Conditional Discharges and the Sex Offender Registry

  • November 11, 2019
  • Amanda Ross

In R. v. Henry (a Crown summary conviction appeal from sentence in a sexual assault case), the Honourable Mr. Justice Schreck upheld the absolute discharge imposed by the sentencing judge. Of greater general interest in the case is His Honour’s discussion of the law of obiter dicta and per incuriam and his ruling regarding the trial judge’s failure to make a Sex Offender Information Registration Act (“SOIRA”) order.

During Mr. Henry’s sentencing hearing, Crown counsel had expressed the view that a SOIRA order could not be made if a discharge was granted. On appeal, the Crown submitted that a SOIRA order was mandatory. His Honour ultimately disagreed, holding that the Ontario Court of Appeal’s recent decision in G. v. Ontario (Attorney General) was binding on the Court.

A conditional discharge is therefore not a “sentence” for the purposes of SOIRA and does not trigger the imposition of an order to register and comply with its terms.

SOIRA Legislation

 The relevant section of the Criminal Code is s. 490.012(1), which provides as follows:

490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.

Sexual assault (the offence in the case at bar) is a designated offence in s. 490.011. It followed that the trial judge was required to make a SOIRA order if it imposed a "sentence" on the respondent. On appeal, the Crown appellant submitted that a discharge was a "sentence". The respondent submitted that it was not.

His Honour considered two appellate decisions: R. c. K. (D.), 2009 QCCA 987, 252 C.C.C. (3d) 332 (C.A. Que.) and G. v. Ontario (Attorney General), 2019 ONCA 264, 145 O.R. (3d) 161 (Ont. C.A.). The first was clearly on point but was not binding on His Honour. The second was not as clearly on point, but His Honour concluded that it was binding on the Court.

R. c. K. (D.)

In K. (D.), the Court of Appeal of Québec considered the question of whether a discharge was a "sentence" and concluded that it was (at para. 41):

Does an absolute or conditional discharge constitute a sentence? In my view, it does. First, section 730 is in Part XXIII of the Criminal Code, entitled "Sentencing". In addition, section 673 Cr. C., which provides definitions applicable to appeals from indictable offences, includes "discharge" in the definition of "sentence". Similarly, the case law has recognized a discharge as constituting a sentence, describing it as [TRANSLATION] "the lightest sentence under the Criminal Code" [Montreal Urban Community (Police Service) v. Commission des droits de la personne et des droits de la jeunesse, 2006 QCCA 612, [2006] R.J.Q. 1307at para. 73]. Finally, scholarly commentary has described a discharge as a [TRANSLATION] "sentence without penal consequences" [François Dadour, De la détermination de la peine: principes et applications (Markham, Ont.: LexisNexis Canada, 2007) at 107], a [TRANSLATION] "lenient sentence" [Gilles Renaud, Principes de la détermination de la peine (Cowansville: Yvon Blais, 2004) at 8], a "lesser penalty" [Clayton C. Ruby, Sentencing, 6th ed. (Markham: LexisNexis Canada, 2004), No. 9.26 at 355], and "a sentence viewed as a warning" [Gary R. Clewley & Paul G. McDermott, Sentencing: The Practitioner's Guide (Aurora, Ont.: Canada Law Book, November 2008) No. 1.20 at 1-2].

In Henry, His Honour noted:

31      It should be noted that at the time K. (D.) was decided, s. 490.012(4) of the Code gave a sentencing court the discretion not to make a SOIRA order if the impact of doing so was grossly disproportionate to the public interest in protecting society. That subsection has since been repealed and a sentencing court no longer has the discretion to decline to make a SOIRA order.9 The Court of Appeal of Québec has recently granted leave to appeal on the issue of whether the conclusion in K. (D.) should be revisited in light of that amendment: Dubé c. R., 2019 QCCA 1223 (C.A. Que.).

G. v. Ontario (Attorney General)

G. v. Ontario (Attorney General) did not expressly consider whether a discharge was a "sentence". The issue in that case was whether SOIRA and Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, violate the equality rights protected by s. 15(1) of the Charter of persons found not criminally responsible due to mental disorder ("NCRMD"). The Court found there were ways that a person found guilty of an offence could avoid having to comply with SOIRA while persons found NCRMD could not. One of the ways in which a person found guilty could avoid a SOIRA order which a person found NCRMD could not avail herself of was the discharge provision in s. 730 of the Code. In arriving at this conclusion, Doherty J.A., writing for the Court, stated (at para. 106):

Section 730 allows a court, upon a finding of guilt, to decline to enter a conviction if satisfied that it is in the accused's best interests and not contrary to the public interest. Persons who receive a discharge under s. 730 are deemed by s. 730(3) not to have been convicted of any offence. Because persons who receive a discharge are not convicted, they are not required to register under Christopher's Law or SOIRA. [Emphasis added.]

Later in his reasons, Doherty J.A. stated (at paras. 110-111):

Section 730 of the Criminal Code and s. 4 of the Criminal Records Act, when read with the sex offender registry legislation, provide persons found guilty of designated offences with two "exit ramps" leading away from the obligation to comply with the sex offender registries.

