Court of Appeal for Ontario

Date: 2025-05-06
Docket: COA-24-CR-0007

Coram: Fairburn A.C.J.O., Coroza J.A. and Baltman J. (ad hoc)

Between:
His Majesty the King, Appellant
and
Dylan James Eldon, Respondent

Appearances:
Brent Kettles and Jennifer A. Gibson, for the appellant
Paul Calarco and Michael Bartlett, for the respondent

Heard: September 23, 2024

On appeal from the decision entered by Justice Louise A. Botham of the Ontario Court of Justice, dated November 8, 2023.

Fairburn A.C.J.O.:

A. Overview

[1] B.G. was a newly homeless 15-year-old girl on the streets of Toronto when she met the respondent. The respondent, a stranger to her, offered her drugs. He then took her to a room where he forced her to fellate him, after which he forced sexual intercourse on her. He then told her to get out.

[2] The respondent pled guilty to one count of sexual interference. He was sentenced to two years less a day custody and three years’ probation.

[3] The trial Crown sought an order pursuant to s. 490.012(3) of the Criminal Code of Canada, R.S.C., 1985, c. C-46, requiring the respondent to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). The sentencing judge declined to make the SOIRA order on the basis that it would be “grossly disproportionate” to the public interest: Criminal Code, s. 490.012(3)(b). Had the order been made, the mandatory term would have been 20 years: Criminal Code, s. 490.013(2)(b).

[4] The Crown appeals pursuant to s. 490.014 of the Criminal Code from the refusal to impose a SOIRA order. The appellant maintains that the sentencing judge erred in principle by failing to give effect to various statutory considerations enumerated within s. 490.012(4) and by concluding on the record before her that imposing a SOIRA order would be grossly disproportionate to the public interest. The appellant also objects to the sentencing judge’s suggestion that the respondent’s behaviour was not predatory in nature. In the alternative, the appellant submits that the decision not to make a SOIRA order was clearly unreasonable.

[5] I would allow the appeal. As I will explain, the sentencing judge erred in principle in failing to impose a SOIRA order. Accordingly, I would set aside the decision denying the SOIRA order and make the order pursuant to s. 490.012(3) of the Criminal Code.

B. Background

(1) The Offence

[6] B.G. was 15 years old when she encountered the respondent. She was new to living on the streets and was cold and hungry. The respondent offered her food and a place to stay. She agreed to accompany him, first to a rooftop, where the respondent offered her drugs. She smoked marijuana but declined to smoke crack cocaine.

[7] The respondent told B.G. that he wanted to have sex, but she said no. She told him that she was only 15 years old, to which he responded that he was twice (in fact more than twice) her age. He pushed her up against a wall and said, “I really want to fuck you”. He groped her. He then smoked a quantity of what B.G. thought was crack cocaine and exhaled into her mouth.

[8] The respondent then asked B.G. to accompany him to a room in an adjacent building where he said that she could rest. They descended a fire escape and eventually arrived at a townhouse subdivided into many single bedroom units. B.G. was taken into a room that had a bed in it. There were two individuals who left the room. B.G. was told to sit on the bed. The respondent then forced her to fellate him, holding her head to his penis and “forcing her head up and down.” He then removed her clothing and forced intercourse on her, at the end of which he ejaculated into his hand. He did not use a condom.

[9] After she returned from cleaning herself in a washroom, the two individuals who were previously there had returned. The respondent then told B.G. to leave.

[10] The next day, B.G. told the police what had happened to her and identified the respondent as the perpetrator. DNA testing confirmed that the respondent’s semen was present on B.G.

(2) The Guilty Plea and Sentencing

[11] The respondent pled guilty to one count of sexual interference. He received a sentence of two years less a day, along with three years’ probation.

[12] The respondent has a lengthy, five-page criminal and youth record, which includes convictions for assault and assault-related crimes, arson, break and enter, theft, and possession of drugs and weapons-related offences. It also contains numerous convictions for offences against the administration of justice, including convictions for fail to comply with release orders, obstruct police, flight from police, unlawfully at large, and fail to attend court. He has no prior convictions for sexual assault.

[13] The respondent is Indigenous and suffers from substance use issues.

[14] Although the matter was to proceed as a joint position at sentencing, it soon became clear that counsel did not agree on one point: whether a SOIRA order should be made pursuant to s. 490.012(3) of the Criminal Code, requiring the respondent to be registered in the National Sex Offender Registry (“NSOR”).

[15] Section 490.012(3) of the Criminal Code creates a presumption in favour of making a SOIRA order upon sentencing for a primary designated offence,[2] or where a verdict of not criminally responsible on account of mental disorder is rendered for a primary designated offence. The presumption in favour of making a SOIRA order can only be displaced in statutorily defined circumstances. Section 490.012(3) reads:

Order — other circumstances

(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 [SOIRA] 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. [Emphasis added.]

