Context

1. R. v. Ndhlovu, 2022 SCC 38

On October 28, 2022, the SCC in R. v. Ndhlovu struck down two Criminal Code provisions relating to the NSOR. Specifically, the Court struck down mandatory registration on the NSOR (former section 490.012) and lifetime registration of individuals convicted of more than one designated offence in the same proceeding (former subsection 490.013(2.1)).

The SCC found that the provisions violated the right to life, liberty and security of the person as protected by section 7 of the Canadian Charter of Rights and Freedoms (Charter). The Court held that these provisions deprived these offenders of their section 7 right to liberty in a way that did not comply with the principles of fundamental justice, in particular overbreadth. Specifically, the Court held that requiring automatic registration for individuals who are not at an increased risk of reoffending had no connection with the objective of helping police prevent or investigate sexual crimes and was therefore unconstitutionally overbroad. The Court also struck down the mandatory lifetime registration provision in subsection 490.013(2.1). The Court found that this provision was also unconstitutionally overbroad because it could capture circumstances where the multiple offences were not associated with a higher risk of reoffending.

The SCC gave Parliament one year, until October 28, 2023, to respond to the issue of mandatory registration and struck down the mandatory lifetime provision immediately and retroactively.