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Colby Cosh: The judge who excused a sex offender for failing to register

Once again, it seems the courts always have the last word over legislatures

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I was a little torn reading in the Hamilton Spectator about the latest blow to “Christopher’s Law,” the Ontario statute from 2000 that created a provincial sex-offender registry. The law was named for Christopher Stevenson, an 11-year-old boy who was abducted and murdered by a man just released from prison for an earlier sex crime against an 11-year-old. Laws named after individual crime victims are usually lousy ones, but Justice Davin Garg’s ruling has a slightly fantastical quality. Compelled by a recent Supreme Court ruling against lifetime mandatory registration for sex offenders in a parallel federal database, Garg found he had no choice but to strike down the analogous mandatory-registration requirement in the Ontario law.

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The premise of both judgments is that the lifetime annual reporting to police required of convicted sex offenders is an infringement on the “liberty” interest in Section 7 of the Charter. A constitutional challenge to Christopher’s Law was brought on behalf of Michael Roberts, who was convicted of eight counts of nuisance-level sexual assault in 2010. As a consequence, he lived under an obligation to turn up at the police station every year with ID and answer some questions. Quoting from the judgment:

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“The information that an offender must provide includes their: current and former names; aliases; updated photograph; physical description, including any distinguishing features; current and former addresses; secondary residences; phone numbers; employer names; volunteer engagements; work locations; education locations; driver’s licence number; and motor vehicles.”

This information was broadly available to police investigators working on sex crimes, but not to the general public. Roberts decided not to report before the 2024 deadline and was charged with the corresponding Christopher’s Law offence. Justice Garg, echoing the Supreme Court’s 2022 ruling in Ndhlovu, found that the requirement to appear and report all this information was a bona fide infringement on Roberts’ Section 7 liberty, and one supposes that’s so.

It might still be a reasonable thing to ask of people who have been convicted of sexual assault, who are acknowledged (in Ndhlovu) to have a higher risk than the never-convicted of perpetrating further sexual assaults. The reasoning in Ndhlovu is that the limitation on the convict’s liberty is applied equally to everybody within the group of past sex offenders, some of whom are at a negligible risk to reoffend, and that makes the reporting requirement arbitrary.

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After Ndhlovu, the federal sex-offender registry was changed to allow for judicial discretion, at the time of sentencing, in deciding who has to register. Garg’s parallel ruling will require the same sort of remedy for the provincial registry. As the Supreme Court’s lamented Justice Russell Brown remarked in a dissenting opinion on Ndhlovu, the whole point of making federal registration mandatory according to fixed criteria was that judges had a long track record of awarding outrageous, irrational exemptions for convicts who didn’t seem to them like “real” sex offenders or “predators.” In the great dialogue between parliaments and courts, one notices it’s always the latter who seem to have the last word.

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