2007 BCSC 1188internet R. v. S.(M.W.)

Before: The Honourable Madam Justice Bruce

Reasons for Judgment

Counsel for Attorney General:	M.S. Poulin
Counsel for Petitioner:	T.L. Robertson, Q.C. M.K. Gill
Date and Place of Trial/Hearing:	July 17, 2007
	Nanaimo, B.C.

INTRODUCTION

[1] This is an application by the petitioner for exemption from registration under the National Sex Offender Registry pursuant to s. 490.023 of the Criminal Code. The petitioner received a Notice of Obligation to Comply with the registration requirements of the Sex Offender Information Registration Act, S.C. 2004, c.10 (SOIRA) because at the time the Act came into force he was on parole and completing a four year sentence for two counts of indecent assault and seven counts of sexual assault. Although initially convicted on ten of twelve counts, the Court of Appeal quashed one count of sexual assault, but did not interfere with the sentence (R. v. S.(M.W.) 2004 BCCA 56).

[2] The test to be applied for an exemption from registration is described in s. 490.023 of the Code as follows:

The court shall make an exemption if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

BACKGROUND

[3] The crimes committed by the Petitioner occurred between 1977 and 1996 in the course of his practice as a physician in the small community of Campbell River. All of the complainants were the petitioner’s patients. In respect of seven of the nine counts the petitioner was convicted of sexual assault and indecent assault by sexualizing his medical examinations of female patients both when touching their breasts and performing vaginal examinations. Mr. Justice Vickers described these offences at para. 2 of the reasons for sentencing issued on November 30, 2001:

This is a case where a medical doctor, without the consent of his patients, sexualised medical examinations. These examinations included breast examinations and internal examinations of female patients. An examination that began for the benefit of an individual complainant was converted by him to a procedure that violated the sexual integrity of the individual complainants [for] the sole purpose of gratifying his sexual desires and appetite.

[4] The final count of sexual assault involved a finding that the petitioner had sexual intercourse with a female patient who was highly dependent upon him for emotional support. Mr. Justice Vickers concluded beyond a reasonable doubt that the petitioner violated a trust relationship and, accordingly, there was no consent to the sexual intercourse.

[5] The charges against the petitioner proceeded as follows. In 1994 a number of the petitioner’s female patients made complaints to the College of Physicians and Surgeons. In response to these complaints the college directed the petitioner to change the way he conducted pelvic examinations by ensuring a nurse was present throughout the examination. The petitioner retired from his medical practice in 1996 and, shortly thereafter, a number of the complainants reported his sexual misconduct to the police. Additional complainants came forward after the matter was advertised in the newspaper. In March 1997 the petitioner was arrested and released on bail pending trial. A judicial stay of proceedings was entered at the first trial due to misconduct by the Crown. The Attorney General appealed the judicial stay and it was quashed by the Court of Appeal. The second trial began in the summer of 2001 and sentence was imposed in November 2001. Mr. Justice Vickers commented during the sentencing that the petitioner showed no remorse and had little insight into the impact of his misconduct on the victims. However, he declined to order a DNA sample.

[6] The petitioner was granted bail pending appeal (R. v. S.(M.W.) 2001 BCCA 749). Rowles J.A. concluded that detention was not necessary for the protection of the public. The appeal was heard on November 3, 2003 and the Court of Appeal issued its judgment on February 9, 2004.

[7] The petitioner was committed to prison after the Court of Appeal’s judgment and assessed as a minimum security risk. He served the custodial portion of his sentence at William Head which is a minimum security facility. There were never any concerns with respect to his behaviour noted on the prison files.

[8] Between June 2004 and September 2004 the petitioner completed the CSC National Low Intensity Sex Offender program. This is a program for offenders who have an actuarially low risk for re-offending. A significant factor in the petitioner’s classification as a low risk for re-offending was the fact that he would never practice medicine again and there was no evidence of any victims outside of his medical practice.

[9] At the commencement of the sex offender program the petitioner was classified as having a medium level of motivation because he did not appear to appreciate the harm he had caused to the victims. The petitioner justified his actions stating that he was unaware his actions were inappropriate in any way and that he did not understand his conduct was predatory or manipulative in nature.

[10] From the outset of the program the petitioner acknowledged that he should not have had sexual intercourse with a patient; it violated the code of ethics, was contrary to his marriage vows, and took advantage of an emotionally vulnerable person. During the course of the program the petitioner gained insight into the harm caused to his victims and demonstrated remorse for the manner in which he conducted breast and pelvic examinations and for the harm he had caused by violating his wife’s trust. The petitioner, however, at no point acknowledged that he had any sexual intent when he carried out these examinations. The petitioner has consistently denied any misconduct or any criminal intent with respect the manner in which he carried out his pelvic and breast examinations.

