WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Long, 2018 ONCA 282

DATE: 20180322

DOCKET: C60832

Strathy C.J.O., Doherty, Hourigan, Roberts JJ.A.
    and McCombs J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent/Respondent

and

Richard Long

Applicant/Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Christine Bartlett-Hughes, for the respondent

Matthew R. Gourlay and Ben Rogers, for the intervener, The
    Criminal Lawyers Association (Ontario)

Heard: November 10, 2017

On appeal from the judgment of Justice Dale F.
    Fitzpatrick of the Superior Court of Justice, dated July 10, 2015, with reasons
    reported at 2015 ONSC 4509, dismissing an appeal from the convictions entered
    on August 22, 2013 by Justice Lesley M. Baldwin of the Ontario Court of Justice,
    with reasons reported at 2013 ONCJ 464.

Strathy C.J.O.:

A.

Introduction

[1]

This appeal concerns the constitutionality of s. 490.013(2.1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, which requires an offender convicted of more
    than one designated offence to comply with the
Sex Offender Information
    Registration Act
, S.C. 2004, c. 10 (
SOIRA
), for life.

[2]

The appellant seeks leave to appeal, and, if leave is granted, seeks a
    declaration that s. 490.013(2.1) violates s. 7 of the
Charter
and is
    of no force and effect. The Criminal Lawyers Association (Ontario) was granted
    leave to intervene. It supports the appellants position.

[3]

The Crown concedes that the constitutional issue has significance for
    the administration of justice beyond the circumstances of the case and that
    leave should be granted. I agree.

[4]

The Crown also concedes that the appellants liberty interest is engaged
    by the impugned provision.

[5]

This appeal is therefore focused on whether the deprivation of liberty
    is in accordance with the principles of fundamental justice. The appellant argued
    that two principles of fundamental justice were violated, namely overbreadth
    and gross disproportionality. He did not pursue his submission that the provision
    was arbitrary in oral argument before this court.

[6]

For the reasons that follow, I conclude that there has been no violation
    of the appellants s. 7 rights. Section 490.013(2.1) of the
Criminal Code
is neither overbroad nor grossly disproportionate.

B.

Background

(1)

Facts

[7]

The appellant was convicted of three counts of sexual assault related to
    three incidents that happened on the same day and were separated in time by a
    few hours.

[8]

The complainant worked as a part-time office assistant at the
    appellants health food business. She began working for the appellant in
    November 2010, when she was hired through a program for people with learning
    disabilities.

[9]

Approximately one year after she was hired, the complainant was sexually
    assaulted by the appellant.

[10]

The
    first incident occurred at around 11:00 a.m. The complainants desk was in the
    same open-space room as the appellants. She testified that the appellant said
    something about being bored and that it was quiet at work. He came over to her
    and put his right hand under her brassiere, touching her breast for about a
    minute. The complainant testified that when he stopped, she kept working and
    hoped he would not do it again.

[11]

The
    second incident occurred an hour later when the appellant again touched the
    complainants breast under her brassiere and started kissing her as she was
    working. This lasted for a few seconds, until the appellant stopped to answer
    the phone.

[12]

The
    third incident occurred at approximately 2:30 p.m. when the complainant went to
    get something from the basement. The appellant followed her. Once in the
    basement, he undid her shirt and kissed her breast.

[13]

The
    complainant left work at 4:00 p.m. and was picked up by a friend whom she had
    told about the incidents. She never returned to work.

(2)

Decisions in the courts below

(a)

The trial judgment

[14]

At
    trial, the appellant advanced the defence of consent and the defence of
    mistaken belief in consent with respect to the first and second incidents. He
    denied the third incident had ever happened.

[15]

The
    trial judge held that, in addition to being in a position of power and
    authority over the complainant as her employer, the appellant was also in a
    position of trust. Consequently, she held that the defence of consent did not
    apply by virtue of s. 273.1(2)(c) of the
Code
.

[16]

The
    trial judge further noted that even if the defence of consent were available,
    she would have rejected the appellants evidence that the complainants conduct
    demonstrated her consent and accepted the complainants evidence that she did
    not communicate her consent in any way.

[17]

The
    trial judge also found that there was no air of reality to the defence of
    mistaken belief in consent. She found that the appellant was beyond reckless,
    was wilfully blind, and took no reasonable steps to ascertain that the
    complainant was consenting. She found as fact that the appellant lost control
    and acted upon his stated curiosity to prey on his vulnerable employee.

[18]

The
    trial judge therefore found the appellant guilty on three counts of sexual
    assault.

[19]

The
    trial judge sentenced the appellant to a 90-day intermittent sentence, to be
    followed by two years probation, and ordered him to register under
SOIRA
for a period of 10 years.

[20]

On
    January 8, 2014, the Crown filed an application to amend the
SOIRA
registration period to life pursuant to s. 490.013(2.1) of the
Code
.
    As the appellant was convicted of more than one designated offence, s.
    490.013(2.1) mandated lifetime
SOIRA
registration. In response, the
    appellant argued that the trial judge was
functus officio
and brought
    a constitutional challenge under s. 7 of the
Charter
. The trial judge
    ruled that she was not
functus
and amended the
SOIRA
order.
    She refused, however, to hear the constitutional challenge, noting that the
    constitutionality of s. 490.013(2.1) could be challenged on the appeal that had
    by then been filed.

(b)

The summary conviction appeal

[21]

The
    appellant raised five grounds of appeal before the summary conviction appeal
    judge (SCAJ), most of which are not at issue on this appeal.

[22]

The
    fifth ground raised by the appellant, which is central to this appeal, was that
    s. 490.013(2.1) should be found to be unconstitutional under s. 7 of the
Charter
because it is (a) arbitrary, (b) overbroad, and (c) grossly disproportionate.

[23]

The
    SCAJ dismissed each argument in turn.

[24]

First,
    he held that the provision was not arbitrary. The purpose of the law was to
    further public safety by enabling police to keep track of sex offenders. The
    information collected could make it easier to investigate sex crimes by
    individuals who, by virtue of past conviction, could be suspects in similar
    crimes. He found it was a matter of common sense and experience that past behaviour
    predicts future conduct.

[25]

Following
    this courts decision in
R. v. Dyck
, 2008 ONCA 309, 90 O.R. (3d) 409,
    the SCAJ found there was a rational connection between the purpose of the
    legislation and the means employed. Those convicted of more than one offence
    are subject to longer registration on the basis that they have a greater propensity
    to re-offend.

[26]

He
    rejected the appellants argument that the objective of the law is not
    accomplished by its wording because the imposition of lifetime registration is
    tied to the manner in which the Crown particularizes the information and the
    number of convictions. He noted that prosecutorial discretion is an inherent
    part of our criminal justice system that is not reviewable absent an abuse of
    process:
R. v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167. That there
    may be an element of Crown discretion in terms of the number of offences
    charged does not detract from the basic premise that people who commit more
    than one offence are more likely to re-offend.

[27]

The
    SCAJ stated that, if required to, he would have held that the offences were
    appropriately charged as three separate incidents. However, this finding was
    unnecessary, given the fact that the appellant was entitled to challenge the
    constitutionality of any legislation directly affecting him regardless of
    whether it leads to unconstitutional results in his particular circumstances:
R.
    v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295.

[28]

Second,
    the SCAJ held that the provision was not overbroad. Following the reasoning in
Dyck
,
    he stated that the appellant must demonstrate not only that the law overreaches,
    but that it is grossly disproportionate. He went on to state that a law will be
    grossly disproportionate where the purpose is totally out of sync with the
    deprivation suffered under s. 7. He concluded that s. 490.013(2.1) is not
    overbroad or grossly disproportionate to the purpose of the law. He found that
    the deprivations of liberty and any stigma associated with the reporting
    requirements are minimal and do not disproportionately outweigh the important
    state objective of protecting the community from recidivist sex offenders.

[29]

The
    SCAJ thus dismissed the appeal.

(3)

SOIRA
and the sex offender information provisions of the
Criminal Code

[30]

In
    order to provide context for the submissions and analysis that follow, I will
    briefly review the introduction of sex offender registration legislation and
    relevant
Criminal Code
and
SOIRA
provisions.

(a)

Introduction of sex offender registration legislation

[31]

SOIRA
,
    which established the federal sex offender registry, came into force in
    December of 2004.

[32]

In
    Ontario, it was preceded by a provincial registry. In 2001,
Christophers
    Law (Sex Offender Registry)
, S.O. 2000, c. 1, came into force. It required
    any Ontario resident convicted of a designated sex offence to register with the
    police. It was enacted in response to public outcry after the abduction, sexual
    assault and murder of an 11-year-old boy, Christopher Stephenson, by a repeat
    sex offender who was on bail at the time of the attack. In response, a coroners
    jury recommended the creation of a sex offender registry. Similar legislation
    had been passed in the United Kingdom, several states in Australia, and some
    states in the United States.

[33]

In
Dyck
, this court dismissed a constitutional challenge to
Christophers
    Law
. It held that the legislation was
intra vires
the province
    and that Mr. Dycks rights under ss. 7, 11 and 12 of the
Charter
had
    not been violated. As the appellant in this case questioned the correctness of
Dyck
in light of the Supreme Court of Canadas decisions in
Canada (Attorney
    General) v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101 and
Carter v.
    Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, a five-judge
    panel was constituted to hear this appeal.

