The Court of Appeal for Ontario has rejected an argument that a man convicted of three counts of sexual assault should not have to comply with sex offender registration for his entire lifetime, based on constitutional grounds.
While Long alleged during court proceedings that the assistant had consented to the acts, a judge found that Long was “wilfully blind, and took no reasonable steps to ascertain that the complainant was consenting.”
Long was sentenced to a 90-day intermittent sentence, followed by two years of probation, and ordered to register under the Sex Offender Information Registration Act for 10 years, which requires a person to register with the police and share information about where they live or plan to travel.
The Crown later argued that in Long’s case, it should be amended to a lifetime SOIRA registration, because of multiple convictions. However, Long and his counsel argued this violated Long’s constitutional rights.
“The appellant argues that where the Crown exercises its discretion to charge an accused with more than one offence for several relatively minor sexual transgressions within the same transaction, the imposition of a longer period of registration is not connected to the seriousness of the underlying conduct or the offender’s moral culpability. There is no evidence that, in those circumstances, the offender necessarily poses a higher risk of recidivism,” said the ruling.
“In contrast, there may be situations where the underlying conduct is more serious, but the offender is only charged with one offence and, consequently, is subject to a shorter registration period.”
Part of Long’s argument focused on the argument that a lifetime SOIRA registration requirement is unconstitutional “because it is a) arbitrary, b) overbroad, and c) grossly disproportionate.”
According to Long’s counsel — and the Criminal Lawyers’ Association — which intervened in the matter in support — s. 490 of the Criminal Code could subject “offenders to lifetime registration where the offender is not at a higher risk of recidivism,” over the number of convictions a person was found guilty of, not necessarily based on the severity of the criminal act or acts that happened.
“The legislative scheme uses the seriousness of the offence as a proxy for future risk,” said the ruling.
“There are reasonable hypotheticals and real cases in the jurisprudence where lifetime registration makes no sense because the fact of more than one conviction is not a justifiable proxy for what the legislation is trying to accomplish. Conversely, where there is a very serious course of sexual abuse over numerous years but the Crown only charges one count, the offender would only be subject to a 20-year registration period,” it added.
However, the Court of Appeal rejected this argument, and said no Charter violations had occurred.
The court disagreed with a hypothetical example of an offender who groped a person twice over a short period of time being presented as no greater risk to reoffend than someone involved in only one offence. It would be reasonable to conclude that a person involved in two offences was at a higher risk to reoffend, said the court.
“In my view, and in the absence of evidence to the contrary, the second sexual assault can reasonably be regarded as demonstrating the offender’s persistence and impulsiveness, and therefore his enhanced risk of re-offending. The same could be said of the appellant, who sexually assaulted the complainant three times over the course of two and a half hours,” said the ruling.
“The appellant and the intervener ask us to infer that in some cases there is no connection between the commission of two or more offences and an enhanced risk of recidivism. I am not prepared to draw that inference,” it added.
Ben Rogers, an associate for Henein Hutchison LLP who acted for the Criminal Lawyers’ Association says, “the court was essentially faced with two competing common sense inferences.”
He says that “when you give the Crown discretion in particularizing an indictment, or the police discretion in drafting an information, that it can have these adverse results that don’t go to the substance of the offence.
“With the ancillary sentencing regimes, I think that we have to be very careful at looking at the effect on an offender’s liberty, the effect on their rehabilitative prospects, and certainly, for the Criminal Lawyers’ Association, we took the view that having a mandatory lifetime regime even for two minor offences would have potentially a negative effect on an offender’s rehabilitative prospects, just being faced with that stigma for life,” he says.
Rogers says there could be offenders who have “optimal rehabilitative prospects,” and whose “second conviction doesn’t really say anything meaningful about [their] risk of reoffending.” he says.
“When the court is faced with common sense inferences as opposed to statistical evidence or statistical analysis, it can be difficult to establish a constitutional violation,” he says. “We certainly thought our argument was well-founded in that sense, but the court decided to adopt the competing common sense inference.”