[11] At the conclusion of the program in September 2004 the prison psychologist, Dr. Monkhouse, identified three risk factors for re-offending associated with the petitioner: interpersonal communication deficits, poor cognitive problem solving, and intimacy deficits. During the program the petitioner disclosed that for much of his life he had problems with low self esteem and poor interpersonal skills. To compensate, the petitioner communicated his feelings by touching and hugging people. This behaviour with patients overstepped appropriate boundaries and led to sexual contact. He rationalized having a sexual relationship with his patient believing she had consented and there was no harm if his wife did not know. The petitioner came to recognize this was self-centred and narcissistic based on a belief that he was helping the patient with her emotional problems.

[12] The petitioner disclosed during the program how his arrest, the trial, and his incarceration affected his attitude toward infidelity and loyalty to his wife. The program also changed his feelings toward the victims. The petitioner became very remorseful for the damage caused by his actions and expressed that he did not wish to victimize anyone else under any circumstances.

[13] In spite of the petitioner’s continuing assertion that he acted without any criminal intent in respect of the victims who complained about his pelvic and breast examinations, Dr. Monkhouse concluded he represented a very low risk for re-offending. At p. 5 of his final report dated September 21, 2004 Dr. Monkhouse come to the following conclusions concerning the petitioner’s risk for re-offending:

On an actuarial basis, as measured by the Static-99, Mr. [the petitioner] continues to present as a low risk. Offenders with similar scores have been found to sexually re-offend at a rate of 09% over 5 years, 13% over ten years, and 16% over fifteen years post-release. Mr. [the petitioner]’s score on the Stable 2000 also represents, dynamically, a low risk. In addition, his current score on the Acute-Dynamic portion of the SONAR (Sex Offender Need Assessment Rating) suggests continued low risk at this time. As has been the case since his offence, Mr. [the petitioner] presented as engaged and motivated during treatment and continues to demonstrate good insight and risk-management skills surrounding his risk factors [sic] sexual intercourse with his former patient. With respect to the offences related to his pelvic examination, he remains in denial, but recidivism risk appears essentially nil due to his retirement from medical practice.

[14] The petitioner began the CSC National Maintenance Sex Offender program in November 2004 pursuant to Dr. Monkhouse’s recommendation. The maintenance program is designed to help the inmate consolidate gains made during the Low Intensity Sex Offender program, to augment coping skills, and develop a self-management plan. Dr. Kuc, a prison psychologist in charge of the program, agreed that the petitioner was a low risk for re-offending.

[15] After completing the sex offender program the petitioner was granted escorted day releases based upon his low risk for re-offending. The parole officer’s report underlying the decision to approve the petitioner’s application referred to a number of factors warranting early release. These factors include the fact the petitioner had no prior criminal record, had been on bail for seven years without incident, had successfully completed the Low Intensity Sex Offender program and was doing well on the Sex Offender Maintenance program, had good community support from his family, had completed a carpentry and electrical program to support job applications in the construction field, and will never return to the practice of medicine.

[16] The same factors led to a decision to grant the petitioner day parole in February 2005. He graduated to full parole in June 2005 and returned to Campbell River to reside with his wife in the matrimonial home. Having exhausted his savings and RRSP monies on legal fees, the petitioner had to return to the work force at age 60. He did some house renovations, but primarily worked for his wife’s company and with his brother-in-law.

[17] Initially the petitioner was interviewed by a parole supervisor a minimum of four times per month. He also remained on the maintenance program and regularly reported to the local RCMP. No other special monitoring conditions were deemed necessary in the circumstances. The parole officer’s summary and recommendations are instructive in regard to the petitioner’s prospects for the future:

Mr. [the petitioner] has progressed through the correctional system appropriately by participating in his correctional treatment plan and preparing himself for reintegration. He has worked on new vocational skills and participated in sex offender programming. He does not have deep rooted criminal values or any previous criminal history. Mr. [the petitioner] has positive community support from his wife in Campbell River and she has informed the undersigned that friends and family are also very supportive of the offender. From his original arrest until his arrival at a federal institution there was a seven year period of which a number of those years the offender spent in the community without incident. As noted in Ms. Brown’s community strategy there is a concern with the offender’s continued denial of sexually assaulting some of his patients. He continues to state that they “misinterpreted” his actions. However, he will no longer be a medical practitioner and should not find himself in a similar position of trust over patients.

[18] At present the petitioner continues to reside with his wife in Campbell River and there have been no incidents during his parole. Dr. Fairweather, the petitioner’s supervising psychologist, recommended that he stop attending the Sex Offender Maintenance program and he was discharged in August 2006. A parole officer visits the petitioner once a month in Campbell River and his warrant expiry date is February 2008.

[19] Lastly, Dr. Tomita, a forensic psychiatrist, has provided a risk assessment report in respect of the petitioner dated March 1, 2007. Dr. Tomita interviewed the petitioner, reviewed his complete corrections file, and considered two earlier assessments by Dr. Eaves.

[20] At the time of the interview with Dr. Tomita, the petitioner was working for his wife’s company doing forestry engineering. He was spending a considerable amount of time working alone in the bush and really enjoying it. Dr. Tomita also noted the petitioner was under stress due to the illness of his father who resides in Calgary and because of the pending civil action arising out of the sexual assault convictions. The petitioner denied suffering from depression or anxiety and has not resorted to drugs or alcohol to deal with these stresses.