[34]

I
    agree with the appellant that the reasoning in
Dyck
has been overtaken
    by the Supreme Courts decision in
Bedford
and is therefore not
    binding. As is discussed below, the Supreme Court has clarified that
    overbreadth and gross disproportionality are distinct principles of fundamental
    justice with different analytical approaches.

(b)

Criminal Code
provisions

[35]

For
    the purposes of this appeal,
SOIRA
and the related
Criminal Code
provisions are virtually identical to
Christophers Law
. While
SOIRA
governs the administration of the registry, provisions of the
Criminal Code
determine the length of registration.

[36]

Sections
    490.011(1) to 490.032 of the
Criminal Code
set out the circumstances
    in which a person convicted of one or more designated offence must comply
    with
SOIRA
.

[37]

Section
    490.012(1) provides that when a court sentences a person for a specified designated
    offence it
shall
make an order requiring the person
    to comply with
SOIRA
for the applicable period specified in s.
    490.013.

[38]

The
    designated offences specified in s. 490.012(1) include a wide range of sexual
    offences under current and former provisions of the
Criminal Code
including, but not limited to, sexual offences in relation to children.

[39]

Section
    490.013(2) sets out the duration of the order  that is, the period during
    which the offender is required to comply with
SOIRA
. To reduce the
    burden of registration on groups of offenders that are less likely to
    re-offend, and to ensure longer term registration of those groups more likely
    to re-offend, Parliament has prescribed different periods of registration based
    on the perceived degree of risk posed by the group. The applicable periods are:

(a) 10 years, if the
    offence was prosecuted summarily or if the maximum term of imprisonment for the
    offence is two or five years;

(b) 20 years, if the
    maximum term of imprisonment for the offence is 10 or 14 years;

(c) life, if the maximum
    term of imprisonment for the offence is for life.

[40]

Section
    490.013(2.1), the provision at issue here, was added as a result of amendments effective
    in 2011. It provides that the duration of the order is for life if the person
    is convicted of more than one specified designated offence. It reads:

(2.1) An order made under
    subsection 490.012(1) applies for life if the person is convicted of, or found
    not criminally responsible on account of mental disorder for, more than one
    offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the
    definition
designated offence
in subsection 490.011(1). [Italics in
    original.]

[41]

Sections
    490.013(4) and (5) provide for a lifetime registration order if the person was,
    or had been, subject to a previous
SOIRA
order or had been previously
    convicted of certain designated offences.

[42]

A
    person subject to a
SOIRA
order is entitled to apply for its
    termination after the passage of a certain time:

(a) After 5 years, in the
    case of an order with a 10 year registration period (s. 490.015(1)(a));

(b) After 10 years, in
    the case of an order with a 20 year period (s. 490.015(1)(b)); and

(c) After 20 years, in
    the case of an order with a lifetime period (s. 490.015(1)(c)).

[43]

A
    person may also apply for a termination once they receive a pardon or once a
    record suspension is ordered (s. 490.015(3)).

[44]

A
    person seeking a termination order must satisfy the court that the continuation
    of the order would have an impact on the offender that is grossly
    disproportionate to the public interest in protecting society through the
    effective prevention or investigation of crimes of a sexual nature by
    registration of sex offenders under
SOIRA
(s. 490.016(1)). The court
    is required to give reasons for its decision.

[45]

Either
    the prosecutor or the applicant may appeal from the decision made under s.
    490.16(1) on a question of law or of mixed fact and law (s. 490.017(1)).

[46]

A
    person subject to a
SOIRA
order is required to register in person at a
    designated registration centre (of which there are 158 in Ontario) within seven
    days of the making of the order (s. 4(1)). The person must provide certain
    information including: (a) names and aliases; (b) date of birth; (c) gender;
    (d) height, weight and distinguishing marks; (e) address and contact
    information for residences, employment, volunteer organizations and educational
    institutions; (f) full details of vehicles they own or use regularly; and (g)
    passport and drivers licence numbers (s. 5(1)).

[47]

When
    the sex offender reports to an information centre, staff may ask when and where
    the offender was convicted of an offence and may record any observable
    characteristics that may assist in identifying the offender, including the
    offenders eye and hair colour, and may require that the offenders photograph
    be taken (s. 5(2)(3)).

[48]

An
    offender is required to report annually, in person, and must report in person
    within seven days of moving or changing his or her name (s. 4.1(1)). Other
    changes in the requisite information may be done by registered mail.

[49]

The
    offender must also notify the registration centre of any intention to be away
    from his or her primary or secondary residence for a period of seven
    consecutive days or more, and of every address or location at which he or she expects
    to stay in Canada or outside Canada (s. 6(1)).

[50]

There
    are penalties for failing to comply with the statutory registration
    requirements, or for providing false or misleading information, including a
    fine of up to $10,000 and imprisonment for up to two years (s. 490.031(1), s.
    490.0311). In Ontario, the Ontario Provincial Police has drafted procedures for
    conducting compliance checks. Under this policy, a sex offenders residential
    address will be verified by an officer at least once annually and after each
    time they report. This does not preclude additional checks.

[51]

SOIRA
details the responsibilities of persons who collect and register
    information from offenders. The Act and associated regulations carefully limit
    the classes of person who are authorized to access the registry, the purposes
    for which the registry may be consulted and the circumstances under which
    information in the registry (including the fact that a person is registered) may
    be disclosed (s. 16). There are penalties for breaching the consultation or
    disclosure rules, including a fine of up to $10,000 and imprisonment for up to
    six months (s. 17).

C.

The Issue

[52]

The
    sole issue on this appeal is whether s. 490.013(2.1) offends s. 7 of the
Charter
.

[53]

No
    challenge was made under s. 12 of the
Charter
because the requirement
    to register under
SOIRA
is not punishment:
R. v. Cross
, 2006
    NSCA 30, 241 N.S.R. (2d) 349, leave to appeal refused, [2006] S.C.C.A. No. 161;
Dyck
, at paras. 59, 78, 83-84;
R. v. S.S.C.
, 2008 BCCA 262,
    234 C.C.C. (3d) 365.

[54]

This
    appeal has proceeded in the absence of a full evidentiary record because the
    appellants s. 7 argument was not addressed at trial. Consequently, the Crown,
    which has not adduced any evidence with respect to s. 1 of the
Charter
,
    made only cursory submissions concerning s. 1.

D.

Analysis

(1)

Section 7 of the
Charter

[55]

Section
    7 of the
Charter
provides:

Everyone has the right to
    life, liberty and security of the person and the right not to be deprived
    thereof except in accordance with the principles of fundamental justice.

[56]

The
    s. 7 analysis is concerned with laws that are inherently bad because they take
    away life, liberty and security of the person in a way that runs afoul of our
    basic values, embodied in the expression principles of fundamental justice:
Bedford
,
    at para. 96. Those principles, as expressed by the Supreme Court, include the
    requirement that laws must not be arbitrary, overbroad or grossly
    disproportionate.

[57]

In
    order to demonstrate a breach of s. 7, the appellant must first show that the
    law deprives him of his life, liberty or security of the person. Once he
    establishes that s. 7 is engaged, he must then show that the deprivation in
    question is not in accordance with the principles of fundamental justice:
Carter
,
    at para. 55. While it is difficult to justify a s. 7 violation in light of the
    fundamental rights it protects, the Crown may be able to demonstrate that the
    infringement is justified under s. 1 of the
Charter
in some situations:
Bedford
, at para. 113,
Carter
, at para. 95;
R. v. Michaud
,
    2015 ONCA 585, 127 O.R. (3d) 81, at para. 83.

[58]

As
    I have noted, the Crown concedes that the impugned provision engages the
    appellants s. 7 liberty interest. Liberty protects the right to make
    fundamental personal choices free from state interference.

[59]

There
    can be no doubt that the impugned provision, which requires lifetime
    registration and supervision, interferes with the appellants liberty rights
    and thus engages s. 7 of the
Charter
. The effect and severity of this
    breach are considered in more detail below.

[60]

The
    s. 7 analysis does not end here. As the Supreme Court observed in
Carter
,
    at para. 71, laws regularly interfere with life, liberty and security of the
    person. The question is whether the law does so in a way that violates our
    basic values, described as the principles of fundamental justice. That is the
    central issue in this case.

[61]

All
    three of these principles of fundamental justice  arbitrariness, overbreadth
    and gross disproportionality  hinge on the connection between the purpose of
    the legislation and its effect on the individual. I now turn to the application
    of these principles to this case.

(2)

Arbitrariness

[62]

While
    the appellant did not pursue his argument that s. 490.013(2.1) is arbitrary, I
    will briefly address it for the sake of completeness.

[63]

Arbitrariness
    asks whether the effect of the law on the individual bears some relation to the
    laws purpose. An arbitrary law is one that is not capable of fulfilling its
    objectives:
Carter
, at para. 83. In
Bedford
, McLachlin C.J. observed,
    at para. 111:

There must be a rational connection between the measure that
    causes the s. 7 deprivation and the limits it imposes on life, liberty, or
    security of the person. A law that imposes limits on those interests in a way
    that bears
no connection
to its objective arbitrarily impinges on
    those interests. [Citations omitted. Emphasis in original.]

