Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Ndhlovu, 2022 SCC 38, October 28, 2022, the accused was convicted of two counts of sexual assault against two complainants.  The sentencing judge imposed a period of imprisonment and issued the mandatory lifetime national sex offender registry registration order, pursuant to section 490.012(1) and 490.013(2.1) of the Criminal Code. Section 490.012 requires that a registration order be issued for designated sexual offences and section 490.013(2.1) requires that a lifetime registration order be issued for offenders convicted of more than one designated offence.

The Supreme Court of Canada held that sections 490.012 and 490.013(2.1) of the Criminal Code infringe s. 7 of the Charter, and cannot be saved by s. 1. They declared both provisions to be of no force or effect. However, they suspended the declaration in respect of section 490.012 for one year. As regards section 490.013(2.1), the Supreme Court made the declaration immediate retroactive.

In making this distinction between the declarations of invalidity, the Supreme Court concluded as follows (at paragraphs 140 and 142):

Section 490.12:

A declaration of invalidity is presumed to operate retroactively (R. v. Albashir, 2021 SCC 48, at paras. 34 and 38). However, in this case, a retroactive application of the declaration at the conclusion of the suspension could frustrate the compelling public interests that require a period of transition, creating uncertainty and removing the protection that justifies the suspension in the first place (paras. 46, 52 and 72). Specifically, a retroactive declaration would undermine the purpose of the suspension (i.e., ensuring high-risk offenders are registered on SOIRA for public safety). Moreover, a prospective declaration of invalidity would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated. Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012.

Section 490.13(2.1):

With respect to lifetime registration, the Crown conceded a suspension would not be appropriate. We agree: an immediate declaration is appropriate given those offenders will remain registered and there is no “gap” for Parliament to fill. As a result, the existing provisions that dictate a length of registration will operate, pending any new constitutional provision that would target offenders who commit more than one offence. For instance, those convicted of offences with a maximum term of imprisonment of 2 to 5 years will receive a 10-year registration order, while those convicted of an offence with a maximum term of imprisonment of 10 to 14 years would receive a 20-year registration order (s. 490.013(2)). Here, there is no compelling reason to rebut the presumption of retroactive application of the declaration of invalidity. Section 490.013(2.1) is therefore declared invalid. Because the declaration affects all those impacted by the enactment of the provision since 2011, offenders who are subject to a lifetime order pursuant to this provision after having been convicted of more than one sexual offence without an intervening conviction can seek a s. 24(1) remedy to change the length of their registration.