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The Sexual Offender Registry

If you are convicted of certain sexual offences, you will be registered in Canada’s national sexual offender registry and will have to comply with its requirements. The law that governs this registration is the Sex Offender Information Registration Act, SC 2004, c 10 (SOIRA). The database in which the information is kept is called the National Sex Offender Registry:

This database is administered by the Royal Canadian Mounted Police (RCMP) and provides police with rapid access to current vital information on convicted sex offenders to assist in the prevention or investigation of sexual offences. For example, police can access the sex offender database and query for a list of all known sex offenders within a geographic area. Any convicted sex offender on the Registry who lives, works, volunteers, goes to school or is even visiting temporarily in that geographical area will be instantly identified. Through the database, police have access to personal information, such as recent photos, descriptions of identifying marks and features that will assist in the investigation and prevention of sexual offences1.

Your information in the SOIRA registry is accessible throughout the country to Canadian Police agencies. The general public does not have access to your information in the database.

If you are convicted in Ontario you probably also will have to register in the Ontario Sex Offender Registry (OSOR) which was created as a result of the abduction, sexual assault and murder of 11-year-old Christopher Stephenson by a convicted sex offender in1988. The creation of this registry is known as “Christopher’s Law.” The rules and offenders’ registration requirements under Christopher’s Law are similar to those for SOIRA.

Young offenders (young persons, as defined in the Youth Criminal Justice Act), convicted of designated sexual offences are not subject to either SOIRA or Christopher’s Law unless they are sentenced as adults.

For certain offences, a SOIRA order is mandatory, which means that if you are convicted of one of those offences, a judge has no discretion in the matter and must make the order. The offences for which SOIRA is mandatory are called “designated offences.” The list of offences to which Christopher’s Law applies is similar. Section 490. 011 (1) of the Criminal Code2 lists the designated offences:

Designated offence means

(a) an offence under any of the following provisions:

(i) subsection 7(4.1) (offence in relation to sexual offences against children),

(ii) section 151 (sexual interference),

(iii) section 152 (invitation to sexual touching),

(iv) section 153 (sexual exploitation),

(v) section 153.1 (sexual exploitation of person with disability),

(vi) section 155 (incest),

(vi.1) subsection 160(2) (compelling the commission of bestiality),

(vii) subsection 160(3) (bestiality in presence of or by a child),

(viii) section 163.1 (child pornography),

(ix) section 170 (parent or guardian procuring sexual activity),

(ix.1) section 171.1 (making sexually explicit material available to child),

(x) section 172.1 (luring a child),

(x.1) section 172.2 (agreement or arrangement — sexual offence against child),

(xi) subsection 173(2) (exposure),

(xii) to (xv) [Repealed, 2014, c. 25, s. 25]

(xvi) section 271 (sexual assault),

(xvii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),

(xviii) paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization),

(xviii.1) paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm),

(xix) paragraph 273(2)(b) (aggravated sexual assault),

(xx) subsection 273.3(2) (removal of a child from Canada),

(xxi) section 279.011 (trafficking  —  person under 18 years),

(xxii) subsection 279.02(2) (material benefit  —  trafficking of person under 18 years),

(xxiii) subsection 279.03(2) (withholding or destroying documents  —  trafficking of person under 18 years),

(xxiv) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years),

(xxv) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years), and

(xxvi) subsection 286.3(2) (procuring  — person under 18 years);

(b) an offence under any of the following provisions:

(i) section 162 (voyeurism),

(i.1) subsection 173(1) (indecent acts),

(ii) section 177 (trespassing at night),

(iii) section 230 (murder in commission of offences),

(iii.1) section 231 (murder),

(iv) section 234 (manslaughter),

(v) paragraph 246(b) (overcoming resistance to commission of offence),

(vi) section 264 (criminal harassment),

(vii) section 279 (kidnapping),

(vii.1) section 279.01 (trafficking in persons),

(vii.11) subsection 279.02(1) (material benefit  —  trafficking),

(vii.12) subsection 279.03(1) (withholding or destroying documents  —  trafficking),

(viii) section 280 (abduction of a person under age of sixteen),

(ix) section 281 (abduction of a person under age of fourteen),

(ix.1) subsection 286.1(1) (obtaining sexual services for consideration),

(ix.2) subsection 286.2(1) (material benefit from sexual services),

(ix.3) subsection 286.3(1) (procuring),

(x) paragraph 348(1)(d) (breaking and entering a dwelling house with intent to commit an indictable offence),