[21] Dr. Tomita recorded the petitioner’s fears about a requirement to register under SOIRA as follows:

Dr. [the petitioner] views the sex offender registry as essentially a “life sentence”. He notes that the conditions of SOIRA are the same as his current parole conditions. For example, he is required to report at all times where is living. If he decides to travel, he needs to report this to the police. In summary, a similar level of supervision and reporting responsibilities will continue indefinitely.

There is also a symbolic element to the SOIRA for Dr. [the petitioner]. He told me, “The main thing is I can never put the convictions behind me … if I’m on the registry, every time I want to go somewhere, it’s like a slap in the face.” He asserted that supervising and treating professionals have no concerns that he was going to re-offend, particularly as he had left the medical practice behind.

[22] Dr. Tomita concluded that the petitioner was a low to very low risk for re-offending. The most likely future risk would have been through a medical practice; however, the petitioner is no longer practicing medicine and thus this risk is not a factor. Dr. Tomita also concluded that the petitioner lacked the two main risk factors for sexual re-offending: high levels of anti-social features and sexual deviation. He opined that the negative family, community and financial consequences flowing from the petitioner’s offences continue to act as significant, re-offending inhibitors. Given the purpose of SOIRA is to help the police investigate crimes of a sexual nature, Dr. Tomita’s opinion is that the petitioner’s low risk for re-offending means there is “little utility in having him register”.

ARGUMENT

[23] The petitioner argues registration under SOIRA represents an onerous obligation that amounts to a significant violation of his privacy for the rest of his life. Due to the nature of the offences he committed, the petitioner must be on the registry for life or a minimum of twenty years if he is granted an exemption on review.

[24] The petitioner maintains the authorities support a conclusion that if the risk for re-offending is low there is no public interest served in requiring registration under SOIRA. The registration system is designed to help police locate suspects in sex crimes. It is not designed to inflict further punishment or to monitor an offender after his or her sentence is complete. Accordingly, the petitioner argues the interference with his privacy is grossly disproportionate to any public interest served by requiring registration.

[25] In support of his position, the petitioner relies upon P.S.C. v. British Columbia (Attorney General) 2007 BCSC 895, R. v. A.G.N. 2005 BCPC 582, R. v. Have 2005 ONCJ 27 (Ont. Ct. of Justice), R. v. J.P.V. 2007 BCPC, R. v. R.E.M. 2005 BCSC, and R. v. Smith 2007 ONCJ 174.

[26] While the petitioner relies on the overall ratio in P.S.C., he argues Mr. Justice Barrow’s conclusion that an applicant must show that he is particularly penalized by the SOIRA registration requirements over and above its general impact on every applicant for exemption is clearly wrong, not mandated by the legislation, and contrary to the earlier decision of Mr. Justice Romilly in R.E.M. As a consequence, the petitioner maintains the rule of stare decisis demands that R.E.M. be followed: Re: Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.).

[27] The Crown argues that R.E.M. has been discredited by the Court of Appeal in R. v. B.T.Y. 2006 BCCA 331 and, as a consequence, should not be followed. In particular, the Crown maintains B.T.Y. expressly overruled the notion that SOIRA is limited to predatory stranger sexual assaults. B.T.Y also established that “grossly disproportionate” means marked and obvious imbalance and is not established by the length of reporting alone. In light of this ruling by the Court of Appeal, the Crown argues P.S.C. should be followed based on the principle of stare decisis. P.S.C., argues the Crown, is correct in any event because it ensures exemptions from SOIRA are rare, which is consistent with the purpose of the legislation.

[28] The Crown maintains that risk for re-offending is a factor to consider but not the sole factor. The court must still assess whether the impact of the legislation on the petitioner is grossly disproportionate to the interests protected by requiring registration. In this case, the Crown argues the requirements of SOIRA are no more onerous for the petitioner than for any other applicant. Further, the Crown says the SOIRA requirements are no more intrusive than the parole conditions governing the petitioner and these are nominal. Lastly, the Crown argues the fact the petitioner continues to deny responsibility for the offences must be considered when balancing the risk for re-offending with the public interest.

RELEVANT LEGISLATION

[29] SOIRA and the companion amendments to the Criminal Code establish a National Sex Offender Registry and create a registration process applicable to persons convicted of sex related crimes described as “designated offences” in s. 490.011(1) of the Code. SOIRA applies both prospectively and retrospectively to persons serving sentences for certain designated offences at the time Act came into force on December 15, 2004.

[30] The onus rests with the applicant seeking an exemption to establish that the impact of imposing the obligation to register would be grossly disproportionate to the public interests achieved through the effective investigation of sex crimes by the provision of information to the registry (s. 490.012(4) of the Code). The test is the same for both prospective and retrospective applications of SOIRA, regardless of the nature of the offence or when it was committed, and the particular circumstances of the offender.

