Court of Appeal for Ontario

Date: 2025-05-22
Docket: COA-24-CR-0683
Coram: Paciocco, George and Wilson JJ.A.

Between

His Majesty the King
Respondent

and

Randall Thring
Appellant

Counsel:
Gloria E. Ichim and Emmanuel Wingate, for the appellant
Brent Kettles, for the respondent

Heard: 2025-05-15

On appeal from the sentence imposed on June 11, 2024 by Justice Kevin G. McHugh of the Ontario Court of Justice.

Reasons for Decision

Background

[1] Randall Thring received a six-month conditional sentence followed by two years of probation based on a joint position advanced following his plea of guilty to a single count of communicating for the purpose of obtaining sexual services for consideration from a person under the age of 18, contrary to s. 286.1(2) of the Criminal Code, R.S.C. 1985, c. C-46. He admitted to responding to an advertisement posted by police officers in a police sting, purporting to be from a 19-year-old sex worker, and that he continued to communicate with the “sex worker” for sexual services after “she” advised him that she was 17. 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.

The Appeal

[3] Mr. Thring’s appeal is brought pursuant to s. 490.014 of the Criminal Code and is confined to the SOIRA order. In his Notice of Appeal and factum he argued, among related submissions, that: (1) the trial judge erred in law in concluding that this order is mandatory; and (2) if this order is mandatory, then s. 490.013(2)(b) is contrary to ss. 7, 11(i), 12 and 15 of the Charter. He also seeks leave to present fresh evidence relating to the need for, and the hardship caused by, the SOIRA order. During oral submissions he abandoned the Charter challenge because this court’s decision in R. v. Eldon, 2025 ONCA 348 has recently clarified that s. 490.012(3) orders are not mandatory, making the Charter challenge unnecessary. He asks for an order from this court exempting him from a SOIRA order or, alternatively, reducing its length to 10 years.

[4] After oral submissions we dismissed the appeal for reasons to follow. These are our reasons.

Analysis

[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.

Disposition

[10] The appeal is therefore dismissed. We also dismiss Mr. Thring’s request that we make an order requiring his name to be anonymized. There is no basis for doing so.

“David M. Paciocco J.A.”
“J. George J.A.”
“D.A. Wilson J.A.”

Publication Ban

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