A decision by the Supreme Court of Canada to remove mandatory placement on the sex offender registry for certain offences is welcome news to Calgary defense lawyer Alain Hepner Q.C..Amendments introduced by the Harper government in 2011 mandated those with two sex offenses would be automatically placed on Canada's sex offender registry for life. However, the Supreme Court of Canada (SCC) ruled the legislation to unduly curtail the constitutional rights of some offenders who are not a risk to reoffend..In an interview with Western Standard, Hepner welcomed the decision, which he says corrected a “travesty” and an “enormous intrusion” on offenders’ privacy, which in some cases he did not believe was deserved..He said this was already recognized in the justice system and sometimes the justice system accommodated leniency to keep an offender off the registry as the law would have required..“You see things that appear to be an injustice, that we have to work around what the legislation tells us to do,” Hepner said..“There were prosecutors that were very even-handed and balanced who saw their file as not egregious, who had some sympathy for a first offender who was in his 50s or 60s or in that age range who'd never been before the criminal justice system before, probably a businessman with a family and did something he would not have. The Crown, they were content to work around those issues. Not all.”.Hepner, whose practice of more than 40 years has seen him defend clients in all four western provinces, says judges have not always kept clients off the registry even when legislation did not require it..“I had a client who was convicted of a much more serious offense [than Ndhlovu]. But, he couldn't get a job, he couldn't get credit. He couldn't ... had problems with driver's licenses, he came to see me doing everything we could to try to get his name off, there was no way,” Hepner recalled..Other times, Hepner was able to gain what his client sought..“I've been successful in having an individual removed from the sex offender registry for valid reasons. I've had to make an application and not that long ago did so on a summary conviction matter. But he had spent seven or eight years on the sex offender registry and had trouble going back to the UK to visit an ailing mother..“And the judge agreed, and the Crown just took the party line. And really the Crown was very good about it, because I think many of the prosecutors really saw the injustice of it. We're not talking about a horrible rape case where a guy violates an 18-year-old or 17-year-old high school student, and it's a horrible thing and any father of daughters would be appalled by the act.”.The constitutional challenge was led by Eugene Ndhlovu, who committed two sexual assaults at a party when he was 19 years old. The complainant was a high school friend who hosted the party and invited him. According to court documents, the complainant admitted the party might have given the “wrong impression” because it was “sexual in nature” as a “Jersey Shore DTF party” that had a “stripper pole available.”.Hepner says the example of Ndhlovu suggests what kind of offenders might not be added to the registry in the future, at least until new federal legislation brings more specifics. He also expects to be “inundated with calls from clients” currently on the sex offender registry asking him to apply for their names to be removed..“The assault cases on it are on a spectrum, as we all see in criminal defense work. I have described an egregious sexual act where the offense is the girl meets man in bar. And she has second thoughts. She says no, but he forces her to have sex, and it's horrible from her point of view. Victim impact statements are very sensitive and speak to the effect that it's had on her.".“Those might be ones where a judge may say, ‘I'm not sure, but I think that given the way the law is right now, the law's got to settle down.’ We've got to see how it shakes out and what amendments are made by the government within next year.”.Hepner said sexual assault cases have become “voluminous” and he understands the public has no sympathy for offenders. He says being a father of daughters does not make him more sympathetic to offenders either. However, he says the justice system needs “some wiggle room” and that judges are in the best position to offer the right verdict and penalty..“I appreciate the public sentiment, especially if one's daughter has been the victim of a sexual assault or neighbor or niece. I'm sympathetic to that because I see it and I hear it. And I defend it, and I argue it. Having said that, there's a gatekeeper function by the courts. And sometimes I wish the public had a bit more confidence in the courts, because I do. I do because I'm there every day. I see it daily, I see how the judges react,” Hepner said..“There's a gatekeeper function by the trial judge, the sentencing judge, the hearing judge, in conjunction with submissions by defense and crown, to make that determination, not to be hamstrung by legislation that, in my view, has created a disservice and unfairness, and in some cases, a travesty to an individual's life.”