[31] Section 2(1) of SOIRA defines the purpose of the legislation as “to help police services investigate crime of a sexual nature” by requiring the registration of certain information relating to sex offenders. Section 2(2) describes the principles to be achieved in the administration of SOIRA as (1) protecting society through the effective investigation of crimes of a sexual nature by providing the police with rapid access to information about sex offenders; (2) collection of information on an ongoing basis to ensure it is current and reliable; (3) to protect the privacy of sex offenders and not hamper their rehabilitation and reintegration into the community by ensuring the information is only used where there are reasonable grounds to suspect the offence investigated is of a sexual nature and access to such information, its use, and disclosure is restricted.

[32] The obligations placed upon offenders who must register with SOIRA are the same regardless of their age and circumstances, their past history and the nature of the offence committed. The only difference is the number of years the offender must remain on the registry, which varies according to the maximum term of imprisonment for the offence they committed (s. 490.13 Code). Because the petitioner’s offences carried the possibility of a life sentence, if an exemption is not granted he will be required to remain on the registry for life unless a termination order is granted after the minimum wait period of twenty years (s. 490.015 of the Code).

[33] In British Columbia, the RCMP administers the SOIRA registration system. On December 15, 2004 the provincial government enacted Regulations under SOIRA to establish the registration centres. There are fifty-nine registration centres located in local RCMP detachments throughout the province and one registration centre administered by E Division of the RCMP which serves the entire province (P.S.C. at para. 13).

[34] The obligations imposed upon a registrant are described by Mr. Justice Barrow at paras. 14 and 15 of P.S.C.:

The Act prohibits sex offenders from leaving the country until they have reported (s. 4(4)); however, once they have reported for the first time, there is no restriction on them leaving the country or moving within the country. After the first reporting, offenders are only required to report annually unless they change their name [given or surname] or their place of residence [main or secondary] (s. 4.1), which triggers an additional obligation to report. Further, if they plan to be away from their residence for a period of at least 15 days, they must notify the applicable registration centre of that fact and provide their departure and return dates, and the addresses and telephone numbers of the places they will be staying during their absence. This information may be provided by registered mail or by telephone (SOIR Act, s. 6(2) and s. 2 of the Regulations).

The information required on reporting to a registration centre (other than in the case of an absence) is set out in s. 5. In general, registrants must provide their name, date of birth, and their height, weight and a description of any distinguishing physical marks. In addition, they must provide the address and telephone number of their residence [main and secondary], employment or school, and any volunteer organization in which they are involved. The person receiving this information may photograph the sex offender and “record any observable characteristic that may assist in identification” (s. 5(3)). Further, if there is a doubt about the identity of the person reporting, they may be required to provide fingerprints (s. 9(2)), but once their identity has been confirmed, those prints must be destroyed (s. 9(3)).

[35] In addition to the information described above, a registrant is required to disclose the number of every mobile telephone or pager in their possession. The registrant is also required to disclose the address and telephone number of every place he is employed without exception. Section 5(2) of the Act authorizes the person taking the information from the registrant to ask for particulars of the offence giving rise to the obligation to register.

[36] SOIRA builds into the registration system certain safeguards that are intended to ensure the confidentiality of the information recorded. SOIRA also places restrictions on the purposes for which police services may access the registry data banks. The police are only entitled to access the registry data banks where there are reasonable grounds to suspect a crime of a sexual nature has been committed (s. 16(2)).

[37] In addition, SOIRA grants certain rights to the registrant. The registrant must be provided with a copy of the information entered in the registry and s. 12 of the Act allows the registrant to ask for incorrect information to be corrected. If the offender is ultimately acquitted of the offence, receives a free pardon, or is granted an exemption under s. 490.023(2) of the Code, all the information in the registry relating to that offence and that offender is destroyed or permanently removed from the database.

DISCUSSION

[38] The test to be met by an applicant for an exemption from registration, described in s. 490.012(4) of the Code, has been interpreted on several occasions in the short time since its proclamation in December 2004. There are, however, three leading authorities from this province that must be considered.

[39] The first Supreme Court judgment tackling the interpretation and application of the test for an exemption is R.E.M. In this decision Mr. Justice Romilly relied heavily on the judgment of the Ontario Court of Justice in R. v. Have, [2005] O.J. No. 388, 2005 ONCJ 27 to provide some guidance with respect to the balancing of interests contemplated under s. 490.012(4) of the Code. In particular, subject to the general principle that convicted criminals have a reduced expectation of privacy, Mr. Justice Romilly appears to accept the conclusions in Have that the impact of registration is substantial for any offender, that there is a stigma attached to registration, and that registration may undermine treatment, rehabilitation and re-integration into the community. (at para. 64).

[40] In addition, Mr. Justice Romilly adopted three other general principles that find support in the Have judgment. First, the model for SOIRA is the predatory stranger offender who seeks out victims close to home or work. Second, the test for exemption should not be interpreted so narrowly that it is virtually impossible to attain. Third, it is in the public interest that the registry not be so inclusive as to encompass every no risk or low risk offender because to do so may dilute the resources and attention of the police from those who pose a genuine risk for re-offending.