[64]

As
    noted above, the SCAJ found that the purpose of
SOIRA
is to further
    public safety by enabling police to keep track of sex offenders who, by virtue
    of their past convictions, could be suspects in future crimes. It subjects
    those who are convicted of more than one offence to a longer registration
    period because, as a group, they have a greater propensity to re-offend. He
    found a rational connection between the purpose of the legislation and the
    means it employs, and thus concluded that the impugned provision was not
    arbitrary. I agree.

[65]

I
    turn to the question of overbreadth.

(3)

Overbreadth

[66]

I
    will begin by setting out the parties submissions with respect to overbreadth.
    I will then outline the Supreme Courts approach to overbreadth before turning to
    my analysis of the issue in this case.

(a)

The parties submissions

[67]

The
    appellant submits that the structure of s. 490.013 demonstrates that the
    objective of the impugned provision is to tie the length of registration to the
    seriousness of the underlying offence and the moral culpability of the
    offender. Effectively, he submits, Parliament has decided that the more serious
    the offence, the greater the risk of recidivism  hence, the need to keep the
    offender on the registry for a longer period of time.

[68]

The
    appellant argues that where the Crown exercises its discretion to charge an
    accused with more than one offence for several relatively minor sexual
    transgressions within the same transaction, the imposition of a longer period
    of registration is not connected to the seriousness of the underlying conduct
    or the offenders moral culpability. There is no evidence that, in those
    circumstances, the offender necessarily poses a higher risk of recidivism. In
    contrast, there may be situations where the underlying conduct is more serious,
    but the offender is only charged with one offence and, consequently, is subject
    to a shorter registration period.

[69]

Therefore,
    says the appellant, it is possible to imagine scenarios where s. 490.013(2.1)
    subjects offenders to lifetime registration where the offender is not at a
    higher risk of recidivism. The provision therefore captures reasonable
    hypothetical offenders who are not connected to the object of the legislation.

[70]

The
    intervener supports this position. The legislative scheme uses the seriousness
    of the offence as a proxy for future risk. The intervener says there is a
    fundamental mismatch between s. 490.013(2.1) and this future risk-based
    criterion for setting the mandatory term of the
SOIRA
order. There are
    reasonable hypotheticals and real cases in the jurisprudence where lifetime
    registration makes no sense because the fact of more than one conviction is not
    a justifiable proxy for what the legislation is trying to accomplish.
    Conversely, where there is a very serious course of sexual abuse over numerous
    years but the Crown only charges one count, the offender would only be subject
    to a 20-year registration period.

[71]

The
    Crown in response says that the purpose of
SOIRA
is set out in s. 2 of
    that Act: to prevent and investigate crimes of a sexual nature. Section 490.013(2.1)
    is meant to assist with this purpose by gathering information from persons
    convicted of sexual offences, irrespective of the level of seriousness of the
    offence. The commission of even a single summary offence is a reliable
    indicator of a heightened risk of re-offending. That will remain true over
    time. There will thus always be a presumptive risk that a person who is
    convicted of a sexual offence is at a higher risk of re-offending than a person
    in the general population.

[72]

The
    Crown submits that there is a common sense inference to be drawn from this: an
    individual who is convicted of more than one sexual offence, even relatively
    minor ones closely connected in time, has a greater propensity to commit sexual
    crimes than an individual who goes no further than the first incident. The
    former is not a recidivist in the traditional sense (i.e. a person who re-offends
    after being convicted of an offence); however, as long as the offender commits
    legally discrete sexual offences that do not trigger the application of the
    principle in
R. v. Kienapple
, [1975] 1 S.C.R. 729, an inference may be
    drawn that the offender poses additional risk because the offender persists in
    acting in a particular manner. The fact that another offender may be treated
    differently as a result of prosecutorial discretion to charge only one count
    does not make the law overbroad or arbitrary for constitutional purposes.

[73]

In
    other words, the number of criminal acts bear some relationship to the risk of
    re-offending. Some individuals in the group may be at greater risk of
    re-offending than others, but there is no way to know which ones will re-offend
    and which will not. All one can say is that, as a group, they are at enhanced
    risk to re-offend. Parliament is entitled to apply that gradation and
    categorization to offenders as long as there is some rational basis on which to
    do so. Where there is a rational basis to conclude there is some additional
    propensity that would not exist in the case of only one sexual assault, the
    imposition of the added period of registration does not make the law overbroad.

(b)

The Supreme Courts analytical approach to overbreadth

[74]

The
    Supreme Court explained the overbreadth analysis in
Bedford
, at paras.
    101-119, and in
Carter
, at paras. 85-88. A law is described as
    overbroad when it goes too far and interferes with some conduct that bears
    no connection to its objective:
Bedford
, at para. 101. This addresses
    situations where there is no rational connection between the purposes of the
    law and some, but not all, of its effects. As the Supreme Court explained it in
Bedford
, at para. 113:

Overbreadth allows courts to recognize that the law is rational
    in some cases, but that it overreaches in its effect in others. Despite this
    recognition of the scope of the law as a whole, the focus remains on the
    individual and whether the effect on the individual is rationally connected to
    the laws purpose. For example, where a law is drawn broadly and targets some
    conduct that bears no relation to its purpose in order to make enforcement more
    practical, there is still no connection between the purpose of the law and its
    effect on the
specific individual
. [Emphasis in original.]

[75]

A
    law will be unconstitutionally overbroad if its effect is to deprive some
    persons of liberty for reasons unrelated to its purpose:
R. v.
    Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 22. Therefore,
    the question this court must consider is whether s. 490.013(2.1), which imposes
    mandatory lifetime registration, goes too far and interferes with some conduct
    that bears no connection to its objective:
R. v. Appulonappa
, 2015
    SCC 59, [2015] 3 S.C.R. 754, at para. 71;
Bedford
, at para. 101.

[76]

In
Bedford
, the Supreme Court emphasized that there is a heavy onus on
    the party challenging the legislation to establish that there is no connection
    between the effect of the law and its purpose. The standard is not easily met.
    Chief Justice McLachlin stated, at para. 119:

As noted above, the root question is whether the law is
    inherently bad because there is no connection, in whole or in part,
    between its effects and its purpose. This standard is not easily met. The
    evidence may, as in
Morgentaler
, show that the effect actually
    undermines the objective and is therefore inconsistent with the objective. Or
    the evidence may, as in
Chaoulli
, show that there is simply no
    connection on the facts between the effect and the objective, and the effect is
    therefore unnecessary. Regardless of how the judge describes this lack of
    connection, the ultimate question remains whether the evidence establishes that
    the law violates basic norms because there is no connection between its effect
    and its purpose. This is a matter to be determined on a case-by-case basis, in
    light of the evidence.

(c)

The purpose of s. 490.013(2.1)

[77]

The
    first step in the overbreadth analysis is to identify the purpose and the
    effect of the impugned provision itself, in this case s. 490.013(2.1), in the
    context of the legislative scheme of which it is a part:
R. v. Moriarity
,
    2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24.

[78]

The
    Supreme Courts jurisprudence has emphasized that the identification of the
    purpose of the legislation must be undertaken with precision. It summarized the
    considerations in
Safarzadeh-Markhali
, at paras. 24-29:

Whether a law is overbroad within the meaning of s. 7 turns on
    the relationship between the laws purpose and its effect. It is critically
    important, therefore, to identify the purpose of the challenged law at the
    outset of the s. 7 inquiry.

Moriarity
summarizes the considerations that guide the
    task of properly characterizing Parliaments purpose in a s. 7 analysis into
    overbreadth.

First, the laws purpose is distinct from the means used to
    achieve that purpose. A laws means may be helpful in determining its
    objective, but the two must be treated separately.

Second, the laws purpose should be characterized at the
    appropriate level of generality, which resides between the statement of an animating
    social value  which is too general  and a narrow articulation that amounts
    to a virtual repetition of the challenged provision, divorced from its context.

Third, the statement of purpose should be both precise and
    succinct. Precision requires that courts focus on the purpose of the particular
    statutory provision subject to constitutional challenge.

Fourth, the analysis is not concerned with the appropriateness
    of the legislative purpose. The court must take the legislative objective at
    face value and assume that it is appropriate and lawful. The appropriateness
    of a legislative objective may be relevant to its constitutionality under other
Charter
provisions. But it has no place in the s. 7 analysis of
    overbreadth. [Citations omitted.]

[79]

In
    determining the purpose of the legislation in the s. 7 analysis, a reviewing
    court may look to three things: (a) statements of purpose contained in the
    legislation; (b) the text, content and scheme of the legislation; and (c)
    extrinsic evidence such as the history and evolution of the legislation:
Safarzadeh-Markhali
,
    at para. 31; see also
Moriarity
, at para. 31.

[80]

Turning
    to this case, the impugned provision is s. 490.013(2.1), which I repeat for
    ease of reference:

(2.1) An order made under
    subsection 490.012(1) applies for life if the person is convicted of, or found
    not criminally responsible on account of mental disorder for, more than one
    offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the
    definition
designated offence
in subsection 490.011(1). [Italics in
    original.]

