R. v. T.B., 2026 ONCJ 493

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. T.B., 2026 ONCJ 493

DATE: 2026 08 18

COURT FILE No.: Pembroke 25-37100209 and 26-37100658

BETWEEN:

HIS MAJESTY THE KING

— AND —

TB

Before Justice J.R. Richardson

Heard on July 16, 2026

Reasons for Judgment released on August 18, 2026

Sara Buder........................................................................................... Counsel for the Crown

Jason Gilbert.................................................................................. Counsel for the Accused

J. R. Richardson, J.:

Introduction

[1] The issue in this case is whether TB should be made subject to an Order that he comply with the Sex Offender Information Registration Act (“SOIRA”).

Facts

[2] On July 16, 2026, TB entered a guilty plea before me to the following charges:

a) Sexually assaulting SH, between November 1 and December 1, 2024; and

b) Attempting to Obstruct Justice by communicating with SH on February 7, 2026.

[3] The Crown proceeded by Indictment with respect to the Sexual Assault. The Crown proceeded summarily with respect to the Attempt to Obstruct Justice.

[4] SH is 24 years of age. She and TB were in a relationship for two years. They share a daughter.

[5] On November 24, 2024, the parties were together in TB’s residence. They were not involved in a relationship at that time. The purpose of the visit was to allow TB to have an opportunity to visit with his child.

[6] SH told TB that she needed to go to the bathroom to change her clothes. TB told her that she did not need to leave the room.

[7] He then approached her and touched her vagina without her consent. He went to digitally penetrate her vagina and she told him to stop. He stopped.

[8] After this incident, TB was released on an undertaking not to communicate with SH except in relation to child custody issues.

[9] At some point, SH accidentally called TB. She hung up. She then texted him to apologize for calling him by mistake.

[10] Since then, he has contacted her by cell phone and text on a monthly basis. She initiated contact with him once.

[11] On February 7, 2026, they exchanged a series of messages regarding the upcoming sexual assault trial. TB told her that she had three options at the trial:

a) the first option was to testify that “all of this was bullshit”; that she tampered with the video evidence and was forced into it by her family;

b) the second option was that they both breach the non-communication condition and they both go to jail;

c) the third option was for SH to help TB in his quest to not go to prison.

[12] Later, TB texted as follows:

Listen

I was upset okay

I would never actually submit that shit

Your [Sa]’s mom, I would never do that I’m just upset that I’m going to prison

I’m upset that I’ll never see [Sa] again

I always say shit when I’m upset

You know this

[SH] idk if you decided to block my text now number but seriously I have an important question so unblock it I’m not gonna do the thing I said I was going to do just unblock me so I can ask you the important question

Can you answer me here then since your deciding to ignore me and shit

I want to ask the crown if they’ll do a deal that keeps me off the list and out of prison, since you’ve talked to them the most do you think they’d agree to something like that?

Listen [SH] I’m not sure if you even have my text now number blocked or not but if so then here, what I said was wrong and I’m terribly sorry for saying it, I said it out of anger and being upset, we’ve both done that, I would never do that to you, I’m just genuinely upset that I’ll never be able to see my daughter ever again, I’m upset that this is how I’m going to die because we both know the minute I get into that jail I’m dead okay I’m just upset.

[13] SH did not reply to any of these messages.

[14] The parties advanced what they considered to be a “joint submission” on everything but the issue of whether TB should be required to comply with SOIRA. The “joint submission” has the following components:

a) 18 months custody;

b) 24 months probation;

c) An Order requiring TB to provide a sample of his DNA for inclusion on the National DNA Databank;

d) A section 743.21 Order preventing TB from communicating with SH while he is in custody;

e) A section 109 Weapons Prohibition.

[15] TB is 24 years of age. He does not have a criminal record.

[16] The Crown did not file a Victim Impact Statement.

Submissions of Defence

[17] Defence counsel submitted that it would be grossly disproportionate to require TB to be subject to a SOIRA Order. He noted that TB is a youthful, first time offender. He admitted responsibility for the offence. SH did not have to testify.

[18] Defence counsel argued that although denunciation and deterrence are the primary sentencing principles in cases of sexual assault (and I might add attempting to obstruct the course of justice by tampering with a witness), when it comes to the issue of compliance with SOIRA, rehabilitation of TB must be a strong consideration. He maintained that requiring TB to comply with such an order would be unduly stigmatizing to him. He advanced the fact that some police agencies will post announcements on social media that high risk offenders have been released into the community in support of his argument.

