Hamilton judge rules Ontario’s sex offender registry is unconstitutional. What could happen next?

A provincial law that makes it mandatory for sex offenders to be on a registry, and report to police for life, is unconstitutional, a Hamilton judge has ruled. 

The decision by Justice Davin Garg on Jan. 29 is “significant” and could see changes to Ontario’s sex offender registry, depending on how the appeals process plays out, lawyer Dean Paquette told CBC Hamilton. 

It was his client, Michael Roberts, who filed the constitutional challenge and won. 

“In time, the argument we have made will be adopted by higher courts and become binding,” Paquette said. 

Roberts was convicted in 2010 of eight counts of sexual assault against four victims, and sentenced to four months in prison, the judge’s decision said.

Under Ontario’s Christopher’s Law, Roberts was automatically added to the sex offender registry and required to provide Hamilton police with his personal information every year for life, as he was convicted of multiple offences. 

But in 2024, Roberts intentionally failed to report to police, the decision said. He was charged under Christopher’s Law, which allowed him to argue in court that the requirements were “overbroad and grossly disproportionate.” 

While the judge agreed with Roberts, he also made it clear that the provincial registry should still exist but with changes to the requirements. 

It was created over two decades ago after 11-year-old Christopher Stephenson was killed by a convicted sex offender.

Police rely on the registry to both prevent and solve crimes of a sexual nature by keeping track of where people convicted of similar crimes are living in the community, the court had heard. The provincial registry is not available to the public. 

“Nothing in these reasons should be taken as a criticism of the existence of the provincial registry,” said Garg. “The evidence demonstrates the important work carried out by those using the registry.”

The provincial registry contains information for 29,000 offenders with 12,200 required to report annually and 96 per cent complying, the decision said. In Hamilton, there’s about 600 people on the registry, with between 20 and 50 new additions a year.

Judge says decision backed by Supreme Court ruling

Along with Ontario’s registry, there’s also a national registry, which came under scrutiny in 2022. 

The Supreme Court ruled it was unconstitutional to automatically add sex offenders convicted of two or more crimes to the national registry for life — the same rules Ontario’s registry currently uses. 

In a 5-4 decision, the justices said the requirements unfairly and unnecessarily cast too wide a net — capturing people who had a low risk of reoffending for a variety of reasons.

“The unproven premise is that police can only effectively prevent and investigate sex offences if all designated offenders are registered,” the top court said. “The assumption appears to be that if some are good, more is better, and all is best.”

The court found that the possible benefits of the “all is best” approach didn’t outweigh the negative impacts of the “considerable reporting requirements,” said Garg. 

People convicted of sexual offences are required to provide police with their identification, physical description, employer contact information, vehicle description, home, work, education and volunteering addresses, and other personal information. 

Charge against Roberts stayed

To make the national registry rules in line with the Supreme Court decision, and constitutional, the federal government made changes the following year.

Ontario did not do the same, instead leaving in place all the “shortcomings that had been declared unconstitutional in the federal legislation,” Paquette said. 

It was only if someone was willing to risk being charged for not reporting, and then spend the time and money to litigate, that the provincial legislation could be challenged, he said. 

Garg stayed the charge against Roberts, who remains on the registry and could not be reached for comment for this story.

Roberts isn’t required to report to police any longer because he received a record suspension through a separate process last year, the decision noted. 

Garg’s decision only applies to Roberts’s case, for now, but others may follow suit in challenging the law, said Paquette. 

The Ministry of the Attorney General told CBC Hamilton the Crown plans to appeal Garg’s decision. 

The province did not respond to questions about if or when legislative changes will be made to the registry.