CTP v. British Columbia (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.T.P. v. British Columbia (Attorney General), 2025 BCSC 808 Date: 20250430 Docket: 232656 Registry: Victoria Between: C.T.P. Petitioner And: Attorney General for British Columbia Respondent Before: The Honourable Mr. Justice A. Saunders Reasons for Judgment Counsel for the Petitioner: E. Purtzki Counsel for the Respondent: L. Ruzicka, K.C. M. Feldthusen Place and Date of Hearing: Further Written Submissions Received: Victoria, B.C. January 12 and March 12, 2024 September 13, 2024 Place and Date of Judgment: Victoria, B.C. April 30, 2025 [1] The petitioner applies for a remedy under s. 24(1) of the Charter of Rights and Freedoms: either terminating her lifetime obligation to comply with the Sex Offender Information Registry Act, S.C. 2004, c. 10 [SOIRA]; or, alternatively, reducing the length of her SOIRA order to ten years. [2] On November 24, 2021 the petitioner was convicted by a judge of the Provincial Court of British Columbia of sexual offences. She was sentenced on September 14, 2022. In addition to being sentenced to a penitentiary term, by reason of having been convicted of three designated offences she became subject to a mandatory lifetime order under SOIRA. At the time of sentencing, s. 490.012(1) of the Criminal Code mandated the imposition of a SOIRA order; s. 490.013(2.1) mandated a lifetime order, in view of the number of convictions. [3] Approximately six weeks after the petitioner was sentenced, on October 28, 2022 the Supreme Court of Canada, in R. v. Ndhlovu, 2022 SCC 38, found those two provisions of the Criminal Code were overbroad and violated s. 7 of the Charter, and were not saved by s.

1. Section 490.012 was found by the majority to be overbroad because it would lead to the registration of offenders who were not demonstrably at risk of committing a future sex offence. Section 490.013 was unanimously found to be overbroad because the commission of more than one sexual offence without a conviction intervening between the offences was not demonstrated to increase the risk of recidivism, so as to justify lifetime registration. [4] With respect to s. 490.012(1) mandatory orders, the Court suspended the declaration of invalidity for a period of 12 months, but held that offenders who had become registered under SOIRA would still have the ability, during the period of transition, to seek a personal remedy of removal from the registry pursuant to s. 24(1) of the Charter if they were able "to demonstrate that SOIRA's impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012" (para. 140). With respect to s. 490.013(2.1) lifetime orders, the Crown conceded that a suspension would be unnecessary, as registered offenders would remain registered and there would be no "gap" for Parliament to fill; offenders who had become subject to a lifetime order after having been convicted of more than one sexual offence without an intervening conviction could also seek a s. 24(1) remedy to change the length of their registration to 10 or 20

years, as provided for in s. 490.013(2) (para. 142). [5] The within petition was filed on August 2, 2023. [6] Initially, the respondent's position was that the petitioner was entitled to a reduction in the duration of her SOIRA order, but that the order should not be terminated, as a 10-year order would not breach the petitioner's s. 7 Charter rights. [7] However, before this petition was heard, on October 26, 2023 - only two days after the respondent filed its written submissions - Bill S-12, An Act to amend the Criminal Code, the Sex Offender Registration Act, and the International Transfer of Offenders Act, S.C. 2023, c. 28, came into force. Bill S-12 instituted the new ss. 490.04 and 490.05 of the Criminal Code, specifying the terms under which persons subject to a SOIRA order could apply for exemption or variation. [8] Under the new legislation, there are factors to be considered by the Court on an application that were not discussed in Ndhlovu. The petitioner submits that her application should not be bound by those requirements. She says that the new legislation was not intended by Parliament to be the exclusive means of obtaining a variation or exemption order; the statute is permissive, stating that a person subject to a SOIRA order may apply. As the violation of the petitioner's Charter rights identified in Ndhlovu is ongoing, the petitioner submits she ought still to be afforded the right to obtain a free-standing, personal Charter remedy, as Ndhlovu contemplates. [9] At the time this petition was heard, there was no case law commenting on the temporal effect of the Bill S-12 provisions. However, on July 27, 2024 the Court of Appeal of Alberta issued its decision in R. v. Lepki, 2024 ABCA 257, leave to appeal to the SCC ref'd, [2025] S.C.C.A. No.