[41] Lastly, Mr. Justice Romilly addressed the “grossly disproportionate” factor in the analysis by reference to authorities interpreting the Criminal Code provisions authorizing DNA samples. In doing so he adopted the following general principles:

1. If the circumstances of the particular offender or the offence or the risk of breach of privacy or security of the person varies markedly from the sort of cases Parliament may be presumed to have had in mind in devising the legislative scheme, the impact of registration may be grossly disproportionate. (R. v. Jordan (2002), 1 C.R. (6^th) 141 (N.S.C.A.) per Cromwell J.A.)

2. When assessing whether the impact of registration is grossly disproportionate to the public interests served, the court should consider the nature of the offence, the nature of the intrusion, the circumstances of the offender, and the impact of registration on the person’s privacy and security of the person. (Baron v. Canada (1993), 73 C.C.C. (3d) 510 (S.C.C.)).

[42] In May 2006 the Court of Appeal issued a judgment in B.T.Y which effectively discredited Mr. Justice Romilly’s conclusion that SOIRA was exclusively or even primarily modelled on the predatory stranger offender. In B.T.Y, the Court of Appeal overturned the decision of the trial judge granting an exemption to the offender based upon a finding that he was not a “predatory stranger” and thus not caught within the purpose of the legislation. Writing for the court, Rowles J.A. says at para. 39:

… the trial judge erred in concluding that the requirement for registration under SOIRA is restricted to stranger predators. As I have endeavoured to explain, the legislation does not create a category of sexual offender who is a stranger to the victim or to the victim’s family. Had Parliament intended to limit the scope of SOIRA registration to offenders who have committed offences against strangers, it could have easily done so through express language to that effect. By specifically including offences that can only be committed by parents or persons in positions of trust, it seems clear that Parliament intended registration under SOIRA to have broader application than the learned trial judge found in this case. By focusing the purpose of the legislation on a particular class of offender, the “predatory stranger”, the trial judge created a classification scheme that Parliament did not intend.

[43] Because B.T.Y addressed only this narrow issue, the other principles adopted in R.E.M. remain binding upon me as they are part of a considered judgment of another judge of this court: see, Hansard Spruce Mills Ltd. at p. 591.

[44] In June 2007 Mr. Justice Barrow issued his judgment in P.S.C., which not only upheld the constitutionality of SOIRA, but addressed the proper interpretation and application of the test for an exemption. Mr. Justice Barrow’s conclusions in that regard may be summarized as follows:

1. To the extent that Mr. Justice Romilly in R.E.M. meant that the only way the public interest may be served by registration is by requiring offenders convicted of predatory offences to register, his conclusion is overruled by the Court of Appeal in B.T.Y.

2. The risk posed by the offender for re-offending is a factor relevant to the public interest in requiring registration. Only indirectly is risk for re-offending possibly relevant to the impact of the requirement to register on an offender’s privacy or liberty interests.

3. The public interest in registration is not presumed to exist in every case. Instead, the court must determine whether there is a public interest in registering an offender on a case by case basis considering such factors as the individual circumstances of the offender, his offence, and the risk for re-offending. In coming to this conclusion, Mr. Justice Barrow rejected the Alberta Court of Appeal approach in R. v. Redhead, [2006] A.J. No. 273, 2006 ABCA 84 and adopted the reasoning of the Nova Scotia Court of Appeal in Jordan (P.S.C. at paras. 36-43).

4. The meaning of “grossly disproportionate” is confined to “marked and serious imbalance” or “marked and obvious imbalance” (P.S.C. at para. 44.

5. To the extent that the impact of registration on a particular offender is no different than the impact on any other offender, it cannot be a ground for an exemption. (P.S.C. at paras. 59 to 63).

[45] It is Mr. Justice Barrow’s conclusion described in sub-paragraph 5 above that is in dispute in this case. The Crown argues in favour of this restricted interpretation of the test for an exemption because Parliament intended to limit exemptions to the rare case. The petitioner argues this conclusion is contrary to the principles established in R.E.M. and clearly wrong. Nowhere in s. 490.023(2) of the Code is there such a limitation on the discretion of the court to grant an exemption from registration.

[46] The disputed reasoning in P.S.C is based upon three underlying factors. First, Parliament must have known that there would be an impact on the privacy and security rights of persons required to register under SOIRA. Second, if the court is required to consider the general impact of registration, and is not limited to additional impact on the particular offender, then virtually everyone would be entitled to an exemption order. Third, SOIRA has no substantial impact in general on an offender’s right to privacy, liberty, and security of the person particularly because an offender has a reduced expectation of privacy.

[47] To the extent that Mr. Justice Barrow’s reasoning is based upon a finding that SOIRA has no substantial impact on registrants in general, it is inconsistent with Mr. Justice Romilly’s conclusions in R.E.M. As outlined above, the general premise accepted in R.E.M., that SOIRA has a substantial impact on offenders who are required to register, was not overruled in B.T.Y.

[48] In regard to the first and second underlying factors, I take no issue with the statement that Parliament contemplated there would be an impact on the privacy rights of those persons required to register under SOIRA. However, I am unable to accept that virtually every exemption application would be granted if applicants were not required to prove the legislation had a greater impact on them than on registrants in general.

