Law Times

Law TiMes • May 26, 2014 Page 13 www.lawtimesnews.com Sex offender database Lawyers expect constitutional challenge of new register BY michael mcKiernan For Law Times riminal lawyers say a constitutional chal- lenge is inevitable should the federal gov- ernment go ahead with a plan to create a publicly accessible regis- ter of child sex offenders. Establishing the database of high-risk child sex offenders forms one of nine key measures included in bill C-26, the tougher penalties for child predators act. e bill passed first reading in the House of Commons on Feb. 26 aer its introduction by Federal Justice Minister Peter MacKay. "It might not get a particular- ly good reaction from the gen- eral public to see a sex offender make that kind of argument, but that doesn't mean they aren't en- titled to the protection afforded by s. 7 of the Charter," says Ed- ward Prutschi, a criminal lawyer with Toronto firm Adler Byten- sky Prutschi Shikhman. In addition to creating the pub- lic database of child sex offenders, the proposed legislation would also require registered sex offend- ers to provide more information about their travel abroad and would allow information sharing between officials of the national sex offender registry and the Can- ada Border Services Agency. e bill also contemplates consecutive sentences for people convicted of child sex offences against multiple children and child pornography charges as well as increased penalties for violations of supervision orders. "Our government's compre- hensive legislation will better protect children from a range of sexual offences, including child pornography, while making our streets and communities safer by cracking down on the predators that hurt, abuse, and exploit our children," MacKay said in a state- ment announcing the measures. But Joseph Neuberger of criminal law firm Neuberger Rose LLP isn't buying it. "is doesn't protect society," he says. "What protects society is monitoring and good supervi- sion of sex offenders by those who are trained to do it. at's where resources need to go, not to putting these people at per- sonal risk and not to creating some false hope in the commu- nity that this will make them safer." Stephen Hebscher, who prac- tises criminal law in Toronto, says proper enforcement of strict sentencing conditions un- der s. 810 of the Criminal Code already imposes serious con- straints on the behaviour of sex offenders aer their release from jail by limiting their exposure to children and forcing their atten- dance at treatment programs. "You don't have to publish their names and photographs as well," he says. "If those resources aren't available, they should be made available. It seems like they're turning over responsibility for monitoring these people to the public, rather than the police, which seems like a step backward to me. I see this as another piece of political posturing by the Con- servatives to portray themselves as the only ones who care about children so they can accuse any opponents of being in favour of child molesters." Prutshci says vigilantism is one of the more obvious concerns when it comes to a publicly avail- able registry of child sex offenders. At an event to launch the legisla- tion, MacKay denied the database was about "encouraging vigilan- tism," but whatever the intention, Prutshci says moving the list into the public domain increases the chance people will take the law into their own hands. "Once the cat is out of the bag, controlling people's behaviour goes out of your scope of influ- ence. You lose the capacity to control how some individuals will react. Even if it's not the kind of Frankenstein and pitchfork sce- nario, you can readily see neigh- bourhoods banding together and forcing people to move." In either case, he says reha- bilitation will be difficult for sex offenders leading their lives in the public gaze. "I can understand the not- in-my-backyard attitude, but they do have to live somewhere once they've served their time," he says. "If we make their lives impossible to live, then you're guaranteeing rehabilitative fail- ure. en we'll be dealing with a class of unemployable outcasts, which isn't going to benefit the communities in which they ulti- mately reside." Michael Spratt, an Ottawa criminal defence lawyer, says publicizing the names of sex of- fenders may actually decrease public safety by providing an incentive for non-compliance with registration obligations. "People may not report cor- rect information or changes of address for fear of vigilantism or other negative effects on their reintegration. at in turn can lead to an increased likelihood of recidivism," he says. According to Spratt, a recent Supreme Court judgment may give a clue as to how the top court would rule on any constitutional challenge further down the line. e case, Ontario (Com- munity Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), con- cerned an access-to-information request that sought the number of sex offenders on a confiden- tial register living across Ontario with the information divided into areas defined by the first three digits of their postal codes. e province's Ministry of Community Safety and Cor- rectional Services refused the request, citing law enforcement and privacy exemptions under Ontario's Freedom of Informa- tion and Protection of Privacy Act. However, the informa- tion and privacy commissioner overturned that decision aer finding the disclosure posed no risk of harm to, or identifica- tion of, registered offenders. In its April 24 judgment, the top court unanimously decided the commissioner's conclusion was a reasonable one. According to Prutschi, the decision strikes an appropri- ate balance between the public's right to information and privacy intrusion "even when the sub- jects happen to be sex offenders." "But there's a big difference between those sorts of data points versus specific names and addresses. at's a whole differ- ent ballgame." LT FOCUS Dedication, knowledge and creativity. Henein Hutchison draws its power from experience and its talent from a team of rising stars. The fi rm's associate ranks include three clerks of the Supreme Court of Canada and one clerk of the Court of Appeal for Ontario. Experience and depth. More experience. More defence. | www.hhllp.ca E N O U G H TA L E N T TO F I L L A R O O M . Untitled-2 1 14-05-20 2:58 PM C

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