Early Termination of SOIRA Orders: Difference between revisions
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The burden is upon the applicant on a balance of probabilities.<ref> | The burden is upon the applicant on a balance of probabilities.<ref> | ||
{{ | {{CanLIIRx|Berube|gs07g|2016 ONCJ 332 (CanLII)}}{{perONCJ|Bourgeois J}}{{atL|gs07g|10}}<br> | ||
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The applicant must establish that the order has a "grossly disproportionate impact" upon the applicant by continuing the order.<ref> | The applicant must establish that the order has a "grossly disproportionate impact" upon the applicant by continuing the order.<ref> | ||
{{ibid1|Berube}}{{atL|gs07g|10}}<br> | {{ibid1|Berube}}{{atL|gs07g|10}}<br> | ||
see also {{ | see also {{CanLIIRx|Nassereddine|gvq68|2016 ABPC 266 (CanLII)}}{{perABPC|Bascom J}} - reviews cases | ||
</ref> | </ref> | ||
Gross disproportionality requires either:<ref> | Gross disproportionality requires either:<ref> | ||
{{ | {{CanLIIRP|Turnbull|1q24l|2006 NLCA 66 (CanLII)|214 CCC (3d) 18}}{{perNLCA|Wells CJ}}{{atL|1q24l|33}}<br> | ||
{{supra1|Berube}}{{atL|gs07g|10}}<br> | {{supra1|Berube}}{{atL|gs07g|10}}<br> | ||
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The applicant should be expected to present evidence showing gross disproportionality.<ref> | The applicant should be expected to present evidence showing gross disproportionality.<ref> | ||
{{ | {{CanLIIRP|RL|1rchc|2007 ONCA 347 (CanLII)|74 WCB (2d) 11}}{{TheCourtONCA}} (3:0){{atL|1rchc|7}}<br> | ||
{{supra1|Berube}}{{atL|gs07g|11}}<br> | {{supra1|Berube}}{{atL|gs07g|11}}<br> | ||
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Revision as of 20:37, 16 August 2021
General Principles
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) [Duration of order – 5 years for 5 or less year offence];
- (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) [Duration of order – 10 years for a 5 to 14 year offence]; 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) [Duration of order – 20 years for a more than 14 year offence] or subsection 490.013(2.1) , (3) [Duration of order – offences in same proceeding] or (5) [Duration of order – other order or obligation].
- Multiple orders
(2) A person who is subject to more than one order made under section 490.012 [SOIRA orders] 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) [power to set duration of SOIRA orders] and (2) [power to set duration of SOIRA orders – multiple orders], 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 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004] or 490.02901 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada], 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 [SOIRA orders] 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 [SOIRA orders], 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 [SOIRA orders].
2004, c. 10, s. 20; 2007, c. 5, s. 15; 2010, c. 17, s. 8; 2012, c. 1, s. 142.
[annotation(s) added]
- 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.
- 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]
- ↑
R v Berube, 2016 ONCJ 332 (CanLII), per Bourgeois J, at para 10
- ↑
Berube, ibid., at para 10
see also R v Nassereddine, 2016 ABPC 266 (CanLII), per Bascom J - reviews cases - ↑
R v Turnbull, 2006 NLCA 66 (CanLII), 214 CCC (3d) 18, per Wells CJ, at para 33
Berube, supra, at para 10
- ↑
R v RL, 2007 ONCA 347 (CanLII), 74 WCB (2d) 11, per curiam (3:0), at para 7
Berube, supra, at para 11
Appeal of Termination Decision
- Appeal
490.017 (1) The prosecutor or the person who applied for a termination order may appeal from a decision made under subsection 490.016(1) [power to make SOIRA termination order] 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 490.016(1) [power to make SOIRA 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, in which the application for the order was made to be notified of the decision.
2004, c. 10, s. 20; 2007, c. 5, s. 17; 2010, c. 17, s. 10.
[annotation(s) added]
Application to Terminate by International Offenders
- Application for termination order
490.02912 (1) A person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act may apply to a court of criminal jurisdiction for a termination order unless they are also subject to an obligation under section 490.019 or 490.02901 or under section 227.06 of the National Defence Act — or to an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.
- Time for application — one offence
(2) The person may apply for a termination order if the following period has elapsed since the sentence was imposed or the verdict of not criminally responsible on account of mental disorder was rendered:
- (a) five years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;
- (b) 10 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years; or
- (c) 20 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life.
- More than one offence
(3) If more than one offence is listed in the copy of the Form 1 [see forms] that was delivered under subparagraph 8(4)(a)(ii) of the International Transfer of Offenders Act, the person may apply for a termination order if 20 years have elapsed since the sentence was imposed, or the verdict of not criminally responsible on account of mental disorder was rendered, for the most recent offence.
- Re-application
(4) A person whose application is refused may apply again if five years have elapsed since the application was made. 2010, c. 17, s. 19.
[annotation(s) added]
- Termination order
490.02913 (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.
2010, c. 17, s. 19.
- Appeal
490.02914 (1) The Attorney General or the person who applied for a termination order may appeal from a decision under subsection 490.02913(1) [termination order & disproportionate purpose test] on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, allow the appeal 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 490.02913(1) [termination order & disproportionate purpose test], 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.
2010, c. 17, s. 19.
[annotation(s) added]
- Notice before release
490.02915 (1) The person in charge of the place in which a person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act is serving the custodial portion of a sentence, or is detained in custody before their release or discharge, shall give the person a copy of the Form 1 [forms] referred to in subsection 490.02912(3) [obligation to advise police service – more than one offence] not earlier than 10 days before their release or discharge.
- Notice on disposition by Review Board
(2) A Review Board shall cause a copy of the Form 1 [forms] to be given to the person when it directs
- (a) under paragraph 672.54(a) [absolute discharge – review board], that the person be discharged absolutely; or
- (b) under paragraph 672.54(b) [conditional discharge – review board], that the person be discharged subject to conditions unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with sections 4, 4.1, 4.3 and 6 of the Sex Offender Information Registration Act.
2010, c. 17, s. 19.
[annotation(s) added]