[16] Therefore, the court “shall” make a SOIRA order “unless” the offender establishes that the criteria in (a) or (b) are met. In making that determination, the court must have regard to the factors set out in s. 490.012(4). Among others, these include, “the nature and seriousness of the designated offence”, “the victim’s age and other personal characteristics” and “the nature and circumstances of the relationship between the person and the victim”.

[17] In this case, the trial Crown argued that the offence of sexual interference, a primary designated offence, was exactly the type of offence that warranted a SOIRA order, as it was one of the most serious offences involving children in the Criminal Code. In her submission, each of the factors found in s. 490.012(4) favoured making the order.

[18] In contrast, defence counsel said that the mandatory 20-year term would be an “exceedingly long term” and was “grossly disproportion[ate].” He argued that the sentencing judge should consider that the respondent had pled guilty, that the offence was out of character for him and that it represented an isolated incident.

[19] The sentencing judge declined to make a SOIRA order. She concluded that “[g]iven the 20 years that the order would be in effect, if I was to impose it, I think it would be grossly disproportionate, not to the offence per se, but to the notion of the risk of the offence being re-committed, which is in my view really why we have SOIRA.” In reaching that conclusion, she noted that B.G. was 15 years old at the relevant time and described the respondent’s behaviour as “not predatory”. She also referred to the respondent’s “significant criminal record”, which she concluded contained “essentially property offences and a whole lot of breaches of court orders.”

C. Analysis

(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 ONCA 868, para 71; R. v. Redhead, 2006 ABCA 84, paras 12-14, leave to appeal refused, [2006] S.C.C.A. No. 187; and R. v. Turnbull, 2006 NLCA 66, para 21.

[22] In this case, the appellant maintains that the sentencing judge made reversible errors, specifically several errors in principle. Alternatively, the appellant maintains the decision not to make a SOIRA order was clearly unreasonable.

[23] Concerning the errors in principle, the appellant advances three points. First, the appellant contends that the sentencing judge failed to properly take the factors in s. 490.012(4) into account in her analysis.

[24] Second, the appellant objects to the sentencing judge’s suggestion that the respondent’s behaviour was not predatory in nature. The appellant contends that inclusion in the NSOR should not depend upon whether someone is a sexual predator.

[25] Third, the appellant emphasizes that there needs to be some evidentiary foundation to displace the presumption of inclusion in the NSOR. It is the appellant’s position that the respondent simply provided no evidence to displace the presumption in this case.

[26] In response, the respondent maintains that the sentencing judge correctly and reasonably declined to make a SOIRA order, and her reasons reveal no error in principle. His arguments are dealt with in more detail later in these reasons.

[27] As I will explain, I agree with the appellant that the sentencing judge erred in principle. Given that my conclusion on the first ground is decisive, it is unnecessary to address the alternative argument. Before explaining the errors, I will begin by describing the history of the statutory scheme and the current scheme.

(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. 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 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.

(3) The Sentencing Judge Erred in Principle

[48] The sentencing judge’s reasons are short, an understandable product of sitting in a very busy plea court in the Ontario Court of Justice. They read as follows:

On the particular issue of the SOIRA order, I mean, one of the concerns with the Supreme Court of Canada [in Ndhlovu] was that aspects of the legislation was overly broad and that it led to the registration of offenders who are not at an increased risk of committing a future sex offence.

And the facts of this case are somewhat – I do not know if unusual is the word, but the complainant was 15. She was young, do not get me wrong. She was 15. It’s not a situation where that I say from the facts, that it is not predatory behaviour in the sense we see when you are talking about pedophilic behaviour, that is why I make – I mean, so the issue of whether or not I think there is a risk of Mr. Eldon re-offending in this way, quite honestly no one can predict the future, but what I have in front of me is a significant criminal record starting in 2005 and going to 2023 of – I agree, of essentially property offences and a whole lot of breaches of court orders.

Given the 20 years that that order would be in effect, if I was to impose it, I think it would be grossly disproportionate, not to the offence per se, but to the notion of the risk of the offence being re-committed, which is in my view really why we have SOIRA. It is not to punish, it is to protect. So I am going to decline to make the order with respect to this matter.

[49] Clearly, the reference in the first paragraph to the Supreme Court’s concerns is a direct reference to Ndhlovu.

[50] The sentencing judge’s comment in the second paragraph that it was “not a situation” that was “not predatory behaviour” is a little unclear. However, read in context, I agree with the appellant that the sentencing judge appears to have concluded that the respondent’s behaviour was not predatory “in the sense we see when you are talking about pedophilic behaviour”. This is the only interpretation of the reasons that makes sense in light of the sentencing judge’s ultimate conclusion that a SOIRA order would be grossly disproportionate, not to the offence, but to the “risk of the offence being re-committed”.

