R. v. C.C., (2007) 435 A.R. 215 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 30, 2007
• Citations: (2007), 435 A.R. 215 (PC);2007 ABPC 337

R. v. C.C. (2007), 435 A.R. 215 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.059

Her Majesty the Queen (respondent) v. C.C. (applicant)

(020410973U1; 2007 ABPC 337)

Indexed As: R. v. C.C.

Alberta Provincial Court

Allen, P.C.J.

November 30, 2007.

Summary:

In 2002, C.C. was found not criminally responsible (NCR) in relation to three Criminal Code offences: sexual assault with a weapon; assault causing bodily harm; and knowingly uttering a threat to cause death. C.C.'s motive was consistent with a delusion rather than sexual gratification. In 2005, C.C. was served with a notice to comply with the Sex Offender Information Registration Act (SOIRA) for a twenty-year period. He sought an exemption under s. 490.23(2) of the Criminal Code. Counsel were unable to find any jurisprudence directly related to an individual found NCR.

The Alberta Provincial Court ordered that C.C. be exempted from complying with his obligation under SOIRA. When all of the factors were measured against the public interest, C.C. met the high onus set out in the exempting section.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 3090.2

Special powers - Sex offender registration legislation - Interpretation and validity of - C.C. was found not criminally responsible (NCR) in relation to three Criminal Code offences - Well after, he was served with a notice informing him that he was required to comply with the Sex Offender Information Registration Act (SOIRA) for a twenty-year period - C.C. sought an exemption under s. 490.23(2) of the Criminal Code - Counsel were unable to find any jurisprudence directly related to an individual found NCR - The Crown submitted that Parliament meant that NCR offenders and convicted offenders be treated in the same manner - The Alberta Provincial Court interpreted the relevant provisions of the Criminal Code and SOIRA, and concluded that the legislative intent in creating the registry was clear - "The ultimate goal of the registry is protection of society through effective investigation accorded through registration of sex offenders. Parliament did not single out only sexual predators for inclusion in such a registry. Parliament meant that those declared NCR and those convicted be on this registry who had committed certain designated offences which constitute crimes of a sexual nature" - The Alberta jurisprudence supported the court's view - See paragraphs 21 to 29.

Criminal Law - Topic 3090.2

Special powers - Sex offender registration legislation - Interpretation and validity of - The Alberta Provincial Court stated that, in creating the sex offender registry, Parliament made clear "the public interest factor that the courts are required to balance in making SOIRA orders. That public interest factor is described in the consistent manner throughout the relevant Code provisions, including in s. 490.023(2). The public interest factor is described in this manner: 'the public interest in protecting society through the effective investigation of crimes of a sexual nature to be achieved by the registration of sex offenders under the Sex Offender Information Registration Act.' That public purpose is consistent with the purpose of SOIRA set out in s. 2(1)" - The court also noted that the jurisprudence supported the view that "the public interest factor remains the same and does not change on a case-by-case basis" - See paragraphs 35 to 39.

Criminal Law - Topic 3090.5

Special powers - Sex offender registration legislation - Registration - Exceptions or exemptions - The parties had different positions relating to the treatment of not criminally responsible (NCR) applicants during an exemption hearing under s. 490.23(2) of the Criminal Code - The Crown's position was that there was no need to create special considerations for NCR individuals, as the public interest in effective investigation was the same - The applicant submitted that the standard of proportionality needed to be applied differently for persons found NCR - The Alberta Provincial Court stated that the individual impact on an applicant must be measured, and in that sense there was no difference between an NCR applicant or an applicant who was convicted - The Crown's position failed to take into account that "the public interest factor must be balanced against the impact of the order upon the individual offender. If the impact of the order is to be measured, the fact that he committed the index offence while mentally disordered to the extent that he was not criminally responsible must be taken into account. The approach the Crown suggested would mean that the balancing required in the exemption inquiry would [be] so narrow as to become meaningless" - See paragraphs 60 to 66.

Criminal Law - Topic 3090.5

Special powers - Sex offender registration legislation - Registration - Exceptions or exemptions - At an exemption hearing under s. 490.023(2) of the Criminal Code, the Alberta Provincial Court measured the following factors against the public interest, and ordered C.C. be exempted from complying with his obligation under the Sex Offender Information Registration Act (SOIRA) - In 2002, C.C. committed an index offence, sexual in nature, when suffering bipolar disorder - Not criminally responsible (NCR) - Not the first offence where found NCR (robbery offence) - Kept in mental institution after arrest, before eventual release - Presently subject to conditional disposition order with restrictive conditions - Still presented serious risk to commit serious offence when not taking medication, or taking intoxicating substances - Difficult to assess future risk - Board of Review "well attuned to the danger that the applicant represents and the measures needed to control him" - Little to support view that C.C. would commit future sexual offences - Risk being measured "well beyond the time" when found NCR - No further offences - Complied with restrictive conditions imposed by the Board - "The imposition of a twenty year reporting scheme does not enhance his reintegration and rehabilitation" - C.C. felt stigmatized - Motivated to comply with supervision order - Reporting unlikely to have positive effect to rehabilitate and reintegrate - See paragraphs 74 to 86.

