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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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

Date: 2024 03 15 Court File No.: Sault Ste. Marie 21-13301846

Between:

HIS MAJESTY THE KING

— AND —

J.D.

Before: Justice Romuald Kwolek

Guilty Plea: September 25, 2023 Submissions and SOIRA Hearing Evidence: January 23, 2024 Reasons for Judgment released on: March 15, 2024

Counsel: A. Mucciarelli and S. Singh........................................... counsel for the Crown E. McCooeye....................................................... counsel for the accused J.D.

KWOLEK J.:

[1] J.D. plead guilty to the following charges on September 25, 2023:

2. that he did on or about the 31st day of March in the year 2021, in the city of Sault Ste. Marie for a sexual purpose touch S.L. a person under the age of 16, directly with a part of his body, to wit hand and mouth, contrary to section 151 of the Criminal Code.

3. while being bound by a probation order, did on the same date breach a term of his probation order made on the 3rd of December 2019, to keep the peace and be of good behaviour contrary to section 137 of the YCJA.

4. on the 11th day of April 2021, in the city of Sault Ste. Marie did touch S.L. a person under the age of 16, for a sexual purpose directly, with a part of his body to wit his hand and mouth contrary to section 151 of the Criminal Code;

5. on the 11th day of April 2021, while being bound by a probation order made on the 3rd day of December 2019, breach a term of that probation order to keep the peace and be of good behaviour contrary to section 137 of the YCJA.

[2] Due to a recent Supreme Court of Canada decision that rendered certain SOIRA provisions unconstitutional, and the subsequent passage of legislation that came into effect at the end of October 2023, the issue of the SOIRA order was adjourned until January 23, 2024, when additional evidence was lead by the defence in support of an application that no SOIRA order be made against the offender.

Facts of the Offence

[3] An agreed statement of facts was provided to the court.

[4] On December 3, 2019, the offender was placed on a 5-month deferred custody order followed by a term of probation of 18 months.

[5] On July 19, 2021 the victim attended at the police station to report two sexual assaults that occurred against her in the two preceding months. On March 31, 2021 the offender, who was 18, was driving around with the victim who was 13 at the time. She left the vehicle and the offender texted her to come back to him. When she came back the offender gave the victim a hug and pulled the victim on top of him. She told him she had a boyfriend but did eventually relent and engaged in sexual activities with the offender. The offender digitally penetrated the victim’s vagina. He performed oral sex on her as well.

[6] On April 11, 2021, the offender communicated with the victim by snapchat to come for a ride with him. The victim entered the accused’s vehicle and at approximately 3:00 a.m. the offender sexually assaulted the victim by digitally penetrating her vagina and performing oral sex on her. He had sexual intercourse with her and had her perform oral sex on him. He later dropped her off at her house. The offender was charged on September 27, 2021.

[7] All the aspects of sentencing were dealt with on September 25, 2023, on the basis of a joint submission with the exception of an outstanding issue relating to whether or not a SOIRA order should be made. The offender had been in custody since mid-2022 and was released on the date of the SOIRA hearing or shortly thereafter.

[8] The offender was sentenced to a global sentence for the two section 151 counts of just under two years using all of his pre-sentence custody. The offender was sentenced to three additional days custody on each of the breaches of probation. The global sentence also included a three-year probation order with protective terms and conditions relating to the victim, counselling, as well as other restrictive conditions dealing with his contact with individuals under the age of 16. The offender was also subject to a section 161 order with terms and conditions for a period of five years.

Additional Evidence on the SOIRA Application

[9] The CPIC report of the offender contained 15 criminal findings of guilt as a young person which included charges of uttering threats, assault causing bodily harm, two separate counts of simple assault as well as assault with a weapon and a number of failure to comply with release document convictions and breaches of probation charges.

[10] In addition, the Crown indicated, and it was not disputed, that the offender was also convicted of a number of offences as an adult in October 2022 including two charges of failure to comply with release documents and a charge of forcible confinement.

[11] The offender submitted a letter from the Algoma Treatment and Remand Centre institution where he was remanded in custody pending disposition of his charges. The offender completed all of the men’s education sessions available for those on remand, which consisted of one-hour educational sessions that he completed between August 2022 and September 2023 including the following:

i. Anger Management ii. Planning for Discharge iii. Recognizing Healthy Relationships iv. Substance use v. Managing Stress vi. Thoughts to Action vii. Use of Leisure Time viii. Looking for Work ix. Supportive Relationships x. Goal Setting Changing Habits xi. Understanding Feelings xii. Problem Solving

[12] The offender also completed a 24 lesson Children and Parenting program dealing with child development and parenting skills.

