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Criminal - Sex Offender Information Registration Act (SOIRA). R. v. Eldon
In R. v. Eldon (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal Crown appeal, here on SOIRA issues:[52] First, it is critical to begin the analysis under s. 490.012(3) with the statutory presumption front and centre, recognizing that an order shall be imposed unless it can be established that the criteria under (a) or (b) are met. This presumption accords with what was recognized in Ndhlovu, that sexual offending is one of several “empirically validated predictors of increased sexual recidivism”: Ndhlovu, at para. 94. It also accords with the recognition that the prevention and investigation of sexual offending, through the assistance of the NSOR, is in the public interest: Criminal Code, s. 490.012(3)(b); SOIRA, ss. 2(1), 2(2).
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[63] Third, to avoid the mandatory SOIRA order, the respondent had to show that the order would not only be disproportionate to the public interest in his inclusion in the registry, but that it would be “grossly disproportionate” to that interest. “Grossly” signifies more than a minor imbalance. It means “plainly, obviously, excessively, to a startling degree, flagrantly or glaringly” disproportionate: Debidin, at para. 62.
[64] In the DNA databank context, where the term “grossly disproportionate” is also used, it has been interpreted to mean “clearly and substantially”: R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 31.[5] Applying that interpretation in this context, it would mean that the accused must establish that “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” is clearly and substantially inferior to “the impact of the order on the person, including on their privacy or liberty”. . R. v. Eldon [full SOIRA history]
In R. v. Eldon (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal Crown appeal, reviewing the full history of the Sex Offender Information Registration Act (SOIRA) back to it's passage into law in 2004, amendments in 2011, the 2022 Charter challenge in Ndhlovu, and the resultant 2023 amendments:(1) Overview
[20] Section 490.014 of the Criminal Code confers on both parties the right to appeal from the granting or refusal of a SOIRA order pursuant to s. 490.012. The provision allows an appeal on “any ground of appeal that raises a question of law or of mixed law and fact.” As for remedy, the appeal court may either dismiss the appeal or allow it and order a new hearing, quash or amend the order, or make an order pursuant to s. 490.012.
[21] As for standard of review, an appellate court should only intervene if there is an error in principle, a failure to consider a relevant factor, an overemphasis of appropriate factors, or if the decision was clearly unreasonable: R. v. Debidin (2008), 2008 ONCA 868 (CanLII), 94 O.R. (3d) 421 (C.A.), at para. 71; R. v. Redhead, 2006 ABCA 84, 56 Alta. L.R. (4th) 15, at paras. 12-14, leave to appeal refused, [2006] S.C.C.A. No. 187; and R. v. Turnbull, 2006 NLCA 66, 214 C.C.C. (3d) 18, at para. 21.
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(2) The Statutory Scheme
[28] The provisions in question were enacted following a constitutional challenge to ss. 490.012 and 490.013(2.1) of the Criminal Code: see R. v. Ndhlovu, 2022 SCC 38, 419 C.C.C. (3d) 285. The new provisions came into effect in October 2023 and the respondent’s sentencing took place two weeks later. Accordingly, the respondent was entitled to the benefit of the new provisions and the new legislation governed.
[29] While the focus of this appeal is on the interpretation of the new provisions, specifically ss. 490.012(3) and (4), it is helpful to situate them in the context of the preceding statutory framework.
(a) The 2004 Framework: The Discretionary Scheme
[30] In 2004, Parliament passed the Sex Offender Information Registration Act, S.C. 2004, c. 10, which created the NSOR. With the enactment of this legislation, combined with amendments to the Criminal Code, courts started making SOIRA orders requiring convicted sex offenders to register in the NSOR.
[31] The purpose of SOIRA was “to help police services investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”: SOIRA, s. 2(1).
[32] Two features of the legislative scheme faced criticism. First, prosecutors had to apply for the orders, but these applications were not made with appropriate frequency. Second, sentencing judges retained a discretion to exempt an offender from registration if a SOIRA order would be “grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature”: Criminal Code, s. 490.012(4). Some suggested that this judicial discretion was too commonly invoked, including on concerning bases, such as myths and stereotypes about victims of sexual crimes and those who commit those crimes: Janine Benedet, “A Victim-Centred Evaluation of the Federal Sex Offender Registry” (2012) 37 Queen’s L.J. 437; Colton Fehr, “Unpacking Bill S-12: Pragmatic Compromise or Undue Deference?” (2025) 28 Can. Crim. L. Rev. 59; and Ndhlovu, at para. 110.
[33] These concerns led to statutory amendments in 2011.
(b) The 2011 Amendments: Removal of Prosecutorial and Judicial Discretion and the Mandatory Lifetime Registration
[34] In 2011, the statutory scheme was amended when Parliament enacted the Protecting Victims from Sex Offenders Act, S.C. 2010, c. 17.[3] This legislation introduced three notable amendments.