[49] With the greatest of respect, this conclusion ignores the other factors to be balanced in applying the test such as the offender’s risk for re-offending, the nature of the offence committed, and the extent to which the public interest in the proper investigation of sex crimes is served by requiring registration. Regardless of the impact on an offender, an exemption will not be granted where there is a demonstrated risk of re-offending and a corresponding public interest in protecting society through effective police investigation of sex crimes.

[50] Mr. Justice Barrow’s narrow interpretation of the test for an exemption also appears to conflict with the “case by case” analysis in respect of the public interest served by registration he adopted in preference to the approach taken by the Alberta Court of Appeal in Redhead. Based upon the narrow test articulated by Mr. Justice Barrow, whether or not there is a public interest served by requiring registration in any particular case becomes irrelevant if the offender is unable to prove that the SOIRA obligations have a greater impact on him than they have on all registrants generally. Ultimately, an offender could be required to register regardless of their criminal history, how serious the offence they committed, and how low their risk for re-offending. In my view, it was not the intention of Parliament to require registration in these circumstances where there is no public interest served at all. It must be emphasized that once a person is required to register under SOIRA the obligations imposed are identical regardless of the circumstances of the offence or the offender. Thus it is critical that these factors be given due weight and consideration when there is an application for exemption. Based on the interpretation of the test in P.S.C., however, these factors will be given no weight if the offender is unable to prove SOIRA has a special impact on him or her.

[51] This result is also clearly contrary to the principle expressly adopted by Mr. Justice Romilly in R.E.M.; that is, “…from a public interest point of view it is desirable that the registry not be so inclusive as to include so many low or no risk offenders as to dilute the resources and attention of the police from those who pose a genuine risk.” (at para. 74, quoting from Duncan J.’s judgment in Have).

[52] Finally, there is no language in s. 490.23(2) of the Code which supports the narrow interpretation of the test found in P.S.C. This provision requires the court to balance the impact of SOIRA on the offender against the public interests served to determine if there is a disproportionate impact in a particular case. There is no express or implied limitation on the exercise of discretion by the court that would restrict exemptions to cases where the offender proved a greater burden on him than on offenders generally.

[53] In summary, Mr. Justice Barrow’s conclusion that an offender seeking an exemption must show an impact greater than that experienced by registrants in general is contrary to the underlying reasoning in R.E.M., is not supported by the language of s. 490.23(2) of the Code, which places no such restriction on the court’s exercise of discretion, and is not a limitation necessary to achieve Parliament’s purposes in enacting SOIRA. Indeed, if s. 490.23(2) were narrowly interpreted in this manner, it may well make an application for exemption meaningless because it would be so difficult to obtain: (see comments by Duncan J. at para. 17 of Have).

[54] I thus decline to follow Mr. Justice Barrow’s judgment in P.S.C. in so far as it endorses this narrow application of the test set out in s. 490.23(2) of the Code. This conclusion, as outlined above, is contrary to the reasoning in R.E.M. which is binding on me.

APPLICATION OF THE TEST TO THE FACTS OF THIS CASE

[55] Applying the test in s. 490.23(2), I must consider (1) the impact of registration under SOIRA on the petitioner; (2) the extent to which the public interest in effective police investigation of sex crimes is served by requiring the petitioner to register; and (3) based upon the conclusions in (1) and (2), determine whether the impact on the petitioner is grossly disproportionate to the public interests at stake.

A. Impact on the Petitioner

[56] Acknowledging that a person convicted of a criminal offence has a reduced expectation of privacy in their identity, I remain satisfied that offenders registered under SOIRA are subjected to a relatively significant invasion of privacy, the stigma attached to the requirement to register, and the indignity of having to regularly report one’s whereabouts and activities for a very long time. In my view, the requirement to register underlines the fact that the registrants are sex offenders and set apart from other persons in the community and, indeed, other types of offenders. As the petitioner disclosed during his interview with Dr. Tomita, the psychological stigma of registration is that he will never be able to put the conviction behind him. When considering the impact of registration the court must consider these psychological consequences because of they may undermine the petitioner’s rehabilitation and his successful re-integration into the community.

[57] Further, as I concluded in A.G.N., the consequences of registration are potentially very serious. An offender will not only be exposed to a continuing requirement to disclose personal information about his life, but his whereabouts and his activities will be readily available to police services. Whether or not there are grounds to suspect the petitioner has committed a sex related crime, he may become involved in a police investigation solely because he is on the register. These consequences, in my view, are reasonably foreseeable and not merely speculative in nature.

[58] Further, the petitioner is particularly vulnerable to the misuse of confidential information by the police because he has returned to his home in the small community of Campbell River. The petitioner is attempting to re-integrate himself into society and, as far as possible, resume a normal lifestyle after many years on bail and in prison. Based upon the evidence before me, it appears that the community of Campbell River is adjusting to the petitioner’s return. Unlike the anonymity that comes with life in a large urban centre, however, a single careless use of confidential information by a police officer investigating a sex crime in Campbell River may well cause the petitioner and his family to be exposed to harmful and unwarranted publicity which, in turn, may destroy any progress he has made toward re-integration and a normal lifestyle.