Criminal Law - Topic 3090.7

Special powers - Sex offender registration legislation - Registration - Procedure (incl. evidence and proof) - C.C. was found not criminally responsible (NCR) in relation to three Criminal Code offences - Well after, he was served with a notice to comply with the Sex Offender Information Registration Act (SOIRA) for a twenty-year period - C.C. sought an exemption under s. 490.23(2) of the Criminal Code - Counsel were unable to find any jurisprudence directly related to an individual found NCR - The Alberta Provincial Court noted the jurisprudence "that the focus of the inquiry to determine exemption was 'not whether there is a public interest in having the offender registered but rather whether the impact on the offender would be grossly disproportionate to that public interest' ... . Also, the inquiry focuses upon the offender's present and future circumstances and not upon the offence itself ... . Determining the impact on any offender is an individualized process" - The court reviewed the seemingly contradictory jurisprudence relating to the list of factors to be canvassed under s. 490.023(2) in determining the impact on the offender, and was of the view that "[R. v.]Redhead [2006] [Alta. C.A.] does not purport to set out all factors that can be considered in measuring impact. The subsequent jurisprudence has applied and refined the factors set out in Redhead" - See paragraphs 40 to 51.

Criminal Law - Topic 3090.7

Special powers - Sex offender registration legislation - Registration - Procedure (incl. evidence and proof) - C.C. was found not criminally responsible (NCR) in relation to three Criminal Code offences - Well after, he was served with a notice to comply with the Sex Offender Information Registration Act (SOIRA) for a twenty-year period - C.C. sought an exemption pursuant to s. 490.23(2) of the Criminal Code - Counsel were unable to find any jurisprudence directly related to an individual who was found NCR - The Alberta Provincial Court noted that when considering the exemption of an NCR applicant, it was inevitable that "some of the evidence may differ from an applicant who is convicted ... because a proper consideration of the relevant factors will involve a consideration of the mental illness" - The court concluded that "The determination of what factors are applicable to any particular applicant is individual to that applicant. The factors and the circumstances related to an NCR applicant may differ from that of the convicted applicant. All relevant factors must be weighed in making the determination that the impact on the offender is grossly proportionate to high public interest in having the offender registered" - See paragraphs 65 to 73.

Statutes - Topic 8410

Penal statutes - General principles - Interpretation of - [See both Criminal Law - Topic 3090.2 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193; 36 O.R.(3d) 418; 50 C.B.R.(3d) 163; 33 C.C.E.L.(2d) 173; 98 C.L.L.C. 210-006; 1998 CarswellOnt 1, refd to. [para. 22].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229, refd to. [para. 26].

R. v. Redhead (D.G.) (2006), 384 A.R. 206; 367 W.A.C. 206; 206 C.C.C.(3d) 315; 2006 ABCA 84, refd to. [para. 31].

R. v. J.D.M. (2006), 417 A.R. 186; 410 W.A.C. 186; 213 C.C.C.(3d) 231; 2006 ABCA 294, refd to. [para. 34].

R. v. T.L.B. (2007), 404 A.R. 283; 394 W.A.C. 283; 218 C.C.C.(3d) 339 (C.A.), refd to. [para. 40].

R. v. Cross (J.E.) (2006), 241 N.S.R.(2d) 349; 767 A.P.R. 349; 205 C.C.C.(3d) 289; 2006 NSCA 30, refd to. [para. 41].

R. v. C.L.B. (2007), 428 A.R. 295 (Q.B.), refd to. [para. 41].

R. v. R.C., [2005] 3 S.C.R. 99; 340 N.R. 53; 237 N.S.R.(2d) 204; 754 A.P.R. 204; 2005 SCC 61, refd to. [para. 47].

R. v. Putrus (A.J.) (2006), 398 A.R. 18; 2006 ABQB 313, refd to. [para. 49].

R. v. Gilbert, [2006] A.J. No. 1763 (Prov. Ct.), refd to. [para. 50].

R. v. J.D.M. (2006), 213 C.C.C.(3d) 231; 2006 ABCA 294, refd to. [para. 54].

R. v. G.E.W. (2006), 396 A.R. 149 (Q.B.), refd to. [para. 57].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1; 135 C.C.C.(3d) 129, refd to. [para. 67].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 490.02 [para. 27]; sect. 490.011 [para. 25]; sect. 490.019, sect. 490.021, sect. 490.022 [para. 27]; sect. 490.023(2) [para. 3].

Sex Offender Information Registration Act, S.C. 2004, c. 10, sect. s. 2(1), sect. 2(2) [para. 23]; sect. 3(2) [para. 25].

Counsel:

J. Russell, for the respondent;

K. Teskey, for the applicant.

This application was heard in Edmonton, Alberta, by Allen, P.C.J., of the Alberta Provincial Court. The court gave the following decision dated November 30, 2007.