[81]

Following
    the principles articulated by the Supreme Court of Canada, I will now consider
    the purpose of this section.

Statements of purpose in the legislation

[82]

The
    purpose of s. 490.013(2.1) is informed by the provisions of the
Criminal
    Code
incorporating the
SOIRA
legislation, as well as the
SOIRA
legislation itself. Neither
SOIRA
nor the
Code
contains any
    specific statement of the purpose of s. 490.013(2.1). However,
SOIRA
contains a general purpose clause.

[83]

SOIRA
,
    as originally enacted, identified its purpose as to help police services
    investigate crimes of a sexual nature by requiring the registration of certain
    information relating to sex offenders. Amendments that came into force in 2011
    added prevention to the purposes described in s. 2(1):

(1) The purpose of this
    Act is to help police services
prevent
and
investigate
crimes of a
    sexual nature by requiring the registration of certain information relating to
    sex offenders.

[84]

Section
    2(2) provides that the legislation is to be carried out according to certain
    principles:

(2) This Act shall be
    carried out in recognition of, and in accordance with, the following
    principles:

(a) in the interest
    of protecting society through the effective prevention and investigation of
    crimes of a sexual nature, police services must have rapid access to certain
    information relating to sex offenders;

(b) the collection
    and registration of accurate information on an ongoing basis is the most
    effective way of ensuring that such information is current and reliable; and

(c) the privacy
    interests of sex offenders and the public interest in their rehabilitation and
    reintegration into the community as law-abiding citizens require that

(i) the information be collected only
    to enable police services to prevent or investigate crimes of a sexual nature,
    and

(ii) access to the information, and
    use and disclosure of it, be restricted.

[85]

These
    principles inform the purpose of the legislation and the registry.

The text, context and scheme of the legislation

[86]

Part
    of the context giving rise to the creation of a federal sex offender registry was
    a growing public concern, exemplified in Ontario by the enactment of
Christophers
    Law
, about protecting children and other vulnerable victims from sex offenders
    through a system of careful monitoring of convicted sex offenders. In this
    courts decision in
Dyck
, Blair J.A. explained, at paras. 99 and 100,
    the logic behind the creation of a sex offender registry:

The valid state objective of
Christophers Law
is to
    address this harm and protect the community from recidivist sex offenders. The
    means developed by the Act to accomplish this objective is the creation of a
    sex offender registry that can track the whereabouts of past sex offenders.

The trial judge found (i) that sex offenders are prolific
    offenders who are likely to re-offend; and (ii) that a prior conviction for a
    sex offence is a reliable indication of risk and a proper method of assessing
    that risk. He also accepted the evidence of Dr. Collins that, although the
    numbers are uncertain, as a group sex offenders are always going to be at risk
    and that if a person has offended sexually they are going to be a greater risk
    than the rest of the population for engaging in that activity. There is therefore
    a presumptive risk of harm to potential victims of all ages posed by persons
    convicted of sex offences, even though there may be numerous offenders amongst
    that group who ultimately do not re-offend at all. These findings underpin the
    conclusion that it was open to the legislature to enact
Christophers Law
as a logical response to the risk caused by recidivist sex offenders.

[87]

He
    further summarized, at para. 105, the findings of the trial judge in that case:

(a) That sexual offences are particularly prevalent in our
    society and victimize mostly women and children and can have substantial
    physical, psychological and emotional impact on the victims, even occasionally
    leading to murder;

(b) That sex offenders as a group are prolific in their
    offending and are likely to re-offend, and that a prior conviction for such
    offences is a reliable indication of risk and a proper method of assessing that
    risk; and

(c) That the creation of a sex offender registry requiring
    those convicted of a designated sexual offence to register with the police and
    provide particulars of address and other information, including a photograph,
    and to keep that information current, creates a valuable investigative tool to
    aid the police when a sexual offence occurs, including the ability of the
    police to conduct a radius search and to investigate by means of geographic
    profiling.

[88]

SOIRA
and the sex offender information provisions of the
Criminal Code
(ss.
    490.011 to 490.032), together with the federal
Sex Offender Information
    Registration Regulations
(see, for example, the
Ontario Sex Offender
    Information Registration Regulations
, SOR/2004-306), set out a
    comprehensive scheme for the registration of information about sex offenders.
    The scheme is plainly designed to ensure that the information is complete,
    current and accurate, so that police are able to identify and locate a
    convicted sex offender when seeking to prevent or investigate a sex crime.

[89]

This
    court, and other appellate courts, have emphasized that while one of the
    underlying rationales for the enactment of
SOIRA
was to facilitate the
    investigation of sexual offences by keeping track of sexual predators, the
    regime is not limited to likely recidivists or sexual predators: see
R.
    v. Debidin
, 2008 ONCA 868, 94 O.R. (3d) 421, at paras. 70, 77. See also:
S.S.C.
,
    at para. 43;
R. v. Redhead
, 2006 ABCA 84, 56 Alta. L.R. (4th) 15, at
    paras. 36-38. The scheme of the legislation evinces a concern about the
    apprehension of sex offenders and prevention of sexual offences, particularly,
    but by no means exclusively, in relation to offences against children and other
    vulnerable groups.

History and evolution of the legislation

[90]

As
    noted above,
SOIRA
came into force in December of 2004. The enacting
    legislation, Bill C-16, both created the registry and amended the
Criminal
    Code
.

[91]

Initially,
    the
Criminal Code
did not make
SOIRA
orders mandatory. The
    Crown had to apply for an order after sentencing and was not obliged to do so (s.
    490.012). Moreover, the court had discretion to refuse the order. Section
    490.012(4) of the
Code
provided:

The court is not required
    to make an order under this section if it is satisfied that the person has
    established that, if the order were made, the impact on them, including on
    their privacy or liberty, would be grossly disproportionate to the public
    interest in protecting society through the effective investigation of crimes of
    a sexual nature, to be achieved by the registration of information relating to
    sex offenders under the
Sex Offender Information Registration Act
.

[92]

In
    2010, the Minister of Justice, the Honourable Vic Toews, appeared before the
    Senate Standing Committee on Legal and Constitutional Affairs to discuss
    proposed amendments to
SOIRA
and further amendments to the
Criminal
    Code
. He noted that the existing discretionary system meant that 42
    percent of those convicted of sexual offences had not been entered in the
    registry, resulting in inconsistent application of the law across the country
    and impairing the investigation of sexual offences because police were unaware
    of some offenders as potential suspects. He expressed the concern that due to
    the difficulty in determining which sex offenders will re-offend and which will
    not, the discretionary nature of the registration system meant that some
    recidivists would fall through the cracks. Other witnesses at committee
    hearings spoke of the need for an expeditious response in the prevention and
    investigation of sexual crimes.

[93]

In
    2011, the
Act to Amend the Criminal Code and other Acts (Protecting Victims
    from Sex Offenders Act)
, S.C. 2010, c. 17, came into force. This Act
    amended both the
Code
and
SOIRA
and made a
SOIRA
order mandatory in all cases, removing any prosecutorial or judicial discretion
    to forego adding an offender convicted of a designated offence to the registry.

[94]

The
    2011 amendments also added the provision at issue in this appeal, s.
    490.013(2.1), which imposes mandatory lifetime registration on persons
    convicted of more than one designated offence, subject to a provision
    permitting review after 20 years. In doing so, Parliament extended the
    circumstances in which lifetime registration was mandatory: see ss.
    490.013(2)(c), (4) and (5).

[95]

The
    Parliamentary record before us is somewhat sparse. The Crown has, however, provided
    excerpts from Hansard, including proceedings of the Senate Standing Committee
    on Legal and Constitutional Affairs.

[96]

In
    submissions to the Senate Standing Committee, a lawyer speaking on behalf of
    the Criminal Lawyers Association expressed concern about the absence of an
    exemption in the proposed legislation for what he described as relatively
    minor sexual offences or sexual assaults. He gave the example of a teenager
    taking a sexual picture of herself and sending it to her boyfriend, making him
    guilty of possession of child pornography. He also referred to a woman who is
    angry with her boyfriend for cheating on her and grabs him by the crotch to
    show her displeasure.

[97]

He
    also expressed concern about the impugned provision, similar to the concern
    expressed by the appellant:

The concern is that, in many cases, being convicted of more
    than one count does not necessarily correspond with the seriousness of the
    offence. The number of counts on an indictment, for example, is often
    arbitrary. A complainant who describes being sexually assaulted ten times
    during 2009 can result in a person being charged with one count of sexual
    assault covering January 1 to December 31, 2009, or ten separate counts
    depending on a variety of factors. The charge can go either way.

.

Our concern is that by arbitrarily saying a conviction for two
    counts requires putting the person on the registry for life has a
    disproportionate effect. I do not think that is what is intended in the bill.
    Imagine a situation where a person is charged with two counts and the Crown
    elects to proceed summarily because it is a less serious offence. If the person
    is convicted on one count, they are on the registry for ten years. If they are
    convicted on both counts, they are on the registry for life. In contrast, a
    person charged with one count of a serious sexual assault and the Crown
    proceeds indictably will be on the registry for twenty years.

[98]

Parliament
    did not yield to these concerns and the impugned provision was carried into
    law.

