Who belongs on Canada’s sex offender registry?

A contentious ruling in Alberta would let judges decide, calling the entire program into question

Police in Newfoundland are looking for information about posters put up near two schools in St. John's, one of which is shown on Thursday, Oct.6, 2016, warning parents about an alleged sex offender. (Sue Bailey/CP)

(Sue Bailey/CP)

At last count, the national sex offender registry contained 43,217 names—or about one entry for every 813 people in Canada. Give or take a few mug shots, the list is equivalent to the populations of Courtenay, B.C., Chatham, Ont., or Charlottetown, P.E.I. It won’t be much longer before the database, ever expanding, includes enough convicts to fill every seat at a Toronto Blue Jays game.

Unlike in the United States, where sex offender registries are publicly searchable, Canada’s version was never designed for citizen consumption. Its founding purpose is to help police locate potential suspects who live near a crime scene, not provide parents with a printout of every convicted molester residing in the neighbourhood. Flip through enough court judgments, though, and it’s easy enough to see who is making the list. Ex-colonel Russell Williams is on it. So are defrocked bishop Raymond Lahey, former hockey coach Richard McKinnon, and one-time Scout leader Scott Stanley. In the last month alone, the national sex offender registry (NSOR) has welcomed the likes of Christopher Metivier (child pornography), Matthew Cole (creating Internet ads for a teenage girl forced into prostitution) and Young Min von Seefried (a police officer who sexually assaulted a woman in his cruiser).

Quite the collection.

But amid all the new additions, there’s one recent offender who’s not on the RCMP database: Eugen Ndhlovu, an Edmonton man who pleaded guilty to two counts of sexual assault. And depending on how his court case unfolds over the coming months, he could pave the way for fellow sex offenders to avoid registering, too—a scenario that could call into question the value of the entire program. If a national sex offender database doesn’t contain the name of every known sex offender, after all, is it even worth having?

In a legal first, Ndhlovu convinced a judge last October that the NSOR is unconstitutional because all convicted sex offenders automatically make the list, regardless of how relatively minor their crimes might be, or minimal the threat they may pose. Simply put, the judge found that denying an offender the opportunity to seek an exemption from the database—especially someone like Ndhlovu, who displayed “great remorse” for his actions and is considered a “very low risk to re-offend”—violates his Charter right to life, liberty and security of the person.

“Subjecting all offenders, regardless of their future risk, to onerous reporting requirements, random compliance checks by police, and internal stigma, goes further than what is necessary to accomplish the goal of protecting the public,” wrote Madam Justice Andrea Moen, of Alberta’s Court of Queen’s Bench. “The law as it stands will now place Mr. Ndhlovu on police radar for the rest of his life anytime a sexual offence is committed by a black man of average height in his neigbhourhood. I find that requiring him to register bears no connection to the object of assisting police officers in the investigation or prevention of future sex crimes.”

Ndhlovu’s legal battle isn’t over, though. Another hearing is scheduled for April 10, during which the Crown will argue that if automatic inclusion is unconstitutional, it is a reasonable limit under Section 1 of the Charter that is “justified in a free and democratic society.” Whatever the outcome, a further appeal seems certain. “It is a very compelling case,” says Erin Sheley, a law professor at the University of Calgary. “I would be shocked if this didn’t end up needing to be weighed by the Supreme Court.”

At the heart of the legal arguments is a question that has divided policymakers since before the registry even launched in 2004: Should every convicted sex offender be automatically added to the system? Or should judges have the leeway to decide who makes the cut, taking into account the circumstances of the crime and the specific danger posed by the perpetrator?

When Jean Chrétien’s Liberals first envisioned the database, and Paul Martin’s government launched it, inclusion was discretionary—because the feds feared this very sort of challenge. Under the original rules, a prosecutor had to ask a judge to issue a registration order, and the judge could refuse (if the impact on the offender would be considered “grossly disproportionate to the public interest” of having that person registered). The result? Hundreds of convicted rapists, pedophiles and child pornographers were left off, either because a Crown did not apply or a judge did not approve. As the Mounties later warned in one internal memo, released under the Access to Information Act: “There is a fear that some offenders who do pose a risk are falling through the cracks.”

After a 2008 Maclean’s investigation exposed severe shortcomings in the program—including the revelation that so many convicted offenders were not being registered—Stephen Harper’s Conservatives promised an overhaul (a subsequent RCMP briefing note credited the “highly critical article in Maclean’s magazine” for drawing political attention to the registry’s flaws). Among the sweeping legislative changes that took effect in 2011 was automatic inclusion, with no exceptions.

RELATED: The problems with Canada’s sex offender registry

That year, Eugen Ndhlovu, then 19, attended a house party hosted by a female friend. Both the friend and another woman later told police that Ndhlovu touched their buttocks without consent. Early the next morning, to use Justice Moen’s words, the friend “woke up to find Mr. Ndhlovu’s fingers inside of her vagina. She told the accused to stop. After he tried a second time to touch her, telling her that it would ‘feel good,’ [she] pushed Mr. Ndhlovu away, and he left the house.”