[19] Defence counsel noted that, in the wake of the Supreme Court of Canada’s decision in R. v. Ndhlovu, 2022 SCC 38, which declared the registration requirement for all sexual offenders as overbroad, Parliament amended the Code to allow for judicial discretion with respect to whether or not to impose the Order.

[20] Defence counsel pointed out that there is no suggestion that the offence in this case was “particularly predatorial”.

[21] He noted that the failure to obtain a sexual behaviour assessment in this case did not matter to the issue of whether it was appropriate to make the Order. Sexual behaviour assessments are not, defence counsel argued, required for every case.

[22] Defence counsel also argued that TB’s attempt to obstruct justice by interfering with SH did not render his risk of reoffence higher, such that the Court should be more inclined to make the Order. He argued that this crime was “simply bad, impulsive, immature judgment in the heat of the moment.”

[23] With respect to the seriousness of the Sexual Assault itself, Defence counsel argued that this was not a prolonged sexual assault. He described it as “more of a case of testing boundaries before determining consent.”

Submissions of the Crown

[24] Citing R. v. Eldon, 2025 ONCA 348 and R. v. Thring, 2025 ONCA 389, Crown counsel argued that defence has not met the onus of demonstrating that registration will not assist the police in future investigations and will not have grossly disproportionate effects on his liberty.

TB’s Allocution

[25] TB declined to make any comments when asked if he had anything to say.

Analysis

The Decision of the Supreme Court of Canada in Ndhlovu

[26] Between 2011 and the decision in Ndhlovu, supra, in 2022, judges did not have discretion with respect to the imposition of SOIRA reporting requirements in relation to individuals who committed various sexual offences. Generally speaking, if the Crown proceeded summarily, the SOIRA reporting requirement was ten years; if the Crown proceeded by Indictment, the SOIRA reporting requirement was twenty years; if the accused committed more than one offence, (even if the finding with respect to the “second” offence was made at the same time as the first offence) the SOIRA reporting requirement was for life.

[27] In Ndhlovu, a narrow majority of judges of the Supreme Court struck down this provision as overbroad.

[28] Mr. Ndhlovu was a 19-year-old man who pleaded guilty to two counts of sexual assault which he committed at a party. By virtue of the 2011 amendments, he was required to report under SOIRA for the rest of his life.

[29] The majority pointed out that the requirements under SOIRA were “numerous, invasive and intensive” (at para.5). Offenders must report their address, employment address, travel plans lasting more than seven days. They must report to police once a year. They are subject to random checks by police. Failure to comply is a criminal offence. As the majority noted, “The scope of the personal information registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the state, and the threat of prosecution and imprisonment all interfere with what it means to be free in Canada.” (also at para. 5).

[30] The majority found that “[b]ecause the mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police, it is inconsistent with the principle of fundamental justice against overbreadth” (at para 8). The Court noted that between 75 and 80 percent of offenders do not reoffend, and in fact there is a “significant” number of offenders who are at not greater risk of reoffence than the general criminal population (at para. 9). Because there is no judicial discretion to exclude offenders “from the wide reach of SOIRA’s onerous and ongoing obligations”, the provision is overbroad.

[31] The majority noted that although, generally speaking, the commission of a sexual offence is an empirically predictor of sexual recidivism, “so are other factors, such as age, unusual or atypical sexual interests, sexual preoccupation, lifestyle instability or poor cognitive problem-solving”. The nature of the recidivism also varies with the nature of the offence, including whether it is a non-contact offence, whether the victim is a child, a stranger, an acquaintance or a family member. No single factor on its own yields an offender’s risk of recidivism (at para. 94).

[32] With respect to the ability of a sentencing judge to make a risk assessment, the majority noted at paragraph 109:

Moreover, judges make risk assessments routinely, including those informed by expert assessments. Notwithstanding these assessments may not be certain, they are capable of being well informed by an individual’s personal circumstances and the best expert evidence. Clearly, there are instances where a sentencing judge can reasonably conclude that it is remote or implausible that an offender’s information will ever prove useful to police.

