Canadian Criminal Sentencing/Ancillary Orders/SOIRA Orders

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SOIRA Orders[edit]

Section 490.012 grants judges the power to order an offender to comply with the SOIRA:

Order
490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.

Order — if intent established

(2) When a court imposes a sentence on a person for an offence referred to in paragraph (b) or (f) of the definition “designated offence” in subsection 490.011(1), it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of that definition.

Order — if previous offence established

(3) When a court imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes that
(a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) or in paragraph (a) or (c) of the definition “designated offence” in section 227 of the National Defence Act;
(b) the person was not served with a notice under section 490.021 or 490.02903 or under section 227.08 of the National Defence Act in connection with that offence; and
(c) no order was made under subsection (1) or under subsection 227.01(1) of the National Defence Act in connection with that offence.

Failure to make order

(4) If the court does not consider the matter under subsection (1) or (3) at that time, the court
(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

2004, c. 10, s. 20; 2007, c. 5, s. 13; 2010, c. 17, s. 5.

CCC

Designated offences[edit]

The Order is generally to be granted for "designated offences" listed under section 490.011 (1), including:

SECTION (a)
  • subsection 7(4.1) (offence in relation to sexual offences against children),
  • section 151 (sexual interference),
  • section 152 (invitation to sexual touching),
  • section 153 (sexual exploitation),
  • section 153.1 (sexual exploitation of person with disability),
  • section 155 (incest),
  • subsection 160(3) (bestiality in presence of or by a child),
  • section 163.1 (child pornography),
  • section 170 (parent or guardian procuring sexual activity),
  • section 171.1 (making sexually explicit material available to child),
  • section 172.1 (luring a child),
  • section 172.2 (agreement or arrangement — sexual offence against child),
  • subsection 173(2) (exposure),
  • paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),
  • subsection 212(2) (living on the avails of prostitution of a person under age of eighteen),
  • subsection 212(2.1) (aggravated offence — living on the avails of prostitution of a person under age of eighteen),
  • subsection 212(4) (obtaining prostitution of person under age of eighteen),
  • section 271 (sexual assault),
  • section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
  • paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization),
  • paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm),
  • paragraph 273(2)(b) (aggravated sexual assault), and
  • subsection 273.3(2) (removal of a child from Canada);
SECTION (b)
  • subsection 173(1) (indecent acts),
  • section 177 (trespassing at night),
  • section 230 (murder in commission of offences),
  • section 234 (manslaughter),
  • paragraph 246(b) (overcoming resistance to commission of offence),
  • section 264 (criminal harassment),
  • section 279 (kidnapping),
  • section 279.01 (trafficking in persons),
  • section 280 (abduction of a person under age of sixteen),
  • section 281 (abduction of a person under age of fourteen),
  • paragraph 348(1)(d) (breaking and entering a dwelling house with intent to commit an indictable offence),
  • paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence),
  • paragraph 348(1)(e) (breaking and entering a place other than a dwelling house with intent to commit an indictable offence), and
  • paragraph 348(1)(e) (breaking and entering a place other than a dwelling house and committing an indictable offence);

The offences in the left column are designated offences under s.490.011(1)(a) that are eligible for a SOIRA Order under s. 490.012(1). The offences in the right column are designated offences under s.490.011(1)(b) that are eligible for a SOIRA Order under s. 490.012(2), if the crown can prove beyond a reasonable doubt that the offence was committed for the intent to commit an offence under s.490.011(1)(a).

Sex Offender Registration Act establishes a database accessible to police that contains addresses, descriptions, and other information regarding sex offenders. The offender is obligated to keep the information on file up to date for the period ordered. This will either be 10 years, 20 years, or life. Failure to comply with the order is a criminal offence.

Prior to April 15, 2011 Amendments[edit]

In April 15, 2011, the phrasing of s.490.012 was amended to make SOIRA mandatory for all section (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 though the effective investigation of crimes of a sexual nature".[1]The Court must give reasons for the decision to grant or deny the order under the SOIRA.[2]

The requirements can be summarized as follows:[3]

  1. What is the impact on the individual offender,
  2. What is the public interest served by registration, and
  3. Is the impact upon the defendant grossly disproportionate to the public interest having regard to:
    1. the nature of the offence,
    2. the nature of the intrusion, and
    3. 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."[4]

  1. 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.

  2. s. 490.012(5) The court shall give reasons for its decision."
  3. R. v. Epp, 2005 SKPC 71 at 26 referring to R.E.M. [2005] B.C.J. No. 1191 (B.C.S.C.)
  4. R. v. Have [2005] O.J. No. 388 at para. 17

Duration[edit]

Under Section 490.13, the length of the SOIRA order is based on the election and maximum penalty.

490.013 (1) An order made under section 490.012 begins on the day on which it is made.

Duration of order
(2) An order made under subsection 490.012(1) or (2)

(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment for the offence is life.

...

2004, c. 10, s. 20; 2007, c. 5, s. 14; 2010, c. 17, s. 6.

CCC

An order must be made for a minimum of life where:

  • the offender was convicted or found NCR for more than one designated offence (490.013 (2.1))
  • the offender was/is subject to an obligation under s. 490.019 or 490.02901 of the Code, or 227.06 of the National Defence Act or 36.1 of the International Transfer of Offenders Act (490.013 (3))
  • the offender was previously given a SOIRA order in the past (490.013 (4))

See Also[edit]

References[edit]