SOIRA Notice Convictions Pre-December 15, 2004
| This page was last substantively updated or reviewed January 2014. (Rev. # 96006) |
- Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004
- Obligation to comply
490.019 A person who is served with a notice in Form 53 shall comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.022 unless a court makes an exemption order under subsection 490.023(2) [application for exemption order – jurisdiction].
2004, c. 10, s. 20.
- Persons who may be served
490.02 (1) The Attorney General of a province or minister of justice of a territory may serve a person with a notice only if the person was convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) and
- (a) on the day on which the Sex Offender Information Registration Act comes into force, they are subject to a sentence for, or have not received an absolute discharge under Part XX.1 [Pt. XX.1 – Mental Disorder (ss. 672.1 to 672.95)] from, the offence; or
- (b) in any other case,
- (i) their name appears in connection with the offence, immediately before the Sex Offender Information Registration Act comes into force, in the sex offender registry established under the Ontario Act, and
- (ii) they either were a resident of Ontario at any time between April 23, 2001 and the day on which the Sex Offender Information Registration Act comes into force or committed the offence in Ontario.
- Exception
(2) A notice shall not be served on a person
- (a) if they have been finally acquitted of, or have received a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 for, every offence in connection with which a notice may be served on them under section 490.021 of this Act or section 227.08 of the National Defence Act;
- (b) if an application has been made for an order under subsection 490.012(3) of this Act or subsection 227.01(3) of the National Defence Act in relation to any offence in connection with which a notice may be served on them under section 490.021 of this Act or section 227.08 of the National Defence Act; or
- (c) who is referred to in paragraph (1)(b) if they have provided proof of a pardon in accordance with subsection 9(1) of the Ontario Act.
2004, c. 10, s. 20; 2007, c. 5, s. 20.
- Period for and method of service
490.021 (1) The notice shall be personally served within one year after the day on which the Sex Offender Information Registration Act comes into force.
- Exception
(2) If a person referred to in paragraph 490.02(1)(a) is unlawfully at large or is in breach of any terms of their sentence or discharge, or of any conditions set under this Act or under Part III of the National Defence Act, that relate to residence, the notice may be served by registered mail at their last known address.
- Exception
(3) If a person referred to in paragraph 490.02(1)(b) is not in compliance with section 3 of the Ontario Act on the day on which the Sex Offender Information Registration Act comes into force, the notice may be served by registered mail at their last known address.
- Exception
(4) If a person referred to in paragraph 490.02(1)(b) is in compliance with section 3 and subsection 7(2) of the Ontario Act on the day on which the Sex Offender Information Registration Act comes into force but fails to comply with subsection 3(1) or 7(2) of the Ontario Act within one year after that day, the notice shall be served within one year after the day on which they failed to comply and may be served by registered mail at their last known address.
- Proof of service
(5) An affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out that
- (a) the person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case;
- (b) the notice was personally served on, or mailed to, the person to whom it was directed on a named day; and
- (c) the person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.
- Requirements relating to notice
(6) The person who served the notice shall, without delay, send a copy of the affidavit and the notice to the Attorney General of the province, or the minister of justice of the territory, in which the person was served.
2004, c. 10, s. 20; 2007, c. 5, s. 21.
- Date obligation begins
490.022 (1) The obligation under section 490.019 begins
- (a) either one year after the day on which the person is served with the notice or when an exemption order is refused under subsection 490.023(2), whichever is later; or
- (b) when an exemption order is quashed.
- Date obligation ends
(2) The obligation ends on the earliest of
- (a) the day on which an exemption order is made on an appeal from a decision made under subsection 490.023(2),
- (b) the day on which the obligation of a person referred to in paragraph 490.02(1)(b) to comply with section 3 of the Ontario Act ends under paragraph 7(1)(a) of that Act, or
- (c) the day on which a person referred to in paragraph 490.02(1)(b) provides satisfactory proof of a pardon or record suspension to a person who collects information, as defined in subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.
- Duration of obligation
(3) If none of paragraphs (2)(a) to (c) applies earlier, the obligation
- (a) ends 10 years after the person was sentenced, or found not criminally responsible on account of mental disorder, for the offence listed in the notice if the offence was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
- (b) ends 20 years after the person was sentenced, or found not criminally responsible on account of mental disorder, for the offence listed in the notice if the maximum term of imprisonment for the offence is 10 or 14 years;
- (c) applies for life if the maximum term of imprisonment for the offence listed in the notice is life; or
- (d) applies for life if, at any time, the person was convicted of, or found not criminally responsible on account of mental disorder for, more than one offence that is referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of this Act or in paragraph (a) or (c) of the definition designated offence in section 227 of the National Defence Act and if more than one of those offences is listed in the notice.
