- 1 SOIRA Orders
- 2 Obligations of Registered Offenders
- 3 Designated offences
- 4 Duration
- 5 Sentencing Procedure
- 6 Early Termination of a SOIRA Order
- 7 Effect of the Order
- 8 Appeal From Order
- 9 Breach of SOIRA Orders (s. 490.031 to 490.0312)
- 10 Regulations
- 11 Legislative History
- 12 SOIRA Notice Convictions Pre-December 15, 2004
- 13 SOIRA Notice Convictions Outside Canada
- 14 Misc. Definitions Under the SOIRA Provisions of the Code
- 15 See Also
The SOIRA provisions in the Criminal Code are found between ss. 490.012 to 490.02911. They are divided as follows:
- Order to Comply with the Sex Offender Information Registration Act (490.012 to 490.018)
- Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004 (490.019 to 490.029)
- Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada (490.02901 to 490.02911)
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."
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 grant judges the power to order an offender to comply with the SOIRA:
- 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.
- Young Offenders
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.
R v Debidin, 2008 ONCA 868 (CanLII), (2008), 241 CCC (3d) 152 (Ont. C.A.), per Watt JA, at para 35
see also s. 2(1) of Sex Offender Information Registration Act, SC 2004, c 10
R v Cross, 2006 NSCA 30 (CanLII), per Bateman JA
R v SSC, 2008 BCCA 262 (CanLII), per Chiasson JA
R v Ndhlovu, 2016 ABQB 595 (CanLII), per Moen J - NB: there is no ruling on whether SOIRA is saved under s. 1 of the Charter yet
cf. R v RL, 2018 ONCA 282 (CanLII), 45 CR (7th) 98, per Strathy CJ
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.
Under Section 490.13, the length of the SOIRA order is based on the election and the maximum penalty.
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 require a lifetime SOIRA even when the accused is sentenced on multiple "designated offences" at the same time.
- R v Burns, 2012 SKCA 52 (CanLII)
Correcting SOIRA of Improper Duration
See Appeals below
Effect of Prior Orders and Convictions
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.
A recommended approach for a sentencing judge to follow is:
- (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;
- (a) making the order might impact on
- (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.
Early Termination of a SOIRA Order
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.
Disclosure of Information
Appeal From Order
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.
- R v Chisholm, 2012 NBCA 79 (CanLII), per Drapeau JA
R v Batley, 2016 BCSC 2296 (CanLII), per Bernard J
R v Clancy, 2017 BCSC 576 (CanLII), per Baird J
see also Chisholm, ibid., at para 23 ("First, I need not, and do not decide whether the SOIRA order in question can be corrected by means of a prerogative writ. Any debate on point would be expected to feature consideration of Dagenais v. Canadian Broadcasting Corp")
- R v Whiting, 2013 SKCA 127 (CanLII), per Whitmore JA
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.
Breach of SOIRA Orders (s. 490.031 to 490.0312)
Prior to April 15, 2011 Amendments
On April 15, 2011, the phrasing of s. 490.012 was amended to make SOIRA mandatory for all sections (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 through the effective investigation of crimes of a sexual nature".The court must give reasons for the decision to grant or deny the order under the SOIRA.
The requirements can be summarized as follows:
- What is the impact on the individual offender,
- What is the public interest served by registration, and
- Is the impact upon the defendant grossly disproportionate to the public interest having regard to:
- the nature of the offence,
- the nature of the intrusion, and
- 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."
- 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.
- s. 490.012(5) The court shall give reasons for its decision."
- R v Epp, 2005 SKPC 71 (CanLII), per Whelan J, at para 26 referring to R.E.M.  BCJ No. 1191 (B.C.S.C.)
R v Have, 2005 ONCJ 27 (CanLII),  OJ No 388, per Duncan J, at para 17