A provincial court in Ontario has ruled that key provisions of the province’s Sex Offender Registry law violate the Canadian Charter of Rights and Freedoms, potentially prompting the government to revise the legislation.
In a decision released on Jan. 29, Justice Davin Garg of the Ontario Court of Justice in Hamilton found that mandatory registration and lifetime reporting requirements imposed on certain sex offenders are overly broad and infringe upon Section 7 of the Charter, which protects individuals’ rights to life, liberty, and personal security.
The case arose after Michael Roberts, a convicted sex offender, intentionally refused to comply with the registry’s reporting requirement in order to challenge the constitutionality of the law. Roberts had been reporting annually to the registry for 13 years following his 2010 conviction on eight counts of sexual assault involving four victims. The offences involved inappropriate touching over clothing.
Roberts served four months in custody on each count, with the sentences running concurrently, and was subsequently required to register as a sex offender and report annually. After last reporting to the Hamilton Police Service in June 2023, he failed to appear before the June 1, 2024 deadline and was charged under Ontario’s registry legislation.
Ontario’s Sex Offender Registry, managed by the Ontario Provincial Police, is a confidential database that stores information about convicted sex offenders living in the province. The system collects details such as addresses, employment locations, photographs, and physical descriptions to assist police in preventing and investigating crimes.
Roberts argued that mandatory registration for all offenders and the possibility of lifetime reporting obligations are excessively harsh and do not account for the varying levels of risk posed by different individuals.
His legal challenge drew heavily on a 2022 Supreme Court of Canada ruling that struck down similar provisions in the National Sex Offender Registry. In that case, the court determined that automatic registration and lifetime reporting requirements violated Section 7 of the Charter because they could apply to offenders who posed little risk of committing further crimes.
Ontario’s attorney general maintained that the provincial registry serves a distinct purpose, particularly in urgent investigations such as child abductions, where police can quickly identify or rule out suspects based on location and other identifying details.
However, Justice Garg concluded that the operational differences between the provincial and national registries were not significant enough to justify a different constitutional outcome.
He noted that the Supreme Court had already found mandatory registration problematic because it could include offenders who do not present a heightened risk of reoffending. Similarly, lifetime reporting obligations were criticized for failing to account for how an individual’s risk level may change over time.
In light of these findings, Garg stayed the charge against Roberts for failing to report to the registry. He also suggested that Ontario may need to adopt legislative reforms similar to those implemented by the federal government following the Supreme Court’s 2022 decision.
In 2023, the federal government amended the Criminal Code to limit automatic placement on the national registry to repeat offenders or those convicted of serious sexual crimes, while giving judges discretion in other cases.
Expert testimony presented during the Ontario case indicated that the risk of reoffending tends to be highest within the first five years after an offender’s release. According to the evidence, the likelihood of reoffending decreases by roughly half with each five-year period that an individual remains offence-free in the community.
Justice Garg emphasized that ensuring constitutional compliance does not undermine public safety. Instead, he wrote, it is a necessary condition for the proper exercise of government authority.
The Office of the Attorney General of Ontario has not yet announced whether it will appeal the ruling.
Despite the constitutional concerns raised in the decision, the judge also acknowledged the important role the registry plays in assisting law enforcement.
Ontario’s registry was established in 2000 under Christopher’s Law, named after 11-year-old Christopher Stephenson. Christopher was abducted, sexually assaulted, and murdered in Brampton in 1988 by a man who had previously served prison time for the sexual assault of another child.
Following an inquest into the boy’s death, a jury recommended the creation of a sex offender registry to help police monitor offenders and respond more quickly to serious crimes.
Currently, individuals placed on the registry must report annually and notify authorities within seven days of certain changes, including moving to a new address, changing their name, or starting a new job or volunteer position.
The duration of registration 10 years, 20 years, or life depends on the seriousness of the offence and the number of convictions. However, the court’s latest ruling suggests that these requirements may need to be reconsidered to ensure they align with constitutional protections.