Conclusion regarding the purpose of s. 490.013(2.1)

[99]

Both
    the appellant and the intervener argued that the purpose of the legislation was
    to link a longer period of mandatory registration to the seriousness of the
    underlying offence. In oral argument, they described s. 490.013(2.1) as the
    black sheep of the legislative scheme because the commission of two offences
    triggers lifetime registration regardless of their severity.

[100]

The problem with
    this interpretation of the legislation is that it fails to afford any
    significance to the enactment of the very provision at issue in this appeal. Prior
    to 2011, subsections (a), (b) and (c) of s. 490.013(2) already linked lengthier
    periods of registration to offences subject to longer potential prison sentences
     that is, longer periods of registration for more serious offences. Moreover,
    s. 490.013(4) and (5) already captured traditional recidivists. When Parliament
    amended the legislation to add subsection (2.1), it is presumed not to have
    done so for a redundant purpose. Subsection (2.1) was clearly intended to
    achieve something other than what the legislation already provided for.

[101]

In my view, the
    legislative purpose of s. 490.013(2.1) is not tied to the seriousness of the
    underlying offence. Nor is it tied, as the appellant suggests, to the moral
    culpability of the offender, as a result of the offender having committed and been
    convicted of two or more designated offences. Rather, it is concerned with the offender
    who, by virtue of having been convicted of more than one offence, is a member
    of a group with an
enhanced
risk of re-offending.

[102]

In light of the
    text of the provision,
SOIRA
s statement of purpose and statement of
    principles, the scheme of the legislation, the context of the provision and its
    legislative history, I find that the
animating social value
of
SOIRA
is the protection of the public. The
purpose
of s. 490.013(2.1)
    of the
Criminal Code
is to further public safety by subjecting sex
    offenders who are at enhanced risk of re-offending to a longer period of
    registration. In the case of offenders like the appellant who fall within s.
    490.013(2.1), this means registration for life, subject to the right to apply
    for termination of the order after 20 years, pursuant to s. 490.015(1)(c).

[103]

The
means
for achieving that purpose is the removal of prosecutorial and judicial
    discretion by making lifetime registration mandatory.

[104]

Finally, the
effect
of the impugned provision is that offenders convicted of more than one
    designated offence will be subject to lifetime
SOIRA
registration, subject
    to the right to apply for termination after 20 years.

(d)

Rational connection

[105]

Having
    identified the purpose of s. 490.013(2.1), the next step in the overbreadth
    analysis is to determine whether it deprives individuals of liberty in cases
    that do not further that purpose:
Appulonappa
, at para. 27. In that
    inquiry, this court can consider reasonable hypothetical cases of the laws
    application:
Appulonappa
, at para. 28.

[106]

On this appeal,
    the intervener put forward the hypothetical of an 18-year-old accused who is
    convicted of two summary conviction sexual assaults for two brief incidents,
    minutes apart, of groping over clothing. The intervener argues that s.
    490.013(2.1) is overbroad because it is irrational to impose a lifetime
SOIRA
order on the sole basis of an additional conviction in cases like this
    hypothetical, because the second conviction does not say anything meaningful
    about the risk of re-offending.

[107]

In addition to
    considering this hypothetical, some analysis of the purpose and effect of the
    impugned provision is provided by the two conflicting decisions that have been
    put to us  the decision of this court in
Dyck
, on the one hand, and
    the decision of the Alberta Court of Queens Bench in
R. v.

Ndhlovu,
2016 ABQB 595, 44 Alta. L.R. (6th) 382, on the other.

R. v. Dyck

[108]

As I have
    already noted, in
Dyck
this court dismissed a challenge to
Christophers
    Law
on both federalism and
Charter
grounds. Mr. Dyck had been
    convicted of sexual interference and in 2002, he was charged with failing to
    report under
Christophers Law
.

[109]

The court had
    before it a considerable evidentiary record adduced by both parties, including
    evidence as to the behaviour of sex offenders and their risk of recidivism, the
    operation of the registry and the legislative history.

[110]

Mr. Dyck argued
    that the legislation was broader than necessary because it swept into the
    registry all offenders convicted of the designated offences without regard to
    whether they were likely to re-offend or not, or whether there were reasons in
    their particular case for an exemption. As under
SOIRA
, s. 7(1)(c) of
Christophers
    Law
imposes lifetime reporting requirements on offenders convicted of more
    than one sex offence. However, the challenge in
Dyck
was to the scheme
    of mandatory registration itself and that provision was not directly at issue.

[111]

Blair J.A. held
    that the legislature acted rationally in pursuit of a legitimate state interest
    to protect the community from recidivist sex offenders by creating a mandatory registry
    to enable police to track past offenders. He concluded that the means used were
    rationally connected to the objective.

[112]

He also held
    that the mandatory inclusion of offenders in the registry regardless of their
    risk of re-offending did not make the law overbroad, because there was no way of
    knowing which would re-offend and which would not. He stated, at paras.
    122-124:

Finally,
Christophers Law
is not constitutionally
    flawed in terms of the scope of persons that are captured by its provisions, in
    my opinion. The trial judge concluded that
Christophers Law
failed on
    overbreadth grounds because it required all persons convicted of designated sex
    offences to register regardless of whether that particular offender posed a
    risk to re-offend

I agree, however, with the Crowns submission that individualized
    risk assessment is not a
Charter
prerequisite

Once legislators have determined there is more than a minimal
    risk of harm, Parliament and the legislatures are entitled to make policy
    choices within a reasonable range of options.

[113]

And, at para.
    125:

It is clear on the evidence called at trial that a conviction
    for a designated sex offence attests to a significant risk of recidivism. There
    is no way to know in advance which sex offenders will re-offend and which will
    not, and that is why all are included on the Registry. What these findings
    mean, in the context of the enactment of
Christophers Law
, is that
    the choice of the Legislature to include all persons convicted of designated
    sex offences in the Registry was logical, rational, and not grossly
    disproportionate to the state objective.

[114]

In my view,
Dyck
is not particularly helpful to the overbreadth analysis in this case in light of
Bedford
.
Dyck
does, however, provide context to the evolution
    of the registry.

R. v. Ndhlovu

[115]

The appellant
    also referred us to
Ndhlovu
, in which Moen J. of the Alberta Court of
    Queens Bench concluded that s. 490.012, which makes
SOIRA
registration
    mandatory, infringed s. 7 of the
Charter
because it was both overbroad
    and grossly disproportionate insofar as it removes judicial discretion to
    refuse to place on the registry offenders who present no risk of re-offending.

[116]

In
Ndhlovu
,
    the accused pleaded guilty to two counts of sexual assault. The offences
    occurred at a party to which he had been invited by the complainant, RD. RD and
    a female friend, CB, reported that he had touched their buttocks while the
    three were posing for a picture and that he had touched RDs thighs and
    buttocks during a conversation without their consent. In the early morning, RD
    awoke to find the accuseds fingers in her vagina. She told him to stop. He
    tried to touch her a second time at which point she pushed him away and he
    left. He was sentenced to six months in jail and three years probation. Mr.
    Ndhlovu was also subject to lifetime
SOIRA
registration under s.
    490.013(2.1) because he was convicted of two designated offences.

[117]

In sentencing
    Mr. Ndhlovu, Moen J. found that he was at a very low risk to re-offend. He was
    19 years of age and had no criminal history. He had taken responsibility for
    his actions and shown remorse for what he had done. He had stopped drinking.

[118]

Mr. Ndhlovu challenged
    the mandatory nature of
SOIRA
orders under s. 7 of the
Charter
.
    In considering the
Charter
issues, Moen J. found that the reporting
    requirements of
SOIRA
were significant and onerous, referring to
Redhead
,
    at para. 33;
S.S.C.
;
R. v. Have
, 2005 ONCJ 27, 194 C.C.C.
    (3d) 151; and the judgment of the SCAJ in this case.

[119]

She found that
    the law was not arbitrary; there is a rational connection between requiring sex
    offenders to provide up-to-date information and the goal of investigating and
    preventing sex crimes. She agreed, at para. 91, with the SCAJs observation that
    the information collected can make it easier to investigate sex crimes by identifying
    individuals who, by virtue of past convictions, may be considered suspects in
    similar crimes, and that as a matter of common sense and experience,
    individuals who are convicted of sex crimes have an increased propensity to
    commit sex crimes in the future.

[120]

While
    acknowledging that there was a statistical probability that a sex offender will
    re-offend, she concluded, at para. 119, that the law was overbroad because it
    captured individuals who have little or no chance of re-offending:

In my view, the mandatory registration for all sex offenders
    upon conviction of two or more offences, without regard to the seriousness of
    the offences or the offenders propensity to reoffend is overbroad. The goal of
    the legislation is to assist police with investigating past crimes and
    preventing new ones. The Crown conceded that the Registry captures individuals
    who will never re-offend. In my view, including offenders on the Registry who
    have little to no chance of reoffending bears no relation to protecting the public.
    Subjecting all offenders, regardless of their future risk, to onerous reporting
    requirements, random compliance checks by the police, and internal stigma, goes
    further than what is necessary to accomplish the goal of protecting the public,
    and is therefore overbroad.

