SOIRA Orders

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SOIRA Orders

The purpose of a SOIRA Order "is to help police investigate sexual offences by making available to them information provided by convicted sexual offenders required to register under the Act. This information may be of investigative assistance in the inculpation or elimination of various suspects."[1]

The making of a SOIRA Order will depend on whether the designated offence is listed under s. 490.013 (a), (c), (c.1), (d) or (e) in which case it is mandatory. Where the designated offence is under para (b) or (f), then it will only be ordered where "prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence" listed under para (a), (c), (c.1), (d) or (e).

Section 490.012 grants judges the power to order an offender to comply with the SOIRA:

Order
490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.
Order  — if intent established
(2) When a court imposes a sentence on a person for an offence referred to in paragraph (b) or (f) of the definition “designated offence” in subsection 490.011(1), it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of that definition.
...
Failure to make order
(4) If the court does not consider the matter under subsection (1) or (3) at that time, the court

(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

2004, c. 10, s. 20; 2007, c. 5, s. 13; 2010, c. 17, s. 5; 2014, c. 25, s. 26.


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Effect of Amendments
The provisions regarding SOIRA within the Criminal Code are regulatory and are not intended to be punitive in nature. Consequently, the laws are retroactive to offences that occurred before any amendment and do not violate s. 11(i) of the Charter protecting against retroactive punishment.[2]

Young Offenders

s. 490.011
...
Interpretation
(2) For the purpose of this section and sections 490.012 to 490.032, a person who is convicted of, or found not criminally responsible on account of mental disorder for, a designated offence does not include a young person

(a) within the meaning of subsection 2(1) of the Youth Criminal Justice Act unless they are given an adult sentence within the meaning of that subsection for the offence; or
(b) within the meaning of subsection 2(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, unless they are convicted of the offence in ordinary court within the meaning of that subsection.

2004, c. 10, s. 20; 2005, c. 43, s. 6; 2007, c. 5, s. 11; 2008, c. 6, s. 36; 2010, c. 3, s. 7, c. 17, s. 4; 2012, c. 1, ss. 31, 141; 2014, c. 25, s. 25.


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Constitutionality
There is some suggestion that the mandatory nature of SOIRA Orders violate s. 7 of the Charter for being grossly disproportionate to the aim of protecting the public.[3]

  1. R v Debidin, 2008 ONCA 868 (CanLII), (2008), 241 CCC (3d) 152 (Ont. C.A.) at para 35
    see also s. 2(1) of Sex Offender Information Registration Act, SC 2004, c 10
  2. R v Cross, 2006 NSCA 30 (CanLII)
    R v S.S.C., 2008 BCCA 262 (CanLII)
  3. R v Ndhlovu, 2016 ABQB 595 (CanLII) per Moen SCJ - NB: there is no ruling on whether SOIRA is saved under s. 1 of the Charter yet

Obligations of Registered Offenders

The Sex Offender Information Registration Act, SC 2004, c 10 requires that those registered to:

  • report for the first time to a registration centre (SOIRA s. 4(1)) within 7 days after the making of the order or release from custody (if applicable).
    • reporting for the first time shall be in person (SOIRA s. 4(3)). They are not permitted to leave Canada until they have reported for the first time (SOIRA s. 4(4)).
  • report within 7 days of changing primary or secondary residence or change their first name or family name (SOIRA s. 4.1(1))
    • reporting shall be in person unless the regulations permit exceptions
  • upon reporting provide (SOIRA s. 5(1))
    • their given name and surname, and every alias that they use;
    • their date of birth and gender;
    • the address of their main residence and every secondary residence or, if there is no such address, the location of that place;
    • the address of every place at which they are employed or retained or are engaged on a volunteer basis — or, if there is no address, the location of that place — the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there;
    • if applicable, their status as an officer or a non-commissioned member of the Canadian Forces within the meaning of subsection 2(1) of the National Defence Act and the address and telephone number of their unit within the meaning of that subsection;
    • the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place;
    • a telephone number at which they may be reached, if any, for every place referred to in paragraphs (c) and (d), and the number of every mobile telephone or pager in their possession;
    • their height and weight and a description of every physical distinguishing mark that they have; and
    • the licence plate number, make, model, body type, year of manufacture and colour of the motor vehicles that are registered in their name or that they use regularly.

Designated offences

The Order is generally to be granted for "designated offences" listed under section 490.011 (1), including:

s.490.011(1)(a) Offences s.490.011(1)(b) Offences
SECTION (a) SECTION (b)

The offences in the left column are designated offences under s.490.011(1)(a) that are eligible for a SOIRA Order under s. 490.012(1). The offences in the right column are designated offences under s.490.011(1)(b) that are eligible for a SOIRA Order under s. 490.012(2), if the crown can prove beyond a reasonable doubt that the offence was committed for the intent to commit an offence under s.490.011(1)(a).

