As of October 26, 2023, there is no longer a mandatory registration on the Sex Offender Registry for persons convicted of sexual offences.
Furthermore, if you have already been convicted of a sexual assault or other sexual offence, and are currently on a Sex Offender Registry Act [SOIRA] order, you can now apply to terminate your SOIRA order early.
On October 26, 2023 Bill S-12 was passed creating new Criminal Code provisions that drastically changed the legal landscape as it applies to SOIRA orders.
The new S-12 Bill follows from last year’s Supreme Court of Canada [SCC] decision in R. v. Ndhlovu [2022 SCC 38] [Ndhlovu] where the Court held that mandatory registration on the Sex Offender Registry was unconstitutional.
Mickelson & Whysall’s lawyers have been leading the way in dealing with the new SOIRA order provisions.
The Lawyer’s at Mickelson & Whysall have been at the forefront of these SOIRA issues, successfully fighting for their clients in court, to both (1) have these SOIRA orders removed for their clients who were sentenced prior to the legislative changes, as well as (2) arguing to keep their current clients off the SOIRA registry post Bill S-12.
If you are dealing with a SOIRA order issue you should get in touch with a lawyer experienced in removing and preventing SOIRA orders.
Will SOIRA really impact my life?
The short answer, yes.
The reporting requirements imposed by SOIRA are numerous, invasive and extensive, and their impact on an offender considerable. For instance, in Canada, sex offenders have to notify the police of significant personal information changes but are not mandated to notify neighbors. Other reporting requirements include:
- Reporting in person to a registration centre every year
- Reporting in person at a registration centre to advise of any changes to their personal information, such as a change of residential or employment address or change of name;
- Reporting in person at a registration centre to advise if they receive a driver’s licence or passport;
- Notifying the police within seven days of any change of employment or volunteer information;
- Notifying the police if they intend to be away from their primary or secondary residence for a period of more than 7 days, and providing the police with advanced notice of every address or location where they expect to stay, whether in or outside of Canada, during their time away from their residence; and
- Being subject to random compliance checks by the police at a rate of at least one compliance check per year.
Failing to follow any part of the Sex Offender Registry order has serious consequences. These consequences include being convicted of a crime, having to pay a fine, and possibly being imprisoned for up to two years (as stated in section 490.031(1) of the Code).
Bill S-12 and Its Impact on SOIRA
The new Bill S-12 modifies the rules for mandatory SOIRA registration.
It expands the circumstances in which individuals can be exempted or terminate their registration ahead of time.
This new approach allows judges to decide whether or not to impose a SOIRA order. The decision is based on two conditions being met.
- The Order would have grossly disproportionate effects on the offender; and
- Making the Order would have no connection to the purpose of helping police prevent or investigate sexual offences.
The bill sets out factors to be considered by the court in exercising that discretion. These factors include:
- The nature and seriousness of the offence;
- The age and personal characteristics of the victim;
- The relationship between the person and the victim;
- The personal characteristics and circumstances of the person along with their criminal history; and
- The opinions of any experts who have examined the person.
The new bill also amended the provisions of the Criminal Code that allow offenders to apply to have their SOIRA Orders terminated early.
Currently, a person seeking a termination order must show that continued registration would be grossly disproportionate in its impact on them.
The Court can now terminate a SOIRA Order if continued registration would be grossly
disproportionate in its impact for the person. Or, if continued registration would not be
connected to the objective of helping police investigate or prevent crimes of a sexual nature.
When deciding this, the court would consider the same factors that apply at the time of sentencing or verdict.
What Did the SCC Say In R. v. Ndhlovu 2022 SCC 38?
On October 28, 2022, the landmark case of R. v. Ndhlovu [2022 SCC 38] was heard, and the Supreme Court of Canada struck down two provisions of the Criminal Code relating to registration of offenders convicted of designated sexual offences in the national sex offender registry. In its 5-4 ruling, the majority held that ss. 490.012 and 490.013(2.1) of the Code unjustifiably violated s. 7 of the Charter, which guarantees the right to life, liberty, and security of the person. The Court found that the provisions interfered with offenders’ liberty, given the onerous reporting obligations that could last decades or a lifetime, under threat of imprisonment, fines, or both.
This decision signified the first big step in rolling back the onerous provisions imposed by the pre-2011 Conservative government, which imposed harsh, one-size-fits-all sentences for a range of sexual offences. The Supreme Court of Canada declared both section 490.012 of the Criminal Code [which made SOIRA Orders mandatory for the majority of sexual offences in Canada] and s.490.013 of the Criminal Code [which made lifetime SOIRA Orders mandatory for certain sexual offences] invalid, with immediate and retroactive effect in the case of lifetime registration orders. In the case of mandatory SOIRA Orders under s. 490.012, the Court suspended the declaration of invalidity for 12 months to allow the government to enact a new, more constitutional provision to replace it.
On October 26, 2023, the Government did just that.
What Does This Mean For You?
If you are being charged with a sexual offence, you may be eligible for exemption from SOIRA.
If you were previously charged with a sexual offence and are currently subject to a SOIRA Order, you may also be eligible for the early termination of your obligations.
Contact an Experienced Lawyer
The requirements required under the Sex Offender Registry are onerous, intrusive, and can cause you significant hardships. At Mickelson & Whysall, whether you are seeking exemption or early termination of a SOIRA Order, our experienced lawyers can assist you. Here you can read more about the sexual assault cases we have helped our clients with.
To find out more about how we can assist you, contact us now and speak to one of our knowledgeable lawyers.