[121]

In reaching this
    conclusion, Moen J. rejected the Crowns argument that the mandatory inclusion
    of all offenders in the registry was connected to the laws purpose because it
    was impossible to know in advance which offenders would re-offend and which
    would not. She concluded that this type of argument was more appropriately
    brought under s. 1 of the
Charter
.

[122]

In light of her conclusion
    that s. 490.012 breached s. 7, Moen J. declined to make any
SOIRA
order with respect to Mr. Ndhlovu.

Relevance of
Dyck
and
Ndhlovu

[123]

Ultimately,
    neither case put to us deals with the issue before this court. Both dealt with
    different provisions and addressed a different concern  namely, the mandatory
    requirement that
SOIRA
orders be imposed on all offenders convicted of
    a designated offence. I turn now to my analysis of the provision at issue in
    this appeal.

Is s. 490.013(2.1) overbroad?

[124]

The question
    before this court on the overbreadth analysis is whether there is
some
connection
    between the purpose of s. 490.013(2.1) and all of its effects. As noted above, for
    a law to be overbroad, there must be
no connection
between its effects and its purpose in some cases.

[125]

The legislation
    at issue in this appeal involves the assessment of the risk of future harm, an
    exercise that is inherently imprecise. The onus is on the appellant to
    establish that, in some cases, there is no rational connection between the
    purpose and the effect of the law. The Supreme Court in
Bedford
described, at para. 119, the ultimate question as whether the evidence
    establishes that the law violates basic norms because there is
no
    connection
between its effect and its purpose (emphasis in original). As
    the Supreme Court observed, [t]his standard is not easily met:
Bedford
,
    at para. 119.

[126]

The purpose of
    s. 490.013(2.1) of the
Criminal Code
, as I have found, is to further
    public safety by subjecting sex offenders who are at
enhanced
risk of
    re-offending to a longer period of registration.

[127]

No issue was
    taken with the premise underlying
SOIRA
that sex offenders as a group
    present a greater risk of committing future sexual offences than the rest of
    the population: see
Dyck
, at paras. 100, 105;
Redhead
, at
    para. 38. While there is no evidence in the record to support the proposition
    that offenders who are convicted of more than one designated offence are at
    enhanced risk of re-offending, there is also no evidence to the contrary.

[128]

Instead, we are
    faced with conflicting arguments appealing to common sense. The Crown, on the
    one hand, asks us to infer that an individual who is convicted of more than one
    designated sexual offence has a greater propensity to commit sexual crimes than
    an individual who is convicted of only one such offence.

[129]

The appellant, on
    the other hand, supported by the intervener, advances reasonable hypothetical scenarios
    to argue that the appropriate inference to be drawn is this: in some cases, an
    individual who is convicted of committing two sexual offences, particularly two
    of which are minor and proximate in time, is at no greater risk of re-offending
    than an individual who commits only one such offence.

[130]

I am not
    persuaded by the interveners suggestion that in the reasonable hypothetical of
    a young offender convicted of sexual assault for two brief incidents of groping
    over the clothing, the second sexual assault, proximate in time, does not say
    anything meaningful about the risk of re-offending. In my view, and in the
    absence of evidence to the contrary, the second sexual assault can reasonably
    be regarded as demonstrating the offenders persistence and impulsiveness, and
    therefore his enhanced risk of re-offending. The same could be said of the
    appellant, who sexually assaulted the complainant three times over the course
    of two and a half hours.

[131]

Parliament was
    entitled to draw the inference that conviction of more than one sexual offence
    is logically probative of an offenders enhanced propensity to commit further sexual
    offences and is linked to an elevated risk of re-offending.

[132]

The appellant
    has failed to displace the common sense inference that the criterion used by
    Parliament to assess future risk (i.e. more than one conviction for sexual
    offences) can reasonably be said to make the risk of future harm  re-offending
     higher than it would have been absent the second or additional convictions. For
    that reason, there is some connection between the effect of the law, the
    lifetime
SOIRA
registration imposed on an offender, and the purpose of
    the provision.

[133]

Further, I do
    not accept the appellants submission that the law is overbroad because
    prosecutorial discretion plays a role in determining which offenders are caught
    by the provision and which are not. Prosecutorial discretion is a
    well-established feature of the justice system. In the prosecution of sexual
    offences, prosecutors decide whether to charge at all, whether to charge by
    indictment or by summary conviction, and whether to charge a lesser included
    offence that may not be a designated offence. Each of these decisions may affect
    whether
SOIRA
registration is mandatory or the length of the
    registration. Prosecutorial discretion cannot save a law that is otherwise
    unconstitutional on its face:
R. v. Nur
, 2015 SCC 15. But a law does
    not become arbitrary or overbroad simply because similarly-situated accuseds
    are treated differently through the exercise of prosecutorial discretion. The
    fact that some offenders may escape lifetime registration as a result of
    prosecutorial discretion does not make the legislation overbroad in relation to
    those who are caught by the provision.

[134]

I therefore
    agree with the Crowns submission that simply because another offender may
    benefit from a decision by the Crown to charge only one count (thereby
    prosecuting multiple incidents as part of a single transaction), this does not
    support a conclusion that there is no rational basis to require a longer
    compliance period for an offender who has demonstrated a propensity to commit
    sexual offences.

[135]

A similar
    distinction can be made regarding the Crowns discretion to determine whether
    to proceed with certain charges summarily or by way of indictment. Under s.
    490.013(2)(a), an offender is only required to register for a period of ten
    years if the offence is prosecuted summarily, rather than 20 years if convicted
    of an indictable offence.

[136]

The legislative
    history of the impugned provision makes it clear that one of the purposes of
    the 2011 amendments was to remove prosecutorial and judicial discretion related
    to whether or not a
SOIRA
order was imposed on an offender because an
    individual offenders risk of re-offending could not be predicted with
    precision. Subjecting an offender to a shorter period of registration based on
    a judges or prosecutors assessment of the individuals risk of re-offending would
    undermine the integrity of the registry and, thereby, impede the ability of
    police to rapidly and effectively prevent or investigate a sex crime.

[137]

Two judges
    examining the sexual assaults carried out by the appellant or by Mr. Ndhlovu or
    by the interveners hypothetical offender might well disagree on their
    likelihood of recidivism. One of the purposes of the legislative amendments was
    to remove discretion and, in its place, to substitute a reasonable proxy to
    assess the risk of future harm. Parliament determined that the stakes were too
    high to leave it to the discretion of the Crown or the court.

[138]

In my view, this
    case is distinguishable from
Safarzadeh-Markhali
. The impugned
    provision in that case was broadly worded. McLachlin C.J. noted, at para. 47,
    that its purpose was to enhance public safety and security. The provision
    caught individuals denied bail primarily because of a prior conviction without
    specifying the nature or number of prior convictions that would warrant the
    denial of bail. McLachlin C.J. emphasized, at para. 53, that the law was
    overbroad because it resulted in bail being denied based on the persons
    criminal record, without considering whether the nature of the past offences was
    indicative of a threat to public safety or security.

[139]

In
Safarzadeh-Markali
it was possible for the court to say, as a matter of common sense, that the law
    was overbroad on its face, because it would capture an offender who had two or
    three previous convictions for failure to appear, or some other minor infraction,
    but did not pose any threat to public safety or security. The bail justices
    endorsement that bail was denied primarily because of a previous conviction
    was, in the words of the Chief Justice, an inexact proxy for the danger that
    an offender poses to public safety or security.

[140]

In this case, by
    contrast, it cannot be said that as a matter of common sense the commission of
    two or more designated offences is not a reasonable proxy for an enhanced risk
    of re-offending. The appellant and the intervener ask us to infer that in some
    cases there is no connection between the commission of two or more offences and
    an enhanced risk of recidivism. I am not prepared to draw that inference.
    Bearing in mind that we are considering the inherently imprecise assessment of
    future risk, and there being no dispute that the commission of a sex offence is
    a reasonable proxy for the risk of re-offending, it was open to Parliament to
    conclude that the commission of two or more offences is a reasonable proxy for
    an enhanced risk of re-offending, warranting a longer registration period.

[141]

In summary, the
    appellant has failed to discharge his onus to establish that the law is
    overbroad. In my view, being convicted of two sexual offences within a short
    period of time  even two relatively minor offences, in the case of the
    hypothetical  is rationally connected to the objective of s. 490.013(2.1),
    because it is a reasonable proxy for an enhanced risk of re-offending. This
    connects the effect of the law to its purpose, regardless of the severity of
    the underlying offence.

(4)

Gross Disproportionality

[142]

I turn now to
    the appellants argument that s. 490.013(2.1) is grossly disproportionate.

[143]

A law will be
    found to be grossly disproportionate under s. 7 of the
Charter
in
    extreme cases where the seriousness of the deprivation is totally out of sync
    with the objective of the measure:
Bedford
, at para. 120. The Supreme
    Court affirmed the test for gross proportionality in
Carter
, at para.
    89:

This principle is infringed if the impact of the restriction on
    the individuals life, liberty or security of the person is grossly
    disproportionate to the object of the measure. As with overbreadth, the focus
    is not on the impact of the measure on society or the public, which are matters
    for s. 1, but on its impact on the rights of the claimant. The inquiry into
    gross disproportionality compares the laws purpose, taken at face value,
    with its negative effects on the rights of the claimant, and asks if this
    impact is completely out of sync with the object of the law. The standard is
    high: the laws object and its impact may be incommensurate without reaching
    the standard for
gross
disproportionality. [Emphasis in original. Citations
    omitted.]

