due to his convictions on two separate counts of sexual assault, the accused was subject to mandatory lifetime registration in the national sex offender registry created by the Sex Offender Information Registration Act (“SOIRA”). Section 490.013(2.1) was added in 2011 under the Conservative government, which mandates lifetime registration for individuals convicted of more than one “designated offence”. This removed prosecutorial and judicial discretion on this issue.

The accused challenged the constitutionality of the two provisions. The sentencing judge found that these two sections of the Criminal Code did breach section 7 of the Charter, holding that they were overbroad and grossly disproportionate to the intended purpose of SOIRA. The Court of Appeal of Alberta subsequently allowed the Crown’s appeal, finding that there was no Charter violation. The Court of Appeal held that the law was not overbroad as Parliament was entitled to infer that committing multiple sexual offences presented an increased chance for re-offending, warranting the mandatory lifetime registration.

At the Supreme Court of Canada, both the majority and dissent concurred that the mandatory lifetime registration under section 490.013(2.1) was overbroad and unconstitutional. However, the dissenting justices held that section 490.012 was constitutional. The changes to the sex offender registry legislation in 2011 was done to remove a perceived problem of judicial discretion which exempted offenders who were convicted of certain offences. The dissent found that automatic registration was not arbitrary, grossly disproportionate, nor overbroad in their view.

The majority opinion was that mandatory registration under section 490.012 was overbroad because it can lead to the registration of some offenders who are not necessarily more likely than other criminal offenders to commit a future sex offence. The majority held that there should be an immediate declaration of invalidity for section 490.013(2.1). With respect to section 490.012, the majority held that there should be a declaration of invalidity also, but suspended for 12 months. This 12-month delay ensures Parliament has reasonable opportunity to revise that section’s language without preventing the courts from imposing orders under SOIRA in the meantime.

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