1. In that case, the appellants had been convicted of designated sexual offences. They were sentenced in February 2023, when the Ndhlovu declaration of invalidity was still suspended. The sentencing judge had held that given the suspension, he lacked jurisdiction to grant constitutional exemptions from s. 490.012, and he issued SOIRA orders for each defendant. The Court of Appeal found the sentencing judge had erred, both in conflating the question of whether a s. 24(1) remedy was available with Ndhlovu's analysis of whether s. 490.012 should be read down, rather than declared invalid, and in misinterpreting the breadth of the remedy granted in Ndhlovu. [10] Having found that the sentencing judge did have authority to grant constitutional exemptions, the Court of Appeal was then obliged to consider whether the newly-enacted provisions of ss. 490.04 and 490.05 would apply, notwithstanding those provisions not having been in effect when the appeals were filed. The Court held: [43] Legislation that changes substantive rights is presumed to apply prospectively and operates retrospectively only if that is clearly intended: R v Dineley, 2012 SCC 58 at para 10. Section 490.04 does affect substantive rights. It grants offenders subjected to SOIRA orders under the old s 490.012 between April 15, 2011 and October 25, 2023 a statutory right to request an exemption that they did not have

before. Applied to the appellants, it would replace their right to request a constitutional exemption with a right to request a statutory exemption. [44] Section 490.04 is clearly intended to apply retrospectively. That is its whole point. It confers a statutory right on those subjected to SOIRA orders before it came into effect. Despite this clear intention, the appellants say that s 490.04 does not apply retrospectively to them because it does not specify that it applies to people "already in the system". They submit that people "in the system" are entitled to have their cases adjudicated under the law in force when they launched the appeals unless the new legislation explicitly states that it governs them. [49] The retrospective effect of legislation, including on those with extant appeals, depends on legislative intent: Rollocks at 454, footnote 1; Heydari at paras 21, 25. As noted, it is presumed that legislation affecting substantive rights does not apply retrospectively unless there is a clear indication otherwise: Dineley at para 10; Imperial Tobacco at para 71. [50] No authority was given for the proposition that legislation applies retrospectively to those "in the system" only if it mentions them specifically. In fact, the authority goes the opposite way - if legislation evinces a clear intention to apply retrospectively, it changes the position of those with existing

appeals and lawsuits even though it does not refer to them: CNG Producing Co v Alberta (Provincial Treasurer), 2002 ABCA 207 at paras 44-47; Régie des rentes du Québec v Canada Bread Company Ltd., 2013 SCC 46 at paras 53-54; Finlay v Alberta Pharmaceutical Association, 2000 ABCA 119 at para 29. [51] Parliament's intention for s 490.04 to change the legal situation of those subjected to SOIRA orders between April 15, 2011 and October 25, 2023 is transparent. Its application to the appellants did not require specific mention of people "in the system" at the time it came into force. [11] I agree with this analysis. The provisions of Bill S-12 manifestly reflect Parliament's intent as to how to address the Charter violations identified in Ndhlovu. [12] The petitioner says that the Bill S-12 provisions would, on an application, restrict her Charter rights by placing her under an onus not provided for in Ndhlovu: that is, to establish to the satisfaction of the Court that she meets the exemption criteria specified under the new ss. 490.04(5) and 490.05(4). However, in correcting the unconstitutional effects of a law that has been declared by a court to be of no force or effect, Parliament may enact a different model than that contemplated by the Court. As was said by the majority in R. v. Mills, [1999] 3 SCR 668: 55 The respondent and several supporting interveners argue that Bill

C-46 is unconstitutional to the extent that it establishes a regime for production that differs from or is inconsistent with that established by the majority in O'Connor. However, it does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament's law is unconstitutional. Parliament may build on the Court's decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court's rulings, so the Court must respect Parliament's determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy: Vriend [v. Alberta, [1998] 1 S.C.R. 493]. [13] Sections 490.04 and 490.05 provide a remedy. The constitutionality of that remedy is not challenged before me. With the new legislation having come into force, there is no longer any room for a parallel process of courts granting personal Charter remedies; any such parallel process would clearly subvert Parliament's intent. [14] The petition is dismissed. [15] Lastly, counsel asked that I address in this decision the question of whether this petition would have been properly brought as a criminal rather than as a civil matter. I was advised the petitioner had initially attempted to file the petition in the criminal registry, but had been refused and was directed, as the proceeding was a petition, to file in the civil registry, and did so. Counsel noted the guidance provided by Groberman J.A. in R. v. M.P.S., 2014 BCCA 338, at para.

31. Without commenting on the applicability of either decision, I wish to draw counsel's attention also to Holland v. British Columbia (Attorney General), 2020 BCCA 304, at para. 25. [16] Counsel expressed their concern that the characterization of this petition as civil rather than criminal could have consequences in respect of any appeal: whether an appeal is available, and what the appeal process would be. I am mindful of this concern, and I am advised that the Victoria Criminal Registry and Supreme Court Scheduling have been reminded of the availability of originating applications by way of petition as a procedure to be followed in certain criminal matters. However, I decline the opportunity to address this specific issue in my Reasons. Respectfully, the questions of how the present matter is best characterized for the purposes of appeal, and whether the filing as a civil matter in this Court has any consequences regarding appeal procedure, are properly matters for the Court of Appeal to address. "A. Saunders, J."