Alberta judges should have discretion to decide whether those found guilty of sex crimes are added to the national registry, says Edmonton Court of Queen’s Bench Justice Andrea Moen.
In a 21-page decision issued Monday, Moen said former prime minister Stephen Harper’s government went too far in 2011 when it made changes to the Criminal Code to automatically add offenders names to the registry.
The changes meant judges no longer had the discretion to submit the names of sex offenders to the registry. It also mandated that anyone convicted of two sex offences or more should automatically be placed on the registry for life.
“There was no evidence before the Parliamentary Committee, the Senate Committee, nor before me to establish that there would be more arrests made more quickly as a result of the 2011 amendments,” Moen wrote in her decision,
Changes to law were ‘arbitrary’
She characterized the removal of judicial discretion as “arbitrary,” noting there was “no rational connection” shown for the change in legislation.
She also disputed the rationale for placing an offender on the registry for life.
“There was no evidence before me that keeping an offender on the registry for life would make any difference to investigations by police officers,” she wrote.
“It cannot be said that putting a sex offender on the registry for more than 20 years is rational, unless there is something about the offender and/or the offence that would lead a judge to determine that for the safety of society that offender should be so registered.
“This approach requires judicial discretion.”
Moen’s ruling is the latest chapter in the case of Eugen Ndhlovu.
Case began seven years ago
Seven years ago, Ndhlovu was invited to what was described in a court decision as “a highly sexualized” Jersey Shore party that had a stripper pole. Ndhlovu was 19 years old at the time, and was invited by the hostess.
Ndhlovu admitted he touched two women at the party without their consent, and later pleaded guilty to two counts of sexual assault.
“Given the circumstances of the offence, his lack of criminal history, and his apparent remorse, I found that Mr. Ndhlovu was unlikely to reoffend and ultimately sentenced him to six months in jail, followed by three years of probation,” Moen wrote in her original decision.
The judge refused at the time to place Ndhlovu’s name on the sex offender registry.
In this week’s decision, Moen reaffirmed that doing so would have violated his constitutional rights.
She characterized Ndhlovu as an example of the “irrationality” of the changes made to the registry in 2011.
‘The sex registry stands’
“The sex registry stands,” Iginla said in a telephone interview. “I don’t think there’s any danger of people who belong on the registry being left out of the registry. None whatsoever. What this does is simply say in each case, every judge will have the opportunity to hear from the Crown and the defence, and based on the evidence make a decision as to whether or not that person deserves to be on the registry.”
Moen’s decision will impact other Alberta cases, according to University of Calgary law professor Erin Sheley.
“The decision basically says that it’s OK to put people on the registry, but the sentencing judge has to make an individualized determination as to whether a particular offender is a good candidate for it. So you have the possibility of not ending up on the registry, at least for now.”
Sheley said she expects the Crown will appeal Moen’s decision, and predicted the case could ultimately end up in the Supreme Court.
The Crown said in an emailed statement they are currently considering whether to appeal.
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