[59] The petitioner’s circumstances also make him vulnerable to adverse consequences flowing from the requirement to disclose information about his employers. The petitioner’s entire working life was spent as a general medical practitioner. He retired from that profession in 1996 and, because of the crimes committed in connection with his practice, the petitioner will never again be allowed to work as a physician. The petitioner is now 63 years old and has exhausted his savings defending against the criminal charges. He also faces a civil action by the victims. Because of these circumstances, the petitioner is clearly in need of money to support himself and has been forced to find work outside his professional qualifications and experience to do so.

[60] To date the petitioner has been employed by family members. He worked for his wife’s company when first granted parole, he has done some home renovations, and is currently employed by his brother-in-law laying out logging roads. At some point, however, the petitioner may have to seek employment outside his family circle. If a prospective employer in the small community of Campbell River discovers the petitioner is a registered sex offender, this information will undoubtedly enhance the barriers to employment created by his age and his limited work experience outside the medical field.

[61] The petitioner’s age also aggravates the impact of a requirement to register. The minimum period he must remain registered is twenty years. After twenty years the petitioner may apply to terminate the order which is ostensibly in effect for life. However, the right to apply for termination is likely to be meaningless to the petitioner who, provided he is still living, will be 83 years old by that time. As the petitioner disclosed to Dr. Tomita, a requirement to register for him is essentially a life sentence that carries with it the same types of restrictions he now experiences while on parole.

B. Public Interest Served by Requiring the Petitioner to Register

[62] The main purpose of SOIRA is to advance public safety by improving the means by which the police investigate sex related crimes in their community. The registry identifies persons, who by reason of their past convictions, may be considered suspects in sex related crimes. The registry makes this information available quickly and with a nominal expenditure in terms of police resources. The information provided to the registry also assists the police to keep track of sex offenders living and working in the community. Lastly, an indirect purpose of SOIRA is the deterrent effect registration has on potential offenders.

[63] SOIRA is not designed to punish the offender. The constitutionality of the legislation has been upheld specifically on the ground that it is not punitive in nature. As Mr. Justice Barrow concluded at para. 117 of P.S.C., “Provided there is some rational connection between those required to register and the investigative purposes that registration serves, it cannot be said that the reach of the legislation is so divorced from its stated purpose that it is punitive in nature.”

[64] SOIRA is also not a monitoring instrument akin to the authority granted to the court in s. 810.2 of the Code, which allows the imposition of restrictive terms on an offender, without evidence of a new offence, where there is a demonstrated risk for re-offending. The information contained in the SOIRA registry may only be used by the police when they have reasonable grounds to suspect a sex related crime has been committed.

[65] Given the main purpose of SOIRA is to aid the police in the investigation of sex related crimes, whether there is a public interest served at all depends upon the offender’s risk for re-offending. If there is little or no risk for re-offending, there is little or no corresponding benefit achieved by registration because it is highly unlikely that such an offender could be a suspect in a sex related crime in the future. The risk for re-offending, and the level of risk tolerable without requiring registration, depends upon the circumstances of the offender, his past criminal record, and the nature and circumstances of the offence committed.

[66] Turning to the petitioner’s circumstances, it is acknowledged by every psychologist and psychiatrist who has counselled and evaluated the petitioner that he is a low to very low risk for re-offending on many levels. First, the petitioner had no criminal record until these offences. Second, the offences took place between 1977 and 1996 and since that time there have been no further incidents involving sex offences or any other crimes. Third, the petitioner was released on bail while awaiting trial and released on bail pending his appeal. While on bail for over seven years there was never any breach and no concerns raised by any bail supervisor. Fourth, the petitioner was classified as a minimum security risk while serving his sentence and was granted day parole and full parole at the earliest possible date. Fifth, while in prison the petitioner completed the Low Intensity Sex Offender program and was evaluated as being “engaged and motivated during treatment and demonstrated good insight into risk management skills”. Further, according to the clinical assessments, and the actuarial and statistical instruments used to measure the petitioner’s risk for re-offending during the program, he continued to be classified as a low to very low risk. Finally, Dr. Tomita notes that the negative family, community and financial consequences flowing from the petitioner’s criminal acts continue to act as a substantial deterrent thereby minimizing the risk for re-offending even further.

[67] The only concern raised by the prison psychologists is the petitioner’s denial of any sexual intent during his breast and pelvic examinations of the victims. While normally the fact an offender refuses to acknowledge responsibility for his misconduct signals a heightened risk for recidivism, the consistent conclusion of every professional who has assessed the petitioner is that he remains a low to very low risk notwithstanding the failure to accept responsibility for his crimes. The underlying rationale for this conclusion is that the only possible risk scenario for sexual re-offending is if the petitioner returned to his medical practice. Because the petitioner can no longer practice medicine, there is no opportunity for re-offending and therefore no risk. It is difficult to find fault in this assessment.