(xi) paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence),

(xii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house with intent to commit an indictable offence), and

(xiii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house and committing an indictable offence);

(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:

(i) section 144 (rape),

(ii) section 145 (attempt to commit rape),

(iii) section 149 (indecent assault on female),

(iv) section 156 (indecent assault on male), and

(v) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (i) to (iv);

(c.1) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:

(i) section 246.1 (sexual assault),

(ii) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), and

(iii) section 246.3 (aggravated sexual assault);

(d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:

(i) subsection 146(1) (sexual intercourse with a female under age of fourteen),

(ii) subsection 146(2) (sexual intercourse with a female between ages of fourteen and sixteen),

(iii) section 153 (sexual intercourse with step-daughter),

(iv) section 157 (gross indecency),

(v) section 166 (parent or guardian procuring defilement), and

(vi) section 167 (householder permitting defilement);

(d.1) an offence under any of the following provisions of this Act, as they read from time to time before the day on which this paragraph comes into force:

(i) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),

(ii) subsection 212(2) (living on the avails of prostitution of person under 18 years),

(iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and

(iv) subsection 212(4) (prostitution of person under 18 years);

(e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a), (c), (c.1), (d) and (d.1); or

(f) an attempt or conspiracy to commit an offence referred to in paragraph (b). (infraction désignée)

However, s. 490.012(2) provides that:

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), (d.1) or (e) of that definition.

What s. 490.012(2) is saying is the judge must impose a SOIRA order in a conviction for one of the offences listed in paragraphs (b) or (f) only 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). For example if the Crown can prove that the offence of break and enter was committed with the intent to commit one of the listed designated sexual offences, then the judge will impose a SOIRA order. The SOIRA order is not here automatic. The Crown has to make the application and has to establish beyond a reasonable doubt that the accused committed the break and enter with the intent to commit one of the listed sexual offences. In other words, unlike in cases of conviction for the other listed designated offences, there will not necessarily be a SOIRA order for a conviction for an offence listed in paragraphs (b) or (f). Decisions under s. 490.012(2) are appealable (by either the convicted person or by the Crown).

Your obligations under a SOIRA or Christopher’s Law order will be fairly onerous. Within 7 days after the judge makes the order (upon your conviction) or within 7 days after you are released from jail, you have to register at a police registration centre. You have to re-register every year. You also have to re-register within 7 days if you change your name or if you move. You must notify the registration centre if you are going to be away from your home for more than 7 days. It is a criminal offence not to comply with a these orders.

The period of time for which you must remain registered under a SOIRA order depends on your sentence. The shortest period is 10 years. That period applies to summary conviction offences and offences that carry potential jail sentences of up to two and five years. Offences that have a 10 or 14 year maximum jail sentence require a 20 year SOIRA registration period. Registration is for life if you are convicted of an offence with a maximum life sentence, or if you have a prior conviction for a sex offence, more than one sexual offence in the same proceeding or if you were subject to a previous SOIRA order. Under Christopher’s Law registration is for 10 years if the maximum sentence for the offence for which you were convicted is less than 10 years and conviction is for only one sex offence. It would be for life if you are convicted of more than one sex offence or a single offence for which the maximum sentence is more than 10 years.

If you are subject to a 10-year SOIRA order, you can apply for a judicial review of the order after five years to try to get the order removed. If you are subject to a 20-year SOIRA order, you can apply for the judicial review after 10 years. And if you are subject to a lifetime order, you can apply for judicial review after 20 years and if unsuccessful, every five years thereafter. What you have to convince the court to be successful is described in the Criminal Code which provides:

Termination order

490.016 (1) The court shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, 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 the Sex Offender Information Registration Act.

You can also apply for a termination order once you receive a pardon or once a record suspension is ordered. Pardons and record suspensions apply to the OSOR but there is no termination application under Christopher’s Law.

But even with a termination order, your information will remain in the registry database indefinitely. The only way that you will have your information removed is if: you appeal your conviction and win, i.e. get acquitted; or, you have received a pardon granted under Her Majesty’s royal prerogative of mercy or from the Governor in Council (and you can imagine how often that happens).

If you are charged with a sexual offence and face the potential of a SOIRA order get legal help. Consider talking to the lawyers at Aitken Robertson. We can help.

 

Footnotes

1. Public Safety Canada, Government of Canada, online: https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/protctn-gnst-hgh-rsk-ffndrs/ntnl-sx-ffndr-rgstr-en.aspx

2. Criminal Code, RSC 1985, c C-46

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