Alberta sex criminals convicted of at least two offences will no longer be automatically placed on the national sex offenders registry after a Queen’s Bench judge rejected attempts to justify the requirement.
In a ruling released Monday, Justice Andrea Moen reaffirmed her earlier decision that Alberta judges and prosecutors should have discretion over who is added to the list.
She also said it was unconstitutional to keep an offender on the list permanently.
University of Alberta law professor Eric Adams said that means the laws no longer exist.
“They are of no force and effect.”
The ruling closes the book on the conviction of Eugen Ndhlovu, who pleaded guilty in 2015 to sex assault on two women in 2011.
Court heard Ndhlovu, 19 at the time, was invited and brought to a party publicized by a sexually explicit ad on Facebook, at which he touched one woman on the buttocks and another in her vagina.
He was sentenced to six months in jail and three years of probation. Under 2011 amendments made to the sex offenders registry brought in by then-justice minister Vic Toews, Ndhlovu’s name would have also been permanently added to the list with no opportunity for either the judge or the Crown to exercise discretion.
But Moen found in her original decision that violated Ndhlovu’s rights. The Crown was given the chance to argue the violation was justified, and those arguments were rejected by Moen this week.
In her ruling, Moen found the Crown introduced almost no evidence to show that the mandatory listing made police investigations into sexual assault more effective.
As well, Moen noted the rate at which offenders with Ndhlovu’s profile — young, no previous criminal history, well-supported by family and community — commit a further sex assault is no higher than the general prison population.
“Based on the logic of the Crown, all general offenders should also be included on the (sex offenders) registry,” Moen wrote. “This is, of course, ridiculous.”
On the other hand, being placed on the registry has a significant impact on a person’s life, she said.
For example, such people must inform police every time they move. Police may question them at any time, including their place of work.
“Putting him on this registry would make it more likely that this guy would always be in trouble,” Elvis Iginla, Ndhlovu’s lawyer, said in an interview Tuesday.
“Based on this guy’s background and his circumstances, the chances that he would ever sexually offend is very minimal. When you weigh those things and say based on those chances, is it worth it to destroy this guy’s life?”
Still, Mary Jane James of Edmonton’s Sexual Assault Centre was disappointed in the ruling.
“I find this decision by the court to be, at the very least, disappointing, and a significant step backwards in keeping our society safe from this kind of criminal conduct.”
Adams said Moen’s decision is part of a pattern of mandatory sentences being rolled back from former prime minister Stephen Harper’s era.
“Those have been difficult for judges to justify,” he said.
On Tuesday, an Ontario senator introduced a bill that would give judges the choice of whether to apply those measures.
“Rights can sometimes be reasonably infringed,” Adams said. “Not based on hunches and instincts and a general distaste for those kinds of people, but with actual demonstrable evidence that we are violating these rights for a good reason.”