Overview

On October 28, 2022, the Supreme Court of Canada released its decision in R. v. Ndhlovu, 2022 SCC 38, in which a 5-4 majority struck down section 490.012 of the Criminal Code of Canada, but unanimously struck down section 490.013(2.1) (collectively, the “Impugned Provisions”), both for having violated section 7 of the Canadian Charter of Rights and Freedoms.

While there are a number of interesting points of discussion in this case, such as the application of the Oakes test and its interplay with section 7 and the remedy ultimately ordered, our discussion will focus on the Court’s section 7 analysis, the importance of non-speculative evidence in Charter litigation, and the consideration of Parliamentary intent.  

The Facts

In 2004, Parliament passed the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) in an effort to help police investigate crimes of a sexual nature by creating a national sex offender registry.  At the time, a sex offender was only placed on the registry if the Crown chose to apply to the court for an order requiring compliance with SOIRA.  Sentencing judges also had discretion to exclude offenders from the registry if the effects of the order on their privacy or liberty interests were grossly disproportionate to the public interest in protecting society.  These were seen as two important safeguards to balance the rights of offenders and the public interest.

However, in 2011, Parliament enacted the Protecting Victims from Sex Offenders Act, S.C. 2010, c. 17 and changed when registration was to occur.  Section 490.012 of the Criminal Code requires mandatory registration on the sex offender registry if a person is convicted of any one of 27 enumerated sexual offences under section 490.011(1)(a).  Judicial discretion was removed.  Moreover, for those offenders who are convicted of more than one sexual offence, section 490.013(2.1) requires that registration is for a lifetime.  It was the mandatory and lifetime registration provisions that were at issue in this case.

Eugene Ndhlovu, a 19-year old at the time he was charged, pleaded guilty in 2015 to two counts of sexual assault against two complainants, stemming from incidents that occurred at the same party in 2011.  The sentencing judge found that Mr. Ndhlovu was unlikely to reoffend but that, under the Criminal Code, Mr. Ndhlovu: (1) was required to register on the national sex offender registry, and (2) his registration would be for the rest of his life.

Registration on the list imposes several obligations on offenders.  Mr. Ndhlovu was required to, amongst other things, report to police stations in person to check in and/or update his information on the registry regularly, report plans for travel of over seven days, report changes to his home address or employment, and be subject to random checks by police.  Failure to comply with these obligations had the prospect of bringing about imprisonment.

Mr. Ndhlovu successfully challenged the mandatory and lifetime registration provisions before the sentencing judge as violating his rights under section 7 of the Charter on the basis that they engaged his right to liberty and that the provisions were overbroad, given that they captured offenders with little to no risk of recidivism.  At the Alberta Court of Appeal, the sentencing judge was overturned in a 2-1 decision, with the majority holding that neither provision was overbroad nor grossly disproportionate.

Majority Decision

A majority of the Supreme Court of Canada allowed Mr. Ndhlovu’s appeal and agreed with the sentencing judge that the Impugned Provisions are unconstitutional as violating section 7.

The Court’s analysis on section 7 started from established propositions: (1) the provision is concerned with the protection of individual autonomy and dignity, (2) liberty protects the right to make fundamental personal choices free from state interference, and (3) liberty protects against physical restraint, including imprisonment, arrest, and the compulsion of attendance at a particular place.

The majority focused on the effects of the Impugned Provisions, namely the compulsion on offenders to provide ongoing information and be subject to random checks, all under the threat of prosecution.  In effect, Parliament had created a system of continuous state monitoring for up to a lifetime, resulting in changes to an offender’s lifestyle, travel and residency to avoid incarceration.  For certain offenders, e.g., those who may be homeless, compliance with Impugned Provisions would be particularly onerous given the lack of certainty in housing and social instability.  Accordingly, the majority held that “[l]iberty is obviously undermined when personal information is collected, under threat of imprisonment, for the very purpose of monitoring a person in the community and promptly identifying the person’s whereabouts in the course of a criminal investigation.”

Under the second step of the section 7 analysis, namely whether the Impugned Provisions are overbroad, the majority begins its discussion with the purpose of the Impugned Provisions.  Based on the text of SOIRA, the legislative history, and statements made in Parliament by the responsible ministers, the majority held that the purpose of the mandatory registration provision is to capture information about offenders that may assist police prevent and investigate sex offences.

However, there was no legislative history to assist in determining the purpose of the lifetime registration provision. Based simply on the text of the Criminal Code and SOIRA, the majority held the purpose of lifetime registration is simply to give police a longer period of access to information on offenders at a greater risk of reoffending, on the basis that Parliament must have believed that multiple convictions inherently increases the risk of recidivism.

