Sections 11 and 12
[73] The appellant argues that Christopher's Law violates his rights under ss. 11(g), 11(h), 11(i), and 12 of the Charter. Those sections provide as follows:
11. Any person charged with an offence has the right…
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[74] The appellant submits that the requirement to register and to report under Christopher's Law "brands" a person a sex offender and constitutes punishment. He argues that the registration requirement generates stigma, and that the stigma arises not from the conviction but from the subsequent labelling. He analogizes the situation to the old puritanical concept of branding an adulterer with a giant "A" on his or her forehead and the overwhelming social stigma that such a mark carried with it.
[75] This punishment and stigmatization violates his Charter rights, the appellant submits. The mandatory registration and reporting requirements are not only punishment, on this argument; they constitute cruel and unusual punishment in violation of s. 12 of the Charter. In addition – since Christopher's Law was not in force when the appellant committed the underlying sexual offence – its operation is retrospective and a violation his ss. 11(g), 11(h), and 11(i) rights.
[76] There are several responses to these submissions.
[77] First, s. 11(g) has no application here. The fact that Christopher's Law was not in effect at the time Mr. Dyck was convicted of the underlying offence is of no moment. The underlying crime – sexual interference – was an offence under Canadian law when the appellant committed it. Further, when the appellant was charged with a breach of Christopher's Law, that infraction was an offence under Canadian law at the time. Thus, Mr. Dyck has not been found guilty of an act or omission that was not an offence in Canada at the time the act or omission was committed.
[78] Secondly, ss. 11(h) and 11(i) of the Charter also have no application to these facts because neither the requirement to register and report nor the stigma, if any, arising from the registration are punishment within the meaning of ss. 11(h) and 11(i) of the Charter. To characterize registration under the Act as punitive, the appellant would have to show that its purpose, being criminal in nature, is "to mete out criminal punishment" or that it has a "true penal consequence": see R. v. Shubley (1990), 52 C.C.C. (3d) 481 at 494 (S.C.C.); and R. v. Wigglesworth, [1987] 2 S.C.R. 541 at 559. A true penal consequence, according to the Supreme Court of Canada in Wigglesworth at 561 is "imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large".
[79] Additionally, as Charron J. noted in R. v. Rodgers (2006), 207 C.C.C. (3d) 225 at para. 63, "punishment" as contemplated in ss. 11(h) and 11(i) of the Charter does not necessarily encompass "every potential consequence of being convicted of a criminal offence, whether that consequence occurs at the time of sentencing or not." She went on to say:As a general rule, it seems to me that the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is imposed in furtherance of the purpose and principles of sentencing. [Emphasis added.]
[80] Here, the trial judge found that Christopher's Law is not in pith and substance punitive legislation. The summary conviction appeal court judge agreed, as do I. The requirement to report and register with police is not a sanction imposed in furtherance of the purpose and principles of sentencing for the index offence. Nor is it a "true penal consequence": see Wigglesworth at 559. Rather, it is a protective measure designed to safeguard the public from recidivist sex offenders and to equip the police with an important investigative tool.
[81] Moreover, to the extent there is any "stigma" associated with registration, in my view any such stigma flows more from the conviction for the underlying sex offence than from registration and the requirement to report: see Rodgers at para. 64; and R. v. Cross (2006), 205 C.C.C. (3d) 289 at para. 55 (N.S.C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 161. This is particularly so in the context of Christopher's Law – and in contrast to similar regimes in foreign jurisdictions – because the fact of registration remains confidential to police officials only and thus is not widely known in the community. In any event, even if there is some stigma attached to registration, it does not render the pith and substance of the law punitive. As Laskin J.A. observed in R. v. Budreo (2000), 142 C.C.C. (3d) 225 (Ont. C.A. ), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 542 at para. 28:
Some aspects of s. 810.1 are punitive or coercive: the availability of an arrest warrant; detention pending a hearing unless the defendant is released on bail; and jail on the defendant's refusal to enter into a recognizance. These coercive aspects, however, are necessary to preserve the integrity of the s. 810.1 proceedings. By themselves, they do not turn s. 810.1 into a punitive provision. Nor does the stigma that undoubtedly accompanies a s. 810.1 proceeding make the proceeding punitive. That stigma will attach whether the section is preventive or punitive. [Emphasis added.]