[13] The offender testified at the SOIRA hearing that he hoped to obtain employment with a construction company, likely in the spring, and also hoped to save up money so that he could attend the APR Welding Academy. The offender had a cousin who would provide him with a reference to allow him to potentially get a job as a flagman. He has not yet brought his resume to apply for that job nor is the job position confirmed. This job, he anticipated, would require him to attend out of town and stay at various locations including staying at a hotel for one to two weeks or more at a time. He also indicated that he hoped the company would pay for him to attend another educational program to allow him to operate heavy machinery.

[14] He has a child who is currently two and one half years of age, that he sees almost every day and he is back together with the mother of that child. The offender was 18 years of age when the offences were committed and is currently 21 years of age.

The Legal Framework

[15] The Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38 in a judgment released on October 28, 2022 declared that sections 490.012 and 490.013 (2.1) of the Criminal Code of Canada were declared to be of no force and effect. The Supreme Court found that SOIRA imposed ongoing requirements that were numerous, invasive and extensive.

[16] In 2004, the legislation, when originally passed, provided that a sex offender would only be placed on the sexual offender registry if the Crown prosecutor applied to place someone on the register. The legislation gave sentencing judges the discretion to exclude offenders from the register if the effect of the order on their privacy or liberty interests was grossly disproportionate to the public interest.

[17] In 2011, amending legislation was passed removing the safeguards and the SOIRA order became mandatory requiring judges to make an order if the offender was convicted of a number of enumerated offences. In addition, 490.013 (2.1) imposed a mandatory lifetime registration for offenders who committed more than one offence, regardless of the timing of such offences and even if they were part of the same series of events.

[18] The offender in R. v. Ndhlovu, supra was 19 years of age at the time of the offences, had no criminal record and was remorseful. He plead guilty to the charges. He had touched two complainants at a house party in 2011. He touched both of the complainant’s buttocks and one of the complainant’s thighs. Later in the evening one of the complainant’s awoke to find Mr. Ndhlovu inserting his fingers inside her vagina. After she motioned him to stop he tried to reinsert her fingers. The complainant pushed him and told him to stop but instead he tried to remove her bra. The sentencing judge found the offender unlikely to reoffend. He had no prior criminal history and the offences involved excessive alcohol consumption by the offender and he had stopped drinking to excess.

[19] The majority of the Supreme Court found the automatic lifetime registration for offenders convicted of more than one offence to be unconstitutional as being overbroad and declared such other periods of invalidity to take effect immediately but provided a one-year suspension of the declaration of invalidity for mandatory registration given concerns for public safety. The majority of the Supreme Court granted Mr. Ndlovu relief from the requirement that he register under SOIRA.

[20] Criminal Code amendments were passed which took effect in October 2023, and the amended relevant sections now read 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.

490.013 (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.

(3) An order made under subsection 490.012(1) or (3) applies for life if (a) in the same proceeding, the person has been convicted of, or a verdict of not criminally responsible on account of mental disorder is rendered for, two or more designated offences in connection with which an order under any of subsections 490.012(1) to (3) may be made; and (b) the court is satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.

(4) If paragraph (3)(a) applies in the circumstances but the court is not satisfied as set out in paragraph (3)(b), the duration of the order is determined by applying paragraphs (2)(a) to (c) to the designated offence with the longest maximum term of imprisonment.

(5) An order made under subsection 490.012(1) or (3) applies for life if the person (a) was previously convicted of, or previously received a verdict of not criminally responsible on account of mental disorder for, a primary offence or an offence under section 130 of the National Defence Act in respect of a primary offence; or (b) is, or was at any time, the subject of an order or obligation under this or another Act of Parliament to comply with the Sex Offender Information Registration Act.

(6) An order made under subsection 490.012(2) applies for life.

490.0131 The court shall (a) state the designated offence, and the term of imprisonment imposed for it, that form the basis of an order made under subsection 490.012(1); and (b) give reasons for a decision under subsection 490.012(3) or paragraph 490.013(3)(b).

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).

[21] There is no application before me requesting that the new amended provisions do not comply with the Charter.

