Alberta court ruling upholds automatic registration for convicted sex offenders

Automatically adding the names of sex offenders to a national registry for life does not violate the charter rights of convicts, Alberta's appeal court has ruled.

In a split decision handed down Thursday, the Alberta Court of Appeal ruled that the current federal law is constitutional. 

The 2-1 ruling means an Edmonton man who has fought to dismantle a section of Canada's sex offender laws can appeal to the Supreme Court of Canada.

Thursday's decision upholds legal amendments introduced in 2011 when the Stephen Harper government altered the Criminal Code to automatically add offenders' names to the sex offender registry.

The changes meant judges no longer had discretion to submit names of sex offenders to the registry. It also mandated that anyone convicted of two sex offences or more should automatically be placed on the registry for life.

• Groping case prompts appeal court arguments over sexual offender registry
• Alberta court decision rejects portion of national sex registry law

The case dates back to 2011 when Eugen Ndhlovu, then 19, sexually assaulted two women at a house party.

Convicted in 2015, he was sentenced to six months in jail followed by probation for three years.

He had been deemed a low risk to reoffend but, because he had been convicted on more than one count, his listing on the registry was to be automatic and permanent.

Ndhlovu filed an appeal with the Court of Queen's Bench, arguing that his charter rights had been violated.

Ndhlovu contended that the registry rules are unconstitutional because the automatic lifetime listing for anyone convicted of more than one sexual offence is too broad and "grossly disproportionate."

He also argued judges should have discretion about placing offenders on the registry. The judge who heard Ndhlovu's  case agreed.

In her original decision, Queen's Bench Justice Andrea Moen struck down the 2011 legislative changes, meaning that Alberta sex criminals convicted of at least two 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.

"There was no evidence before me that keeping an offender on the registry for life would make any difference to investigations by police officers."

The Crown appealed the original decision. Moen rejected the Crown's arguments in a 2018 ruling.

Then the Crown took its case to Alberta's highest court, which heard arguments in October 2019.

'Does not equate with a minor offence'

Thursday's ruling concluded that Moen erred in her decision; it found Ndhlovu's crimes were not minor and that the registry laws are reasonable.

Two of the three appeal court judges — Justice Frederica Schutz and Justice Frans Slatter — concluded that Ndhlovu had failed to establish that his charter rights were violated and should remain subject to a registry order.

"The respondent's use of a sleeping woman, incapable of consenting, as a sexual object, and the persistent nature of his conduct thereafter in trying again to penetrate her, and committing further unwanted touching on [the victim], does not equate with a minor offence," reads the majority decision, which was written by Schutz.

"Despite the elimination of Crown and judicial discretion, [the law] is not overbroad.

"Regardless, the respondent is an offender who, by virtue of having been convicted of more than one offence, is a member of a group with an enhanced risk of reoffending." 

• What it's like being a registered sex offender in Canada: 'For me it's a sickness'

In her dissenting opinion, Justice Ritu Khullar wrote that the constitutional harms of the amended laws outweighed the benefits to law enforcement and public safety.

"The blanket requirement that all sex offenders must be registered, and all multiple offenders must be registered for life, restricts the liberty of very low risk offenders like Mr. Ndhlovu without any evidence that doing so enhances the ability of police to investigate and prevent sex crimes," Khullar wrote. 

"Based on the evidence adduced in this case, the blanket requirement is a blunt and ineffective means of serving the legislative purpose." 

'Just not fair'

Eugen Ndhlovu's lawyer Elvis Iginla said Thursday's ruling came as a surprise.

"I thought we had a very strong case," Inginla said. "I thought the trial judge did a very good job of showing that this legislation was too broad. This case is a very good example of why this is an unfair approach.

"There are various different levels of offender ... to have everyone treated the same way is just not fair." 

Iginla said as of Friday afternoon he had not yet discussed the ruling with his client.

He said Ndhlovu is eager to put the case behind him and "get his life going." Even so, he expects Ndhlovu will want to pursue an appeal with the Supreme Court.

"We're just looking to restore the legislation that was there before," Iginla said.

"The judge was able to weigh everything, weigh the societal interests, the impact on the offender and the circumstances of the offence, and decide whether or not it was in the public interest to have this person on the registry. All of that has been taken away.

"There is little evidence the current legislation protects the public or aids in police investigations, but the harm to his client has been very real,  Iginla said.

"He has to deal with friends, colleagues, people that work. Everyone knows who he is and what what he has done." 

Canada's sex offender registry is not available to the public but is accessible by law enforcement.  Offenders who fail to comply can be fined up to $10,000 or imprisonment for up to two years.