The Supreme Court of Canada recently ruled on the constitutionality of certain provisions in the Criminal Code that create SOIRA obligations. This blog post briefly discusses that case and its effect on people who are currently subject to one of those orders.

What is SOIRA?

SOIRA refers to the Sex Offender Information Registration Act. It creates a national registry for people sentenced for most types of sexual offences, as long as their sentence creates obligations related to that registry. It is a tool meant to help police investigate sexual offences – in other words, in Canada, it is not a ‘neighbourhood watchlist’ or the sort of thing that is often depicted in popular culture.

People subject to a SOIRA order are required to report certain information to the authorities, and the obligations can be significant (and, similarly, the penalties for failing to comply with those obligations can be serious).

When SOIRA was first created in 2004, in any case where it would potentially be applicable, a Crown prosecutor would choose whether to apply for such an order and a sentencing judge would then decide whether a certain exception applied that could exempt the offender from the order. However, in 2011, a change was made that eliminated these two sources of discretion for the vast majority of cases. This eventually led to the case of R v Ndhlovu.

R v Ndhlovu, 2022 SCC 38:

In R v Ndhlovu, the Supreme Court considered whether the post-2011 versions of two particular SOIRA order provisions were constitutional. The first, section 490.012 of the Criminal Code, made SOIRA orders mandatory for the great majority of sexual offences in the Criminal Code. The second, section 490.013(2.1) of the Criminal Code, made it mandatory that the SOIRA order last for life if the person was convicted of two or more of those offences even without an intervening conviction (in other words, this would apply to someone sentenced for two or more at the same sentencing occasion – the evidence was that this was a very different scenario, in terms of risk, than someone who commits another sexual offence after an earlier sexual offence conviction).

The Supreme Court, by majority decision, concluded that both provisions, as currently worded, are unconstitutional.

Importantly, the Supreme Court was not saying that there cannot be any registration system. Rather, the point was that there were proper, constitutional ways to achieve it.

For example, the majority stated the following (this excerpt is quoted from the case’s

… There are reliable, tailored alternatives available that would substantially achieve the challenged measures’ objective. Restoring judicial discretion in the registration process would allow for a 90 percent inclusion rate of offenders in the registry. In addition, a variety of tools are available to improve the accuracy of judicial risk assessments, including expert evidence. Alternatively, Parliament can enumerate specific criteria to guide judges on when registering an offender is unlikely to advance the scheme’s objective. Regarding s. 490.013(2.1) [the lifetime requirement for two or more], the Crown has not explained why exempting offenders who commit more than one offence without an intervening conviction would not achieve s. 490.013(2.1)’s purpose….

The effect of the decision on each provision was different. For the mandatory order provision, section 490.012, the Supreme Court held that, although it is unconstitutional, the provision would remain applicable for 1 year from the date of the decision. This was done to allow the government to come up with a new provision to replace it. On the other hand, the Supreme Court struck down the ‘two or more’ provision, section 490.013(2.1), immediately.

What is the effect of this decision on people with existing SOIRA orders? The Supreme Court indicated that people with current SOIRA order obligations may be able to seek a remedy based upon their decision.

On the first, section 490.012, they stated (at paragraph 140 of their decision): … 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.

About the second, section 490.013(2.1) (at paragraph 142 of their decision): … Because the declaration affects all those impacted by the enactment of the provision since 2011, offenders who are subject to a lifetime order pursuant to this provision after having been convicted of more than one sexual offence without an intervening conviction can seek a s. 24(1) remedy to change the length of their registration.

The practical requirements for each of these applications would likely be quite different. For example, it seems likely that the first would require more extensive evidence and a more comprehensive hearing than the second. That said, because the Supreme Court’s decision is quite recent, the manner in which these applications will actually be assessed by the lower courts in Canada is not yet entirely clear.

It is important to understand that if you are under a current SOIRA order, nothing changes automatically. To seek either or both of the remedies mentioned above, an actual court application is currently required. If you believe that either of the above scenarios may be applicable to you, or even if you are not certain, you should seek advice from a lawyer about your case.