SOIRA establishes a database called the National Sex Offender Registry accessible to Canadian police services. The database provides information regarding persons convicted of offences of a sexual nature and identifies all such registered offenders living within a particular geographic area. The National Sex Offender Registry includes the following information regarding the offender:
- the person's name
- the person's date of birth
- the person's current address
- a current photograph of the person
- any identifying marks such as tattoos or scars
- vehicle information
- the person's modus operandi
- the offences of a sexual nature that the offender committed.
As of April 15, 2011, Judges no longer have discretion with respect to whether or not to order a person convicted of certain designated offences to comply with the registration provisions of SOIRA.
Pursuant to the provisions of Section 490.012(1) of the Criminal Code of Canada, when a court imposes a sentence on a person for certain designated offences, or finds a person not criminally responsible on account of mental disorder for such an offence, the court must make an order requiring the person to comply with the provisions of SOIRA for a period of 10 years or 20 years or for the remainder of the person's life, depending upon the maximum term of imprisonment for the offence and the number of offences of which the person is convicted, as prescribed in Section 490.013. An application by the Crown prosecutor for such an order is not required.
The designated offences requiring the mandatory SOIRA order are listed in Section 490.011(1)(a) and are as follows:
- Section 7(4.1) offence in relation to sexual offences against children
- Section 151 sexual interference
- Section 152 invitation to sexual touching
- Section 153 sexual exploitation
- Section 153.1 sexual exploitation of person with disability
- Section 155 incest
- Section 160(2) compelling the commission of bestiality
- Section 160(3) bestiality in presence of or by a child
- Section 163.1 child pornography
- Section 170 parent or guardian procuring sexual activity
- Section 171.1 making sexually explicit material available to a child
- Section 172.1 luring a child for a sexual purpose
- Section 172.2 agreement or arrangement - sexual offence against child
- Section 173(2) exposure of genitals to a person under the age of 16 years
- Section 212(1)(i) stupefying or overpowering for the purpose of sexual intercourse
- Section 212(2) living on the avails of prostitution of a person under the age of 18 years
- Section 212(2.1) living on the avails of prostitution of a person under the age of 18 years and counselling or using threats or coercion against that person for purposes of profit
- Section 212(4) obtaining, or communicating for the purposes of obtaining, the sexual services of a person under the age of 18 years
- Section 271 sexual assault
- Section 272 sexual assault with a weapon, threats to a third party or causing bodily harm
- Section 273(2)(a) aggravated sexual assault - use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization
- Section 273(2)(a.1) aggravated sexual assault - use of a firearm
- Section 273(2)(b) aggravated sexual assault
- Section 273.3 removal of a child from Canada with the intent to commit a sexual act in respect of that child
In addition, Section 490.012(2) provides that when a court imposes a sentence on a person for certain additional designated offences, the court must, on application of the Crown prosecutor, make an order requiring the person to comply with the provisions of SOIRA if the Crown prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit a further sexual-related offence. Section 490.014 provides a right of appeal with respect to an order made pursuant to Section 490.012(2). There is no right of appeal with respect to an order made pursuant to Section 490.012(2).
The additional designated offences are listed in Section 490.011(1)(b) and are as follows:
- Section 162 voyeurism
- Section 173(1) indecent acts
- Section 177 trespassing at night
- Section 230 murder in commission of offences
- Section 231 murder
- Section 234 manslaughter
- Section 246(b) overcoming resistance to commission of offence
- Section 264 criminal harassment
- Section 279 kidnapping
- Section 279.01 trafficking in persons
- Section 279.011 trafficking of a person under the age of 18 years
- Section 280 abduction of a person under the age of 16 years
- Section 281 abduction of a person under the age of 14 years
- Section 348(1)(d) breaking and entering a dwelling house with intent to commit an indictable offence
- Section 248(1)(d) breaking and entering a dwelling house and committing an indictable offence
- Section 348(1)(e) breaking and entering a place other than a dwelling house with intent to commit an indictable offence
- Section 348(1)(e) breaking and entering a place other than a dwelling house and committing an indictable offence
It appears that since Section 490.012 does not refer to a conviction, but simply to the imposition of a sentence, a person that is granted an absolute or conditional discharge will also be subject to a mandatory SOIRA order despite the fact that the discharge means that the person was found guilty but not convicted.
