The Supreme Court of Canada has struck down provisions of the Sex Offender Information Registration Act (“SOIRA ”) in the case of R. v. Ndhlovu 2022 SCC 38. The accused in this case pled guilty to two charges of sexual assault involving different while at a party. He was sentenced to six months imprisonment and three years’ probation. As a result of the convictions and despite the evidence including that the judge found the accused unlikely to reoffemd, he was subject to mandatory lifetime registration in the national sex offender registry created by SOIRA.
Registered offenders are subject to many reporting requirements including report in person to provide extensive personal information, update their information in person yearly, and report in person at the registration centre any changes in name or address, or if they receive a driver’s licence or passport. Non compliance with any of these conditions may result in crininal prosecution, and police officers conduct random compliance checks.
The accused challenged the constitutionality of sections 490.012 and 490.013(2.1) of the Act breached s. 7 of the Charter. The Judge found that the provisions breached the Charter; they were overbroad and disproportionate as they requiired registration by offenders with little or no recidivism risk, The Court of Appeal allowed the Crown’s appeal. The accused appealed to the Supreme Court of Canada who allowed the appeal.
The majority of the Court declared the sections in question unconstitutional, infringing section 7 of the Charter, which protects the right to life, liberty and security of the person. It found that mandatory registration under s. 490.012 is overbroad as it leads to the registration of offenders who are not at an increased risk of committing a future sex offence. Registering those offenders bears no connection to the purpose of capturing information about offenders that may assist police prevent and investigate sex offences. The Court declared that lifetime SOIRA Orders under section 490.013(2.1) of the Criminal Code are unconstitutional and applies retrospectively. The Court also found that the.mandatory imposition of SOIRA found in s. 490.012 is unconstitutional but will take effect in 12 months and is not retrospective.
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R. v. Ndhlovu 2022 SCC 38