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Joseph Neuberger and Michael Bury, Neuberger & Partners LLP
The Sex Offender Information Registration Act SC 2004, c 10 (“SOIRA”) requires individuals convicted of designated sex-related crimes such as sexual assault, sexual interference, human trafficking, to register their personal information with a registry the purpose of which is to help police investigate sexual offences. This information may be of future investigative assistance in either identifying or eliminating suspects. Ther is opportunity for to challenge the imposition of a SOIRA order given the a recent Ontario Court of Appeal case.
SOIRA Orders are typically made by judges as part of the sentencing process upon application made by the Crown. They can be appealed. In R. v. N.D., the trial judge made a 20-year SOIRA order as part of the sentence. On appeal to the Ontario Court of Appeal, the appellant did not dispute the 20-year SOIRA order before the trial judge but instead brought, for the first time, a Notice of Constitutional Question challenging that order. The appellant sought a remedy pursuant to s. 24(1) of the Charter on the basis that the trial judge found that he did not pose a risk of reoffending. The appellant argued that the 20-year SOIRA order should be set aside because the impact of the order on his liberty had no relation or was grossly disproportionate to the objective of s. 490.012 of the Criminal Code, R.S.C. 1985, c. C-46.
The Crown opposed this ground of appeal and argued that, generally speaking, offenders in the appellant’s position should challenge SOIRA orders in the lower court. The Crown further argued that the appellant had not established that his inclusion on the registry either had no relation or was grossly disproportionate to the objectives of the registry. Additionally, the Crown submitted that the appellant did not fall within the circumstances contemplated by s. 490.012(3) of the Criminal Code, under which the court can exempt an offender from being subject to a SOIRA order. Furthermore, the Crown urged the Court of Appeal to find that this issue should be left to the court below on an application to be brought by the appellant under s. 490.04.
Section 490.012 of the Criminal Code sets out the circumstances under which courts must make a SOIRA order. Section 490.012(3) allows for some exceptions, namely where:
(a) 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; or
(b) 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.
Section 490.012(4) sets out the factors the court must consider when deciding whether to make an exception under s. 490.012(3):
(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider
(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 an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
The Court of Appeal declined to decide the appellant’s Charter application because the record was not sufficiently developed on appeal to make the factual findings required to determine the appellant’s claim for a personal Charter remedy. The Court held that a court of first instance would be in a better position to make the determinations relating to the appellant’s s. 24(1) Charter application on a fresh application with further evidence that may be tested by the parties. This was not a case, like several others decided by this court, where the Court was simply being asked to reduce a lifetime SOIRA order to a 20-year SOIRA order: see e.g., R. v. P.W., 2023 ONCA 672; R. v. Rule, 2023 ONCA 31; and R. v. G.H., 2023 ONCA 89. This was a unique situation involving a Charter remedy being sought for the first time on appeal by the appellant.
While there was some evidence in the appeal record that would support granting an exemption, there was no fresh evidence on the appeal, such as further ongoing efforts at rehabilitation, or opinion evidence from an expert who examined the appellant, which is one of the considerations under s. 490.12(4). As a result, the Court was not in a position to determine whether the statutory criteria for granting an exemption on appeal were met in this case.