The Post Ndhlovu Amendments

[33] In the wake of Ndhlovu, Parliament amended section 490.012 of the Criminal Code to provide as follows:

490.012(1) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if

(a) the designated offence was prosecuted by indictment;

(b) the sentence for the designated offence is a term of imprisonment of two years or more; and

(c) the victim of the designated offence is under the age of 18 years.

(2) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if the prosecutor establishes that, before or after the coming into force of paragraphs (a) and (b), the person

(a) was previously convicted of a primary offence or previously convicted under section 130 of the National Defence Act in respect of a primary offence; or

(b) is or was, as a result of a conviction, subject to an order or obligation under this or another Act of Parliament to comply with the Sex Offender Information Registration Act.

(3) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the court is satisfied the person has established that

(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.

(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.

(5) A court shall make an order under any of subsections (1) to (3) in respect of a secondary offence only if the prosecutor applies for the order and establishes beyond a reasonable doubt that the person committed the secondary offence with the intent to commit a primary offence.

[34] Section 490.013 of the Criminal Code establishes the duration that the offender must comply:

(1) An order made under section 490.012 begins on the day on which it is made.

(2) An order made under subsection 490.012(1) or (3)

(a) subject to subsections (3) and (5), ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;

(b) subject to subsections (3) and (5), ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and

(c) applies for life if the maximum term of imprisonment for the offence is life.

[35] Where, as here, the Crown has elected to proceed by indictment, the maximum term of imprisonment for the offence of sexual assault is ten years.

[36] Accordingly, the period of SOIRA compliance that TB would be subjected to is twenty years.

[37] Sections 490.015 and 490.016 allow an offender to apply for early termination of the order. They state:

490.015(1) A person who is subject to an order may apply for a termination order

(a) if five years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(a);

(b) if 10 years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(b); or

(c) if 20 years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(c) or in any of subsections 490.013(3), (5) or (6).

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon, once a record suspension is ordered or once they are absolutely discharged under paragraph 672.54(a).

490.016 (1) The court shall make a termination order if it is satisfied that the person has established that

(a) there would be no connection between continuing an order or obligation 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 the Sex Offender Information Registration Act; or

(b) the impact on the person of continuing an order or obligation, 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.

(1.1) In determining whether to make the termination order, the court shall consider

(a) the nature and seriousness of the offence that is the basis of an order or obligation;

(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.

The Court of Appeal’s Decisions in Eldon and Thring

[38] The Court of Appeal considered Ndhlovu and section 490.012(3)(a) and (b) in R. v. Eldon, supra, and provided the following principles to sentencing judges:

a) The making of an Order is presumptive. The accused has the burden of proving that one of the factors in section 490.012(3)(a) or (b) has been established.

b) This is a high threshold. The Order shall be made unless the offender establishes one of the exceptions.

c) With respect to the exceptions, the Court must consider the factors set out in section 490.012(4).

d) There should be evidence with respect to the exceptions.

e) To establish that the impact of registration would be “grossly disproportionate” on the liberty of the accused, it is not sufficient that the impact be merely disproportionate. ““Grossly” signifies more than a minor imbalance. It means “plainly, obviously, excessively, to a startling degree, flagrantly or glaringly” disproportionate.” R. v. Eldon, supra, at paras. 63 to 65. The impact on his liberty must clearly and substantially outweigh the public interest in protecting society through the effective prevention or investigation of crimes or a sexual nature.

[39] Thring establishes the following additional principles:

a) Concerns voiced by the accused with respect to stigma, travel and future residence are most closely related to the effects of the conviction, not the imposition of SOIRA. These concerns are also speculative and the claimed hardships are not inordinate.

b) The period that the order is to be made is a mandatory order. There is no discretion in the legislation that permits the Court to shorten it.

Application of the Factors in Section 490.012(4) to the Facts of this Case

1. The Nature and Seriousness of the Designated Offence

[40] This is a serious offence. It was predatory. Fortunately, the accused respected the victim’s demand that he stop. Fortunately, the sexual assault was not more invasive. The touching of her vagina without her consent, however, was invasive enough. This factor weighs against a finding that the imposition of SOIRA would be disproportionate.