2004, c. 10, s. 20; 2007, c. 5, s. 22; 2012, c. 1, s. 143.
- Application for exemption order
490.023 (1) A person who is not subject to an order under section 490.012 of this Act or section 227.01 of the National Defence Act may apply for an order exempting them from the obligation within one year after they are served with a notice under section 490.021 of this Act or section 227.08 of the National Defence Act.
- Jurisdiction
(1.1) The application shall be made to a court of criminal jurisdiction if
- (a) it relates to an obligation under section 490.019 of this Act; or
- (b) it relates to an obligation under section 227.06 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.1(2) of that Act.
- Exemption order
(2) The court shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, 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 the Sex Offender Information Registration Act.
- Reasons for decision
(3) The court shall give reasons for its decision.
- Removal of information from database
(4) If the court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
2004, c. 10, s. 20; 2007, c. 5, s. 23; 2010, c. 17, s. 13.
- Appeal
490.024 (1) The Attorney General or the person who applied for an exemption order may appeal from a decision of the court under subsection 490.023(2) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the exemption order or make an order that may be made under that subsection.
- Removal of information from database
(2) If the appeal court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
2004, c. 10, s. 20; 2010, c. 17, s. 14.
- Requirements relating to notice
490.025 If a court refuses to make an exemption order or an appeal court dismisses an appeal from such a decision or quashes an exemption order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, sections 490.031 and 490.0311 of this Act and section 119.1 of the National Defence Act.
2004, c. 10, s. 20; 2007, c. 5, s. 24; 2010, c. 17, s. 15.
- Application for termination order
490.026 (1) A person who is subject to an obligation under section 490.019 may apply for a termination order unless they are also subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act — or an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.
- Time for application
(2) A person may apply for a termination order if the following period has elapsed since they were sentenced, or found not criminally responsible on account of mental disorder, for an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of this Act or in paragraph (a) or (c) of the definition designated offence in section 227 of the National Defence Act:
- (a) five years if the offence was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
- (b) 10 years if the maximum term of imprisonment for the offence is 10 or 14 years; or
- (c) 20 years if the maximum term of imprisonment for the offence is life.
- More than one offence
(3) If more than one offence is listed in the notice served under section 490.021, the person may apply for a termination order if 20 years have elapsed since they were sentenced, or found not criminally responsible on account of mental disorder, for the most recent offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of this Act or in paragraph (a) or (c) of the definition designated offence in section 227 of the National Defence Act.
- Pardon or record suspension
(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.
- Re-application
(5) A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or to an order under section 490.012 or under section 227.01 of the National Defence Act.
- Jurisdiction
(6) The application shall be made to a court of criminal jurisdiction if
- (a) it relates to an obligation under section 490.019 of this Act; or
- (b) it relates to an obligation under section 227.06 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.12(6) of that Act.
2004, c. 10, s. 20; 2007, c. 5, s. 24; 2010, c. 17, s. 16; 2012, c. 1, s. 144.
- Termination order
490.027 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, 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 the Sex Offender Information Registration Act.
- Reasons for decision
(2) The court shall give reasons for its decision.
- Requirements relating to notice
(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
2004, c. 10, s. 20; 2007, c. 5, s. 25; 2010, c. 17, s. 17.
- Deemed application
490.028 If a person is eligible to apply for both an exemption order under section 490.023 and a termination order under section 490.026 within one year after they are served with a notice under section 490.021 of this Act or section 227.08 of the National Defence Act, an application within that period for one order is deemed to be an application for both.
2004, c. 10, s. 20; 2007, c. 5, s. 26.
- Appeal
490.029 (1) The Attorney General or the person who applied for a termination order may appeal from a decision of the court made under subsection 490.027(1) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the termination order or make an order that may be made under that subsection.
- Requirements relating to notice
(2) If the appeal court makes an order that may be made under subsection 490.027(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
2004, c. 10, s. 20; 2007, c. 5, s. 26; 2010, c. 17, s. 18.
- Constitutionality
The provisions of s. 490.019 to 490.024 do not violate section 7.[1]
- ↑ R v SSC, 2008 BCCA 262 (CanLII), 234 CCC (3d) 365, per Chiasson JA