COURTS Judge strikes down lifetime sex-offender registry rule

An Edmonton judge has struck down a section of the Criminal Code that orders mandatory lifetime registration on a national sex-offenders list for anyone convicted of more than one sexual offence.

In a decision filed Monday with the Court of Queen’s Bench, Justice Andrea Moen found the law casts “too wide” a net, also ruling that the removal in 2011 of a judge’s discretion about whether or not to place a convicted person on the registry is unconstitutional.

The registry, formed with the enactment of the Canada Sex Offender Registry Act 2004, is maintained by the RCMP and is accessible to Canadian police. The public cannot access it.

Eugen Ndhlovu of Edmonton challenged the lifetime registration requirement.

According to an earlier judgment in the case, Ndhlovu pleaded guilty to two counts of sexual assault on June 26, 2015, and was sentenced to six months in jail followed by three years of probation.

Court heard he was 19 when he assaulted a woman at a party.

When she sentenced him, Moen found that Ndhlovu had accepted responsibility for his actions, and was unlikely to reoffend.

She agreed with his argument that ordering his lifetime registration as a sex offender amounted to cruel and unusual punishment.

“The law as it stands will now place Mr. Ndhlovu on police radar for the rest of his life any time a sexual offence is committed by a black man of average height in his neighbourhood,” Moen wrote.

“I find that requiring him to register bears no connection to the object of assisting police officers in the investigation or prevention of future sex crimes.”

However, she also agreed to hear an application by the Crown prosecutor in the case, who argued that mandatory lifetime registration is a valid limitation on Charter rights.

The Crown argued that mandatory registration of every sexual offender is necessary and in the interest of public safety because there can be no certainty about who will reoffend and when.

Moen rejected this in her decision Monday.

Citing the Supreme Court of Canada’s ruling that struck down mandatory minimum sentences for sexual offences as too broad, Moen found the “net for registration of sexual offenders is also too wide.”

In striking down the laws, she also ruled she was declining to order Ndhlovu be placed on the registry.