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Sex Offender Information Registration Act (SOIRA)

Did you know that Canada has a sex offender registry? If someone has been convicted of a sex offence in Canada, besides facing jail and probation, they must also register with the National Sex Offender Registry (NSOR). The registry’s database records the following information about each offender:

  • legal name and any alias
  • gender
  • date of birth and physical description
  • address of main and secondary residences
  • telephone numbers
  • address of the educational institution
  • name and address of volunteer organizations
  • offence information
  • current photograph
  • identifying marks (e.g., tattoos, scars)
  • vehicle information (owned and used regularly)
  • type of employment and address
  • provincial driver’s licence
  • passport information

Offenders have to report annually to a registration centre and must, within seven days, report:

  • any change in their main or secondary addresses
  • any change in their given name or surname
  • after they receive a driver’s licence
  • after they receive a passport
  • any change in their employment or volunteer information

Registered sex offenders must also report any absence from their main or secondary residence of seven days or more.

When this registry was created in 2009 under the Sex Offender Information Registration Act (SOIRA), judges had discretion about whether or not a convicted offender had to register. In 2011 the law was amended, taking away a judge’s discretion to exclude an offender from the registry. It became mandatory, under s. 490.012 of the Criminal Code for anyone found guilty of a sexual offence, to register in the national registry.  For anyone who committed more than one sexual offence, s. 490.013(2.1) imposed a mandatory registration for life.

In its judgment rendered on October 28, 2022, in the case of R. v. Ndhlovu, 2022 SCC 38 (“Ndhlovu”), the Supreme Court of Canada (SCC) has declared these provisions to be unconstitutional because they violate s. 7 of the Charter and this violation could not be justified in a free and democratic society.

The court said that the provisions infringe on the right to liberty protected under s. 7 of the Charter, “because registration has a serious impact on the freedom of movement and of fundamental choices of people who are not at an increased risk of re‑offending.” The court found that registering offenders who are not at risk of reoffending is disconnected from the purpose of registration, which is to capture information about offenders to help police prevent and investigate sex offences.

In the case before the court:

. . . the appellant, Eugene Ndhlovu, pled guilty in 2015 to two counts of sexual assault against two complainants at a party in 2011. He was 19 years old at the time. At sentencing, the judge was tasked with tailoring a proportionate sentence that was fit in relation to both Mr. Ndhlovu and the sexual assaults he committed. After canvassing his background and the evidence, the judge found that Mr. Ndhlovu was unlikely to reoffend. However, due to Parliament’s amendments in 2011, the Criminal Code obliged the judge to issue an order requiring Mr. Ndhlovu to comply with SOIRA, and for the rest of his life” (Ndhlovu at para. 4).

Clearly the requirements that Mr. Ndhlovu would have to comply with were disproportional to the crime. The judge in fact found the provisions to be unconstitutional and declared them to be without force or effect and did not order Mr. Ndhlovu to register himself. The Crown appealed that decision to the Court of Appeal of Alberta. That court found the provisions to be constitutional. Mr. Ndhlovu then appealed to the SCC which overturned the appeal court’s decision.

The SCC declared the provisions to be invalid but that the declaration of invalidity for section 490.012, which is the section that makes registration mandatory, will only take effect in one year. The court stated that such “a prospective declaration of invalidity would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated. Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012” (Ndhlovu at para.140).

An immediate declaration was granted for s.490.013(2.1), which is the section that provides for the lifetime ban, so it takes effect immediately and is applied retroactively to 2011.

Mr. Ndhlovu was exempted from the one-year suspension and so does not have to register in the registry because it “is generally desirable that a claimant who brings a successful constitutional challenge benefit from their efforts in litigating the issue (Ndhlovu at para. 141).

Even with the mandatory and lifetime sex offender registry registration provisions of the Criminal Code having been struck down, if you have been charged with a sexual offence, you still face a strong possibility of being ordered to register in the NSOR along with being subject to other severe penalties if convicted. The criminal lawyers at Aitken Robertson can help you if you have been charged with a sexual offence. Call for a free 30-minute consultation.

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