Standing up for informational privacy and evidence-based criminal law

This week, CCLA is appearing before the Supreme Court of Canada to defend robust protection of informational privacy and to highlight the need for criminal law based on sound evidence — not speculation and stigma.

The case, Ndhlovu v The Queen, is 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.

Before the Supreme Court, CCLA will advocate for a fulsome understanding of informational privacy. The SOIRA regime requires individuals to provide the state with up-to-date information about where they live, work, volunteer, and travel — on an ongoing basis, sometimes for life. If they travel anywhere for seven consecutive days, they must report their travel plans and destination. They are also subjected to unannounced, in-person police visits on an annual basis to verify their address. Contrary to arguments advanced by other parties in Ndhlovu, CCLA will argue that providing the state with such detailed information about one’s day-to-day life is not simply a minor inconvenience. Being subjected to extensive, long-term state monitoring squarely engages the individual’s privacy rights under section 7 of the Charter.

CCLA will also urge the Supreme Court to focus on solid evidence — not unfounded stereotypes about criminal behaviour — in its constitutional analysis. In Ndhlovu, the trial court was presented with evidence about risk, recidivism, and the effectiveness of the SOIRA regime in preventing and solving crimes. The Supreme Court must carefully consider this evidence when assessing whether broad, mandatory restrictions on Charter rights are justified.

To learn more, read our factum before the Supreme Court. CCLA is ably represented by Christine Mainville and Carly Peddle of Henein Hutchison LLP.

By: Laura Berger