Breach of SOIRA Orders (Offence)
| Breach of SOIRA Orders | |
|---|---|
| s. 490.031, 490.0311 or 490.0312 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Summary/Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
| Jurisdiction | varies |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | fine / 6 months incarceration |
| Indictable Dispositions | |
| Avail. Disp. | same as summary |
| Minimum | None |
| Maximum | 2 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
The offences relating to breaches of SOIRA Orders are found in Part XV of the Criminal Code relating to "Special Procedure and Powers".
Pleadings
Offences under s. 490.031 or 490.0311 are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.
Offences under s. 490.0312 are straight summary conviction offence. The trial must be held in provincial court.
Release
When charged under s. 490.031, 490.0311, 490.0312, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
A peace officer who charges a person under s. 490.031 or 490.0311 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
Offence Designations
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
Offence
490.031 (1) Every person who, without reasonable excuse, fails to comply with an order made under section 490.012 or under section 227.01 of the National Defence Act or with 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 is guilty of an offence and liable
- (a) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or
- (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
Reasonable excuse
(2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse if, at the time, the person is subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act.
Proof of certain facts by certificate
(3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b) of the Sex Offender Information Registration Act stating that the sex offender failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
Attendance and cross-examination
(4) The sex offender named in the certificate may, with the leave of the court, require the attendance of the person who signed it for the purpose of cross-examination.
Notice of intention to produce
(5) A certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the sex offender a copy of it and reasonable notice of their intention to produce it.
2004, c. 10, s. 20; 2007, c. 5, s. 28; 2010, c. 17, s. 21.
– CCC
Offence
490.0311 Every person who knowingly provides false or misleading information under subsection 5(1) or 6(1) of the Sex Offender Information Registration Act is guilty of an offence and liable
- (a) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or
- (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
2007, c. 5, s. 29; 2010, c. 17, s. 22.
– CCC
Offence
490.0312 Every person who, without reasonable excuse, fails to comply with an obligation under subsection 490.02911(1) or (2) is guilty of an offence punishable on summary conviction.
2010, c. 17, s. 23.
– CCC
Proof of the Offence
Proving breach of SOIRA orders under s. 490.031 should include:
- ☐ identity of accused as culprit
- ☐ date and time of the incident
- ☐ jurisdiction (incl. region and province)
- the culprit failed to comply with an order;
- the order was made under s. 490.012 or 227.01 of the National Defence Act or "with 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 is guilty of an offence"
- the culprit had no "reasonable excuse" for the offending conduct.
Proving providing false info under SOIRA obligations under s. 490.0311 should include:
- ☐ identity of accused as culprit
- ☐ date and time of the incident
- ☐ jurisdiction (incl. region and province)
- the culprit provides false or misleading information to police;
- information is being provided as required under s. 5(1) or 6(1) of the SOIRA
- the culprit knew that the information was false or misleading.
Proving failure to comply with SOIRA obligations under s. 490.0312 should include:
- ☐ identity of accused as culprit
- ☐ date and time of the incident
- ☐ jurisdiction (incl. region and province)
- the culprit failed to comply with an obligation required under s. 490.02911(1) or (2), consisting of:
- failing to advise a police service of their name, date of birth, gender and address;
- failing to advise police of a change in address within 7 days of change 490.02911(2);
- the culprit had no "reasonable excuse" for the offending conduct.
Interpretation
Participation of Third Parties
Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
Maximum Penalties
Offences under s. 490.031 and 490.0311 are hybrid. If prosecuted by indictment, the maximum penalty is a $10,000 fine and/or 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is $10,000 fine and/or 6 months jail.
Offences under s. 490.0312 are straight summary conviction offences. The maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
Minimum Penalties
These offences have no mandatory minimum penalties.
Available Dispositions
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
Offence-specific Orders
- None
General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
| Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
| Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
General Forfeiture Orders
| Forfeiture | Conviction | Description |
|---|---|---|
| Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
| Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
| Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
History
2007 to 2010
Offence
490.031 (1) Every person who, without reasonable excuse, fails to comply with an order made under section 490.012 of this Act or section 227.01 of the National Defence Act, or with an obligation under section 490.019 of this Act or section 227.06 of the National Defence Act, is guilty of an offence and liable
- (a) in the case of a first offence, on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both; and
- (b) in the case of a second or subsequent offence,
- (i) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both, or
- (ii) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
Reasonable excuse
(2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse if, at the time, the person is subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act.
2004, c. 10, s. 20; 2007, c. 5, s. 28.
– CCC
Offence
490.0311 Every person who knowingly provides false or misleading information under subsection 5(1) or 6(1) of the Sex Offender Information Registration Act is guilty of an offence and liable
- (a) in the case of a first offence, on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both; and
- (b) in the case of a second or subsequent offence,
- (i) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both, or
- (ii) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
2007, c. 5, s. 29.
– CCC
2004 to 2007
Offence
490.031 Every person who, without reasonable excuse, fails to comply with an order made under section 490.012 or with an obligation under section 490.019, is guilty of an offence and liable
- (a) in the case of a first offence, on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both; and
- (b) in the case of a second or subsequent offence,
- (i) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both, or
- (ii) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
2004, c. 10, s. 20.
– CCC
See Also
Reference