An Edmonton judge has ruled that the national sex offender registry is unconstitutional as it is “over broad and grossly disproportionate” and violates people of their charter rights.
In a recently released decision involving the case of an Edmonton man convicted of two sexual assaults, Court of Queen’s Bench Justice Andrea Moen found the Sex Offender Information Registration Act removed judicial discretion to refuse to place offenders who present no risk of reoffending on the registry.
“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 over broad,” said Moen, noting the goal of the legislation is to help police investigate past crimes and prevent new ones.
“In my view, including offenders on the registry who have little to no chance of reoffending bears no relation to protecting the public. Subjecting all offenders, regardless of their future risk, to onerous reporting requirements, random compliance checks by the police and internal stigma, goes further than what is necessary to accomplish the goal of protecting the public, and is therefore over broad,” said Moen.
The judge’s decision, which would not be binding on courts across the country, but could be persuasive, is not final yet. She has given the Crown, which opposed the sex offender’s application, until Nov. 30 to return to court with further charter arguments or a possible legal remedy in the case.
On June 26, 2015, Eugen Ndhlovu, 25, pleaded guilty to two counts of sexual assault and was sentenced to six months in jail followed by three-years probation. He would also have been placed on the national sex offender registry for life; however, he challenged the constitutionality of the mandatory lifetime registration.
Court heard that on March 12, 2011, Ndhlovu was invited by a woman, who can’t be identified under a court-ordered publication ban, to attend a party billed on Facebook as a highly sexualized Jersey Shore event that was to have a stripper pole available.
Ndhlovu, who was born and raised in Zimbabwe, had declined because he was working the next day, but the woman insisted on his attendance, arranged a ride for him, and told him he could stay overnight and get a ride to work the next morning.
The pair and a mutual friend, who also can’t be identified, began drinking at the home that evening and, as the night progressed, the two women each reported instances where Ndhlovu sexually touched them without their consent.
Court heard Ndhlovu touched each woman’s buttocks while the three were posing for a picture. He also placed his hands on the friend’s thighs and buttocks during a conversation in the kitchen.
In the early morning, the first woman woke up to find Ndhlovu’s fingers inside her and told him to stop. He tried again, telling her it would “feel good.” She pushed him away and he left the home.
Ndhlovu later told police he did not remember the whole night, but pleaded guilty to sexually assaulting both women.
At sentencing, Moen ruled Ndhlovu posed a “very low” risk to reoffend as he had taken responsibility for his actions, showed great remorse and had no prior criminal record.
When Ndhlovu returned to court to argue that a lifetime Sex Offender Information Registration Act order was “coercive” and “grossly disproportionate,” Moen agreed and ruled it would deprive him of his liberty for the rest of his life.
“The law as it stands will now place Mr. Ndhlovu on police radar for the rest of his life any time a sexual offence is committed by a black man of average height in his neighbourhood,” said Moen, adding that requiring him to be on the registry “bears no connection to the object of assisting police officers in the investigation or prevention of future sex crimes.”