[82] The Nova Scotia Court of Appeal applied the same reasoning in Cross, where Bateman J.A. concluded that the provisions of SOIRA calling for registration and reporting of designated sex offenders did not constitute punishment. The requisites of SOIRA and of Christopher's Law are similar in most respects, except for the potential for a sex offender to obtain an exemption. I see no difference in principle between the two regimes in terms of whether the legislation is punitive or not. Christopher's Law is, as I say, preventive not punitive in pith and substance, and the registration requirement does not constitute punishment.
[83] This conclusion is consistent with the law as it has developed in similar areas. For example, a DNA databank order is not punishment: see Rodgers at para. 64 and R v. Briggs (2000), 157 C.C.C. (3d) 38 at para. 71 (Ont. C.A. ), leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 31. Neither is an order requiring that a person enter into a recognizance pursuant to s. 810.01 of the Criminal Code: see Budreo at paras. 29-31.
[84] Therefore, ss 11(h) and 11(i) of the Charter are not engaged. The appellant is not being "punished" for the same offence twice and there is no disparity in "punishments" in play.
[85] This conclusion, by itself, does not preclude the operation of s. 12, however. Although the application of the Registry to persons in the position of the appellant is not punishment, it may well constitute "treatment" within the meaning of that provision. Justice Charron was of the view in Rodgers at para. 63, for example, that DNA sampling ordered as a result of conviction would constitute "treatment". I am prepared to assume for these purposes, without deciding, that the application of Christopher's Law may amount to "treatment". However, even if it does, s. 12 is of no assistance to the appellant here because the requirements of registration and reporting do not constitute "cruel and unusual" treatment.
[86] The registration and reporting requirements of Christopher's Law are relatively minimal in terms of their intrusion and effect on the privacy and liberty of the appellant. To qualify as "cruel and unusual" treatment or punishment, a disposition must be "grossly disproportionate" to what is appropriate in the circumstances. I shall return to the issue of the effect and impact of the requirements of the Act, and to the notion of "gross disproportionality" in the next portion of these reasons. Suffice it to say that the requirements of Christopher's Law fall far from the high standard called for by such a test. Section 12 of the Charter is therefore not engaged in these circumstances either.Section 7
[87] Mr. Dyck argues that Christopher's Law violates his liberty interests contrary to s. 7 of the Charter. Section 7 provides:Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[88] His s. 7 attack is two-pronged. First, he submits that Christopher's Law runs afoul of the principles of fundamental justice because it is overbroad and therefore constitutionally flawed. Secondly, he contends that the Act violates the principles of fundamental justice on procedural fairness grounds in at least two ways:
(i) it is impermissibly retrospective; and (ii) it deprives the appellant and others in his position of the right to a hearing or resort to some mechanism whereby they may seek an exemption from registration, or a review of the requirement for registration, or a termination of the requirement at some point short of its statutory expiration date.
[89] The Crown acknowledges that the provisions of the Act requiring attendance at a police station at designated times, on pain of penalty, restrict the offender's liberty. Counsel submit, however, that the restriction is limited and that s. 7 is not infringed because Christopher's Law is carefully tailored to achieve its objectives in a proportionate and restrained fashion, consistent with the principles of fundamental justice.
[90] In order to succeed in a challenge under s. 7 of the Charter, an applicant must demonstrate (a) that there has been a deprivation of life, liberty or security of the person, and (b) that the deprivation was not in accordance with the principles of fundamental justice. Here, since the Crown concedes that there has been a deprivation of the appellant's liberty interest – however minor it may be – the appeal turns on whether that deprivation is in accordance with the principles of fundamental justice. I do not accept the appellant's arguments that it is.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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