By Michael Friscolanti
The perpetrator’s name is shielded by a publication ban, a measure put in place to protect the identity of his victim. Only his initials — J.M.S. — can be printed here.
Twelve years ago, J.M.S. pleaded guilty to sexually assaulting a teenage girl in British Columbia. As the judge said, he “groomed” his target (the daughter of his then-girlfriend) and committed a “serious” crime that “involved full assaultive behaviour.” The teen trusted him, and he preyed on that trust.
J.M.S. was sentenced to two years in prison plus three years of probation, and when the federal government launched the national sex offender registry in 2004, he was required to comply. Like everyone else listed on the RCMP database, J.M.S. was ordered to check in once a year with his local police department and provide his address, phone number and employer. At any moment, an officer had the authority to knock on his door to make sure he was actually living there.
Today, J.M.S. is a free man, one of the few registered sex offenders who have quietly managed to erase their names from a list that includes such odious entries as ex-colonel _____, ex-bishop _____, and ex-Saint John, N.B., city councillor _____. In fact, only 10 other people—out of 33,137 pedophiles, rapists and child pornographers currently listed on the database—have convinced a judge to approve an early “termination order.” It is such a rarity that J.M.S.’s application, heard in March, is the only published ruling of its kind. (Because the registry is private, the Mounties will not disclose any details about the other 10 terminations, except to say that seven were granted in Western Canada while the remaining three were issued in Central Canada.)
“He does not come to the court as an angry, resentful person, which is very interesting,” said Madam Justice Deirdre Pothecary, the Port Coquitlam judge who deleted J.M.S.’s name (whatever it is). “I get the strong impression from him that he is grateful for what he has learned. However difficult and challenging the experience was, it turned his life around in a very, very good way.”
Now nine years old, the national sex offender registry is itself a work in progress, to put it gently. Unveiled as a high-tech policing tool, it was designed to help investigators pinpoint potential suspects by churning out the names of all convicted sex offenders living near a crime scene. But as Maclean’s revealed in 2008, the system was a dysfunctional mess. Hundreds of offenders were missing, thousands more were never registered in the first place because inclusion wasn’t mandatory, and the computer system was so archaic—and so handcuffed by weak legislation—that it couldn't record the most basic fact of all: When is Joe Offender scheduled for his next check-in? Some police forces actually used a Rolodex to monitor compliance.
The Maclean’s investigation (described in one RCMP briefing note as “a highly critical article” that could finally “encourage the government to make some of the legislative amendments that have been sought”) did trigger political action. In 2011, the Criminal Code was amended to include mandatory registration, increased information sharing among partner agencies, and other common-sense upgrades. Offenders’ licence plates, for example, are now recorded on the registry.
But as Stephen Harper’s Conservatives contemplate more tweaks to the system—including making portions of the registry public, as the Prime Minister suggested during a September speech—the story of J.M.S. is a timely reminder that not all sex offenders are _____ or _____. J.M.S.’s crime was horrific, his young victim forever scarred. But would posting his face and address on a website increase public safety?
According to Madam Justice Pothecary, he doesn’t even belong on a private registry, let alone a public one. J.M.S. participated in multiple sex-offender treatment programs, takes full responsibility for his actions, works in a “supervisory position” with “substantial responsibility,” and has remained crime-free for more than a decade. “Society is well-protected at this point,” she ruled. “One can never make a guarantee of human behaviour, but I would be astonished to find Mr. S. before the court for any new reason at this point.”
To be removed from the registry, an offender must establish that the impact on his privacy and liberty is “grossly disproportionate” to the public safety benefits of staying on. As the judge pointed out, “there is almost nothing” in the case law that examines the gross proportionality test as it relates to termination orders. The only other published ruling, a 2011 application by a Waterloo, Ont., piano teacher who sexually exploited a student, offered no analysis at all; the judge simply denied the request, saying the registry conditions cause no “undue hardship.” But in Pothecary’s opinion, J.M.S. was the rare applicant who met the test. “He has been in the same relationship for the past 4½ years with a woman who is age-appropriate; she has adult children,” the judge continued. “He wants to be able to move forward, away from the restrictions and away from the risk of disclosure of this history to those in his life.”
J.M.S. never even told his girlfriend he was a registered sex offender, fearful the news could doom their relationship. Now, for the first time in years, he doesn't have to worry that a surprise visit from a police officer might blow his cover.