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Criminal - SOIRA (2). R. v. Husain
In R. v. Husain (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against "a decision refusing to terminate an order made against him under the Sex Offender Information Registration Act":[2] .... The sentencing judge also imposed a 20-year SOIRA order, which was mandatory at the time. ....
[3] Mr. Husain served his sentence. On June 23, 2021, he received a pardon from the Parole Board of Canada.
[4] Mr. Husain brought an application to terminate the SOIRA order pursuant to s. 490.015(3) of the Criminal Code, which permits a person to apply to terminate a SOIRA order once they have received a pardon. The application judge, who had also been the sentencing judge, dismissed the application. She found that Mr. Husain’s circumstances did not meet the criteria to terminate a SOIRA order set out in s. 490.016(1). Specifically, she found that Mr. Husain had not met his burden of demonstrating, under s. 490.016(1)(a), that there was “no connection” between continuing the SOIRA order and its statutory objective of “helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders”, or, under s. 490.016(1)(b), that the impact on Mr. Husain of continuing the SOIRA order was 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.” In reaching this conclusion, the application judge considered the factors set out in s. 490.016(1.1) of the Criminal Code.
[5] We see no basis for allowing the appeal. This was a discretionary decision. The application judge carefully considered all the evidence, the criteria under s. 490.016(1) and the mandatory factors under s. 490.016(1.1) of the Criminal Code. She did not make any error in principle, fail to consider a relevant factor or overemphasize an appropriate factor, nor is her decision clearly unreasonable.
[6] Mr. Husain submits that the application judge erred by not giving sufficient weight to the fact that he obtained a pardon and suggests that the Crown improperly failed to file a copy of his pardon application before the application judge. There is no merit to these arguments. The application judge was well aware that Mr. Husain obtained a pardon. However, she correctly reasoned that the pardon on its own did not justify the removal of the SOIRA order; rather, before removing the SOIRA order, she had to be satisfied that Mr. Husain met the criteria under s. 490.016(1) of the Criminal Code. In giving little weight to the pardon, the application judge observed that there was no evidence before the court as to why the pardon was granted. Contrary to Mr. Husain’s suggestion, the Crown had no obligation to make his pardon application file available to the application judge. He had the burden of proof on the application. He was represented by counsel at that time. It was his burden to place all relevant information before the application judge.
[7] Mr. Husain submits that the application judge improperly relied on his sexual addiction as one reason for dismissing his application. He says that the application judge mistakenly found that he has a sexual addiction which poses a danger to the public and, given he is now 66 years old, he certainly no longer poses any risk of committing any sexual crimes. The application judge made no error in relying on the fact that there was no evidence that Mr. Husain had received treatment for his sexual addiction. Mr. Husain’s sexual addiction was admitted by his counsel at the time of sentencing. Moreover, as the application judge observed, Mr. Husain did not provide any psychiatric or other expert evidence, addressing either the issue of sexual addiction or his risk of reoffending. Again, Mr. Husain had the burden of proof. In the absence of any expert evidence, which is one of the factors explicitly listed in s. 490.016(1.1), the application judge did not err in finding that Mr. Husain had not met his burden of showing no connection or gross disproportionality.
[8] Mr. Husain suggests that the application judge erred in finding that the offences he committed were serious. He effectively seeks to minimize the seriousness of his offences by suggesting that the complainants were not vulnerable children and that there was no coercion. This demonstrates a significant lack of insight on his part. These were serious offences committed against children. He was over 50 years old at the time of the offences. The application judge did not err in her characterization of the offences as serious. . R. v. Abu
In R. v. Abu (Ont CA, 2026) the Ontario Court of Appeal granted a motion to extend time to "to appeal two different lifetime registration orders under the Sex Offender Information Registration Act".
Here the court considers "mandatory SOIRA registration order"(s) and how their application changed with statutory amendments:[5] At the relevant time, the prostitution-related offences at issue here, which did not involve persons under the age of 18, were “designated offences” under s. 499.011(b) of the Criminal Code. As such, a mandatory SOIRA registration order under s. 490.012(1) was not available. Rather, the imposition of a SOIRA registration order was governed by s. 490.012(2), which provided that a SOIRA registration order could only be made if the Crown proved beyond a reasonable doubt that Mr. Abu committed the designated offences with the intent to commit an offence referred to in s. 490.011(1)(a), (c), (c.1), (d), (d.1) or (e).