[51] Respectfully, the sentencing judge’s analysis is inconsistent with a proper interpretation of the new statutory scheme. I say this for several reasons.

[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, 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).

[53] Even on a generous reading, the sentencing judge does not appear to have approached the matter through this presumptive lens. Instead, she begins her analysis referring to Ndhlovu and its recognition that not every offender is at an increased risk of committing a future sex offence. She then notes what she sees as the relevant facts of the case, and concludes there is gross disproportionality to the risk of the offence being re-committed.

[54] In framing her analysis in this way, the sentencing judge overlooked the presumptive nature of s. 490.012(3). Had she approached the matter through the required presumptive lens, she would have presumed inclusion in the NSOR. From there, she would have examined whether the respondent had “established” that the impact of the order on him would be “grossly disproportionate to the public interest” served by inclusion in the NSOR.

[55] Second, the sentencing judge focussed on the following factors in determining that a presumptive order was not justified:

• The victim’s age, “which was young”, although what happened was not pedophilic;
• The nature of the offence, which was described as “not predatory”;
• The respondent’s “significant criminal record”, of “essentially property offences and a whole lot of breaches of court orders”; and
• The mandatory length of the order (20 years).

[56] By singling out these considerations in assessing whether the respondent had established that the impact of the order on him would be “grossly disproportionate”, the sentencing judge failed to see the full picture and overlooked relevant factors under s. 490.012(4) of the Criminal Code.

[57] For instance, under s. 490.012(4)(a), the court shall consider the “nature and seriousness of the designated offence”. In this case, the Crown proceeded by indictment. The offence involved forced fellatio and penetrative vaginal intercourse, without the use of a condom, on a vulnerable young person. The respondent took advantage of B.G.’s vulnerability in a calculated manner, including through the use of drugs. The crime here was extremely serious.

[58] To the extent the sentencing judge makes any reference to the nature or seriousness of the offence, it is described as “not predatory” in the sense that it was not “pedophilic” in nature. If what was meant by this comment is that the child was 15 years of age, which the sentencing judge fairly recognized was “young”, it has nothing to do with whether it was predatory or not.

[59] With respect, the respondent’s actions are hard to construe as anything other than predatory in nature. The only way to characterize the offence as non-predatory is by overlooking the entire context for the offending conduct – including the fact that the victim was a newly homeless, vulnerable 15-year-old child looking for food and shelter. This was predatory conduct.

[60] The sentencing judge was also obliged, pursuant to s. 490.012(4)(b), to consider not only B.G.’s age, which the sentencing judge did, but also B.G.’s personal characteristics. As just summarized, these included that she was young, homeless and thus particularly vulnerable. This does not appear to have been factored into the calculus.

[61] Further, the sentencing judge did not factor into her analysis the “nature and circumstances of the relationship between the person and the victim” (s. 490.012(4)(c)). This case involved a stranger who used drugs to exploit a child, first luring her onto a rooftop and then into a boarding home, where he sexually assaulted her.

[62] Although the sentencing judge did consider the respondent’s criminal history (s. 490.012(4)(e)), there was no reference to his “personal characteristics and circumstances” (s. 490.012(4)(d)). When given the opportunity to say anything before sentence was imposed, the respondent admitted that he has addiction issues and that his criminal record is related to those issues. In his own words, he explained: “drugs have ruined my life and like that’s, that’s all I want to say … like the fact that drugs got me into this is – it eats me like every day and I’m – words can’t express how, how bad I feel about this.” Although the respondent’s insight into his drug issues, his recognition of the role that drugs played in this case, and the remorse he feels are positive indications, they do little to assuage concerns about potential reoffending.

[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, 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”.

[65] In short, for the respondent to have shown that the public interest in his presumptive inclusion in the NSOR was not required, it had to be “clearly and substantially” outweighed by the impact of the order on him, “including on [his] privacy or liberty” interest. This required evidence. Yet the respondent led no evidence that spoke to the particular impact of a SOIRA order on him. Nor did the sentencing judge make a factual finding as to the impact of an order on him in his particular circumstances.