Process and Procedure

[22] The following is a summary of the relevant SOIRA sections:

1. Before a SOIRA order can be ordered, the court must first determine if the offence is or is not a designated offence.
2. Designated offences are either primary or secondary designated offences.
3. If the offence is a secondary designated offence then pursuant to section 490.012(5) a court shall only make a SOIRA order if the prosecutor applies for an order and establishes beyond a reasonable doubt that the person committed the secondary offence with the intent to commit a primary offence.
4. If the offence is a designated offence and is a primary designated offence the court must then determine whether the offence is in fact captured by sections 490.012(1) or (2), which require a mandatory SOIRA order;
5. If the offence is not in fact an offence that is captured under 490.012(1) or (2) or 490.012(5) then such designated offence would be subject to the provisions of section 490.012(3) which provides that the court shall make a SOIRA order unless the offender establishes: 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.
6. The factors that the court should consider under 490.012(4) of the Criminal Code include the following: 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.
7. Regardless whether or not the court imposes a SOIRA order it shall give reasons for its decision under 490.012 (3) which can be made orally.

Legal Analysis and Case Law

[23] In this case, given that the Crown proceeded on a summary basis and the offences are primary designated offences section 490.012(3) applies. That section places the onus on the defence to prove that either of the criteria in section 490.012(3)(a) or (b) apply if the defence does not wish the court to impose a SOIRA order.

[24] There is no evidence before this court of the recidivism risk of this particular offender. The offender was 18 at the time of the offences and the victim was 13 years of age. The offences occurred on two separate occasions involving the same victim. The offender had prior criminal findings of guilt as a young person and, subsequent to the offence date, other criminal convictions as an adult.

[25] There was no expert evidence lead by the defence that the first leg of the exemption, namely that there was no connection between making the order for registration and the purpose of helping police services prevent or investigate crimes of a sexual nature. Instead, defence counsel relied on the comments of the majority of the Supreme Court in R. v. Ndlovu, supra, which described the difficulty of assessing the recidivism risk of any particular offender.

[26] The defence seemed to place greater reliance on the requirements as set out in subsection b, namely: (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.

[27] The offender took the stand and testified on his own behalf. Given his hope to find employment, which may require him to leave town for short periods of time including periods of one or two weeks or potentially longer, counsel argued on his behalf that the ongoing reporting requirements, should he obtain such employment, would be grossly disproportionate to the public interest in protecting society. He is already subject to other restrictions namely a probation order and a section 161 order.

Cases Prior to Statutory Amendments

[28] The only case provided to the court by counsel was the Supreme Court of Canada decision that found the previous legislation unconstitutional, R. v. Ndhlovu, supra. The majority of the Supreme Court at paragraph 20, found the provisions, although not arbitrary, to be overbroad, registering offenders with little or no recidivism risk.

[29] Following the Supreme Court of Canada Decision in R. v. Ndlovu, supra, there were a number of reported cases that dealt with the issue of SOIRA prior to the passage of amendments in October, 2023 based on section 7 and section 24(1) Charter challenges.

[30] Justice Moore in R. v Fagan, 2023 ONSC 823, in a decision of the Ontario Superior Court released on January 13, 2023, dismissed the section 7 application for relief under section 24(1) of the Charter and imposed a SOIRA order. In that case the offender was convicted of sexually assaulting the victim on the front porch of his residence. The victim was either unconscious or under the influence of drugs and alcohol and lacked the capacity to consent. The sexual assault consisted of the accused putting his penis in the victim’s mouth and using his hand to move the victim’s head back and forth to fellate him. He also reached down her front pants to touch her vagina area. At the time of the offence the offender was on probation for domestic assault and had a criminal record of four convictions of violence against two domestic partners and one police officer and had other convictions. Justice Moore set out 12 circumstances that he concluded courts often considered when looking as to the risk of reoffending:

i. Does the offender have a criminal record? ii. Is the record for the same or similar offences? iii. Is the record recent or is there a large gap? iv. Does the offender have remorse for their offence? v. Does the offender demonstrate insight into their offending behaviour? vi. Has the offender taken steps to address the behaviour or factors underlying the behaviour such as alcohol or substance use? vii. Does the offender have positive community support? viii. Is there any expert evidence of risk? ix. What is the offender's age and physical health/mobility? x. Any unusual or atypical sexual interests or sexual preoccupation? xi. Is there lifestyle instability? xii. Are there poor cognitive skills?

[31] Justice J. DiLuca in R. v. Riossi, 2023 ONSC 3812, sentenced a female teacher who had engaged in sexual relations with two students who were approximately 16 years of age at the time of the offences, at two different schools, and plead guilty to two offences of sexual exploitation shortly before her jury trial was to commence, to two consecutive jail terms of two years for a total penitentiary sentence of four years jail. The judge denied the request of the defence not to impose a SOIRA order or to reduce the length of the SOIRA order finding that the order was not constitutionally inappropriate in the circumstances of that case.