Here is where the evidence matters.  A law is overbroad when it is so broad in scope that it includes some conduct that bears no relation to its purpose.  Thus, in overbreadth cases, there may be a rational connection between the purpose of the law and some, but not all, of its impacts.  As held in Canada (Attorney General) v. Bedford, 2013 SCC 72, all that is required is an overreach in a single case for a law to be overbroad.

The evidence in this case unequivocally demonstrated that the majority of offenders will never reoffend.  Indeed, the Crown and its experts admitted as much, but based their arguments on practicality of enforcement and administrative convenience.  These arguments were firmly rejected as not belonging under section 7, but rather at the justification stage under section 1.  Notably, the Crown tried to justify this provision on the basis that statistically all sex offenders are at an enhanced risk to reoffend compared to the general population.  However, this very argument made the point on overbreadth for the Court: 75-80% of sexual offenders never reoffend and statistical models cannot take into account personal circumstances.  The law captures those who it was never intended to.

The evidence aso demonstrated that convictions for multiple offences without an intervening conviction (i.e., two convictions from the same set of facts), such as in the case of Mr. Ndhlovu, is not associated with an enhanced recidivism risk and, therefore, the lifetime conviction provisions were similarly held to be overbroad.  Once again, it was the expert evidence that drove the analysis on overbreadth.

Dissenting Decision

Justice Brown, writing for the dissent, agreed that the lifetime registration provisions were overbroad.  But he would have upheld the mandatory registration provisions on the basis that Parliament specifically intended to remove judicial discretion in order to remedy any issues of improper exemptions at sentencing from registration, given that the evidence showed (1) low risk sex offenders are still more likely to commit another sexual offence than the general criminal population, and (2) it cannot be reliability predicted at the time of sentencing which offenders will reoffend.  Given the uncertain risk, “Parliament was entitled to cast a wide net.”

The dissent’s analysis on overbreadth speaks to whether Parliament went further than was necessary to achieve its objective of helping police prevent and investigate sexual crimes by requiring the registration of certain information.  Even though many offenders may never reoffend, statistically all sexual offenders are at a higher risk to do so.  The dissent was willing to afford Parliament a margin for error given that assessing future risk is inherently imprecise.  Similarly, Justice Brown, contrary to how the majority approached the task, considered enforcement practicality under the overbreadth analysis, given that Parliament defined the scope of the law in this case based on a shared characteristic (i.e., a heightened risk of sexual recidivism), which would be permissible if there is a rational connection between the law’s purpose and that shared characteristic. In this case, Parliament was entitled to draw the line based on known increased risk of an unknown degree.  The dissent suggested that the majority was attempting to second guess policy decisions made by Parliament, whereas the Court’s role should be limited to examining legislation for Charter compliance.

The Key Takeaways

The majority’s decision in Ndhlovu on section 7 raises important points for legislatures and litigants.  Parliament has the right, as recognized by Justice Brown, to remove the exercise of judicial discretion from legislation.  However, in doing so, it opens up the possibility of Charter exposure.  Indeed, this is precisely the issue in an overbreadth analysis under section 7 – without discretion, the law may have a propensity to capture more people than it was intended to.  Precisely how far a democratically elected government is allowed to venture from a policy perspective before drawing judicial scrutiny is a live issue in recent jurisprudence and this decision promises to keep the discussion at the forefront of Charter litigation for years to come.  It is important for the responsible minister introducing a bill to speak to the purpose and justification of any critical provision in the legislature in order to assist future courts in their deliberations.

The Court’s analysis under section 7 similarly underscores the importance of the Charter being a shield from government interference in fundamental personal decisions without the necessary degree of evidence to support any engagement.  The Supreme Court of Canada has repeatedly cautioned litigants that concrete evidence is needed in Charter cases (e.g., see Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30).  It is not simply enough – for either applicants or governments – to simply allege constitutional defects or compliance.  The statistical expert evidence in this case was a central feature in both the majority and dissenting decisions; and led squarely to the conclusion by the majority that the Impugned Provisions were overbroad.  While governments are entitled to obtain post-facto evidence in support of a legislative provision and, in fact, routinely do as a standard practice, Ndhlovu is a cautionary tale in the risks run when that evidence later calls into question the very legislation one is trying to protect.  While there is often a desire to expedite Charter litigation, such an approach often results in missed angles and nuances that may play a critical role in a court’s consideration.  Ndhlovu emphasizes the importance of parties carefully curating the record it creates at first instance as – like all litigation – Charter cases rise and fall on the evidence.

Case Information

R v. Ndhlovu, 2022 SCC 38

Docket: 39360

Date of Decision: October 28, 2022