The Sex Offender Information Registration Act (SOIRA) is federal legislation in Canada that creates and governs the national sex offender registry. The registry is designed to assist law enforcement in preventing and investigating sexual offences by maintaining up-to-date information on individuals convicted of certain sexual crimes. If you are convicted of a designated sexual offence, an SOIRA order may require you to report regularly to police, update personal information, and face significant restrictions.

History and Administration of SOIRA

SOIRA was initially passed in 2004 and has undergone several legislative and constitutional changes. The registry is maintained by the RCMP and applies across provinces. It requires registrants to provide information such as home and work addresses, vehicle identifiers, and travel plans. Individuals must update this information annually and report any changes within seven days.

Designated Offences Under SOIRA

SOIRA applies to persons convicted of “designated offences” listed in section 490.011(1) of the Criminal Code.

Examples of Designated Offences

These include a wide range of crimes such as sexual assault (sections 271 to 273), sexual interference (section 151), invitation to sexual touching (section 152), child pornography offences (section 163.1), voyeurism (section 162), and luring a child (section 172.1). Even non-contact offences like possessing child pornography or breaking and entering with intent to commit a sexual offence can lead to a SOIRA order.

The Supreme Court Decision in R. v. Ndhlovu

Previously, the law required judges to issue SOIRA orders automatically upon conviction for designated offences.

This changed with the landmark Supreme Court decision in R. v. Ndhlovu, 2022 SCC 38. In this case, the Court struck down section 490.012(2.1) of the Criminal Code, which imposed mandatory SOIRA orders without giving judges any discretion. The Court found this provision to be unconstitutional under section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty, and security of the person.

In R. v. Ndhlovu, the accused was convicted of two counts of sexual assault. Despite being a first-time offender with strong rehabilitative potential, the trial judge had no choice but to impose a SOIRA order under the law as it stood.

Court’s Reasoning and Outcome for Sex Offender Registry Orders

The Supreme Court ruled that the automatic nature of these orders violated the principle of proportionality and individualized justice. The Court emphasized that while protecting the public is important, it must be balanced against an individual’s rights and the facts of each case. Following Ndhlovu, the imposition of a SOIRA order is no longer mandatory. Instead, the Crown must apply for the order, and the judge will use discretion to determine whether registration is necessary. The judge must consider whether the individual poses a risk of committing another sexual offence and whether registering them is in the interest of public safety. This change brings SOIRA in line with Charter values and allows judges to impose the order only when truly justified by the circumstances.

The New Legal Test for SOIRA Orders

There is now a test for courts to apply when considering whether to issue a SOIRA order. 

The court must assess:

  • The risk of the offender reoffending sexually;
  • The nature of the offence and circumstances surrounding it;
  • The overall need for public protection.

This ensures a case-by-case approach where low-risk, first-time, or fully rehabilitated individuals may avoid lifelong inclusion in the sex offender registry.

Early Termination of SOIRA Orders

Depending on the length of the SOIRA order, individuals may apply for early termination after 5, 10, or 20 years, depending on whether their registration term was set for 10 years, 20 years, or life.

Why Legal Representation Matters?

If you or someone you know is facing a charge that could result in a SOIRA order, it is critical to understand your rights and the legal implications. The registry has serious consequences for privacy, travel, and employment.

Contact an experienced criminal defence lawyer to ensure your case is handled properly and your Charter rights are respected.

For skilled legal guidance, contact Linh Pham at (306) 502-5987 for a free consultation.

Legal citation: R. v. Ndhlovu, 2022 SCC 38, https://canlii.ca/t/jt5ls