2. The Victim’s Age and Personal Characteristics

[41] The victim was the same age as the accused. I did not hear any evidence with respect to her personal characteristics. The facts make it clear that she was attempting to facilitate the accused’s access to his daughter. She was doing so in her own home. She was vulnerable to the accused’s advances. This factor weighs against a finding that the imposition of the SOIRA reporting requirements would be disproportionate.

3. The Nature and Circumstances of the Relationship Between the Accused and the Victim

[42] The offence takes place in the context of parties who were once involved in an intimate partner relationship. This is an aggravating factor on sentence. Sexual crimes against intimate partners are no less serious: R. v. AJK, 2022 ONCA 487. As discussed, the offence takes place when the victim was attempting to facilitate the accused’s access to his daughter. This factor weighs against a finding that the imposition of the SOIRA requirements would be disproportionate.

4. The Personal Characteristics and Circumstances of the Accused

[43] The accused is a young man with no prior record. The nature of the sexual assault and the obstruct justice charge make it clear that he has serious issues with impulsiveness. The text messages demonstrate that he has insight into that problem. There is no evidence, however, that he has attempted to address it. Although his youth and lack of a criminal record would weigh in favour of a finding that the imposition of SOIRA would be disproportionate, his untreated impulsiveness is a serious problem and weighs against such a finding.

5. The Accused’s Criminal History Including the Age at Which They Previously Committed Any Offence and the Length of time for Which They were at Liberty Without Committing an Offence

[44] There is some overlap here between this factor and the fourth factor. On the one hand, the accused has no prior criminal history which is very much to his favour. On the other hand, the accused committed a serious breach of his release Order and attempted to Obstruct Justice by trying to persuade the victim to change her story. On balance this factor is neutral.

6. The Opinions Of Experts Who Have Examined the Person

[45] Ordinarily, in cases of this nature, accused persons will undergo sexual behaviour assessments after a finding of guilt. This is often done to assist the Court in fashioning an appropriate and proportionate sentence for his crime.

[46] Sexual behaviour assessments reveal important information to the Court about the accused’s history, including any mental health and addiction issues, the nature of the accused’s upbringing, and they provide a glimpse at the accused’s level of intelligence.

[47] They are completely voluntary and accused person may elect not to participate.

[48] A sexual behaviours assessment was not requested here by defence counsel, I presume on the basis that there was a “partial joint submission” with respect to the sentence to be imposed.

[49] This ignores the fact, however, that during sexual behaviours assessments, the psychiatrists who complete them use a battery of psychometric instruments to, among other things, gauge the accused’s risk to reoffend. Often such assessments will set out where on the spectrum of risk to reoffend the accused falls and make recommendations with respect to future treatments which could address that risk.

[50] None of that work has been done here. The Court is in an information vacuum with respect to the vast array of information that these assessments reveal.

[51] I agree with defence counsel’s submission that such an assessment need not be ordered in every case. However, where the accused is seeking to establish that post-sentence monitoring through a SOIRA order is grossly disproportionate or not rationally connected to the goal of assisting the police in the investigation of future crimes, such an assessment would go a long way in assisting the Court with this determination and would assist the accused with the evidential burden that the law requires.

[52] In R. v. Thring, supra, the accused had completed some counseling with a psychotherapist and there was a risk assessment which showed that he was at a below average risk of reoffence. The Court of Appeal noted as follows at paragraph 7:

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.

7. Any Other Factors the Court Considers Relevant

[53] The circumstances of the Obstruct charge bear repeating as a relevant factor which weighs against a finding that the imposition of SOIRA would be disproportionate. I find that it weighs strongly in favour of post-offence monitoring.

[54] I note that it is open to the accused to apply to terminate the Order after ten years and the establishment of a post-sentence, ten-year offence-free track record of success is the best time to reassess the need for continued monitoring.

[55] I am aware that Justice Garg has found that the mandatory provincial sex offender registry (Christopher’s Law) is unconstitutional in R. v. Roberts, 2026 ONCJ 41. For the same reasons advanced by Justice Pratt in R. v. Young, 2026 ONCJ 446, I decline to consider Roberts in this case. I note that during his submissions, defence counsel specifically adverted to the issue of constitutionality and indicated that he was not seeking any such remedy.

[56] For all of these reasons, the accused will be subject to a SOIRA Order for a period of 20 years.

Released: August 18, 2026

Signed: Justice J.R. Richardson