Court File and Parties

Court File No.: CR-25-00000091-00MO Date: August 26, 2025 Ontario Superior Court of Justice

Between: His Majesty the King (Respondent) – and – Oscar Gonzalez-Huitzil (Applicant)

Counsel:

• R. Weinberg, for the respondent
• M. Izadi, for the applicant

Heard: August 26, 2025

Reasons for Decision

Schreck J.:

Jurisdiction Issue

[1] Oscar Gonzalez-Huitzil applies pursuant to s. 490.04 of the Criminal Code to be exempted from an order made in accordance with s. 490.012 requiring him to comply with the provisions of the Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA"). The order was made by Felix J. of the Ontario Court of Justice on October 19, 2023 in relation to a conviction for sexual assault following a summary conviction trial. For the reasons that follow, I have concluded that I do not have jurisdiction to hear this application.

Background and Legislative Context

[2] The SOIRA order made in this case was mandatory according to s. 490.012 as it read at the time of the applicant's sentencing. The mandatory nature of the order was found to infringe s. 7 of the Charter in R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389. In response to that decision, Parliament enacted An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, S.C. 2023, c. 28, which came into force on October 26, 2023. That act amended s. 490.12 so as to make SOIRA orders presumptive but not mandatory in most cases.[1] Section 490.04 was created to address individuals such as the applicant who were subject to now unconstitutional mandatory SOIRA orders made in the past. It applies to orders made on or after April 15, 2011,[2] but before the day on which the section came into force (which was October 26, 2023): s. 490.04(1)(a).

Nature of Section 490.04 Application

[3] An application pursuant to s. 490.04 is not an appeal from the initial SOIRA order. Rather, it is a freestanding application for an exemption from an existing order which must be granted if the conditions in s. 490.04(5)(a) or (b) are met, that is, where there is no connection between the order and the purposes of the SOIRA or where the impact of the order on the offender is grossly disproportionate to the public interest in registration pursuant to the SOIRA. In making that determination, the court must consider the factors enumerated in s. 490.04(6).

Jurisdictional Framework

[4] Section 490.04(3) governs jurisdiction and provides as follows:

490.04(3) The application shall be made to

(a) a superior court of criminal jurisdiction, if the application is made under paragraph (1)(a) in respect of an order made by such a court; or

(b) a court of criminal jurisdiction, in any other case.

Section 2 of the Criminal Code defines "superior court of criminal jurisdiction" as "in the Province of Ontario, the Court of Appeal or the Superior Court of Justice" and "court of criminal jurisdiction" as "in the Province of Ontario, the Ontario Court of Justice."

[5] It is clear from s. 490.04(3) that the court in which the application must be brought does not depend on whether the original proceedings were prosecuted summarily or by way of indictment, but on which court made the order from which the applicant seeks to be exempted. As noted earlier, the application is not an appeal or a review of the initial order, but rather a determination of whether the order should continue to apply based on the factors set out in s. 490.04(5) and (6).[3]

Decision

[6] It follows from the foregoing that since the SOIRA order in this case was made by a judge of the Ontario Court of Justice, the application pursuant to s. 490.04 must be brought in that court: R. v. Oldfield, 2024 ABKB 131, 554 C.R.R. (2d) 265, at paras. 34-36.

[7] The application is dismissed without prejudice to the applicant bringing a new application pursuant to s. 490.04 of the Code in the Ontario Court of Justice.

Justice A. Schreck

Released: August 26, 2025

Footnotes

[1] Section 490.12(1) provides that the order is still mandatory in cases prosecuted by indictment where the sentence imposed is two years or more and where the victim was under the age of 18.

[2] Prior to amendments that came into force on April 15, 2011, SOIRA orders were discretionary: Ndhlovu, at paras. 2-3.

[3] Section 490.06 creates a right of appeal for either party from a decision made pursuant to s. 490.04, but does not specify the forum in which the appeal should be brought. Presumably, appeals will follow the normal route based on whether the order from which the exemption is sought was made in the course of indictable or summary conviction proceedings: R. v. Turnbull, 2006 NLCA 66, 261 Nfld. & P.E.I.R. 241; R. v. F.(P.R.), 57 O.R. (3d) 475.