[66] The respondent asks this court to take note of the impact of a SOIRA order on him given his substance use issues and his evident difficulty abiding by court orders, as evidenced by his very lengthy criminal record. In advancing this submission, he emphasizes aspects of Ndhlovu that recognize the seriousness of the restrictions placed upon individuals, especially marginalized individuals such as the respondent, who will struggle to comply with the requirements of a SOIRA order and the increased impact that such an order has on their liberty interest: Ndhlovu, at para. 46. He argues that the Ndhlovu majority leaves real questions about the very utility of the NSOR: Ndhlovu, at para. 36. In his submission, requiring someone like him to undertake onerous reporting and information conditions for many years for entirely “speculative results”, especially in the context of a legislative scheme he argues has questionable effect, is grossly disproportionate. It is no answer, he says, that he can apply to terminate the order after 10 years.

[67] In my view, this argument overlooks the wording of s. 490.012(3)(b), which requires the person “to establish that” the impact on them would be grossly disproportionate to the public interest in preventing and investigating crimes of a sexual nature. There is no doubt that a person’s substance use problem may be, and indeed should be, taken into account under s. 490.012(4)(d), which requires a court to consider the personal characteristics and circumstances of the offender. Evidence of a substance use problem may have a bearing on the impact of a SOIRA order on the person, but it may also, as in this case, have a bearing on the interests of the public. As the respondent acknowledged in this case, “drugs got [him] into this.”

[68] As for questions about the effectiveness of the statutory scheme, I reject the suggestion that a SOIRA order should not have been made in this case because it would have been predicated on “speculative results”. To the contrary, the legislation speaks for itself in terms of the laudable preventative and investigative goals served by the NSOR, including the ability for police services to have “rapid access to certain information relating to sex offenders”: SOIRA, s. 2(2)(a).

[69] Notably, the majority in Ndhlovu agrees that Parliament’s goals in enacting SOIRA were “laudable” and that the objectives of the legislation – to “provide tools to police that make it easier to prevent and investigate sex offences” – were equally commendable: Ndhlovu, at para. 120. Indeed, the legislative measures taken to achieve those goals were found to be rationally connected to their objectives. The previous legislation failed, not because the legislation was speculative in nature, but because, among other things, it was not minimally impairing of an offender’s rights. Parliament responded with new legislation aimed at addressing the constitutional concerns addressed in Ndhlovu.

[70] Therefore, there is nothing speculative in terms of why the NSOR exists or the purposes it serves: Janine Benedet, at p. 468.

[71] As for the length of the order, it appears the sentencing judge was concerned that any impact on the respondent, whatever that would be, would last for 20 years and, as a result, would be grossly disproportionate to the public’s interest in preventing and investigating crimes of a sexual nature. Although she recognized that “no one can predict the future”, she implicitly found that the “risk of the offence being re-committed” was low, certainly low enough that it made the impact on the respondent “grossly disproportionate” to the public interest.

[72] I simply pause here to note for completeness’ sake that the respondent, being subject to a 20-year SOIRA order, could apply to terminate it after 10 years: Criminal Code, 490.015(1)(b).

[73] Had the sentencing judge approached this matter through the correct legal lens – recognizing that a SOIRA order was presumptive, considering all relevant factors listed in s. 490.012(4), recognizing that “gross disproportionality” is a high threshold, and understanding that the burden rests on the respondent to demonstrate the impact on him – the result would have been the imposition of a SOIRA order.

D. Conclusion

[74] For these reasons, the appeal is allowed. The decision exempting the respondent from a SOIRA order is set aside. A SOIRA order in Form 52 is made pursuant to s. 490.012(3) of the Criminal Code.

Released: May 6, 2025
Michele M. F. Fairburn

I agree. Coroza J.A.
I agree. Baltman J. (ad hoc)

Endnotes

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] While s. 490.012(3) does not make specific reference to a “primary” designated offence, s. 490.012(5) carves “secondary” designated offences out of the operation of s. 490.012(3). Section 490.012(5) states: “[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” (emphasis added). Primary and secondary designated offences are enumerated within s. 490.011. Sexual interference falls within the primary designated offence category of s. 490.011 and, therefore, there is no need to address the exception in s. 490.012(5) any further.

[3] In 2004, the purpose of the SOIRA regime was premised on the goal of “investigating” crimes of a sexual nature. The 2011 amendments included a reference not only to “investigation” being a purpose of the legislative scheme, but also to the “prevention” of sexual crimes: SOIRA, s. 2(1). These dual goals remain in the current scheme.

[4] I say partially removed because the prosecutor retained discretion to apply for an order if the offence was captured by paragraph (b) or (f) of the definition of “designated offence” in s. 490.011(1) of the Criminal Code. The discretion was removed if the offence was captured by paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition of “designated offence” in s. 490.011(1) of the Criminal Code. In other words, discretion was removed for more serious sexual offences as deemed by Parliament.

[5] Section 487.051(2) of the Criminal Code says that a DNA databank order that “shall” be made in the case of a primary designated offence (s. 487.04), is not required to be made where the court “is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders” (emphasis added).