Appeal Watch: Eugene Ndhlovu v. Her Majesty the Queen
On February 8th 2022, the Supreme Court of Canada (“SCC”) heard Eugene Ndhlovu v. Her Majesty the Queen, an appeal from the Alberta Court of Appeal (“ABCA”) (R v Ndhlovu, 2020 ABCA 307) [Ndhlovu]. Ndhlovu asked the Court to decide whether the Sex Offender Information Registration Act (S.C. 2004, c. 10) [SOIRA] is constitutionally valid. According to Mr. Ndhlovu, SOIRA is overbroad and grossly disproportionate. Not only will the SCC’s decision be impactful on SOIRA, but it will also be interesting to see if the Court takes the opportunity to dispel further sexual assault myths and stereotypes that continue to appear in lower court jurisprudence.
Stereotypes & the Sex Offenders Information Registration Act
In 2015, Eugene Ndhlovu was convicted of two counts under s. 271 of the Criminal Code, RSC 1985, c C-46 [Criminal Code] for assaulting two women at a party in 2011. The appellant was 19 years old at the time and was invited to the party by the complainant, a high-school peer and the party’s host. Ndhlovu pled guilty for this conduct in 2015 and was sentenced to six months imprisonment followed by three months in probation. The trial judge held that Mr. Ndhlovu was “unlikely to reoffend” and was “safe to return to the community” (Ndhlovu, para 11). The trial judge took into account the nature of the party, which she believed might have given the appellant the “wrong impression” (Ndhlovu, para 11). Particularly, the trial judge appeared to have taken issue with the fact that the party was what she deemed “sexual in nature” because it was a “Jersey Shore DTF party” that would have a “stripper pole available” (Ndhlovu, para 8).
As for the crime itself, Mr. Ndhlovu was found to have groped two women during the party without their consent. The trial judge deemed this a “minor” infraction (Ndhlovu, para 11). Furthermore, at the end of the party, Mr. Ndhlovu was found to have digitally penetrated the complainant while she was sleeping (Ndhlovu, para 154). When she woke up to Mr. Ndhlovu’s conduct, she immediately told him to stop and leave at once. Mr. Ndhlovu attempted to change her mind before ultimately leaving (Ndhlovu, para 154). The trial judge reasoned that since the complainant had invited the appellant to this “sexualized” party and suggested that the appellant could stay the night, she potentially led the appellant on (Ndhlovu, para 11). The trial judge found these to be mitigating factors contributing to a lesser sentence.
It is unclear how the trial judge could think it was reasonable to discount non-consensual touching and penetration because of the alleged nature of the party. This is especially shocking given the recent Ontario Court of Appeal case R v J.C, 2021 ONCA 13, which cautioned the rule against forbidden ungrounded common-sense assumptions and the rule against stereotypical inferences. Both these rules were violated by the trial judge’s accusatory statement that was not based on any evidence. While the appellant was nonetheless found guilty, it would be remiss not to note how harmful such comments are. These comments signify to potential complainants that they will have to bear the judgement of the court in assessing how much they are at fault for the assault. Put differently, the trial judge implicitly blamed the complainant.
The SOIRA Provisions
Although the appellant was found guilty of two sexual assaults stemming from the party, the sentencing judge found that s.490.012 and s.490.013(2.1) of the Criminal Code was of no force and effect because it was overly broad and grossly disproportionate (Ndhlovu, para 154). Section 490.12 of the Criminal Code states:
“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.”
The applicable period set out in s. 4901.013 holds:
(2) An order made under subsection 490.012(1) or (2)
(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment for the offence is life.
The SOIRA provisions require individuals convicted of more than one sexual offence to register as a sex offender, resulting in the individual having to frequently report to the police. Prior to 2011, judges could decide whether they thought adding the convicted to the sex offender registry was necessary (Ndhlovu, para 25). Judicial discretion was afforded where there was seen to be little risk to the public given the nature of the offence or based on the judge’s belief that the accused would not reoffend.
Mr. Ndhlovu argued that because registration is mandatory—with no room for judicial discretion—it violated s.7 of the Charter of Rights and Freedoms [Charter]. Section 7 protects one’s life, liberty and security of person. If the provisions are found to violate s.7, the court must decide whether the violation can be saved under s.1 of the Charter. Section 1 of the Charter holds that rights can be limited by law as long as they are found to be reasonable.
