Provincial sex registry found unconstitutional by Ontario court

Ontario’s sex offender registry law will need to be overhauled by the legislature after it was ruled unconstitutional by the Ontario Court of Justice in a January 29 ruling.

Justice Davin Garg agreed with arguments made by the convicted applicant’s lawyer that the law was too broad and infringed on his client’s Charter right to liberty.

The registry was established in 2000 as a centralized database designed to assist the police in the prevention and investigation of sexual offences. The legislation behind it created a requirement for sex offenders to provide detailed personal information and report regularly to law enforcement, with the aim of keeping the registry current.

However, last year Ontario man, Michael Roberts, intentionally failed to report after doing so for 13 years. He had been convicted in 2010 of multiple sexual assaults, sentenced to a term in prison, then released. Subsequently, he was registered on the national and Ontario sex offender registries.

His decision not to report resulted in a charge under the Ontario registry law.

His lawyer argued before an OCJ judge in Hamilton in January that his deliberate non‑compliance was meant to spark a constitutional case against the Ontario registry.

Roberts challenged mandatory registration of all sex offenders and the lifetime reporting obligation for certain offenders. His lawyer argued that these components of the law were “overbroad” and grossly disproportionate, infringing s. 7 of the Charter (life, liberty and security of the person).

In making the case, Roberts’ lawyer followed arguments made in a Supreme Court of Canada challenge against the national sex offender registry. In R. v. Ndhlovu , back in 2022, a majority of the SCC found that mandatory registration and lifetime reporting violated s. 7.

Ontario’s Attorney General argued that the province’s registry was operationally different than the national registry. According to police evidence presented during the case, the Ontario registry’s central purpose is to assist the police in preventing and solving sex crimes, while providing investigators with immediate access to information about offenders. It enables the police to act quickly in time-sensitive investigations, such as child abductions, by allowing for rapid identification and elimination of suspects based on proximity, physical descriptors, and other search criteria.

Justice Davin Garg agreed that the AG “successfully” showed that one of the key objectives of the Ontario registry is to assist the police with time-sensitive investigations. However, he ultimately ruled that the differences between the Ontario and national regimes are “indistinguishable.”

He noted that the “majority (in the Supreme Court) concluded that mandatory registration was overbroad because registering offenders who were not at an increased risk of reoffence bore no connection to the purpose of preventing and investigating sex offences.” The Supreme Court also took issue with lifetime reporting regardless of when the offences occurred and convictions were entered.

Expert evidence presented in the Ontario case stated that the risk of reoffending “is highest in the first five years post-release and declines by about half every five years that the offender is offence-free in the community.”

Garg noted the SCC wrote “an offender may be part of a group that is generally … at an enhanced risk of reoffending, (but) this does not hold true for every individual in the group … It was not sufficient for the Crown to argue that any sex offender poses a risk of committing a sexual offence in the future.”

He said his decision should not be interpreted as criticism of the existence of the provincial registry, adding that the evidence demonstrates the important work carried out by the administration of the registry.

However, he reasoned that the Ndhlovu decision required him to conclude that the mandatory registration and lifetime reporting provisions of the Ontario registry law are also unconstitutional.

And he wrote that similar to Ottawa amending the law governing the national registry law was amended after the Ndhlovu decision, the Ontario law “may require a similar legislative response to ensure that its objectives are pursued within constitutional limits.” 

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