Sex Offender Registration Act establishes a database accessible to police that contains addresses, descriptions, and other information regarding sex offenders. The offender is obligated to keep the information on file up to date for the period ordered. This will either be 10 years, 20 years, or life. Failure to comply with the order is a criminal offence.

Duration

Under Section 490.13, the length of the SOIRA order is based on the election and maximum penalty.

Date order begins
490.013 (1) An order made under section 490.012 begins on the day on which it is made.
Duration of order
(2) An order made under subsection 490.012(1) or (2)

(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment for the offence is life.

Duration of order
(2.1) An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1).
Duration of order
(3) An order made under subsection 490.012(1) or (2) applies for life if the person is, or was at any time, subject to an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act.
Duration of order
(4) An order made under subsection 490.012(1) or (2) applies for life if the person is, or was at any time, subject to an order made previously under section 490.012 of this Act or section 227.01 of the National Defence Act.
Duration of order
(5) An order made under subsection 490.012(3) applies for life.
2004, c. 10, s. 20; 2007, c. 5, s. 14; 2010, c. 17, s. 6; 2014, c. 25, s. 27.


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Lifetime Duration

An order must be made for a minimum of life where:

  • "if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence" that is a "designated offence". (490.013 (2.1))
  • "if the person is, or was at any time, subject to an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act" (490.013 (3))
  • "if the person is, or was at any time, subject to [a SOIRA] order made previously" (490.013 (4))

Sub-section (2.1) will requires a lifetime SOIRA even when the accused is sentenced on multiple "designated offences" at the same time.[1]

  1. R v Burns, 2012 SKCA 52 (CanLII)

Correcting SOIRA of Improper Duration

See also: Judicial Review

Where the judge makes a SOIRA order of an illegal duration, believing that it was lawful, cannot retrospectively change the order as they are functus officio.[1]

  1. R v E.(J.), 2013 ONCJ 247 (CanLII)

Effect of Prior Orders and Convictions

See also: Notice of Increased Penalty

490.012
...

Order — if previous offence established
(3) When a court imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes that

(a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1) or in paragraph (a) or (c) of the definition “designated offence” in section 227 of the National Defence Act;
(b) the person was not served with a notice under section 490.021 or 490.02903 or under section 227.08 of the National Defence Act in connection with that offence; and
(c) no order was made under subsection (1) or under subsection 227.01(1) of the National Defence Act in connection with that offence.

...
2004, c. 10, s. 20; 2007, c. 5, s. 13; 2010, c. 17, s. 5; 2014, c. 25, s. 26.


CCC


When considering the effect of prior-related records, convictions for sexual offences while the offender was a youth should not be considered if it occurred more than 5 years prior to the adult offence.[1]

  1. R v Able, 2013 ONCA 385 (CanLII) at paras 11 to 29

Sentencing Procedure

A recommended approach for a sentencing judge to follow is:[1]

(1) Inquire whether the offender wished to challenge the making of the order;
(2) If the offender so wished, then inquire as to whether the offender wished to call further evidence respecting the impact of such an order;
(3) If the offender chooses to do so, then hear that evidence and inquire of the prosecutor whether the prosecutor wished to call evidence to rebut the evidence called by the offender and, if so, hear that evidence;
(4) Weigh the evidence heard at trial and on the sentencing hearing, to the extent that the offender or the prosecutor relied on such evidence, and weigh any evidence specifically called, together with arguments presented by the parties, in order to determine the manner and extent to which:
(a) making the order might impact on
(i) privacy and liberty of the offender,
(ii) the abilities or limitations of the offender,
(iii) the offender as a result of the stigma of being registered,
(iv) the potential for rehabilitation and reintegration of the offender in the community, and
(v) any other significant characteristic of the offender; and
(b) failure to make the order might impact the public interest;
(5) Accepting Parliament’s declaration that there is a public interest in protecting society through effective investigation of crimes of a sexual nature, weigh the impact on the offender of being registered, as against the impact on that public interest, of the offender not being registered and come to a conclusion as to whether the impact on the offender is so severe as to result in a “marked and serious imbalance” between the impact on the offender of making the order and the impact on the public interest of not making the order; and
(6) If, but only if, the impact on the offender of making the order is grossly disproportionate to the impact on the public interest of not making the order, the exemption should be granted.
  1. R v Turnbull, 2006 NLCA 66 (CanLII)

Early Termination of a SOIRA Order

Sections 490.015 and 490.016 permit an accused who is subject to a SOIRA Order to terminate the order before its expiration.

Application for termination order
490.015 (1) A person who is subject to an order may apply for a termination order

(a) if five years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(a);
(b) if 10 years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(b); or
(c) if 20 years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(c) or subsection 490.013(2.1), (3) or (5).