[6] The Crown appears to have made no attempt to prove this in either the Hamilton or the Newmarket proceedings against Mr. Abu. Moreover, even if the statutory precondition for making SOIRA orders under s. 490.012(2) had been met, the maximum duration of the orders would have been 20 years, not life: Criminal Code, s. 490.013(2)(b).
[7] Mr. Abu thus has a strong argument that the SOIRA orders imposed on him were made without lawful authority.
[8] A complication is that this court has previously held that SOIRA orders, despite being made at the time of sentencing, do not form part of the offender’s sentence, and thus cannot be appealed pursuant to the sentence appeal provisions in the Criminal Code: see R. v. R.P., 2018 ONCA 473, at paras. 7-14; R. v. E.H., 2024 ONCA 74, at paras. 83-97. Although Mr. Abu originally framed his motions as seeking an extension of time within which to seek leave to appeal sentence, counsel now agree that Mr. Abu cannot challenge the SOIRA orders by way of sentence appeals.
[9] However, Mr. Abu appears to fall within the category of persons who had a right to appeal a SOIRA order under s. 490.014, as this provision existed in 2018 and 2019. At that time, s. 490.014 provided:490.014 The prosecutor, or a person who is subject to an order under subsection 490.012(2), may appeal from a decision of the court under that subsection on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the order or make an order that may be made under that subsection. [Emphasis added.] [10] Because Mr. Abu was convicted of offences that were designated offences under s. 490.011(1)(b), a SOIRA order could only have been imposed on him pursuant to s. 490.012(2). This arguably puts him into the class of persons who had a right of appeal under s. 490.014, as it existed at the relevant times.
[11] Parliament did not define the meaning of the term “appeal court” in s. 490.014. While I cannot decide questions of jurisdiction sitting as a single judge, I am satisfied that there is a strong argument that, at least in cases where the underlying designated offences were prosecuted by indictment, the term “appeal court” should be interpreted as meaning the same thing as “court of appeal” as defined in s. 2 of the Criminal Code, and that s. 490.014 thus provides Mr. Abu with a right of appeal to this court. . R. v. Zaki
In R. v. Zaki (Ont CA, 2026) the Ontario Court of Appeal considered a SOIRA criminal sentencing issue:ii. SOIRA Order
[17] With respect to the SOIRA order, the appellant seeks to vacate it, arguing that the trial judge erred by treating the 20-year SOIRA registration stipulated under s. 490.013(2)(b) of the Criminal Code as a mandatory order. He relies on the Supreme Court’s October 28, 2022 decision, R. v. Ndhlovu, 2022 SCC 38, [2022] 3 S.C.R. 52, in which the Court declared s. 490.012 of the Criminal Code to be unconstitutional and of no force or effect.
[18] We disagree that the trial judge erred. Section 490.012 provides that SOIRA orders are mandatory for offenders convicted of sexual assault. As the trial judge noted, in R. v. Ndhlovu, the Court held that the declaration of invalidity in respect of s. 490.012 was suspended for one year and applies prospectively. Accordingly, we agree with the trial judge that at the time of the appellant’s sentencing on January 24, 2023, s. 490.012 was valid and mandatory. Accordingly, the trial judge made no error in imposing a 20-year SOIRA order as required under s. 490.013(2)(b) of the Criminal Code.
[19] We also note that the appellant may still apply to a lower court for an exemption under s. 490.04(1)(a) of the Criminal Code. . R. v. J.B.
In R. v. J.B. (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, here brought against convictions on "two counts of sexual exploitation" and some other sex charges.
