Mandatory SOIRA Sentences Continue to be Delivered as ABCA Waits to Hear Appeal in R v Ndhlovu

law-1699x960

In October of 2016 the Justice Moen of the Court of Queen’s Bench of Alberta issued its decision in the case of R v Ndhlovu;[1] in which the court declared section 490.013 of Criminal Code[2] to be in violation of section 7 of the Charter.[3] Section 490.013 mandates that all persons who are convicted of two offences “of a sexual nature” be forced to register under the Sex Offender Information Registration Act (SOIRA)[4] and to remain so registered for the rest of their lives.

Those registered under the SOIRA must, on penalty of severe fines or imprisonment, report to a registration centre when they move, if they will be away from home for more than 7 days, before they leave the country, and before they return to the country.  While Justice Moen realized the value of the SOIRA system for police investigations she held that it’s indefinite length and mandatory uniform application represented a restriction of one’s liberty which was not in accordance with principles of fundamental justice. Specifically, Justice Moen found the implication of life-time registration on offenders who are very unlikely to reoffend, without any opportunity to advocate for exception or to apply to be removed until a period of 20 years has passed, is overboard.

Justice Moen argued that judges should have discretion whether to withhold registration requirements or to reduce the period for which an offender is to be registered. Ultimately, Justice Moen declared section 490.03 to be of no force and effect and refused to order Mr. Ndhlovu to register. The Crown appealed this decision to the Court of appeal; which held in July of 2017 that it had the power to, and would in fact, hear the appeal. Pending the decision of such an appeal SOIRA was temporarily reinstated and has been in full effect since that time. This means that all offenders convicted of two offences ‘of a sexual nature’ are still being saddled with lifetime registration while the court deliberates on the fate of section 490.013.

Justice Moen’s decision, if it stands appellate scrutiny, will not remove SOIRA as a tool for police to investigate and prevent sexual crimes, rather, as counsel for Mr. Ndhlovu stated in an interview with CBC News: “What this does is simply say in each case, every judge will have the opportunity to hear from the Crown and the defense, and based on the evidence make a decision as to whether or not that person deserves to be on the registry.”[5]

While the province waits to decide the fate of section 490.013 in Alberta, judges at the trial level are continuing to express their discomfort about forcing individuals convicted of less serious offences, who are unlikely to recommit to register. An example of which occurred earlier this month in Lethbridge as a provincial court judge bemoaned his being required to require one Cory Wright to register.[6] Mr. Wright was originally convicted while the Justice Moen’s ruling was still in effect, however, since the court of appeals decision to temporarily reinstate the provision Crown prosecutors have been applying to have offenders convicted during that time made to register.

The Alberta Court of Appeals decision in this case will shape the discretion of judges and prosecutors in proportionately dealing with sex crimes in the future. Ultimately that court will need to decide if the uniform life-long restrictions on liberty imposed in these cases are worthwhile given the real work which SOIRA does in helping to prevent and prosecute sex crime in this province.

[1] R v Ndhlovu, 2016 ABQB 595

[2] Criminal Code, R.S.C. 1985, c. C-46, s. 490.013

[3] Constitution Act, 1982 R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I, s. 7

[4] Sex Offender Information Registration Act, S.C. 2004, c. 10

[5] Janice Johnston, “Alberta court decision rejects portion of national sex registry law” (April 10, 2018) online:  CBC News <https://www.cbc.ca/news/canada/edmonton/alberta-court-decision-rejects-portion-of-national-sex-registry-law-1.4613749>

[6] Delon Shurtz, “Blood Tribe man to be added to sex offender registry” (February 9, 2019) online: Lethbridge Herald <https://lethbridgeherald.com/news/lethbridge-news/2019/02/09/blood-tribe-man-to-be-added-to-sex-offender-registry>