Jul. 1, 2004. 08:27 AM

Sex registry law challenged
It infringes on basic rights, rules Kitchener judge
Requires offenders to register with local police

 

DIANNE WOOD
TORSTAR NEWS SERVICE

KITCHENER—A judge has found the law governing Ontario's sex offender registry to be unconstitutional.

 

Christopher's Law is too broad and infringes on basic rights, Justice Gary Hearn ruled yesterday in response to the first constitutional challenge to the law that established Canada's first sex offender registry.

 

The law requires those in the province convicted of a sex offence after April, 2001 to register with their local police force. It is designed to help police investigate sex assaults and abductions by checking out registered sex offenders in the neighbourhood of a crime.

 

Hearn concluded that the goals of the law are laudable but it deprives offenders of their right to liberty and security in a manner that's "arbitrary or disproportionate."

 

In part, that's because the law is offence-oriented, he said in a written decision, released in Kitchener's Ontario Court. All those convicted of a sex offence, no matter how minimal, must register.

 

"It is the nature of the offence that is addressed, not necessarily the degree of risk with respect to any particular offender," Hearn said.

 

Stephen Gehl, the lawyer who launched the challenge, argued that people should be included on the registry only if they are high-risk or violent offenders. A man convicted of patting a woman on the bum should be able to argue that he should not be on the database.

 

The law was sparked by the 1988 murder of 11-year-old Christopher Stephenson of Brampton at the hands of a convicted pedophile who had been released from prison.

 

"The law has expanded the initial concerns to include concerns relating to all sexual offenders ... some of which do not necessarily involve children as victims," the judge said.

 

Hearn said offenders have no way of disputing their inclusion on the registry or arguing they should be removed from it.

 

"The period of registration is predetermined and can be for life and there is absolutely nothing that can be done by the offender, short of a pardon ... to gain exemption from the registration requirements ..."

 

This is true even if an offender has made efforts at rehabilitation, the judge said.

 

The law, therefore, lacks fundamental procedural fairness in not giving those registered the right to a hearing, Hearn said.

 

Currently, about 4,000 offenders are registered in the database, which provides police with a photo, current address, telephone number and description of the offender.

 

It is not yet clear what the implications of Hearn's ruling will be. Gehl said a provincial court judge's decision is not binding on other Ontario judges. Hearn's ruling technically applies only to one Kitchener man whose case Gehl used for the challenge. That man has now been acquitted of failing to comply with the law by not providing police with an address change.

 

"It's not a declaration from a superior court, striking down legislation everywhere," Gehl said. "It is case-specific."

 

If Ontario's attorney-general decides to appeal the matter to the Ontario Court of Appeal, such a ruling could then be binding province-wide, Gehl said.

 

It is expected judges may delay the cases of others charged with failing to comply with the law until the province decides what it is going to do. In Kitchener yesterday, a number of Gehl's other cases were adjourned to August.

 

Gehl said he was surprised at the ruling.

 

"I'm thrilled that I won," he said. "(The ruling) has tremendous precedental value. It has tremendous value in terms of how the province views the legislation."

 

The province could decide to scrap the provincial registry entirely, he said, in light of pending legislation for a national sex-crime registry, expected to be proclaimed this fall.

 

"I don't see the need for a provincial one, once the federal one exists," Gehl said.

 

Jim Stephenson, father of the boy whose murder sparked the law, said he was taken aback by the ruling but understood the conclusion having heard the arguments.

 

Stephenson, who was in Kitchener for the ruling, would still like to see a provincial databank maintained. He called the national registry "anemic" because it does not require offenders to provide photographs and lacks the flexibility to do searches by geographical codes.

 

"The national registry is, in effect, a telephone directory of all offenders," he said.

 

Hearn said the law behind the federal registry addresses many of his concerns over the Ontario databank. Under the pending federal law, a court must order someone to register after the crown brings an application. Offenders can argue that such orders should not be made. They can also appeal.

 

In his ruling, Hearn also upheld the province's right to have a registry.

 

Gehl had argued that the province didn't have the right to pass Christopher's Law because it deals with criminal law, an area under federal control.

 

But Hearn concluded the law's purpose is to protect the public and prevent crime "which are valid provincial exercises and can exist concurrently with legislation specifically enacted for criminal law purposes."

 

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