Charged with two counts of sexual assault (one for each victim), Ndhlovu pleaded guilty and was sentenced to six months in prison plus three years of probation. According to the Criminal Code amendments, his name should have been immediately added to the registry—for life, because he committed multiple offences. Everyone on the system must provide basic information such as current addresses, phone numbers and places of employment and report in person to police once a year. If a child is abducted, or a woman is assaulted by a stranger, authorities can then use the registry to generate a list of known sex offenders living nearby.

In written submissions, defence lawyer Elvis Iginla argued that placing his client on the registry would “outrage the standards of decency” because he poses no threat to public safety. His crime “was mild on the spectrum of acts that constitute sexual assault” because it “involved digital penetration only,” Iginla wrote, and subjecting him to a lifetime registration order would be excessive. Describing Ndhlovu as respectful and cooperative, Iginla said his client has struggled “mentally and emotionally” since his arrest; Ndhlovu was especially worried that, as a registered sex offender, police could knock on his door at any moment—an occurrence that Iginla claimed could have “devastating effects” on his studies, his job prospects and any future romantic relationships.

“There is no logical connection between [the registry’s] aim to protect the public and its mandatory inclusion of all those convicted of sex-related crimes,” Iginla wrote.

Justice Moen agreed. “The Crown concedes in its brief that the registry will ultimately catch some sex offenders who do not re-offend,” she ruled. “I am satisfied that Mr. Ndhlovu is likely one of those offenders.”

Ontario has its own separate sex offender registry (unveiled in 2001, three years before the national version) and inclusion has always been mandatory. In 2008, the province’s highest court ruled on a similar constitutional challenge, concluding that the Ontario registry does not breach Section 7 of the Charter because the reporting requirements are “quite modest” and “do not prohibit anyone from doing anything or going anywhere.” (As the Court of Appeal noted: “There is no way to know in advance which sex offenders will re-offend and which will not, and that is why all are included on the registry.”) But the Ndhlovu ruling is the first to declare the national registry unconstitutional, reigniting the debate over mandatory inclusion. “I think this is a big issue and I don’t think the courts are going to allow the statute to stay in place without more judicial scrutiny,” says Rob De Luca, a staff lawyer with the Canadian Civil Liberties Association. “It should receive attention from appellate courts.”

De Luca agrees with Moen’s reasoning, insisting that judges are in the best position to decide, on the facts of a case, who belongs on the database and who does not. “The purpose of this registry, which everyone recognizes to be a substantial limit on an individual’s freedom, is to protect vulnerable people,” he says. “So if judges know, after lengthy hearings and a wealth of evidence, that a particular individual is not likely to re-offend, I think we should be trusting them to make the right decisions about registration.”

Janine Benedet, a law professor at the University of British Columbia, studied dozens of cases in which convicted sex offenders avoided registration during the early years of the program. In one case she considers especially disturbing, a man who lured a 13-year-old girl over the Internet was not compelled to register because, according to the judge, “his conduct was not predatory but was one of poor judgment.” In another, a judge refused to register a priest who, on multiple occasions, prostituted underage aboriginal girls and filmed them in the church rectory; he was a low risk to re-offend, the court ruled. “What really bothered me were the number of cases in which judges said: ‘Well, this isn’t the kind of person for whom the registry was intended,’ ” Benedet says. “Who belongs on the registry cannot be based on assumptions about what a real sexual assault looks like.”

If the Alberta ruling stands, and the database is once again open to judicial discretion, Benedet worries that another round of offenders will avoid registration based on myths and stereotypes surrounding sexual assault—the same myths and stereotypes that were exposed during the recent disciplinary hearing for Alberta Justice Robin Camp. Even in the Ndhlovu ruling, the judge seems to imply that the woman who was violated while she slept was at least partially to blame for what happened—because her house party was advertised on Facebook as a “highly sexualized Jersey Shore DTF (down to f—) party,” and that she personally insisted Ndhlovu attend.

RELATED: Conservatives want judges trained about sex assault 

“I think inclusion on the registry should be mandatory, but if not, who should be trusted to make that call?” Benedet asks. “Is it Parliament, with detailed guidelines, or is it judges in a much more free-flowing way?”

It is a delicate balance, Sheley says. “Having a super bright-line standard—everyone goes on—is obviously going to capture some people who are not actually dangerous and for whom the limitations on liberty are not outweighed by public safety,” she says. “The competing concern, though, is that with judicial discretion judges apply the law inconsistently across the country.”

Gary McLennan, a retired Mountie who operated the database in Saskatchewan, has little sympathy for an offender who complains that the reporting requirements are too onerous. The initial registration process takes only few minutes, he says, and checking in once a year—discreetly, in a private room—is hardly a burden. Offenders can also apply for removal after a certain period of time (someone with a lifetime order must wait 20 years, for example). “To me, this is about the protection of the public,” he says. “I think anybody who commits a sexual offence, no matter how minor or how violent, should be on the registry. If you commit one, you can commit a second one.”

Through his lawyer, Ndhlovu declined an interview request. “He is a young man from a very good home,” Iginla says. “He is doing the best he can, trying to hold his head up and getting help every way he can. He is trying to put this behind him.”

Iginla stresses that he is not fighting to abolish the entire registry—just the mandatory inclusion rule. “The argument here is not that the sex offender registry itself is unconstitutional; the argument is that the lack of judicial discretion is unconstitutional,” he says. “This registration is for life. There are people who deserve that, but the question is: ‘Does he deserve it? Is it something that will really benefit society?’ “

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