The Supreme Court of Canada has ruled that a 2011 change to the Criminal Code requiring sex offenders to automatically be added to the sex offenders registry is unconstitutional.
In a five to four split, the top court ruled that anyone who has been added to the National Sex Offender Registry since 2011 can apply to have their status changed.
Former Conservative prime minister Stephen Harper's 2011 changes to the Criminal Code required sex offenders' names to be automatically added to the registry. Anyone convicted of two sex offences or more remains on the registry for life.
The changes meant judges no longer had the discretion to submit the names of sex offenders to the registry.
Prior to the 2011 change, a Crown prosecutor had to apply for a Sex Offender Information Registration Act (SOIRA) order and ask a judge to decide whether the offender should be added to the sex offender registry.
The court considering the order would have to determine if restricting the offender's privacy and liberty was in the public interest.
The Eugene Ndhlovu case
The ruling stems from the case of Eugene Ndhlovu, who pleaded guilty to two counts of sexual assault in 2015 after admitting that in 2011, when he was 19 years old, he sexually assaulted two women at a house party in Edmonton.
Ndhlovu was sentenced in provincial court to six months in jail followed by probation for three years. He had no prior criminal record and was deemed a low risk to reoffend.
Ndhlovu filed an appeal with the Court of Queen's Bench of Alberta, arguing his charter rights had been violated and the court agreed.
At the Alberta Court of Appeal, two of three judges ruled that automatically adding the names of sex offenders to a national registry for life does not violate the offender's charter rights. The third justice disagreed.
Friday's ruling from the top court means that Ndhlovu will not be added to the sex offender registry.
The top court was asked to rule on whether automatic inclusion on the registry, and whether that inclusion should last for a lifetime in cases where the offender is convicted of more than one offence, is constitutional.
In their majority decision, five justices on the court said that "mandatory registration is over-broad, since it captures offenders who are not at an increased risk to reoffend," and that lifetime registration was also over-broad.
They dismissed arguments from the Crown suggesting that because judges may have improperly exempted sex offenders from being included in the sex offender registry, automatic inclusion was necessary.
"To the extent some trial judges may have interpreted the former exemption too broadly, those trial decisions are always subject to appellate review and guidance," the decision said. "This cannot render an unconstitutional law constitutional."
The court criticized the Crown for failing to provide a reason why allowing a judge discretion on whether or not to include an offender in the registry was insufficient, or would make it harder for police to investigate and prosecute sex crimes.
"The unproven premise is that police can only effectively prevent and investigate sex offences if all designated offenders are registered," the top court said. "The assumption appears to be that if some are good, more is better, and all is best."
The decision also said that maintaining someone's inclusion in the sex offender registry for the duration of their life, if they were convicted of more than one offence, is unconstitutional because it casts too wide a net.
The majority said that while the law may have been designed to target people convicted of a sexual offence who then later go on to commit another sexual offence, it was capturing people whose convictions relate to a single incident.
"The measure captures some offenders who are not at a relatively greater risk of reoffending because their two or more offences were committed ... in a single transaction," the ruling said.
The court said it heard convincing evidence that people convicted of more than one sexual offence in a single incident are not at an increased risk to reoffend compared to those convicted of more than one offence in separate incidents, over a longer period of time.
In a dissenting "in part" decision, Justice Richard Wagner, writing for Justices Suzanne Côté, Russell Brown and retired justice Michael Moldaver, agreed with the majority decision that the lifetime inclusion in the registry was over-broad.
"It ... cannot reasonably be said that mandatory lifetime registration accords with the principles of fundamental justice," Wagner wrote. "Nor can this be justified under [section one] of the charter, since Parliament could have crafted a narrower regime that distinguishes multiple sequential offences from prior convictions."
On the issue of automatic inclusion in the registry, however, the minority disagreed, saying that the mandatory inclusion did not violate the constitution. The minority said that many judges had exempted offenders from the registry improperly, leading to a "low inclusion rate" that undermined its efficacy.
"The evidence is clear that even low-risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence," the minority decision said.
"It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net."