A Victory at the Supreme Court for Evidence-Based Criminal Law

On October 28 the Supreme Court released its decision in R. v. Ndhlovu. The decision is a resounding affirmation of the constitutional protection of individual liberty and the need for criminal law to be based on sound social science evidence — not speculation and stigma.

The case was a constitutional challenge to provisions that require mandatory registration and lifetime reporting under the Sex Offender Information Registration Act (SOIRA). In 2011, judges were stripped of their discretion to decide whether requiring someone to register and report is unnecessary, in situations where the individual poses little risk of reoffending. Moreover, individuals are automatically subject to lifetime SOIRA registration if they are convicted of more than one designated offence — again, regardless of whether a judge concludes they pose any risk of reoffending.

CCLA intervened int he case, and urged the Supreme Court to focus on solid evidence — not unfounded stereotypes about criminal behaviour — when analyzing the constitutionality of these provisions. In Ndhlovu, the trial court was presented with evidence about risk, recidivism, and the effectiveness of the SOIRA regime in preventing and solving crimes. It showed that there was no evidence that the individuals being targeted by this regime were at an increased risk of recidivism.

The Supreme Court found that the federal sex offender registry constituted a significant restriction on individuals’ liberty. The targeted provisions were over broad because the evidence did not show that all individuals who were automatically subject to these regimes were necessarily more likely to commit crimes in the future.

To learn more, read our factum before the Supreme Court.

You can read the Supreme Court’s decision here.

CCLA was ably represented by Christine Mainville and Carly Peddle of Henein Hutchison LLP.