December 7, 2023
In the intricate legal landscape surrounding sexual offences, the Sex Offender Information Registration Act (SOIRA) stands as a crucial national registry, shaping the lives of individuals convicted of specific crimes.
With the enactment of Bill S-12 in October 2023, pivotal changes have been introduced, narrowing mandatory registration to those convicted of serious offences against minors and repeat offenders. This marks a significant shift from the onerous burden that SOIRA previously imposed on individuals, including invasive reporting requirements, address updates, and the looming threat of legal consequences for non-compliance.
For a nuanced understanding of the revised SOIRA landscape and practical considerations in facing or terminating a SOIRA order, this comprehensive guide, authored by a seasoned sexual assault defence lawyer, offers valuable insights.
SOIRA is a national sex offender registry that imposes a series of reporting requirements. Its purpose is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.
The reporting requirements for anyone subject to a SOIRA order are extensive. Personal information (such as address, identifying marks, places of employment and travel plans) must be updated annually and is accessible by police forces across Canada. In Ontario, registrants must not only report in person to the designated reporting centre, but police have the authority to attend at their home for the purpose of obtaining updated information.
The length of the registration could be either 10 years, 20 years or even life, and the failure to comply with a registration requirement is a criminal offence.
The Sex Offender Information Registration Act (SOIRA) is a national sex offender registry that mandates registration for persons convicted of certain offences.
As known to anyone who is or has been subject to an SOIRA, the terms of registration are onerous, including:
It was therefore significant that in October 2023, legislation was passed (Bill S-12) that resulted in substantial and welcome changes to registration provisions of SOIRA. Significantly, mandatory registration is now restricted to persons convicted of serious offences against minors and repeat offenders. In all other cases, registration is discretionary, where the person establishes that:
In addition, for persons who are currently subject to SOIRA, the legislation provides an avenue for termination based on the same test (“no connection” or “grossly disproportionate”).
These critical changes to SOIRA are discussed in more detail below.
Bill S-12 was a response to the Supreme Court’s decision in R. v. Ndhlovu.
In Ndhlovu, the Supreme Court ruled that section 490.012 (mandatory SOIRA registration for persons convicted of a sexual offence) and 490.013(2.1) (lifetime registration if convicted of more than one designated offence) infringed s.7 of the Charter of Rights and Freedoms in a way that cannot be justified in a free and democratic society.
In finding these provisions unconstitutional, the Court made two significant findings:
The new legislation imposes mandatory SOIRA registration in two circumstances: first, when a person is convicted of serious sexual assault against children, and second, repeat offenders.
Pursuant s. 490.12(1), when a court imposes a sentence on a person for a designated offence, it shall make an order requiring a person to comply with SOIRA, where (a) the designated offence was prosecuted by indictment; (b) the sentence for the designated offence is a term of imprisonment of two years or more; and, (c) the victim of the designated offence is under the age of 18 years.
Section 490. 012(2) deals with repeat offenders, which requires registration if a person was previously convicted of a primary offence or had previously been subject to a SOIRA order.
In all other circumstances, SOIRA now provides a pathway for persons convicted of a sexual offence to not be registered.
Specifically, under, 490. 012(3) registration will not be required where the court is satisfied the person has established that:
In determining whether a SOIRA order should made, the court shall consider all relevant factors, including:
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing a crime;
(f) the opinions of experts who have examined the person.
Notably, persons placed on SOIRA on or after April 15, 2011, can apply to be removed from the registry. However, the same disqualification that relates to new registrants applies, namely persons convicted of serious offences (indictable offence involving a minor where the sentence was two years or more) and repeat offenders are ineligible.
The test is the same as for new registrations; namely, the court shall make an exemption order if it is satisfied that the person has established that, at the time the order was made or the obligation began,
There would be no connection between continuing the order and helping police services prevent or investigate crimes of a sexual nature.
The impact of continuing the order would be grossly disproportionate to the public interest in making the order.
As with new registrations, the court shall consider all relevant factors in determining whether an exception should be allowed.
If you are currently subject to SOIRA, you can apply to terminate your order if the applicable waiting periods have passed (5 years for persons subject to a 10-year order and 10 years for those subject to a 20-year order).
Your SOIRA order may be terminated if you can establish:
There is no connection between continuing the order and helping services prevent or investigate crimes of a sexual nature; the impact of continuing the order would be grossly disproportionate to the public interest in making the order. The court would again consider all relevant circumstances police.
Importantly, if an application to terminate the SOIRA order is refused, the registrant must wait a further 5 years to re-apply.
While SOIRA registration is no longer mandatory, the test to avoid registration is still stringent. Accordingly, whether you are facing a new registration or wish to be removed from SOIRA, proper preparation and the marshalling of all relevant information is essential to a successful application. The material may include:
This approach led to the successful termination of a SOIRA order in R. v. A.B. By gathering all the relevant information and placing an extensive evidentiary record before the court (including a detailed affidavit from our client describing the significant personal impact of registration), we established that registration was “grossly disproportionate” and the judge ordered the SOIRA order to be terminated.
Each case is, of course, different. This means that the information to be placed before a court arguing that a SOIRA order should not be made or, if you are currently subject to registration, termination will depend on the unique circumstances of your case.
If you are facing the prospect of a SOIRA order or are currently subject to an order and wish to discuss options for its termination, contact Richard today for a free consultation.
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