Trial judges considering a Crown’s request to apply an order that requires an offender to comply with the Sex Offender Information Registration Act (“SOIRA”) should consider on a case-by-case basis the impact registration would have on the offender while weighing public interest to determine gross disproportionality, the Quebec Court of Appeal found in a ruling that steers away from a more rigid interpretation of reporting obligations.
In a 32-page ruling, dealing with four concurrent cases that challenged the constitutionality of s.490 of the Criminal Code, the court held that a stiff interpretation of what constitutes public interest would be unfair as it would be almost impossible for a convicted sex offender to establish that, if the order were made, the impact on them (including their privacy or liberty) would be grossly disproportionate to the public interest in protecting society.
“An analysis must not be intangible and public interest demands that one take into account the positive aspects and negative ones of the whole situation, notably the personality of the delinquent and the circumstances surrounding the perpetration of the offence,” said Judge François Doyon in the unanimous ruling in Thériault c. R., 2009 QCCA 185.
According to Sébastien Proulx, one of two lawyers who plead the cases, the ruling highlights the need for trial judges to proceed with a “contextual analysis” before determining whether an offender should be exempted from SOIRA. “We argued that it was virtually impossible for offenders to be exempted because the burden of proof was so high,” said Proulx.
Proclaimed as law five years ago. SOIRA established a national sex offender database, maintained by the RCMP, containing information on convicted sex offenders. Following conviction and sentencing for one of the designated offences listed in the Criminal Code, the Crown can apply to the court for a Sex Offender Registration Order. A person who is registered under the SOIRA is required to provide information concerning his identity and whereabouts, and to report to the registration centre closest to his main residence on an annual basis for the period specified in the legislation. However, a trial judge may turn down the request for an order by invoking subsection (4) of s.490.012 of the Criminal Code if it is satisfied that the SOIRA order would be grossly disproportionate.
There are two approaches that dominate the legal landscape in Canada surrounding the interpretation of what constitutes public interest under SOIRA, noted the Quebec Court of Appeal. In R. v. Redhead, 2006 ABCA 84, the Alberta Court of Appeal held that there is a public interest in having those who commit the prescribed offences registered. “The focus of the inquiry is not on whether there is a public interest in having the offender registered, but rather on whether the impact on the offender would be grossly disproportionate to the public interest,” said the Alberta appellate court. That analysis was adopted by the Attorney General of Quebec in the cases at hand.
The Quebec Court of Appeal deemed that such a “rigid” approach would lead to an “unfair process” as it would create an insurmountable barrier to exemption. Informed by R. v. Turnbull, 2006 NLCA 66, the Quebec appellate court stated that trial judges must take into consideration the impact of the “particular situation of the delinquent to the public interest” to determine, while conducting the gross proportion test, whether an exemption should be provided.
“I must add, however, that in spite of this interpretation the burden of proof the applicant faces to persuade that he should be exempted is still heavy,” said Judge Doyon.
The court also noted that this approach falls in line with R. v. R.C., 2005 SCC 61,  3 S.C.R. 99 , even though it dealt with a different situation. In that case the Supreme Court of Canada held that in applying s. 487.051(2), a court must determine whether a DNA order would adversely affect the individual’s privacy and security interests in a manner that is grossly disproportionate to the public interest. Further, the SCC found that a s. 487.051(2) inquiry is highly contextual and necessarily individualized.
David Bélanger, the other lawyer who plead the cases before the Court of Appeal, said that the ruling espouses a “common sense” approach. “The court recognizes there are two legal approaches to the issue, but decided to advocate a contextual analysis in these situations, one that takes into consideration all of the pertinent elements to decide whether to exempt an offender,” said Bélanger, who works for the a legal aid office in Quebec City.
In spite of being “proud and pleased” with the ruling, Bélanger and Proulx are considering filing an application for leave to appeal before the SCC. Their arguments that SOIRA contravened s. 7 and s. 11 of the Charter of Rights and Freedoms as well as violated principles of natural justice fell on deaf ears.
P.S. Statistics Canada published a report on sexual offences in Canada. It can be found downloaded here.