Multiple orders
(2) A person who is subject to more than one order made under section 490.012 of this Act, or under that section and section 227.01 of the National Defence Act, may apply for a termination order if 20 years have elapsed since the most recent order was made.
Pardon or record suspension
(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.
Scope of application
(4) The application shall be in relation to every order that is in effect. If a person is subject to an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act, the application shall also be in relation to that obligation.
Re-application
(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 of this Act or section 227.01 of the National Defence Act after the previous application was made.
Jurisdiction
(6) The application shall be made to

(a) a superior court of criminal jurisdiction if
(i) one or more of the orders to which it relates were made by such a court under section 490.012, or
(ii) one or more of the orders to which it relates were made under section 227.01 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.03(6) of that Act; or
(b) a court of criminal jurisdiction, in any other case in which the application relates to one or more orders made under section 490.012.

2004, c. 10, s. 20; 2007, c. 5, s. 15; 2010, c. 17, s. 8; 2012, c. 1, s. 142.


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Termination order
490.016 (1) The court shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an 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. 16; 2010, c. 17, s. 9.


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Burden
The burden is upon the applicant on a balance of probabilities.[1]

Standard
The applicant must establish that the order has a "grossly disproportionate impact" upon the applicant by continuing the order.[2]

Gross disproportionality requires either:[3]

  • "no impact, or a very low level of impact, on the public interest of his or her not being registered." It includes "consideration of such factors as":
    • the record of the offender;
    • the nature of the offence;
    • circumstances surrounding the offence;
    • whether the offence was committed many years earlier and
    • the record of the offender in the interim; and
  • any other factors bearing on the potential impact of that specific offender not being registered.

The applicant should be expected to present evidence showing gross disproportionality.[4]

  1. R v Berube, 2016 ONCJ 332 (CanLII) at para 10
  2. Berube, ibid. at para 10
    see also R v Nassereddine, 2016 ABPC 266 (CanLII) - reviews cases
  3. R v Turnbull, 2006 NLCA 66 (CanLII) at para 33
    Berube, supra at para 10
  4. R v RL, 2007 ONCA 347 (CanLII) at para 7
    Berube at para 11

Effect of the Order

A SOIRA Order under s. 490.012 will comply with From 52.

When a conviction occurs outside of Canada, an order under s. 490.02901. The Order to comply will use Form 54.

Appeal From Order

See also: Appeals

Appeal
490.014 The prosecutor, or a person who is subject to an order under subsection 490.012(2), may appeal from a decision of the court under that subsection 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 order or make an order that may be made under that subsection.
2004, c. 10, s. 20; 2010, c. 17, s. 7.


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Section 490.014 does not give a right of appeal for an order made under s. 490.012(1).[1] There may still be an option to corrected by means of a Judicial Review.[2]

Despite s. 490.014, the Crown has the ability to appeal under s. 676(1)(b) for the refusal of a sentencing judge to order a SOIRA.[3]

  1. R v Chisholm, 2012 NBCA 79 (CanLII)
  2. Chisholm, ibid. at para 23
  3. R v Whiting, 2013 SKCA 127 (CanLII)

Improperly Ordered Duration

A Court is functus officio and does not have the jurisdiction to correct any errors made in setting the duration of the SOIRA Order.[1]

  1. R v RRDG, 2014 NSSC 384 (CanLII)
    c.f. R v Alvarenga-Alas, 2014 ONSC 4725 (CanLII)
    and R v WR, 2016 ONSC 2798 (CanLII)

Breach of SOIRA Orders (s. 490.031 to 490.0312)

Legislative History

Prior to April 15, 2011 Amendments

In April 15, 2011, the phrasing of s.490.012 was amended to make SOIRA mandatory for all section (a), (c), (c.1), (d) or (e) designated offences. Prior to this amendment these designated offences presumptively required a SOIRA order unless outweighed by other interests. As such, there is no longer the weighing of proportional interests.

The previous scheme allowed the following:

The court may exempt an offender from registration under the SOIRA if the court is satisfied that the impact of the obligations would be "grossly disproportionate to the public interest in protecting society though the effective investigation of crimes of a sexual nature".[1]The Court must give reasons for the decision to grant or deny the order under the SOIRA.[2]

The requirements can be summarized as follows:[3]

  1. What is the impact on the individual offender,
  2. What is the public interest served by registration, and
  3. Is the impact upon the defendant grossly disproportionate to the public interest having regard to:
    1. the nature of the offence,
    2. the nature of the intrusion, and
    3. the circumstances of the individual offender.

From "a public interest point of view it is desirable that the registry not be so inclusive as to include so many low risk or no risk offenders as to dilute the resources and attention of the police from those that pose a genuine risk."[4]

  1. s. 490.012(4)
    The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective 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.
  2. s. 490.012(5) The court shall give reasons for its decision."
  3. R v Epp, 2005 SKPC 71 (CanLII) at para 26 referring to R.E.M. [2005] BCJ No. 1191 (B.C.S.C.)
  4. R v Have, 2005 ONCJ 27 (CanLII), [2005] O.J. No. 388 at para 17

See Also