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Criminal - Sex Offender Information Registration Act (SOIRA). R. v. N.D.
In R. v. N.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here declining a 'fresh law' Charter application to vary his SOIRA order (the court noted that the defendant could re-apply for vary the SOIRA order at the trial level):[49] We decline to decide the appellant’s Charter application. In our view, the record is not sufficiently developed to make the factual findings required to determine the appellant’s claim for a personal remedy. The trial judge did not provide reasons for making the SOIRA order although she did make a finding in deciding whether to impose a conditional sentence or not, that the appellant “serving his sentence in the community would not endanger the safety of the community”. In so finding, she “look[ed] at the risk posed by himself on reoffending.” In addition, the appellant was 18 years old at the time of the offence and there was evidence that he had the support of his family; he had a positive record of service and employment with the military; and there were no other allegations of sexual impropriety since the offence date. However, the trial judge did not consider whether the risk posed in deciding whether to impose a conditional sentence could be equated with a general risk of recidivism, an issue that is contested by the parties. In our view, therefore, a court of first instance would be in a better position to make the determinations relating to the appellant’s s. 24(1) application on a fresh application with further evidence that may be tested by the parties.
[50] As noted above, while we decline to grant the Charter application, the appellant may seek an exemption pursuant to s. 490.04(1) in the court of first instance. Again, while, there is some evidence in the record that would support granting an exemption, there is no fresh evidence on the appeal, such as further ongoing efforts at rehabilitation, or opinion evidence from an expert who examined the appellant, which is one of the considerations under s. 490.12(4). We are therefore not in a position to determine whether the statutory criteria for granting an exemption are met in this case.
[51] Accordingly, while this court may have the authority pursuant to s. 24(1) of the Charter to vacate the SOIRA order, we are not satisfied that the record is sufficiently developed for us to do so. Given the importance of the issue, and the need for further evidence, the best forum to litigate whether the appellant should be granted any relief from the imposition of a SOIRA order is a court of first instance. This is not a case, like several others decided by this court, where we are simply being asked to reduce a lifetime SOIRA order to a 20-year SOIRA order: see e.g., R. v. P.W., 2023 ONCA 672; R. v. Rule, 2023 ONCA 31; and R. v. G.H., 2023 ONCA 89. The consequences of removing the SOIRA order altogether are significant and should be based on a proper evidentiary record.
[52] We therefore decline to deal with the Charter application, but this does not preclude the appellant from pursuing relief in a lower court under s. 490.04 of the Criminal Code for an exemption based on a proper evidentiary record. . R. v. N.D.
In R. v. N.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here considering SOIRA orders:(2) The SOIRA order
[45] As part of the sentence, the trial judge made a 20-year SOIRA order. The appellant did not dispute the 20-year SOIRA order before the trial judge but instead brings, for the first time, a Notice of Constitutional Question challenging that order. Before this court, the appellant is seeking a personal remedy pursuant to s. 24(1) of the Charter on the basis that the trial judge found that he does not pose a risk of reoffending. The appellant argues that the 20-year SOIRA order should be set aside because the impact of the order on his liberty bears no relation or is grossly disproportionate to the objective of s. 490.012 of the Criminal Code, R.S.C. 1985, c. C-46. The respondent opposes this aspect of the appeal. The respondent submits that, generally speaking, offenders in the appellant’s position should challenge SOIRA orders in the trial court. The respondent argues that the appellant has not established that his inclusion on the registry either bears no relation or is grossly disproportionate to the objectives of the registry. Additionally, the respondent submits that the appellant does not fall within the circumstances contemplated by s. 490.012(3) of the Criminal Code, under which the court can exempt an offender from being subject to a SOIRA order. Alternatively, the respondent suggests that this issue should be left to the court below on an application to be brought by the appellant under s. 490.04.