The trial judge was also tasked with examining whether the provisions run contrary to the principles of fundamental justice (Canada (Attorney General) v Bedford, 2013 SCC 72). The trial judge found that there was a clear connection between the provisions and the purpose of keeping track of the activities and whereabouts of sex offenders (Ndhlovu, 42). As such, arbitrariness was not at issue and the focus of the analysis should remain on whether the law was overly broad or disproportionate.
According to the trial judge, the SOIRA requirements placed too much undue hardship on the appellant and expectations of the appellant under SOIRA were “significant” (Ndhlovu, para 14). The trial judge found that the internal stigma and the random compliance test would go “further than what is necessary to accomplish the goal of protecting the public” (Ndhlovu, para 13). This characterization is a matter of perspective since under s.490.013(2.1), the length of time an offender stays on the registry is based on the sentence imposed (Ndhlovu, para 30). For example, for someone charged with a summary offence (no jail time) the offender would face 10 years of SOIRA registry versus someone who received the maximum amount of imprisonment would be on the registry for life (Ndhlovu, para 30).
At the ABCA, the court disagreed that SOIRA violated s.7 of the Charter. The purpose of SOIRA is to capture anyone deemed to have committed two or more sexual offences. Mr. Ndhlovu committed two or more sexual offences, regardless of how “minor” they may be. Further, the ABCA used the trial judge’s words to prove exactly why judicial discretion should not exist in this instance—for fear that judges may make unsupported judgements around whether or not the harm was minimal (Ndhlovu, para 79). Digital penetration of a sleeping woman is not minimal (Ndhlovu, para 79). The fact that this is something that could be conceivably debatable is extremely concerning..
The “Wrong Idea” with Judicial Discretion
In R v Seaboyer; R v Gayme,  2 S.C.R. 577 [Seaboyer], the SCC cautioned against the “twin myths” in sexual assault cases. The twin myths are the inferences made in relation to a woman’s sexual history, whereby an accuser is more likely to have consented to alleged sexual assault and/or less worthy of belief (Seaboyer, 584). Seaboyer held that the myths have “no place in a rational and just system of law” (Seaboyer, 583). In this case, the trial judge’s assertion that the theme of the party might have given the appellant the “wrong idea” is an extension of the twin myths. Rather than relying on the complainant’s sexual history, the trial judge relied on the complainant’s general activity. The trial judge seems to suggest that because the complainant was the type of person to host a “sexualized party,” she was also the type of person to want (or implicitly consent) to being digitally penetrated while asleep. To say that because someone was at a specific location at a particular time or was wearing a certain outfit, is not a reason minimize the harm committed against them.
The trial judge stressed that putting the accused on the SOIRA list, even though he is “unlikely to offend again” could cause prolonged and unnecessary internal stigma. One must ask what ‘internal stigma’ the complainant may experience given the trial judge has implied they are partly at fault. The idea that an accused may be guilty of sexual assault that is “minimal enough” to be outside the SOIRA scope is problematic because it means survivors of assault must not only prove that they experienced the assault, but there must be a certain threshold of “seriousness” that legitimizes why an accused should be included on the SOIRA registry. Again, one can only attempt to comprehend the internalized stigma that this threshold requirement would put on complainants.
The SCC has another chance to set the record straight and discourage lower courts from relying on stereotypical and prejudiced reasoning. As the ABCA posited, judicial discretion does not always have positive implications. As with the case at bar, judicial discretion impacted the way the complainant was characterized. While judges must pursue justice, one must ask whether judges should also have the authority to determine whether a sexual assault was “severe enough” to merit an offenders inclusion on the sex-offender registry. The trial judge paid great attention to the negative impacts of prolonged stigma on the appellant, but no attention was paid to the lifelong stigma the complainant may face.
The SCC is encouraged to look at the stigma faced not only by the accused, but also by the complainant if the SOIRA scheme is found to be overly broad and grossly disproportionate. In this case, while the accused’s SOIRA registration will terminate in a defined amount of time (i.e. 10 years), it would be meaningful for the SCC to make note of the lifelong impact that this experience might have on the complainant and how this squares with the experience of the offender. What are the impacts on a complainant by being told that in the grand scheme of things, their assault was “minimal” or that they are partly at fault? The implications of granting judicial discretion are not only on the accused but also fall on the complainant. The SCC should proceed with care.