[68] Upon securing day parole in 2005, the petitioner participated in the CSC National Sex Offender Maintenance program. Throughout the program he continued to be assessed as a low risk and no concerns were raised by the three psychologists who led the program. The petitioner was discharged from the maintenance program in August 2006 on the basis that he was considered a very low risk for re-offending, had good family support, and did not need further treatment or counselling.

[69] Since returning home to Campbell River, the petitioner has adapted well to his new situation. He is coping with stress such as his father’s illness and the pending civil law suit filed by the victims. The petitioner’s wife continues to provide him with a stable, supportive relationship. He has found work and has not resorted to drugs or alcohol in response to the anxiety of re-integrating into the community. While there have been some chance encounters with the victims who still reside in Campbell River, the petitioner appears to have handled these situations appropriately. There have been no concerns raised by the petitioner’s supervising parole officer or the psychologist that treated him. Indeed, Dr. Tomita notes the psychologist kept in contact with the petitioner for administrative reasons rather than any demonstrated need for continued treatment.

[70] Addressing the offences committed by the petitioner, all of the victims were patients of his medical practice. Most of the sexual assaults took place during physical examinations and on two occasions the petitioner had sexual intercourse with a patient at her home. The petitioner’s crimes must be regarded as very serious. In particular, the crimes were aggravated because the petitioner breached the trust of his patients, took advantage of victims who were emotionally vulnerable and highly dependent upon him, and he continued to commit these sexual offences over a lengthy period of time. The victim impact statements filed during the petitioner’s sentencing disclosed that they suffered fear, shame and a loss of self respect after the incidents. Mr. Justice Vickers concluded there was “no doubt that Dr. [the petitioner]’s assaults upon them and on their personal integrity have had a profound impact on each of their lives.” (at para. 8).

[71] Where the offences are serious, as in this case, the offender must demonstrate that he or she is a very low risk of re-offending before the court can conclude there is little or no public interest served by requiring the offender to register under SOIRA. The level of risk that may be tolerated is very low because of the potentially severe consequences for victims of serious sex related crimes. Indeed, in the most serious of sex offences, the risk would have to be non-existent to warrant a conclusion that there could be no public benefit achieved in terms of improving the ability of the police to effectively investigate sex related crimes.

[72] Weighing all of the circumstances described above, I find the pubic interest served by registration in this particular case must be described as minimal to non-existent. The offences were restricted to the petitioner’s medical practice and he can never return to this work. The offences occurred over ten years ago and there have been no reoccurrences. The petitioner has been consistently assessed as a low to very low risk for re-offending from the outset. He has completed sex offender programs and come to an understanding of what led to his crimes. While he continues to deny any impropriety in his physical examination practice, there is no risk of re-offending attached to this lack of acknowledgment because the petitioner will never again be faced with an opportunity to offend in this manner. He has no criminal history apart from these offences and he spent over seven years on bail without incident. The petitioner is now progressing well in terms of his re-integration into the community and has a stable, loving and supportive relationship with his wife and his family. Dr. Tomita concluded there was no foreseeable, “plausible risk scenario in the future for the petitioner to re-offend outside of the practice of medicine, which will not occur.” (March 1, 2007 report at p. 9)

[73] The offences committed by the petitioner were serious and the consequences for the victims severe. Nevertheless, with a risk for re-offending that is almost non-existent, there appears to be very little benefit to the public in having the petitioner registered under SOIRA.

C. Is the Impact of Registration on the Petitioner Grossly Disproportionate to the Pubic Interest Served by Requiring him to Register?

[74] Balancing the factors outlined above, I find this is a proper case for an exemption. Registration will have a substantial impact on the petitioner’s privacy interests and, as described above, the SOIRA obligations are potentially more harmful for him than they are for all registrants in general. He has no prior criminal record and his risk for re-offending is very low for several, cogent reasons. Because the petitioner is a very low risk for re-offending, there is little or no corresponding public benefit served by registration.

[75] There is no doubt the petitioner has committed serous crimes and caused substantial harm to several victims. It is also true that he has not fully acknowledged responsibility for his criminal misconduct. Nevertheless, the petitioner has completed his sentence and the requirement to register under SOIRA cannot be used to punish him further for these crimes. There must be some reason for placing the petitioner on the SOIRA register that is related to the purposes of the legislation.

[76] In my view, the petitioner is not the type of person Parliament had in mind when it created the SOIRA registry. The impact of its requirements, in the case of the petitioner, is grossly disproportionate to the public benefit that might possibly be achieved in terms of the ability of the police to properly investigate crimes of a sexual nature. The petitioner is thus granted an exemption from registration under SOIRA pursuant to s. 490.23 of the Code.

“The Honourable Madam Justice Bruce”

September 6, 2007 – Revised Judgment

Corrigendum to the Reasons for Judgment issued advising that the name of counsel for the petitioner was inadvertently not listed and has added M.K. Gill for the Petitioner.

September 13, 2007 – Revised Judgment

The name of the Petitioner has been replaced with initials throughout the decision for publication purposes.

Citation:	*R. v. S. (M.W.),*
	2007 BCSC 1188