[144]

The task for
    this court is, therefore, to weigh the effects of a lifetime
SOIRA
registration on an individual offender against the purpose of furthering public
    safety by subjecting sex offenders who are at enhanced risk of re-offending to
    a longer period of registration. In this regard, the courts task is to balance
    the negative effects with the
purpose
of the law, not its benefits to
    society more broadly:
Bedford
, at para. 121.

[145]

The appellant
    submits that lifetime registration is out of sync with the objective of the
    legislation to the point that it is grossly disproportionate. One offender
    could be on the registry for life for two relatively minor sexual offences
    committed in the course of the same transaction, whereas an offender who
    commits a serious sexual assault would only be on the registry for 20 years if
    the Crown only charges one count. The gulf between the two offenders is so wide
    that it is not in keeping with the purpose of the legislation.

[146]

The Crown submits
    that the length of a reporting requirement, by itself, can never justify a
    finding that the provision is grossly disproportionate. This court found in
Dyck
and
Debidin
that registration only impaired the offenders liberty in
    a minimal way. Most of the impacts on the offender flow not from the reporting
    requirements, but from the convictions themselves.

[147]

I agree with the
    Crowns submission that the effect of registration on an offenders liberty is
    modest. In
Dyck
, Blair J.A. observed, at para. 104, that the reporting
    requirements imposed by
Christophers Law
, which for the purposes of
    this appeal is analogous to
SOIRA
, are particularly modest given the
    fact that an offender has already been tried and convicted of a designated
    sexual offence. Blair J.A. noted, at para. 106, that [t]he requirements are
    limited in their informational scope, do not prohibit the appellant from going
    anywhere or doing anything, are no more intrusive than other state-imposed
    registration requirements, impose minimal stigma on the offender, and are not
    publicly known. Moreover, as noted by the Crown, any stigma flows from the
    conviction itself, not registration. The statute contains provisions designed
    to protect the privacy of registrants and to restrict access to the registry.
    There is no evidence on this appeal that would justify concluding that a
    lifetime registration order has anything other than a modest impact on an
    offenders liberty interest.

[148]

This impact must
    then be measured against the importance of the objective of the provision.
    There is no question that furthering public safety by subjecting offenders who are
    at enhanced risk of re-offending to a longer period of registration is a
    pressing and important objective. In light of the importance of the purpose
    pursued by the provision and its relatively modest impact on an offenders
    liberty, I find that the provision is not grossly disproportionate.

E.

Conclusion

[149]

I conclude that
    s. 490.013(2.1) is not arbitrary, overbroad, or grossly disproportionate and
    thus does not violate s. 7 of the
Charter
.

[150]

For these
    reasons, I would dismiss the appeal.

Released: GRS  MAR 22 2018

George R. Strathy
    C.J.O.

I agree. Doherty
    J.A.

I agree. C.W.
    Hourigan J.A.

I agree. L.B.
    Roberts J.A.

I agree. J.D.
    McCombs J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Macintyre-Syrette, 2018 ONCA 259

DATE: 20180319

DOCKET: C62825

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Macintyre-Syrette

Appellant

Kristin Bailey and John Fennell, for the appellant

Kevin Rawluk, for the respondent

Heard: January 31, 2018

On appeal from the conviction entered on May 10, 2016,
    with reasons reported at 2016 ONSC 2969, and the sentence imposed on October
    19, 2016, with reasons reported at 2016 ONSC 6496 by Justice Michael N. Varpio
    of the Superior Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

This appeal from conviction and sentence was argued on January 31, 2018.
    We dismissed the appeal from conviction for sexual assault and stayed the
    conviction for unlawful confinement, with reasons to follow. We now provide
    those reasons.

[2]

We reserved judgment on the sentence appeal. As set out below, we have
    concluded that the pre-sentence and
Gladue
reports were not sufficient
    and did not put the sentencing judge in a position where he could meaningfully
    assess the appropriateness of a non-custodial sentence. It was an error for the
    sentencing judge to proceed without taking further steps to address the
    shortcomings in the reports. It is necessary that a supplementary pre-sentence
    report be prepared prior to this court re-sentencing, and the sentence appeal
    remains under reserve.

Background

[3]

The appellant was convicted of an historical sexual assault that took
    place on June 1, 1999. The facts were carefully set out by the trial judge and
    there is no need to repeat them in any detail. The central events are, on the
    complainants evidence, as follows. The appellant, the complainant, and another
    person had been moving furniture, and stopped for a quick swim at a lake.
    Afterwards, when the complainant went to change in the womens change room, the
    appellant followed her in, came up behind her, spun her around, and attempted
    intercourse over her objections. The appellants account was entirely
    different. He only followed her into the womens change room to put his shirt
    back on. While she was changing in front of him, he asked if she would like to
    have sex with him. She said that she would, just not at that time. He then
    asked if she would mind if he masturbated while watching her change. She had no
    objection, and he did so.

[4]

The trial judge accepted the complainants testimony, rejected the
    appellants testimony, and found that on the whole of the evidence he accepted,
    he was not left with a reasonable doubt as to the appellants guilt. He
    convicted the appellant of sexual assault and unlawful confinement and sentenced
    the appellant to six months imprisonment.

Analysis

(1)

Sexual assault conviction appeal

[5]

The appeal of the sexual assault conviction is framed in terms of the
    trial judges misapprehension of the appellants testimony, and uneven scrutiny
    of the complainants and appellants testimonies. We were not persuaded that
    the trial judge made either error.

[6]

The trial judges misapprehension of evidence is said to have flowed
    from the following brief question and answer from the appellant on
    cross-examination:

Q: At this point, [prior to walking into the changing room,]
    theres nothing sexual between [the two of] you, correct?

A: No.

[7]

The trial judge understood the appellants evidence to be: (1) there
    was, to that point, nothing of a sexual nature between the appellant and the
    complainant (no sexual tension, no communication of sexual attraction), and (2)
    that the appellant had no sexual interest in the complainant up to that point.
    The trial judge found the latter assertion implausible: [s]uch a lack of
    sexual interest (prior to entering the change room) does not square with common
    sense. It occurs to me that a man seeking to get changed would not follow a
    woman into the womens change room unless he was sexually interested.

[8]

The appellant argued that the trial judge misapprehended his evidence:
    it was not his evidence that he had no sexual interest in the complainant.
    Attributing this implausible statement to him, the appellant argued, led the
    trial judge to reject the appellants credibility and testimony.

[9]

We rejected this submission. The trial judge understood the appellants
    evidence, and drew permissible inferences. Furthermore, the trial judge gave
    other reasons for rejecting the appellants evidence, which failed on its own
    terms. The appellant did not testify that he went into the womens change room
    to pursue the complainant. His evidence was that the reason he went into the
    womens change room was to change his clothes. The trial judge found this
    unbelievable: the only article of clothing the appellant brought with him was
    his shirt, which he had carried from the dock. He had no other clothes to
    change into. Why, the trial judge asked, would he go into a change room to put
    his shirt back on? And why, if he went into the change room to change rather
    than to pursue the complainant, did he choose to go into womens change room
    instead of the mens change room a few steps away?

[10]

The appellants second argument was that the trial judge erred by
    uncritically accepting the complainants testimony, notwithstanding a serious
    inconsistency in it. The complainant testified that she had stood inside the change
    room facing towards the open doorway, that the appellant had come up from
    behind her, and that she did not see him enter the change room. At trial, the
    complainant speculated that there must have been another door that the
    appellant used. The evidence clearly established, however, that there was no
    other door.

[11]

We rejected this argument as well. The trial judge did not err in
    failing to find that this inconsistency diminished the complainants
    credibility. Her statement that there must have been a second door was a
    deduction, not an observation. The deduction was wrong, but her failure to
    observe the appellant approaching is easily reconciled with her other evidence.
    She testified she was mid-pull in pulling her wet shirt over her head when
    the appellant grabbed her from behind. At some point when the complainant was
    removing her shirt, her vision would have been obscured, either by the shirt
    itself or by closing her eyes. There was no failure to scrutinize the
    complainants evidence.

(2)

Unlawful confinement conviction appeal

[12]

The Crown conceded that the conviction for unlawful confinement ought to
    have been stayed pursuant to the
Kienapple
principle. We agreed. The
    conviction for unlawful confinement in the change room was an integral part of
    the sexual assault conviction.

(3)

Sentence appeal

[13]

The appellant argues that the sentencing judge erred in imposing a
    custodial sentence of 6 months instead of a lengthier non-custodial sentence to
    be served in the community. The source of this error is said to be a failure to
    properly apply the principles for sentencing Aboriginal offenders set out in
R.
    v.

