Proposed changes to the provincial sex-offender registry, which would make it publicly accessible like the U.S. model, rather than accessible only by law enforcement officials who notify the public on a case-by-case basis, could lower compliance and increase vigilantism concerns, according to one Toronto criminal lawyer.
Speaking at the recent Criminal Lawyers Association Conference in Toronto, Vanora Simpson, a criminal lawyer with Sack Goldblatt Mitchell LLP, noted that since July 2006, every U.S. state has made its sex-offender registry available through a Department of Justice web site for anonymous public access. She added that information included in the registry includes names, home addresses, photos, and maps of the areas the offenders live in.
Access to the provincial registry in Ontario is currently limited to police. Both the federal and provincial regimes allow for information sharing by law enforcement, including across borders, according to Simpson. She said this means if the provincial police share information with Texas, for example, they currently can nothing to stop Texas from putting the information up on the internet.
In February of this year, however, a private member's bill, bill 73, was introduced in the Ontario Legislature, which, if passed, would amend Christopher's Law to allow public access to the provincial sex-offender registry. The bill went through its second reading in April and has since been referred to committee.
While she noted that it's a controversial issue and there are strong arguments in both directions, Simpson said, "From a perspective of defence counsel, the concerns are these: public access invites vigilantism."
"Right now, the OPP detective sergeant who runs the Christopher's Law program in Ontario claims a compliance rate of 97 per cent. In the States, in many jurisdictions, their compliance rate is in the 40th percentile - between 40 and 50 per cent - and the difference is attributed to public access," she told Law Times.
"So you actually defeat the purpose of the law by having people so scared of the registry system they won't comply and it's precisely the people that we should know about being in our community that won't comply and that will run," she added. "That ruptures social systems and whatever support they're getting, jobs, treatment, counselling, social structures that they need.
"I'm not saying that public notification is a terrible idea, and we have it already. Under the Corrections and Conditional Release Act, anytime anyone is released from the penitentiary, Corrections Canada is required to notify the local police force where they're going to be living."
She added that the police chiefs have the authority to warn people in that neighbourhood on a case-by-case basis with information.
"Adding Christopher's Law to some sort of online access, an anonymous access like . . . the Americans have, doesn't do anything good and in fact risks very bad outcomes both for law enforcement, I think, as well as the individual," she said.
"The question is whether the registry structure as it is now is the best way to do that or is public notification on a case-by-case basis about people who actually you need to know about, the appropriate way to deal with the vigilantism concerns," she said.
Simpson noted that there have been recent constitutional challenges to the Ontario regime, including the 2005 case of R. v. Dyck. The applicant in the case was arguing that the legislation was criminal law and therefore in the exclusive jurisdiction of the federal government and also that Christopher's Law violated his rights under ss. 7, 11(g), (h), (i), and 12 of the Charter.
At the provincial court level, Justice Gary Hearn ruled in the case that Christopher's Law is valid provincial legislation, but that it "contravened s. 7 of the Charter and hence was of no force and effect." He did not address the arguments with respect to the other sections.
When the matter reached the Ontario Superior Court, however, Justice Peter Hambly upheld the law, ruling that it does not violate the Charter, saying "in my view the intrusion on a person's liberty by the requirements of Christopher's Law is much less serious. There is no seizure of a bodily substance. A person is required to report to the police annually unless he moves. He provides his address and other basic identifying information.
The requirements are not significantly greater than the information required by the Ministry of Transportation for the renewal of a driver's licence or a validation sticker for a motor vehicle licence or by the Ministry of Health for a health card."
Leave has been granted for the case to go to the Ontario Court of Appeal.