Thank you.
I'd like to focus on several of Bill S-12's features that respond directly to the Supreme Court's Ndhlovu decision.
At various points in Bill S-12, a disjunctive test is employed before determining whether an exception from the sex offender registry or a termination order is warranted. The test effectively employs the language of section 7 of the charter, in particular, the overbreadth and gross disproportionality principles. I suggest that this dual exception is unnecessary. Such an approach is only reasonable if there are circumstances where an overbroad law is not also grossly disproportionate.
If a SOIRA order doesn't further the law's purpose, the fact that the order has, per the majority of the Supreme Court, a “serious”, “onerous” and “considerable” impact on the offender's liberty strongly suggests that the effect is also grossly disproportionate. Notably, the original SOIRA legislation only employed the gross disproportionality exception. There's no indication that this exception was too narrow.
This is more than a semantic point, because allowing judges to avoid making a SOIRA order because they think there's no connection between the order's aim and the offender's conduct invites problematic speculation. As the dissent in the Ndhlovu observed, judges have frequently issued exemptions in highly inappropriate circumstances. They have excluded offenders because the judge thought they did not pose a future threat because they sexually assaulted people they knew, were viewers of child sex abuse materials, opportunistic offenders or historic offenders. These types of exclusions demonstrate that judicial bias in sexual offences is present in astonishing ways and with a disturbing frequency, as the dissent demonstrated with its overview of the jurisprudence.
While the proposed amendments provide factors to guide judicial discretion, these factors are stated quite broadly, I suggest. I agree with Professor Benedet, who suggested in 2012 that factors that are irrelevant should also be listed. These should include the fact that the victim knew the offender before the offence, that the act was opportunistic rather than predatory, that the offender has ceased the occupation or activity that brought him in contact with the victims, that he was intoxicated and that the offence did not involve multiple victims or additional bodily harm.
Discretion is also made available in other questionable circumstances. Amendments to subsection 490.012(1) would require that an offence be prosecuted by way of indictment and there be a sentence of two years, a penitentiary sentence, before a SOIRA order is mandatory for sexual offences against children. Does the available evidence establish that only child sex offenders sent to the most restrictive prisons in Canada are sufficiently likely to reoffend as a category to warrant a SOIRA order?
A review of the sentencing jurisprudence demonstrates that even cases of prolonged grooming with multiple assaults would not require an order, leaving the decision to the discretion of judges, which, again, has proven problematic.
With that said, Parliament likely wants to allow for judicial discretion not only to protect against section 7 challenges but also to keep SOIRA orders outside the purview of punishment under the charter. It's worth considering, though, whether the prior laws would be constitutional, the mandatory provisions, if conceptualized as serving investigative and punitive purposes.
In other words, could SOIRA orders not also and perhaps predominately be imposed as punishment, given the court's conclusion that an investigative model requires judicial discretion? Under such an analysis, it's not sensible to speak of overbreadth, because SOIRA orders will readily further the aims of denouncing and deterring offenders from committing further offences, nor is it clear that SOIRA orders would be grossly disproportionate, as the broader objectives of denunciation and deterrents would need to be given due weight alongside the investigative benefits these orders already serve.
While this approach may engage section 11(i) of the charter, this could be avoided. Retroactive application could be avoided by allowing offenders who committed an offence under the prior legislation to apply for exemptions where the impact on them is not inconsistent with Ndhlovu.
Thank you.