[32] Justice Monahan in R. v. Shokuh, 2023 ONSC 1848, convicted the offender of accessing, possessing, and making available child pornography. The offender was sentenced to a period of 12 months jail followed by a period of probation. Expert evidence was lead in that case that the offender was at a low risk of reoffending and the offender had, in advance of the hearing commenced therapy to deal with his issues. The Justice granted the Charter remedy and declined to make a SOIRA order.

[33] In R. v A.L., 2023 ABKB 505, the offender plead guilty to a section 151 breach, expressed remorse, and there was an expert report indicating that the offender posed a low risk of sexual recidivism. The court granted the offender an exemption from registering under SOIRA.

Cases Following Passage of Amendments

[34] There have been a number of reported cases dealing with the new statutory framework.

[35] In R. v. C.K., 2024 ABKB 62, Justice C.L. Arcand-Kootenay, dealt with a case of multiple forced sex acts between a 20-year-old offender and an 18 year old victim. The justice determined the gravity of the offence was very high and there was nothing on the record to establish that there would be no connection between making the SOIRA order and the objective of assisting police in preventing and investigating sexual offences. A 20-year SOIRA order was made.

[36] In R. v. Schatz, 2023 ONCJ 529, Justice R.S. Gee of our court, in a case of a plea to one count of sexual exploitation declined to order a SOIRA order. That case involved a historical offence from 2001, involving a then 25-year-old teacher and his 17 year old student. The offender had filed in excess of 80 character references with the court and was assessed by a forensic psychiatrist as being at a low risk to reoffend. The sentencing judge imposed a sentence of 18 months jail but declined to impose a SOIRA order. The reasons for declining to make the order were:

1. The offence was committed over 22 years earlier and the offender had not reoffended since.
2. The offender plead guilty and accepted responsibility for his behaviour and demonstrated genuine remorse.
3. The offender had strong family and community support.
4. The offender was assessed and presents a low risk to reoffend.

[37] Justice R.S. Gee found, based on the circumstances of that case, that such registration would not assist the police in preventing and investigating sexual offences, and the onerous reporting requirements and possible prosecution for a breach would be grossly disproportionate to any public interest in having the offender registered under the Act.

[38] Similarly, in R. v. C.R.N., 2024 ABKB 15, Justice Eleanor J. Funk declined to make a SOIRA order. The offender was 18 at the time of the offence and the victim was 20 years of age and was heavily intoxicated when the incident occurred. The offender was found guilty of a sexual assault after a trial and the learned justice found that the sexual encounter which included oral and unprotected vaginal sex, occurred without the consent of the victim. The offender was sentenced to a two-year period of incarceration followed by two years of probation. The offender was a youthful first time offender with a supportive family. The justice felt that a period of probation through counselling and community service (240 hours were ordered) “will ensure that he poses no enhanced risk of reoffending.” In addition, the court found that the impacts of a SOIRA order would be grossly disproportionate to the public interest.

[39] In R. v. Harroff, 2024 BCSC 318, a case where an 18 year old offender filmed others having sex with a 13 year old at a house party, and then forwarded the video to other individuals in attendance at the party, the presiding judge declined to make a SOIRA order. The offender was sentenced to eight months jail, had no prior record, and although no expert evidence was tendered of the offenders’ likelihood of recidivism, the pre-sentence report was positive and Justice Majawa concluded:

As discussed above, although I do not have the benefit of a psychological assessment, I am satisfied that Mr. Harroff is at a low risk to reoffend given the general tenor of the PSR and the Crown’s position on this point. Moreover, as outlined below, the isolated circumstances of the offence, mixed with Mr. Harroff’s personal circumstance, support a finding that Mr. Harroff has no increased risk of reoffending.

...Because of his low likelihood to reoffend, I find that Mr. Harroff poses little to no risk to the community or children. And connected to his low likelihood of reoffending, I find it therefore unlikely that Mr. Harroff’s registration under SOIRA would ever assist police in investigating or preventing offences of this nature going forward.

Analysis on the Facts of our case

[40] With respect to the statutory criteria set out in 490.012, the court has the following comments:

