COURT OF APPEAL FOR ONTARIO
Favreau, Rahman and Osborne JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Raza Husain
Appellant
Raza Husain, acting in person
Brent Kettles, for the respondent
Heard: June 26, 2026
On appeal from the decision entered by Justice Susan G. Himel of the Superior Court of Justice, dated July 23, 2024, with reasons reported at 2024 ONSC 4033.
REASONS FOR DECISION
1The appellant, Raza Husain, appeals a decision refusing to terminate an order made against him under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA order”).
2In 2011, Mr. Husain pled guilty to a number of charges, including two counts of sexual assault, attempting to procure a person under the age of 18 to become a prostitute and procuring the services of a person under the age of 18. The convictions involved two complainants aged 13 and 15 years old at the time the offences were committed. The sentencing judge accepted Mr. Husain’s guilty plea based on admitted facts. Over a period of 20 months, Mr. Hussain brought the complainants to his residence, gave them alcohol and had sex with them. He also asked them to have sex with his friends for money. Following his guilty plea, Mr. Husain was sentenced to 5 years and 2 months, with 38 months of credit for pre-trial detention. The sentencing judge also imposed a 20-year SOIRA order, which was mandatory at the time. Mr. Husain unsuccessfully appealed part of his conviction and his sentence to this court: R. v. Husain, 2012 ONCA 697, 298 O.A.C. 104, leave to appeal refused, [2012] S.C.C.A. No. 556.
3Mr. Husain served his sentence. On June 23, 2021, he received a pardon from the Parole Board of Canada.
4Mr. 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.
5We 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.
6Mr. 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.
7Mr. 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.
8Mr. 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.
9Mr. Husain brought a motion to file what he described as a reply to the Crown’s factum on appeal. The materials Mr. Husain seeks to file in reply include what he says is his pardon application, photos of the complainants with his own commentary, and information from people he describes as friends of the complainants that he says shows the complainants lied about what occurred at the time of the offences. We treat this as a fresh evidence motion. There is no basis for admitting this evidence, for several reasons. First, it is not attached to a sworn affidavit and therefore is not proper evidence before the court. Second, it does not meet the Palmer criteria.[2] There is no valid explanation for why the evidence was not placed before the application judge. As previously mentioned, Mr. Husain had the burden of placing all relevant information before the application judge. In any event, we are not satisfied that the fresh evidence would have had any impact on the application.
10The appeal and motion to file fresh evidence are dismissed.
“L. Favreau J.A.”
“M. Rahman J.A.”
“Osbourne J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
2Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.