A convicted sex offender who defied his requirement to register with the provincial database had his charge for refusal stayed after a judge determined the law behind it is unconstitutional.
The pivotal decision by Justice Davin Garg of the Ontario Court of Justice in Hamilton not only affects offender Michael Roberts, but could end mandatory and lifetime reporting for other sex offenders across the province.
The ruling on Roberts’ constitutional challenge, released in January, mirrors a similar finding by the Supreme Court of Canada in 2022 that ruled the National Sex Offender Registry also infringed on Charter rights by being too broad and disproportionate.
Garg says Ontario’s laws may need to change to ensure the criminals’ rights are protected.
Police say the registry in its current form allows them to quickly access critical information about offenders, particularly during emergency situations when a person has been abducted.
It is not yet known if the attorney general of Ontario will appeal the decision.
Hamilton police told The Spectator the registry “remains an important investigative tool for police services across Ontario.”
There are nearly 600 registered
sex offenders living in Hamilton, according to police, 96.4 per cent of whom have complied with registering.
Roberts pleaded guilty to eight counts of sexual assault on Dec. 21, 2010, according to court records. The case involved Roberts touching four victims “over their clothing.”
He was sentenced to four months in jail for each count, served concurrently, with two years probation.
He was required to sign in with the Ontario Sex Offender Registry. Since he was convicted of multiple sexual offences, he had to report for life.
After reporting for 13 years, Roberts did not do so by a June 1, 2024, deadline.
“He intentionally failed to report for the purpose of bringing this constitutional challenge,” wrote Garg.
For that, he was charged.
Since then, Roberts has received a record suspension for the convictions and no longer must report. However, his information stays on the registry.
Roberts declined an interview, but his lawyer, Dean Paquette, shed light on why his client chose to draw attention to his case by challenging the lifetime registration.
“An easier way would have been to continue to comply for the rest of his life with an unconstitutional requirement to report annually in addition to other intrusions in his privacy,” Paquette said.
While the Supreme Court resolved the identical federal issue years ago, the provincial government has “failed to address the obvious constitutional concerns.”
“That legislation has avoided a constitutional challenge because it is easier to ‘go along’ with the inconvenience rather than taking the time and expending the resources to challenge the government in court,” said Paquette. “Mr. Roberts and I felt the effort was justified.”
The Ontario registry is the result of
Christopher’s Law, enacted in 2001.
It is “a centralized database designed to assist the police in the prevention and investigation of sexual offences,” according to Garg. “Sex offenders must provide detailed personal information and report regularly to law enforcement so that the registry remains current.”
The law is named after 11-year-old Christopher Stephenson, who was abducted in Brampton, sexually assaulted and murdered in 1988 by a sex offender released from prison after serving a five-year sentence for sexually assaulting another 11-year-old boy.
At the inquest into Christopher’s death, the jury recommended a sex offender registry.
All sex offenders must report yearly to the registry, which includes their name, date of birth, addresses, aliases, photograph, physical description, phone numbers, employer, volunteer work, education, driver’s licence number, motor vehicle descriptions and detailed information about their sex offences.
Offenders convicted of multiple sex offences or a single offence with a sentence of more than 10 years are required to report for life.
While the federal registry can only be accessed by specially trained RCMP officers who deliver the data to requesting police services, all police services in Ontario can directly access the provincial registry.
Neither registry is open to the public.
In the Supreme Court case, experts said recidivism among sex offenders declines over time. They also challenged the idea that someone convicted of multiple sexual offences is more dangerous than someone found guilty of a single offence. That premise does not consider the nature of the crimes or whether they relate to one incident or took place over years.
The Supreme Court concluded mandatory registration was “overbroad” because registering offenders who were not at an increased risk of reoffending “bore no connection to the purpose of preventing and investigating sex offences.”
The remedy was to give judges some discretion about who goes on the registry and for how long. Child sex offenders sentenced to the penitentiary and recidivists must register.
Garg’s court heard that 44 per cent of abducted children who are murdered die within an hour of being taken. The provincial registry, which can be accessed by 1,400 authorized sworn and civilian police members, can help identify sex offenders in the area quickly, possibly preventing death.
Hamilton police told The Spectator the Ontario registry “is regularly used by investigators in cases where the offender is not known.”
Last year, Hamilton police conducted 418 sexual assault investigations that did not involve an intimate partner. They say 73 of those were committed by strangers.
The registry provides “real-time access” to sex offender information such as voice characteristics, weight, tattoos, scars and dental features.
In cases with an unknown suspect, police say they can conduct “radius searches” to identify registered sex offenders living near the crime scene.
Garg noted that during Roberts’ case, no specific examples were given of how the Ontario registry was of use in Hamilton in the 25 years since the registry was created.
“No example was provided of the registry assisting the police during an ongoing crime — such as a child abduction,” he wrote.
The judge concluded he is not persuaded that lifetime reporting assists police in time-sensitive investigations.
Hamilton police told The Spectator: “While not every use results in a public outcome, the ability to act quickly and accurately, particularly where vulnerable victims are involved, is operationally significant.”
Garg also questioned the effectiveness of having all Hamilton police updates and inquiries go through one particular officer.
Hamilton police told The Spectator: “One officer co-ordinates the registration and compliance process, but it is not a one-person operation in practice. The registry is managed by our offender management team in the Intelligence Unit. Trained members across the service can access the provincial system for investigative purposes, and it is queried thousands of times each year to support investigations.”
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