[46] Section 490.012 of the Criminal Code sets out the circumstances under which courts must make a SOIRA order. Section 490.012(3) allows for some exceptions, namely where:(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, 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 that Act. [47] Section 490.012(4) sets out the factors the court must consider when deciding whether to make an exception under s. 490.012(3):(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant. [48] Section 490.04(1) permits a person who is subject to a SOIRA order that was made prior to the enactment of the exempting power set out in s. 490.12(3) to apply to the court for an exemption. The criteria for obtaining an exemption are the same as set out in ss. 490.12(3) and (4). . R. v. Clarke
In R. v. Clarke (Ont CA, 2024) the Court of Appeal considered 'Sex Offender Information Registration Act' (SOIRA) sentencing terms, and recent Charter activity in this law:[3] Mr. Herscovitch addressed the duration of the lifetime SOIRA order. Ms. Clarke was sentenced on September 27, 2022, at which time the trial judge imposed a mandatory lifetime order pursuant to s. 490.013(2.1) of the Criminal Code. A month later, on October 28, 2022, the Supreme Court of Canada [SS: in R. v. Ndhlovu, 2022 SCC 38 (CanLII)] struck down this provision as unconstitutional. As the majority explained, at para. 142:[O]ffenders 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. [4] We agree that Ndhlovu entitles Ms. Clarke to apply to the trial court for a s. 24(1) Charter remedy reducing the length of her SOIRA order from life to 20 years. However, in the absence of a proper Charter application, we are not satisfied that we can grant her that remedy now: see R. v. E.H., 2024 ONCA 74, at paras. 89-90.
[5] Mr. Herscovitch suggests that we have jurisdiction to vary Ms. Clarke’s SOIRA order pursuant to the expanded statutory appeal provision in s. 490.014 of the Criminal Code, which came into force on October 26, 2023. In the absence of full argument, we are not persuaded that we can properly interpret this provision as applying retrospectively to persons like Ms. Clarke who were sentenced before they came into force: see R. v. E.H., at para. 93; R. v. S.W., 2024 ONCA 173, at para. 59. We accordingly decline to address the request to reduce the duration of Ms. Clarke’s SOIRA order, without prejudice to her ability to seek a variation from the trial court pursuant to Ndhlovu. . R. v. S.W.
In R. v. S.W. (Ont CA, 2024) the Court of Appeal considered a sentencing appeal, here regarding a SOIRA order (that was not ordered at the trial):D. Did the trial judge err in not imposing a Soira order?
[57] As reviewed above, the trial judge chose not to impose a SOIRA order because he anticipated that the mandatory regime was soon to be replaced with a discretionary regime. Given his finding that the respondent was not at risk to reoffend, he found that it was not necessary to make a SOIRA order.
[58] The Crown now asks this court to not only vary the respondent’s sentence, but also to make a SOIRA order. The respondent concedes that the trial judge erred in failing to apply the SOIRA regime as it existed at the time of sentencing. However, he argues that this court does not have jurisdiction to hear an appeal from this issue.
[59] Based on this Court’s decision in R. v. R.P., 2018 ONCA 473, which adopted the approach of the New Brunswick Court of Appeal in R. v. Chisholm, 2012 NBCA 79, 393 N.B.R. (2d) 198, I agree with the respondent’s argument. At the relevant time, there was no right to appeal from an order made pursuant to s. 490.012 of the Criminal Code, which is the section that should have led to a SOIRA order. Although, as of October 26, 2023, the right of appeal under s. 490.014 was broadened to include all decisions made under s. 490.012, nothing in the legislation suggests that these revisions are to apply to sentencing decisions made prior to its enactment.
[60] Moreover, this court does not have original jurisdiction under s. 490.012 to “impose” a SOIRA order for two reasons. First, under s. 687 of the Criminal Code, this court is empowered to only “vary” a sentence, as opposed to “imposing” one. Second, a sentencing judge’s decision to impose or not impose a SOIRA order cannot be appealed under Part XXI of the Code because such orders do not form part of an offender’s “sentence”: R.P., at para. 9.
[61] In R. v. E.H., 2024 ONCA 74, this court recently found that it does not have the jurisdiction to vary an unlawful lifetime SOIRA order. Citing R.P., the court held that it is the sentencing judge who maintains jurisdiction to correct any errors associated with a SOIRA registration order: E.H. at paras. 94-95. Accordingly, it may be open to the Crown to return to the trial judge and seek a SOIRA order, but this court does not have jurisdiction to make the order: E.H. at para. 97. . R. v. E.H.