Every person against whom a SOIRA order is made must do the following:
- report in person within 7 days after release from custody, or after the SOIRA order is made, or after being granted a conditional discharge or an absolute discharge by the Ontario Review Board if the person was found not criminally responsible on account of mental disorder, as the case may be, to the police service in the jurisdiction where the person resides at the place and during the times determined by the police service
- report annually between the 11th and 12th month after the person's last reporting date
- notify the National Sex Offender Registry by registered mail or by another means authorized by the respective province or territory after a change of address, after a change of name, and before the person's departure from the person's residence if the person will be absent for 7 consecutive days or more
Section 490.015 permits a person, who is subject to an order to comply with SOIRA, to apply for a termination of the order after the expiry of specified time periods determined by the duration of the SOIRA order. Also, a person may apply for a termination of the SOIRA order once the person receives a pardon or once a Record Suspension is granted. Further information on obtaining a Record Suspension is available here.
It is a criminal offence for a person who is subject to a SOIRA order to not comply with the provisions of the SOIRA order.
It appears that young persons, as defined in the Youth Criminal Justice Act, will not be subject to a mandatory SOIRA order unless sentenced as an adult and the court makes a SOIRA order.
Ontario Sex Offender Registry
Persons charged with sexual offences should be aware that there is also provincial legislation that creates an Ontario Sex Offender Registry and requires anyone convicted of a designated sex offence (or found not criminally responsible for such an offence on account of mental disorder) to register with the police as a designated sex offender for a period of 10 years or for life, depending on the nature and number of convictions involved.
Section 3 of the legislation sets out that an offender is required to report to the police in person and is required to do so within 15 days of:
- being released from custody after serving the custodial portion of a sentence in respect of a designated sex offence;
- being convicted of a designated sex offence, if the offender is not given a custodial sentence;
- receiving an absolute or conditional discharge in respect of a designated sex offence if found not criminally responsible on account of a mental disorder;
- changing his or her address; and
- becoming, or ceasing to be, a resident of Ontario.
In addition, offenders are required to report annually.
Section 7 of the legislation provides that the reporting obligation continues for a period of 10 years (where the maximum sentence for the sex offence in question is 10 years or less) or for life (where the maximum sentence is more than 10 years or the offender has been convicted of more than one sex offence).
A " sex offence" for purposes of the legislation is broadly defined. It includes convictions for the following offences:
- sexual assault
- sexual assault with a weapon
- aggravated sexual assault
- sexual interference
- invitation to sexual touching
- sexual exploitation
- parent or guardian procuring sexual activity
- exposure of genitals to a person under the age of 16 years
- luring a child by means of a computer system
- living off the avails of prostitution of a person under the age of 18
- purchasing sexual services of a person under the age of 18
- making, distributing, possessing, or accessing child pornography
In addition, it includes offences that were the predecessors of some of the foregoing offences, such as rape, indecent assault, gross indecency, and sexual intercourse with a female under the age of 14 or between the ages of 14 and 16.
The legislation does not apply to persons convicted of sex offences under the Youth Criminal Justice Act.
Subsection 3(2) of the legislation requires the offender, on presentation, to provide the police with satisfactory proof of his or her identity, name, date of birth and address, and such other information as may be prescribed. Pursuant to Subsection 2(2) of Ontario Regulation 69/01, that other information includes particulars of aliases used; proof of current address and mailing address (if different); home, personal, and business telephone and fax numbers; employment and volunteer work addresses; the name and addresses of any educational institutions where the offender is or has enrolled, attended, or worked; and any changes in the foregoing information. It also requires the offender to provide an up-to-date photograph.
Section 2 of the Regulations sets out in detail what information may be included in the Ontario Sex Offender Registry. This includes not only the information provided by the offender, but additional information obtained from the provincial and federal governments. Together this information forms the "cumulative and permanent record" of the Registry. The list of additional information provided for in Section 2 is lengthy. It includes, but is not limited to, particulars about an offender's convictions and sentences, the circumstances of the sex offences, fingerprint registration, and details about an offender's registration under the federal Sex Offender Information Registration Act (SOIRA).
The central difference between the provincial and federal legislation is that the provincial legislation does not contain an exemption or termination process. It appears, however, that an offender who has received a pardon or Criminal Record Suspension may apply to be deleted from the Ontario Sex Offender Registry.
The preceding information is set out in the Sex Offender Registry, 2000, S.O. 2000, c.1 and 2001, O. Reg. 69/01, s. 1 which came into force on April 23, 2001.