SOIRA is the Canadian Sex Offender Information Registration Act, which establishes the national database called the National Sex Offender Registry, which is accessible to Canadian police services. This database contains personal information on individuals convicted of criminal offences of a sexual nature, identifying all registered offenders living within a particular geographic area. The registry includes the following information:
- the person’s name
- the person’s date of birth
- the person’s current address
- a current photograph of the person
- any identifying marks such as tattoos or scars
- the offence for which the person was convicted.
In theory, the purpose of SOIRA is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders. How effective the SOIRA is in meeting these stated goals is highly suspect. As noted by the Supreme Court in the seminal decision of R. v. Ndhlovu, “Despite its long existence, there is little or no concrete evidence of the extent to which it assists police in the prevention and investigation of sex offences.”
The History and Evolution of SOIRA
Looking at the origins, SOIRA was introduced as Bill C-23 in late 2002 after provinces and territories had requested the establishment and development of a National Sex Offender Registry before being re-introduced and passed as Bill C-16 in 2004. The information in the database has been made accessible to accredited police agencies and is to be used for the primary purpose of investigating unsolved crimes of a sexual nature. The database is designed to be searchable by local police by specific criteria (i.e. geographical area, postal code area, modus operandi, physical attributes of the offender, etc.), producing instant lists of previously convicted suspects matching the facts of a specific offence.
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 homes to obtain updated information.
The registration period could be 10 years, 20 years, or even life, and failure to comply with a registration requirement is a criminal offence.
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:
- There would be no connection between making the order and the purpose of SOIRA, namely helping police services prevent or investigate crimes of a sexual nature or,
- The impact of the order on the person would be grossly disproportionate to the public interest in making the order.
In addition, the legislation provides an avenue for termination based on the same test (“no connection” or “grossly disproportionate”) for persons who are currently subject to SOIRA.
These critical changes to SOIRA are discussed in more detail below.
The Impact Of R. v. Ndhlovu
Bill S-12 was a key amendment as 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:
- Despite SOIRA’s long existence, “there is little or no concrete evidence of the extent to which it assists police in the prevention and investigation of sex offences.” As a result, mandatory registration breached section 7 of the Charter because registration has a “serious impact on the freedom of movement and of fundamental choices of people who were not at an increased risk of reoffending.”
- Second, in clear language, the Supreme Court rejected previous statements of some courts that SOIRA registration was “minimally intrusive.” In contrast, the Court recognized the “considerable” reporting requirements of SOIRA, which interfered with the liberty of a person subject to an order “in serious ways.” The Court stated, “To reiterate, SOIRA’s reporting requirements are not routine: the scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment make the conditions onerous.”
SOIRA Registration Process
The SOIRA registration process outlines several steps regarding how and how frequently convicted individuals are required to register and their consequences.
Who Must Register?
A judge may grant a SOIRA order for all types of offences of a sexual nature, including (but not limited to):
- Sexual interference (section 151)
- Invitation to sexual touching (section 152)
- Sexual exploitation (section 153)
- Sexual exploitation of a person with a disability (section 153.1)
- Incest (section 155)
- Bestiality (section 160)
- Child pornography (section 163.1)
- Sexual assault (section 271)
However, as mentioned above, it is critical to note that the criteria that necessitate registrations have changed.
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 not to be registered.
Specifically, under, 490. 012(3) registration will not be required where the court is satisfied the person has established that:
- There would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act.
- The impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
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.
Duration and Frequency of Registration
The duration of the registration period is at the discretion of the judge passing judgment over an offence of a sexual nature. 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.
Individuals required to comply with a SOIRA order must register in person at a designated registration centre within seven days after the judge’s order is passed or they are released from custody, whichever is later, and annually after the initial registration. If key information, such as their name, address, driver’s licence, or passport, changes, they must also update this information within seven days.
Legal Implications of SOIRA
The legal consequences of registration under SOIRA can be wide-reaching and have been a cause for concern as some are seen as restricting personal freedoms. It also puts restrictions on conditions on registered sex offenders that influence their daily life and employment and puts travel restrictions.
Restrictions and Conditions
A SOIRA registration order puts several restrictions on registered sex offenders. They cannot attend public spaces where children are likely to be present, such as schools, parks, swimming pools, playgrounds, or daycares. They are also not allowed to work or volunteer with children. Depending on the case, this could extend to not being allowed to have any contact with children without court-endorsed supervision and potential restrictions from using the Internet.
Additionally, if a registered person intends to travel within Canada for more than one week, they must report this intent to the RCMP and provide an address where they will stay.
Legal Recourse and Appeals
How Can I Be Removed From SOIRA?
You can challenge your SOIRA registration. 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.
Termination Of Your SOIRA Order
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).
Is It Possible To Terminate A SOIRA 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.
Practical Considerations
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:
- Letters of support from your family and community
- Documenting your school or work history
- Obtaining a report from an expert concerning your prospects for rehabilitation
- Placing an affidavit before the court that describes the unique impact of registration on your life and family. Such personal circumstances may include physical barriers to reporting (such as where the registrant is disabled) and intangible effects (including the stigma) of the registration.
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.
Seeking Legal Support
A sexual assault conviction can have severe consequences on your life, far beyond prison time, making it critical to understand the implications of SOIRA registration and how it can impact your everyday life. It can severely restrict your ability to find employment, place travel restrictions and more.
If you or someone you know has been charged with a sexual offence or has been added to SOIRA, call Federowicz Law today for legal support from an experienced sexual assault lawyer. Fedorowicz Law’s commitment to client-lawyer communication in sexual assault cases is our distinctive approach to ensuring our clients are well-represented, well-informed, and actively engaged in their defence. We believe that educated, informed, and empowered clients are better equipped to make the right decisions throughout the legal process.
Call Fedorowicz Law today at 249-266-4222 or fill out our convenient online form to learn how we can help you with your sexual assault defence in Toronto!