Gladue
, [1999] 1 S.C.R. 688. When sentencing Aboriginal
    offenders,
Gladue
requires courts to consider:

(1)

The unique systemic or background factors which may have played a part
    in bringing the particular Aboriginal offender before the courts; and

(2)

The types of sentencing procedures and  sanctions which may be
    appropriate in the circumstances for the offender because of his or her
    particular Aboriginal heritage or connection (
Gladue
, at para. 66)

[14]

The
Gladue
factors are highly particular to the individual
    offender, and so require that the sentencing judge be given adequate resources
    to understand the life of the particular offender. But that is not all. A second
    enquiry is required by
Gladue
, assessing available sentencing
    procedures and sanctions, requires an understanding of available alternatives
    to ordinary sentencing procedures and sanctions. In particular, if, as in this
    case, the offender lives as a member of a discrete Indigenous community, the
    sentencing judge needs to be told what institutions exist within that community
    and whether there are specific proposals from community leadership or
    organizations for alternative sentencing to promote the reconciliation of the
    offender to his or her community:
Gladue,
at para. 84;
R. v.
    Laliberte
, 2000 SKCA 27, at para. 59. The ordinary source of this
    information is the
Gladue
report.

[15]

In
Laliberte
, the Saskatchewan Court of Appeal helpfully
    itemized the type of information a sentencing judge needs from a
Gladue
report:

1) Whether the offender is aboriginal, that is, someone who
    comes within the scope of s. 25 of the
Charter
and s. 35 of the
Constitution
    Act, 1982
;

2) What band or community or reserve the offender comes from
    and whether the offender lives on or off the reserve or in an urban or rural
    setting. This information should also include particulars of the treatment
    facilities, the existence of a justice committee, and any alternative measures
    or community-based programs.

4) Whether imprisonment would effectively deter or denounce
    crime in the subject community. Within this heading it would be useful for the
    Court to determine whether or not crime prevention can be better served by
    principles of restorative justice or by imprisonment.

5) What sentencing options exist in the community at large and
    in the offender's community. For example, does an alternative measures program
    exist in the offender's community if he lives on a reserve?

[16]

The
Gladue
report in this case documents the appellants
    familys history, including his parents strategy of overcoming race-related
    adversity by immersing the appellant in Anishinabe culture. Under their
    guidance, he grew into a leadership role in his community and at a young age
    became a highly successful conduit of his culture, particularly through music
    and song. He has no prior history of offences and avoids alcohol and drug use.
    He was employed in a detox centre and later, after leaving university, at a
    child welfare agency. The report is overwhelmingly positive in its assessment
    of the appellant and in the tremendous contributions he has made to his
    community. The sentencing judge took notice of the appellants stable and
    relatively prosperous upbringing.

[17]

The sentencing judge concluded, and defence counsel conceded at the
    sentencing hearing, that in light of the foregoing, the
Gladue
factors
    carried less weight than they would for a person in different circumstances.
    The sentencing judge did not suggest that the appellant has never directly or
    indirectly experienced conflict or disadvantage due to others actions or
    attitudes towards Indigenous peoples. But he nonetheless concluded that the
    appellants moral culpability for the offences is higher than it would have
    been if he had grown up in vastly different circumstances, such as in an
    unstable home without the benefit of wise parental guidance and example, with
    alcohol or drug-related struggles, or without having played a leadership role
    in the resurgence of his communitys cultural practices.

[18]

It would have been better had the sentencing judge not accepted defence
    counsels concession that
Gladue
factors should have less weight in
    the circumstances of the appellant. The application of
Gladue
factors
    is not a matter of weight, and the duty to apply
Gladue
factors does
    not vary with the offender. This is, however, more of a semantic failing, and
    what we understand the sentencing judge to have held, rightly, is that the
    circumstances of this particular appellant do not diminish the moral
    culpability of his actions:
R. v. Ipeelee
, 2012 SCC 13, [2012] 1
    S.C.R. 433, at para. 73.

[19]

It was an error, however, for the sentencing judge to have proceeded
    with sentencing on the strength of the materials before him. The
Gladue
report gave insufficient assistance to the sentencing judge with respect to the
    second aspect of the
Gladue
analysis: of determining the types of
    sentencing procedures and sanctions that would be appropriate given the
    offenders connection to his specific Aboriginal community:
Ipeelee
,
    at para. 74. Section 718.2(e) imposes an affirmative obligation on sentencing
    judges to inquire into the relevant circumstances of the offender, including
    the types of sentencing procedures and sanctions which may be appropriate
    because of his or her particular Aboriginal heritage or connection; either from
    the parties or on his or her own initiative, a sentencing judge must be made
    aware of alternatives to incarceration that exist whether inside or outside the
    aboriginal community of the particular offender:
R. v. Wells
, 2000
    SCC 10, [2000] 1 S.C.R. 207, at paras. 38, 54;
Ipeelee,
at para. 72,
Gladue
,
    at para. 84. This information was not made available to the sentencing judge in
    this case in either the pre-sentence report or the
Gladue
report.

[20]

The
Gladue
report recommended the following:

1) That [the appellant] continue participating with sweat
    lodges. [The Appellant] can prepare the lodge, participate as a Fire Keeper,
    participate inside the lodge and/or run his own lodge;

2) That [the appellant] continue participating in Pow Wows and
    ceremony, singing and drumming, in that partaking in these ceremonies will
    assist [him] in his healing process;

3) That [the appellant] continue participating in workshops and
    conferences which primarily focus on the healing of Aboriginal People.

[21]

A difficulty with these recommendations is that they were prepared
    without interviewing anyone outside the appellants family. There is no
    indication of any broader engagement with the community. Perhaps there is good
    reason for this. If so, the author should have said so. By not informing the
    sentencing judge of circumstances within Batchewana Reserve other than through
    the appellants parents  either in the
Gladue
report or the
    pre-sentence report  the sentencing judge was not put in a position to
    understand what could be done, specifically, to promote reconciliation within
    that community and other goals of restorative justice.

[22]

The
Gladue
report and the pre-sentence report both relay
    statements from the appellants family that their community is divided over the
    appellant, and that he has been ostracized and left out of ceremonies because
    peers have been unwilling to be seen with him. Although the
Gladue
report recommends steps for the healing of the appellant, it does not address
    the difficult question of reconciling him to this particular community. The
    appellant asserted on appeal that removing an offender from the community is
    not the traditional way of First Nations. The traditional way would be for him
    to serve his sentence in the community, engaging in the cultural activities
    that he has led in the past, encountering those who are hostile to him, and
    thereby creating the conditions that could promote healing between offender and
    community.

[23]

The problem with this submission is that there was nothing before the
    sentencing judge that could help him assess its practicality. There was no
    alternative sentencing proposal put forward, beyond the bare submission that he
    serve a conditional sentence. There was no information about the institutions
    in the appellants community, what opportunities exist for the appellant to
    participate in the various ceremonies recommended, whether the cooperation of
    other persons would be required, or whether that cooperation would be forthcoming.
    There was no proposal for any sort of mediation or other practice aimed at the
    specific reconciliation of this offender to his community. There was no
    explanation of how participation in the various ceremonies would benefit the
    appellant, given that he already possesses a highly advanced understanding of
    his culture. If this information was unavailable, or it would be impractical to
    obtain it, this should have been explained in the report. If sentencing judges
    are to fulfill the requirement of the second part of
Gladue
, they must
    be given information that puts them in the position to do so.

[24]

It was an error, in our view, for the sentencing judge not to have
    identified these shortcomings in the
Gladue
and pre-sentence reports
    and either ordered a supplementary report or summoned the author or other
    witnesses from the community to address these questions
viva voce
:
R.
    v. Kakekagamick
, (2006), 81 O.R. (3d) 664 (C.A.), at para. 45;
R. v.
    Kakekagamick,
2006 CanLII 11656 (Ont. C.A.). Without this information, the
    sentencing judge was not in a position where he could meaningfully assess the
    appropriateness of a non-custodial sentence.

[25]

The sentencing judge, by virtue of his proximity to the communities he
    serves, is well placed to understand how sentencing goals can be achieved with
    respect to a particular offender in a particular community. It would be
    preferable to remit this matter to the sentencing judge to re-sentence after
    considering a supplementary
Gladue
or pre-sentence report. But that
    option is not available to us under s. 687 of the
Criminal Code
and,

having found the sentencing judge committed an error in principle, this
    court must impose a new sentence:
R. v. Kakekagamick
(2006), 81 O.R.
    (3d) 664 (C.A.), at para. 60;
R. v. Pahl,
2016 BCCA 234, 336 C.C.C.
    (3d) 221, at para. 85. We are, however, unable to do so on the record before
    us. Accordingly, we order a further pre-sentence report be completed in
    relation to the appellant, addressing the issues identified in paragraph 23
    above, and to be received within 90 days. We trust that arrangements can be
    made by Crown counsel. Upon completion, the report is to be filed with this
    court to the attention of this panel.

Disposition

[26]

The appeal from the conviction of sexual assault is dismissed. The
    appeal from the conviction of unlawful confinement is stayed pursuant to the
Kienapple
principle. The appeal against sentence remains under reserve. A supplementary
    pre-sentence report is ordered. Parties can submit brief written submissions (5
    pages or less) addressing the supplementary pre-sentence report within 15 days
    of receipt of the report.

R.G. Juriansz
    J.A.

David Watt J.A.

B.W. Miller J.A.