The fallout from a 2011 Edmonton sexual assault case has come before the Supreme Court of Canada.
© Adrian Wyld/The Canadian Press
The Supreme Court of Canada held a virtual hearing Tuesday morning to consider the sentencing of an Edmonton sex offender.
Janice Johnston -
The country's top court has been asked to consider striking down two sections of Canada's sex offender laws as unconstitutional.
In 2011, the Stephen Harper's CONSERVATIVE government altered the Criminal Code so the names of sex offenders would automatically be placed on the sex offender registry.
The changes meant judges no longer had discretion on whether to submit names of sex offenders to the registry. It also mandated that anyone convicted of two sex offences or more would automatically be placed on the registry for life.
On Tuesday morning, appearing virtually in the Supreme Court, Edmonton defence lawyer Elvis Iginla asked the justices to replace mandatory placement with judicial discretion.
Iginla represents Eugen Ndhlovu who pleaded guilty to two counts of sexual assault in 2015. He admitted that in 2011, when he was 19 years old, he sexually assaulted two women at a house party.
Ndhlovu was sentenced in provincial court to six months in jail followed by probation for three years.
Ndhlovu had no prior criminal record and was deemed a low risk to reoffend but, because he was convicted on more than one count of sex assault, his name was automatically added to the registry for life.
Ndhlovu filed an appeal with the Court of Queen's Bench of Alberta, arguing his charter rights had been violated.
The Court of Queen's Bench judge agreed. Justice Andrea Moen struck down the 2011 legislative changes, meaning that sex offenders in Alberta convicted of two or more offences would no longer be automatically placed on the list.
"In my view, the mandatory registration for all sex offenders upon conviction of two or more offences, without regard to the seriousness of the offences or the offender's propensity to reoffend, is overbroad," Moen wrote.
The case advanced to the Alberta Court of Appeal, where there was a split decision. Two of three judges ruled automatically adding the names of sex offenders to a national registry for life does not violate the offender's charter rights.
The third justice dissented, ultimately leading to Tuesday's hearing before the Supreme Court of Canada.
Tuesday
In 2011, the Stephen Harper's CONSERVATIVE government altered the Criminal Code so the names of sex offenders would automatically be placed on the sex offender registry.
The changes meant judges no longer had discretion on whether to submit names of sex offenders to the registry. It also mandated that anyone convicted of two sex offences or more would automatically be placed on the registry for life.
On Tuesday morning, appearing virtually in the Supreme Court, Edmonton defence lawyer Elvis Iginla asked the justices to replace mandatory placement with judicial discretion.
Iginla represents Eugen Ndhlovu who pleaded guilty to two counts of sexual assault in 2015. He admitted that in 2011, when he was 19 years old, he sexually assaulted two women at a house party.
Ndhlovu was sentenced in provincial court to six months in jail followed by probation for three years.
Ndhlovu had no prior criminal record and was deemed a low risk to reoffend but, because he was convicted on more than one count of sex assault, his name was automatically added to the registry for life.
Ndhlovu filed an appeal with the Court of Queen's Bench of Alberta, arguing his charter rights had been violated.
The Court of Queen's Bench judge agreed. Justice Andrea Moen struck down the 2011 legislative changes, meaning that sex offenders in Alberta convicted of two or more offences would no longer be automatically placed on the list.
"In my view, the mandatory registration for all sex offenders upon conviction of two or more offences, without regard to the seriousness of the offences or the offender's propensity to reoffend, is overbroad," Moen wrote.
The case advanced to the Alberta Court of Appeal, where there was a split decision. Two of three judges ruled automatically adding the names of sex offenders to a national registry for life does not violate the offender's charter rights.
The third justice dissented, ultimately leading to Tuesday's hearing before the Supreme Court of Canada.
Crown argues for status quo
Alberta Crown prosecutor Jason Russell argued in favour of maintaining the current legislation.
"The objective is to formulate a comprehensive database for law enforcement," Russell said. "We just don't have the tools to say which offender is going to re-offend."
Russell compared automatic listing on the registry to mandatory DNA orders for certain designated offences.
He acknowledged there's a modest impact on the offender's privacy rights, but argued that for most offenders the information remains unused in a highly secured database unless they are suspected of re-offending.
The subject of judicial discretion led to some spirited debate between the judges and lawyers.
"Let's cut to the chase," Justice Malcolm Rowe said to Russell. "The parliament of the day said, 'We don't like judges exercising their discretion. We want to make this an iron rule with no exceptions. It's plain on its face. We don't care what the circumstances are.'
"And you're saying that's perfectly fine."
Russell agreed.
The court also heard from interveners representing attorneys general for Canada and three provinces.
Five additional interveners representing criminal lawyers associations, civil liberties groups and the Ontario HIV Legal Network filed factums in support of Iginla's appeal.
Iginla said he thought that overall the hearing went well.
"They knew what the issues were," Iginla told CBC News following the hearing. "They asked some very tough questions.
"Anytime you appear before an appellate court, all you can really hope for is that they listen to you … and the point you're trying to make.
"So I couldn't have asked for more."
The court has reserved its decision.
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