Here the court considers criminal sentencing SOIRA (sex offender registry) issues:[102] As for the SOIRA order, the appellant was sentenced during the transitional period before Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, S.C. 2023, c. 28, came into force. A 20-year SOIRA order was made. At that time, the order was mandatory in respect of a conviction for possessing child sexual abuse and exploitation material. Section 490.04 of the Criminal Code sets out the procedure for seeking an exemption from an order made under s. 490.012 before the coming into force of Bill S-12. The panel has been provided with no reason why the sentencing judge erred in imposing the 20-year term. If the appellant wishes to avail himself of the procedure in s. 490.04, he may do so. . R. v. Thring
In R. v. Thring (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal "brought pursuant to s. 490.014 [SS: 'Order to Comply with the Sex Offender Information Registration Act'] of the Criminal Code and is confined to the SOIRA order":[1] ... The parties did not agree on a Sex Offender Information Registration Act (“SOIRA”) order, but after submissions the trial judge imposed a 20-year SOIRA order pursuant to ss. 490.012 and 490.013(2)(b) of the Criminal Code, commenting that: “It is mandatory in my view and must be in place for a period of 20 years.”
[2] For clarity, s. 490.012 addresses when a SOIRA order is to be imposed. Section 490.013 identifies the length that the SOIRA order is to be, depending on the maximum term of imprisonment of the designated offence that was committed. The governing provision applicable to s. 286.1(2) offences, the offence Mr. Thring was convicted of, is s. 490.013(2)(b). It provides for a 20-year SOIRA order.
....
[5] The Crown conceded that the trial judge erred in finding that the SOIRA order was mandatory. We agree. On its plain language s. 490.012(3), creates a presumptive but not a mandatory order. As Fairburn A.J.C.O commented in Eldon, at para. 52, “an order shall be imposed unless it can be established that the criteria under (a) or (b) are met” (emphasis in original omitted). The trial judge therefore erred in law. However, we are satisfied that the SOIRA order he imposed remains the correct order.
[6] We were not persuaded that Mr. Thring should be exempt from the SOIRA order, pursuant to s. 490.012(3)(a) or (b), after considering the compulsory considerations listed in s. 490.012(4). We turned our minds to those factors, and even when we did so in the light of the fresh evidence Mr. Thring proposes, we were persuaded that he cannot overcome the presumption in favour of a SOIRA order.
[7] First, the evidence he offers about the lack of risk he poses falls short of establishing, pursuant to s. 490.012(3)(a), that “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”. We recognize Mr. Thring’s earnest claims that he did not appreciate when continuing communication that it was illegal to purchase sexual services from a 17-year-old; that he is pro-social and that knowing this now he would avoid such conduct in the future; and that he has sought counselling and obtained a sexual offence risk assessment from a registered psychotherapist. We also note that the risk assessment places him at a below average risk of reoffending for sex offenders. However, the risk assessment identified areas of some concern and the psychologist recommended further counselling. Moreover, after careful consideration of the record, the trial judge remained “somewhat concerned” and therefore imposed probation conditions restricting Mr. Thring’s computer use. It cannot be said in these circumstances that there would be “no connection” between making a SOIRA order in this case and the objectives of the regime.
[8] Second, even taking his fresh evidence into account, Mr. Thring did not persuade us that an exception should be made pursuant to s. 490.012(3)(b), on the basis that “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 … achieved by the registration of information relating to sex offenders under that Act.” The concerns he raises about stigma, travel and his future residence are more closely linked to his conviction than the SOIRA orders. Moreover, much of the prejudice he identifies relates primarily to his age. He is 59 and is concerned about the hardships he would face by the time he is close to 80, as the 20-year order expires. We agreed with the Crown that these concerns are speculative and the claimed hardships are not inordinate. It is also relevant that although the SOIRA order imposed in his case must be for 20 years pursuant to s. 490.013(2)(b), he may apply for a termination order in 10 years, pursuant to s. 490.015(1)(b), if he can establish at that time that either of the exceptions under 490.016(1) apply based on the circumstances then in place. In our view, this is not a case of grossly disproportionate prejudice.
[9] We could not grant his request to shorten the 20-year order, even if we were inclined to do so. That is the mandatory statutory term for a SOIRA order in the circumstances of this offence. The legislation offers us no discretion to curtail it.
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