a) Nature and seriousness of the designated offence - The offence is serious with sexual offences being committed on two separate occasions; there was no indication that the victim gave verbal consent but the agreed statement of facts indicated that the victim relented to the accused’s advances although she advised the accused that she did have a boyfriend. b) The victim’s age and personal consequences – The victim was 13 years of age, an age where she was unable to legally consent. Her victim impact statement was read into the record at sentencing and the offences had a long lasting and significant impact on the victim. c) The nature and personal circumstances of the relationship between the person and the victim – The offender and the victim were passing acquaintances. d) The personal characteristics and circumstances of the person – There was no pre-sentence report ordered. There was little background information provided regarding the offender other than the fact that he was 18 years old at the time of the offence, had been in custody for a prolonged period of time prior to sentencing and had completed significant programming unrelated to sexual offending while in custody. He has a young child and is living with the mother of the child. e) The person’s criminal history - The offender has a lengthy criminal background as a young person commencing in 2018 although there are no findings of guilt for any sexually related matters. He was in custody until the initial date for sentencing in September 2023. He had been in custody since mid 2022 and plead guilty to some charges in October 2022. As far as the court is aware, he has had no new charges since his release from custody near the end of September 2023. f) The opinions of experts who have examined the person - No experts were retained by either the Crown or defence counsel. g) Other factors described in R. v. Fagan: i. although the offender does have findings of guilt for assaultive behaviour, he has no other sexual assault or related charges on his record. ii. there is no significant gap in his youth background and adult record; iii. the pleas of guilt are indicative of remorse and the offender apologized at the sentencing hearing to the victim; iv. there is no evidence of insight or lack of insight into his offending behaviour; v. the offender did not take any programming prior to being sentenced that addresses sexually assaultive behaviour but did take other programming that was available to him while in custody on remand; he is subject to a 3 year probation order which includes a condition that he take appropriate programming as well as being subject to a section 161 order for 5 years; h) Other factors: the offender testified that he hoped to obtain employment working for a construction company that could potentially take him out of the community for periods of time of about 1-2 weeks which would trigger further onerous reporting under SOIRA. He had not yet applied for that position nor was there any evidence that he had started any employment since being released from custody.

[41] In this case, the offender is subject to the provisions of section 490.012(3). The onus is on the offender to justify why a SOIRA order should not be made. The Supreme Court of Canada has acknowledged that such an order is significant with onerous reporting conditions. The comments by the Supreme Court clearly direct the court not to impose the requirement of reporting and registration if it is not reasonable to do so. The court has discretion in determining whether or not a SOIRA order should be made under section 490.012(3) of the Criminal Code.

[42] Someone who is required to comply with a SOIRA order must report initially and provide detailed information; must report yearly; notify of any change in principal or secondary residence and notify the reporting office if he/she should be away from their principal residences for more than seven days as well as being subject to random police checks. Failure to comply with the SOIRA requirements can result in a criminal prosecution and jail.

[43] The statutory factors that support the imposition of the SOIRA order include the nature and seriousness of the offences in question. The offences involve a vulnerable 13 year old victim who has suffered significant long lasting consequences as a result of the offences. The offender has a lengthy criminal history as a youth and some convictions as an adult in October 2022. Some offences include crimes of violence although none of the charges include convictions for sexual offences. There is no expert report before the court to assess the current level of risk of recidivism. Although no such report is necessary for the court to assess the level of risk, the court is not dealing with an offender who has no criminal history but with one who has a lengthy criminal history. Based on the limited information before the court, the court is not convinced that the risk of recidivism is low, but rather finds that, at this point in time, the risk of recidivism, based on past criminal history, is significant.

[44] The court acknowledges that there are currently other orders in place including a three year probation order and a five year section 161 order that restrict the freedom of the offender and can assist in the ongoing rehabilitation of the offender.

[45] There is no evidence that the offender is homeless or suffers from substance abuse issues that would make the reporting requirement difficult for the offender to comply with.

[46] The offender testified that he hoped to obtain employment which would require him to be away from his residence for one or two week intervals. The absence from his residence would trigger the requirement to report to SOIRA during every such absence.

[47] However, the offender indicated that, although he had been out of custody for a period of three months at the time the SOIRA hearing was held, he had not yet submitted a resume to the prospective employer and it is unclear if he would obtain such employment. There is no indication that he is currently employed or that he has applied for any employment to date. The court is not convinced, given:

a) the nature of the charges, b) the impact of the offences on a young vulnerable victim, c) the offender’s history of criminal behaviour, d) the lack of any programming to date that relates to the concerns regarding sexual involvement and e) the lack of evidence of risk of reoffending

that it should not grant a SOIRA order.

[48] The onus is on the offender to convince the court that a SOIRA order should not be made in the circumstances of this case namely 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.

[49] I am not convinced that there would be no connection in making the order and of helping police services preventing or investigating crimes of a sexual nature nor am I convinced that the impact of the order on the person, including their privacy or liberty, would be grossly disproportionate to the public interest in protecting society for this offender in the circumstances of this case.

[50] As a result, pursuant to the provisions of section 490.013(2)(a), the court orders that the offender is ordered to comply with the provisions of SOIRA for a period of 10 years.

Released: March 15, 2024 Justice R. Kwolek Ontario Court of Justice