A Guide To Understanding The Changes To The Sex Offender Information Registration Act

December 7, 2023

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In the intricate legal landscape surrounding sexual offences, the Sex Offender Information Registration Act (SOIRA) stands as a crucial national registry, shaping the lives of individuals convicted of specific crimes.

With the enactment of Bill S-12 in October 2023, pivotal changes have been introduced, narrowing mandatory registration to those convicted of serious offences against minors and repeat offenders. This marks a significant shift from the onerous burden that SOIRA previously imposed on individuals, including invasive reporting requirements, address updates, and the looming threat of legal consequences for non-compliance.

For a nuanced understanding of the revised SOIRA landscape and practical considerations in facing or terminating a SOIRA order, this comprehensive guide, authored by a seasoned sexual assault defence lawyer, offers valuable insights.

What Is SOIRA?

SOIRA is a national sex offender registry that imposes a series of reporting requirements. Its purpose is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.

The reporting requirements for anyone subject to a SOIRA order are extensive. Personal information (such as address, identifying marks, places of employment and travel plans) must be updated annually and is accessible by police forces across Canada. In Ontario, registrants must not only report in person to the designated reporting centre, but police have the authority to attend at their home for the purpose of obtaining updated information.

The length of the registration could be either 10 years, 20 years or even life, and the failure to comply with a registration requirement is a criminal offence.

Understanding The Changes To The Sex Offender Information Registration Act

The Sex Offender Information Registration Act (SOIRA) is a national sex offender registry that mandates registration for persons convicted of certain offences.

As known to anyone who is or has been subject to an SOIRA, the terms of registration are onerous, including:

  • invasive and extensive reporting requirements that must be kept up to date,
  • the reporting of changes in one’s address and travel plans,
  • the recording of observable characteristics (such as eye and hair colour),
  • the threat of prosecution and punishment for non-compliance
  • the possibility of visits from the authorities that can take place at any time at one’s home, along with the requirement for annual self-reporting.

It was therefore significant that in October 2023, legislation was passed (Bill S-12) that resulted in substantial and welcome changes to registration provisions of SOIRA. Significantly, mandatory registration is now restricted to persons convicted of serious offences against minors and repeat offenders. In all other cases, registration is discretionary, where the person establishes that:

  • There would be no connection between making the order and the purpose of SOIRA, namely helping police services prevent or investigate crimes of a sexual nature or,
  • The impact of the order on the person would be grossly disproportionate to the public interest in making the order.

In addition, for persons who are currently subject to SOIRA, the legislation provides an avenue for termination based on the same test (“no connection” or “grossly disproportionate”).

These critical changes to SOIRA are discussed in more detail below.

The Impact Of R. v. Ndhlovu

Bill S-12 was a response to the Supreme Court’s decision in R. v. Ndhlovu.

In Ndhlovu, the Supreme Court ruled that section 490.012 (mandatory SOIRA registration for persons convicted of a sexual offence) and 490.013(2.1) (lifetime registration if convicted of more than one designated offence) infringed s.7 of the Charter of Rights and Freedoms in a way that cannot be justified in a free and democratic society.

In finding these provisions unconstitutional, the Court made two significant findings:

  • Despite SOIRA’s long existence, “there is little or no concrete evidence of the extent to which it assists police in the prevention and investigation of sex offences.” As a result, mandatory registration breached section 7 of the Charter because registration has a “serious impact on the freedom of movement and of fundamental choices of people who were not at an increased risk of reoffending.”
  • Second, in clear language, the Supreme Court rejected previous statements of some courts that SOIRA registration was “minimally intrusive.” In contrast, the Court recognized the “considerable” reporting requirements of SOIRA, which interfered with the liberty of a person subject to an order “in serious ways.” The Court stated, “To reiterate, SOIRA’s reporting requirements are not routine: the scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment make the conditions onerous.”

Mandatory SOIRA Registration: Two Circumstances

The new legislation imposes mandatory SOIRA registration in two circumstances: first, when a person is convicted of serious sexual assault against children, and second, repeat offenders.

Pursuant s. 490.12(1), when a court imposes a sentence on a person for a designated offence, it shall make an order requiring a person to comply with SOIRA, where (a) the designated offence was prosecuted by indictment; (b) the sentence for the designated offence is a term of imprisonment of two years or more; and, (c) the victim of the designated offence is under the age of 18 years.

Section 490. 012(2) deals with repeat offenders, which requires registration if a person was previously convicted of a primary offence or had previously been subject to a SOIRA order.

SOIRA Registration Is Discretionary In All Other Cases

In all other circumstances, SOIRA now provides a pathway for persons convicted of a sexual offence to not be registered.

Specifically, under, 490. 012(3) registration will not be required where the court is satisfied the person has established that:

  • There would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act.
  • The impact of the order on the person, 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 that Act.

In determining whether a SOIRA order should made, the court shall consider all relevant factors, including:

(a) the nature and seriousness of the designated offence;

(b) the victim’s age and other personal characteristics;

(c) the nature and circumstances of the relationship between the person and the victim;

(d) the personal characteristics and circumstances of the person;

(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing a crime;

(f) the opinions of experts who have examined the person.

Exceptions For Current Registrants

Notably, persons placed on SOIRA on or after April 15, 2011, can apply to be removed from the registry. However, the same disqualification that relates to new registrants applies, namely persons convicted of serious offences (indictable offence involving a minor where the sentence was two years or more) and repeat offenders are ineligible.

How Can I Be Removed From SOIRA?

The test is the same as for new registrations; namely, the court shall make an exemption order if it is satisfied that the person has established that, at the time the order was made or the obligation began,

There would be no connection between continuing the order and helping police services prevent or investigate crimes of a sexual nature.

The impact of continuing the order would be grossly disproportionate to the public interest in making the order.

As with new registrations, the court shall consider all relevant factors in determining whether an exception should be allowed.

Termination Of Your SOIRA Order

If you are currently subject to SOIRA, you can apply to terminate your order if the applicable waiting periods have passed (5 years for persons subject to a 10-year order and 10 years for those subject to a 20-year order).

Is It Possible To Terminate A SOIRA Order?

Your SOIRA order may be terminated if you can establish:

There is no connection between continuing the order and helping services prevent or investigate crimes of a sexual nature; the impact of continuing the order would be grossly disproportionate to the public interest in making the order. The court would again consider all relevant circumstances police.

Importantly, if an application to terminate the SOIRA order is refused, the registrant must wait a further 5 years to re-apply.

Practical Considerations

While SOIRA registration is no longer mandatory, the test to avoid registration is still stringent. Accordingly, whether you are facing a new registration or wish to be removed from SOIRA, proper preparation and the marshalling of all relevant information is essential to a successful application. The material may include:

  • Letters of support from your family and community
  • Documenting your school or work history
  • Obtaining a report from an expert with respect to your prospects for rehabilitation
  • Placing an affidavit before the court that describes the unique impact that registration has on your life and family. Such personal circumstances may include physical barriers to reporting (such as where the registrant is disabled) and intangible impact (including the stigma) of the registration.

This approach led to the successful termination of a SOIRA order in R. v. A.B. By gathering all the relevant information and placing an extensive evidentiary record before the court (including a detailed affidavit from our client describing the significant personal impact of registration), we established that registration was “grossly disproportionate” and the judge ordered the SOIRA order to be terminated.

Each case is, of course, different. This means that the information to be placed before a court arguing that a SOIRA order should not be made or, if you are currently subject to registration, termination will depend on the unique circumstances of your case.

If you are facing the prospect of a SOIRA order or are currently subject to an order and wish to discuss options for its termination, contact Richard today for a free consultation.

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