In R. v. E.H. (Ont CA, 2023) the Court of Appeal reviews some Sex Offender Information Registration Act (SOIRA) Charter history:(1) The duration of the SOIRA order
[83] In October 2022, several months before the appellant was sentenced, the Supreme Court of Canada declared s. 490.013(2.1) of the Criminal Code to be unconstitutional and of no force or effect, effective immediately: R. v. Ndhlovu, 2022 SCC 38, 419 C.C.C. (3d) 285. This subsection had required that persons convicted of committing more than one designated sexual offence receive mandatory lifetime SOIRA reporting orders. As the majority explained at para. 142, the consequence of striking down s. 490.013(2.1) is that “those convicted of an offence with a maximum term of imprisonment of 10 to 14 years would receive a 20-year registration order (s. 490.013(2))”.
[84] Since the appellant was convicted of multiple offences that all carry a maximum sentence of 14 years’ imprisonment, it is common ground that after Ndhlovu he should have received a 20-year SOIRA registration order. Unfortunately, the trial judge mistakenly concluded that he was obliged to impose a lifetime order, stating in his reasons for sentence:The question of SOIRA is extremely complicated. I try to gather as much information from colleagues who have dealt with interpretation of the recent Supreme Court of Canada decision. In my view, my only choice is to make a lifetime order. [85] The Crown on appeal agrees that the trial judge erred by instead imposing a lifetime SOIRA registration order. However, Ms. Whitford questions whether we have jurisdiction to rectify this mistake.
[86] Her concern is well taken, since in R.P., referred to above, this court adopted the reasoning and analysis of the New Brunswick Court of Appeal in R. v. Chisholm, 2012 NBCA 79, 393 N.B.R. (2d) 198, and held that trial courts’ decisions to impose or not impose a SOIRA registration order cannot be appealed by either the defence or the Crown under the sentence appeal provisions in Part XXI of the Criminal Code, on the grounds that SOIRA registration orders do not form part of an offender’s “sentence”.
[87] R.P., like the case at bar, also involved an appeal from a lifetime SOIRA registration order that had been made at trial without proper statutory authority, in factual circumstances where the offender ought to have only received a 20-year order. Although the lifetime registration orders made in R.P. and in the appellant’s case were unlawful for somewhat different reasons,[2] I agree with Ms. Whitford that this is not a meaningful juristic difference between the two cases. If the unlawful SOIRA order imposed on the offender in R.P. could not be appealed by him as a sentence appeal because the order was not part of his “sentence”, the same must be true of the order made in this case.
[88] That said, I note that this court has not consistently followed R.P. In the past year, there have been at least three other sentence appeal decisions where this court has set aside lifetime SOIRA registration orders and substituted 20-year registration orders, on the Crown’s consent and without any issue being raised about whether there was jurisdiction to do so in the context of a sentence appeal: see R. v. Menard, 2023 ONCA 210; R. v. R.S., 2023 ONCA 626; and R. v. G.S., 2023 ONCA 712.
[89] The appellant’s case is different from R.P. in that it comes before us after Ndhlovu, which not only struck down s. 490.013(2.1), but also held that imposing mandatory SOIRA registration orders on offenders, based solely on their having committed multiple designated sexual offences without an intervening conviction, infringes their rights under s. 7 of the Canadian Charter of Rights and Freedoms. The appellant is accordingly entitled to seek to have his lifetime SOIRA registration order varied as a personal Charter remedy, rather than as an appeal from an unlawful sentence. Indeed, there is a second line of recent cases where this court has reduced lifetime SOIRA registration orders to 20-year orders and characterized this relief as a s. 24(1) Charter remedy: see R. v. Rule, 2023 ONCA 31. This court seems to have also taken this approach in R. v. G.H., 2023 ONCA 89, citing Rule as authority for granting the appellant in that case a similar reduction.
[90] However, in Rule the court noted, at para. 11, that the provincial Crown was waiving the statutory requirement under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), that the appellant serve a Notice of Constitutional Question, and that “[t]he federal Crown has indicated that they are content that this court deal with the remedy here and has no intention of intervening”. In contrast, in the case at bar nobody seems to have contacted the federal Crown, and Ms. Whitford did not suggest that we could waive the statutory requirement that the appellant serve a Notice of Constitutional Question as a precondition for obtaining a s. 24(1) Charter remedy.