The s. 730 "exit ramp" operates at the time of sentencing and can result in the person who committed a designated offence never being placed on the sex offender registries.

The Court concluded that this difference in treatment violates s. 15(1) of the Charter.[1]

In Henry, counsel for the appellant argued that His Honour should follow K.(D). In the appellant’s submission, the portion of G. v. Ontario (Attorney General) in which the Court concluded that SOIRA did not apply to discharges was non-binding obiter dicta. Further, the Court of Appeal "missed the issue" and "didn't turn their minds to it."[2]

The Court considered and rejected each argument. First, His Honour held that the relevant portion was not obiter dicta:

34      The classic definition of an obiter dictum is a comment made during a judicial opinion that is unnecessary to the decision in the case: Apotex Inc. v. Schering Corporation, 2018 ONCA 890, 143 O.R. (3d) 321 (Ont. C.A.), at para. 29; R. v. Webber (2004), 13 M.V.R. (5th) 136(Ont. S.C.J.), at para. 18. In G. v. Ontario (Attorney General), the conclusion that SOIRA violated s. 15 of the Charter was based on the Court's conclusion that persons found guilty of designated offences could avoid SOIRA orders by being granted a discharge while those found NCRMD could not. The conclusion respecting the applicability of SOIRA to discharges was not unnecessary to the decision in the case but, rather, an integral part of it. As a result, I cannot disregard G. v. Ontario (Attorney General) as non-binding obiter.

Second, the issue was not decided per incuriam:

35      Counsel's submission that the Court of Appeal "missed the issue" and "didn't turn their minds to it" is in effect a submission that G. v. Ontario (Attorney General) was decided per incuriam. While the doctrine of stare decisis requires that lower courts follow the decisions of higher courts, decisions made per incuriam (literally, "through lack of care") are an exception to this rule. A decision will be per incuriam if it was made "without regard to a statutory provision or earlier binding authority" and if the case would have been decided differently if the earlier authority had been considered: McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2005), 76 O.R. (3d) 161 (Ont. C.A.), at para. 111; Royal Bank of Canada v. Trang, 2014 ONCA 883, 123 O.R. (3d) 401 (Ont. C.A.), at paras. 38-39; R. v. Dunn, 2013 ONCA 539, 117 O.R. (3d) 171 (Ont. C.A.), at para. 35, aff'd 2014 SCC 69, [2014] 3 S.C.R. 490 (S.C.C.).

36      There are two reasons why I am unable to conclude that G. v. Ontario (Attorney General) was decided per incuriam. First, there is no statute or binding authority that the Court of Appeal for Ontario failed to follow with respect to the issue of whether a discharge is a "sentence". As counsel for the appellant acknowledged in her submissions, K. (D.) is not binding on courts in Ontario.

37      Second, I do not accept that the members of the panel that decided G. v. Ontario (Attorney General) did not turn their minds to the issue. I draw this conclusion for several reasons.

38      First, K. (D.) was decided 10 years earlier. It was reported in both the Canadian Criminal Cases and the Criminal Reports and is mentioned in the annotation to s. 490.012(1) in Tremeear's Criminal Code. I cannot accept that the Court of Appeal was not aware of it.

39      Second, as noted above, the applicability of the SOIRA provisions to an offender who has been discharged was central to the conclusion that s. 15(1) of the Charter had been infringed. The Court would not have simply assumed that such an "exit ramp" exists before relying on it to find legislation to be unconstitutional.

40      Finally, notwithstanding K. (D.), the few Ontario cases which consider the issue suggest that the law in this province is that s. 490.012(1) does not apply to discharges: R. v. Jayswal, 2011 ONCJ 33, 266 C.C.C. (3d) 388 (Ont. C.J.), at paras. 11-37; R. v. Rai, 2018 ONCJ 949 (Ont. C.J.), at paras. 34-41; R. v. Senthamilselvan, 2018 ONCJ 356 (Ont. C.J.), at paras. 52, 59; R. v. Mwamba, 2006 ONCJ 374(Ont. C.J.), at para. 18. Courts in British Columbia have also declined to follow K. (D.)R. v. Reyes-Borgwardt, 2010 BCSC 1594 (B.C. S.C.), at para. 44; R. v. Hartman, 2018 BCPC 240 (B.C. Prov. Ct.), at para. 67; R. v. H. (T.J.), 2012 BCPC 115 (B.C. Prov. Ct.), at paras. 24-36; R. v. B. (J.L.), 2017 BCPC 24 (B.C. Prov. Ct.), at para. 44.

41      For these reasons, I conclude that G. v. Ontario (Attorney General) was not decided per incuriam. I am therefore bound by that decision.

In the ever-evolving legal landscape of sexual assault cases, the ruling is something to keep in mind, particularly when contemplating resolution options and post-trial jeopardy.  


[1] Henry, para. 32.

[2] Henry, para. 33.

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