[35] First, the Act partially removed prosecutorial discretion in applying for an order.[4] Second, the Act completely removed judicial discretion from the operation of s. 490.012, thereby making SOIRA orders mandatory for all offenders who were found guilty of any one of the sexual offences designated in s. 490.011(1)(a). Third, the legislation introduced a mandatory lifetime registration for offenders who commit more than one designated sexual offence, “irrespective of the nature or timing of the offences and even if they are part of the same transaction”: Ndhlovu, at para. 3.
(c) Ndhlovu: Challenge to Mandatory Nature of the Scheme
[36] Perhaps unsurprisingly, a constitutional challenge was eventually launched and made its way to the Supreme Court of Canada. I say unsurprisingly because some predicted that a challenge to the mandatory nature of the scheme would eventually be brought: see e.g., Janine Benedet, at pp. 465-469.
[37] In October 2022, a majority of the Supreme Court held that s. 490.012 (requiring mandatory registration of offenders found guilty of any one of 27 designated sexual offences) and s. 490.013(2.1) (requiring mandatory lifetime registration of those who commit more than one designated sexual offence) were unconstitutional and declared them to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. A one-year suspension of the declaration was put in place for the mandatory registration (not the lifetime registration): Ndhlovu, at para. 136.
[38] More specifically, the majority in Ndhlovu held that ss. 490.012 and 490.013(2.1) had a serious impact on an offender’s liberty. The majority commented that offenders who experience homelessness, substance use issues and other cognitive or mental health challenges may find compliance with SOIRA particularly difficult: Ndhlovu, at para. 46. The provisions in question were overbroad because they lead to the registration of offenders who were not at an enhanced risk of committing a future sex offence: Ndhlovu, at paras. 111, 115. Although the prevention and investigation of sex crimes is a pressing and substantial purpose, the challenged provisions were not saved by s. 1 since they were not minimally impairing and the deleterious effects of the provisions outweighed their salutary ones: Ndhlovu, at para. 135.
[39] Although the majority found that the provisions in question were overbroad, they accepted that the legislative scheme was built on a core principle, namely that there are numerous empirically validated predictors of future sex offending, one of which is current sex offending: Ndhlovu, at para. 94.
(d) The 2023 Amendments: The Current Statutory Scheme
[40] This brings us to the current scheme, Parliament’s response to Ndhlovu.
[41] Under the new scheme, SOIRA orders are mandatory in some cases. For instance, s. 490.012(1) requires an order to be made where the offender is sentenced for a designated offence and: i) the offender was prosecuted by indictment; ii) the sentence for the designated offence is for a term of imprisonment of two years or more; and iii) the victim of the designated offence is under 18 years of age.
[42] Notably, this case meets all of these criteria except that the respondent was sentenced to two years less a day, not two years or more. In other words, if the sentence had been one day longer, he would have been subject to a mandatory SOIRA order under s. 490.012(1).
[43] Instead, this matter was governed by ss. 490.012(3) and (4). Under s. 490.012(3), if an offender who is convicted of a primary designated offence is not caught by ss. 490.012(1) or (2), the court “shall make an order” requiring compliance with SOIRA “unless the court is satisfied the person has established that” one of two exceptions apply:(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. [Emphasis added.] [44] Under each of these exceptions, the threshold is high – there must either be “no connection” between making the order and the purposes of SOIRA, or the impact of the order would not just be disproportionate but “grossly disproportionate” to the purposes of SOIRA. Section 490.012(3) of the Criminal Code recognizes that the framework has a dual purpose – the “prevention” of crimes of a sexual nature and the “investigation” of such crimes. As the majority recognized in Ndhlovu, at para. 120, these are “laudable” goals.
[45] A new addition to the latest statutory scheme is s. 490.012(4), which sets out the factors to be considered when determining whether an order should not be made. As the presumption is that an order is to be made (“shall make” the SOIRA order), this list of factors informs those situations where the offender attempts to establish that an order should not be made (“unless the court is satisfied the person has established”). The list reads:Factors
(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. [Emphasis added.] [46] It is mandatory to consider these factors in assessing whether there is “no connection” for the purposes of s. 490.012(3)(a) or whether making the order would be “grossly disproportionate” for the purposes of s. 490.012(3)(b).
[47] Pursuant to s. 490.013(2)(b), where the accused is convicted of an offence that is punishable by a maximum term of imprisonment of 10 or 14 years (like the respondent was in in this case), the SOIRA order ends 20 years after it is made. This is subject to an application for a termination order brought by the accused after 10 years pursuant to s. 490.015(1)(b) of the Criminal Code. . 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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