[91] It may also be arguable that Chisholm and the cases that have followed it, including R.P., have been implicitly overturned by Ndhlovu, to the extent that the majority decision can be read as implying that SOIRA orders “likely constitute punishment”: see Ndhlovu, at paras. 167-68, per Brown J. (dissenting in part). If so, this may arguably imply that such orders must now also be viewed as forming part of an offender’s “sentence”, making them appealable under Part XXI of the Criminal Code. However, the Ndhlovu majority expressly declined to address the question of whether SOIRA registration orders were “punishment”, at para. 58, and we heard no argument on this point, or on the issue of whether imposing punishment on an offender necessarily forms part of that offender’s sentence for appeal purposes.
[92] Finally, Chisholm and R.P. have also now been overtaken by recent statutory amendments to s. 490.014 of the Criminal Code that broaden the statutory right of appeal from decisions made or refused under ss. 490.012 and 490.013. Before these amendments, an appeal under s. 490.014 could only be taken in a narrow class of cases that excluded the appellant’s situation. If an unlawful SOIRA registration order were imposed on an offender now, that person would be able to appeal the order under the version of s. 490.014 that is now in force.
[93] However, we did not hear any argument about whether the new rights of appeal in the amended s. 490.014 apply retroactively, such that they can properly be invoked by persons like the appellant who seek to appeal orders that were made before the amendments took effect in October 2023.
[94] I have reluctantly concluded that we remain bound by R.P., and that in the absence of a proper Charter application, or full argument on the question of whether R.P. has been overtaken by Ndhlovu or the recent statutory amendments, we are powerless to intervene to correct what everyone agrees is a legally defective SOIRA registration order. While we would have jurisdiction to grant the appellant a s. 24(1) Charter remedy, as this court did in Rule, the appellant has not given notice under s. 109 of the CJA of his intention to seek a Charter remedy, and neither the federal nor provincial Crowns have waived this notice requirement, as they both did in Rule.
[95] However, this does not leave the appellant without any remedy. While this court’s decision in R.P. holds that we cannot vary SOIRA registration orders as part of our Part XXI Criminal Code sentence appeal jurisdiction, this court also adopted Goldstein J.’s analysis in R. v. Alvarenga-Alas, 2014 ONSC 4725, and concluded that a trial judge who makes a legally unsupportable SOIRA registration order retains jurisdiction to correct the error: see R.P., at para. 21. The appellant can accordingly seek a corrective order from the trial judge, or, if he is unavailable, another judge of the Ontario Court of Justice pursuant to s. 669.2 of the Criminal Code.
[96] To be clear, I am not suggesting that the appellant must now seek a s. 24(1) Charter remedy in a lower court, which would require him to comply with the s. 109 CJA constitutional notice requirements. He would have had to follow this more cumbersome procedural route if he had been sentenced before the Supreme Court of Canada struck down s. 490.013(2.1): see Ndhlovu, at para. 142. However, because the appellant was sentenced after s. 490.013(2.1) had already been declared to be of no force or effect by the Supreme Court, the lifetime SOIRA registration order that was imposed on him not only infringes his s. 7 Charter rights, but was also unsupported by any lawful statutory authority at the time the order was made. Pursuant to R.P., the appellant is entitled to seek a corrective order from the trial judge. Although he could also obtain this same relief by applying for a s. 24(1) Charter remedy, in the circumstances here he is not obliged to do so.
[97] I would also note that while R.P. expressly permits the appellant to apply to the trial judge to have the erroneous SOIRA registration order corrected, nothing in the court’s judgment limits the Crown’s ability to make this application itself. I would urge the Crown to consider doing so in the interests of justice, having regard to the appellant’s self-represented status and personal challenges, and the fact that the trial record suggests that the trial judge would have made a shorter duration order if he had not erroneously concluded that a lifetime order was mandatory, in part because this conclusion was suggested to him by Crown counsel at trial (not Ms. Whitford). . R. v. J.M.
In R. v. J.M. (Ont CA, 2023) the Court of Appeal allows an appeal regarding the federal Sex Offender Information Registration Act (SOIRA):[1] Ms. Zita, as duty counsel, raised the issue of the error on the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) order following the Supreme Court of Canada decision in R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389.
[2] On consent, the SOIRA order is reduced from lifetime to 20 years.
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