TORONTO — Forcing repeat sex offenders to go on a national registry for life under provisions enacted by the former Conservative government is constitutional, Ontario’s top court has ruled.
In rejecting a challenge to a Criminal Code provision enacted in 2011, the Court of Appeal found no violation of the charter’s guarantee against unwarranted interference with a person’s freedom.
The challenge was launched by Richard Long, who was convicted in Ontario court in August 2013 of three counts of sexual assault involving three separate incidents on a single day. Court records show the complainant, who worked as a part-time office assistant at Long’s health-food business, alleged he touched her breast and kissed her as she worked.
Ontario court Judge Lesley Baldwin sentenced Long to a 90-day intermittent sentence. She also ordered him to register under the Sex Offender Information Registration Act for 10 years.
However, the prosecution then applied to have him register for life given that he had been convicted of more than one “designated” offence under the act. In response, Long launched a constitutional challenge.
On initial appeal, Long argued the Criminal Code provision requiring he register as a sex offender for life was arbitrary, too sweeping, and grossly disproportionate. In July 2015, Superior Court Justice Dale Fitzpatrick rejected the arguments.
Among other things, Fitzpatrick found the law aims to further public safety by enabling police to keep track of sex offenders, and the information makes investigating sex crimes easier.
“He found it was a matter of common sense and experience that past behaviour predicts future conduct,” the Appeal Court said. ”Those convicted of more than one offence are subject to longer registration on the basis that they have a greater propensity to re-offend.”
Long, backed by the Criminal Lawyers Association, turned to the province’s top court, which agreed to hear the case with the government’s blessing. He argued the law in question was too sweeping and disproportionate in light of the relatively minor nature of the offences of which he was convicted.
“There can be no doubt that the impugned provision, which requires lifetime registration and supervision, interferes with the appellant’s liberty rights,” the Appeal Court said. “The question is whether the law does so in a way that violates our basic values.”
The federal government initially established the national sex offender registry in December 2004, three years after Ontario introduced a similar system. The Ontario law, which survived its own constitutional challenge, was enacted in response to the public outcry that followed the abduction, sexual assault and murder of 11-year-old Christopher Stephenson by a repeat sex offender.
The Harper government amended the law in 2011 to include mandatory lifetime registration for repeat offenders.
Citing the Supreme Court, the five-member panel of the Appeal Court called it critically important to identify the purpose of the amendment — which is to deal with those convicted of more than one sex offence and are therefore at enhanced risk of re-offending.
“The animating social value of (the law) is the protection of the public,” Chief Justice George Strathy wrote on behalf of the panel.
The Appeal Court rejected arguments that mandatory, lifetime sex-offender registration would flow, for example, from convictions for two minor groping incidents minutes apart.
“The second sexual assault can reasonably be regarded as demonstrating the offender’s persistence and impulsiveness, and therefore his enhanced risk of re-offending,” the Appeal Court said. “The same could be said of the appellant, who sexually assaulted the complainant three times over the course of two and a half hours.”
In rejecting arguments the punishment of a lifetime registration is too harsh for the offences, the Appeal Court sided with the government that the effect of registration on an offender’s liberty is “modest.”
“The statute contains provisions designed to protect the privacy of registrants and to restrict access to the registry,” Strathy noted.