Supreme Court strikes down mandatory sex offender registry
The Supreme Court of Canada
In a five-to-four split decision on Friday, the nation's highest court declared the listing unconstitutional mandatory for life on the National Sex Offender Registry.
The Supreme Court judgment gives parliamentarians one year to change the section of the law dealing with compulsory registration in the register. With respect to registration in perpetuity, the decision of the highest magistrates takes effect immediately.
Anyone who has had their name added to this register since 2011 can already requesting that its status be reviewed.
The Supreme Court's decision thus invalidates changes made in 2011 by Stephen Harper's government to the Sex Offender Information Registration Act (SOIR).
Under these amendments to the Criminal Code, the registration in the registry of anyone convicted of a sexual offense was made mandatory. This meant that the personal information of all offenders appeared on this national registry.
In addition, the Harper government's decision ensured that individuals convicted of more than one sexual offense would have their names entered in this registry in perpetuity.
La Supreme Court decision therefore invalidates the changes made in 2011.
The National Sex Offender Registry was created in 2004 following the adoption of the LERDS. It was up to a judge to decide whether or not to include a sex offender, after a Crown prosecutor applied for an order to do so.
In 2011, Parliament took away this discretionary power from the Crown and the judge.
However, in their decision, the majority judges of the Supreme Court ruled that the two provisions of the Criminal Code violate section 7 of the Charter of Rights and Freedoms in a way that cannot be justified in a free and democratic society.
The Charter liberty interest is infringed because registration has a significant impact on the mobility rights and freedom to make fundamental choices of persons who are not at increased risk of recidivism.
In 2015, an Alberta judge sentenced Eugene Ndhlovu to six months in prison and three years' probation after he pleaded guilty to two counts of sexually assaulting two people. The charges against him had taken place four years earlier when the accused was 19 years old.
After reviewing Mr. Ndhlovu's background and evidence, the trial judge had concluded that the risks of recidivism presented by the latter were low. life sentence, which he successfully challenged. The Crown appealed this decision to the Alberta Court of Appeal, which found that the provisions passed by Parliament in 2011 were constitutional.
The Supreme Court allowed the appeal last February.
Under their decision on Friday, the judges exempt Eugene Ndhlovu from the requirement to be on the sex offender register. And this, even if the declaration of invalidity of section 490.012 of the Criminal Code will not come into force for another year.