SOIRA – Sexual Offender Information Registry Act

What is SOIRA?

SOIRA stands for the Sex Offender Information Registry Act. The purpose of this act is stated to “help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”. Under this law, a person convicted of or found not criminally responsible due to mental illness, of a compulsory designated sexual offence is required to report to a registration centre and provide the following information:

• (a) their given name and surname, and every alias that they use;
• (b) their date of birth and gender;
• (c) the address of their main residence and every secondary residence or, if there is no such address, the location of that place;
• (d) the address of every place at which they are employed or retained or are engaged on a volunteer basis — or, if there is no address, the location of that place — the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there;
• (d.1) if applicable, their status as an officer or a non-commissioned member of the Canadian Forces within the meaning of subsection 2(1) of the National Defence Act and the address and telephone number of their unit within the meaning of that subsection;
• (e) the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place;
• (f) a telephone number at which they may be reached, if any, for every place referred to in paragraphs (c) and (d), and the number of every mobile telephone or pager in their possession;
• (g) their height and weight and a description of every physical distinguishing mark that they have; and
• (h) the licence plate number, make, model, body type, year of manufacture and colour of the motor vehicles that are registered in their name or that they use regularly.

A SOIRA order can still be made for a non-compulsory designated offence if the prosecution makes an application to the court and proves that the non-compulsory offence was committed with intent to commit a compulsory designated offence.

What are Compulsory Designated SOIRA offences?
The following are designated and therefore compulsory SOIRA offences:
• subsection 7(4.1) (offence in relation to sexual offences against children),
• section 151 (sexual interference),
• section 152 (invitation to sexual touching),
• section 153 (sexual exploitation),
• section 153.1 (sexual exploitation of person with disability),
• section 155 (incest),
• subsection 160(3) (bestiality in presence of or by a child),
• section 163.1 (child pornography),
• section 170 (parent or guardian procuring sexual activity),
• section 171.1 (making sexually explicit material available to child),
• section 172.1 (luring a child),
• section 172.2 (agreement or arrangement — sexual offence against child),
• subsection 173(2) (exposure),
• paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),
• subsection 212(2) (living on the avails of prostitution of a person under age of eighteen),
• subsection 212(2.1) (aggravated offence — living on the avails of prostitution of a person under age of eighteen),
• subsection 212(4) (obtaining prostitution of person under age of eighteen),
• section 271 (sexual assault),
• section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
• paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization),
• paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm),
• paragraph 273(2)(b) (aggravated sexual assault), and
• subsection 273.3(2) (removal of a child from Canada);

What are the non-compulsory designated offences?
The following are non-compulsory designated SOIRA offences.

• subsection 173(1) (indecent acts),
• section 177 (trespassing at night),
• section 230 (murder in commission of offences),
• section 234 (manslaughter),
• paragraph 246(b) (overcoming resistance to commission of offence),
• section 264 (criminal harassment),
• section 279 (kidnapping),
• section 279.01 (trafficking in persons),
• section 280 (abduction of a person under age of sixteen),
• section 281 (abduction of a person under age of fourteen),
• paragraph 348(1)(d) (breaking and entering a dwelling house with intent to commit an indictable offence),
• paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence),
• paragraph 348(1)(e) (breaking and entering a place other than a dwelling house with intent to commit an indictable offence), and
• paragraph 348(1)(e) (breaking and entering a place other than a dwelling house and committing an indictable offence);

How long does an order for the sex-offender registry last?
The minimum term of a SOIRA order is ten years. Orders of 20 years and life can also be made. A person may apply for a termination of the order once she/he receives a record suspension (formerly pardon).

Take the Next Step

Having your name on the national sex offender registry can be devastating. If you or someone you know is facing criminal charges for sexual offences, Lakin Afolabi is a criminal defence lawyer in London, Ontario who has enjoyed great success defending person charged with sex offences. Call him now for a consultation.

Due Process Must Always Trump Victims’ Rights in Sexual Assault Cases

In the wake of allegations against Jian Ghomeshi and Bill Cosby the debate about the criminal prosecution of sexual assault has been renewed. There have been protests at Mr. Cosby’s events and all sorts of twitter slacktivism.

Most dangerously however, there have been numerous calls for something to be done to facilitate convictions for sexual offences. All the while, informed people insisting on due process and the presumption of innocence have been dismissed as “rape apologists” and “re-victimizers”.

I live in a country with one of the best – least bad – justice systems in the world, and possibly history. This is because it is more concerned with protecting innocence than it is with punishing guilt. As Lord Blackstone stated “[a]ll presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer”.

It is a far greater evil if an innocent person is convicted than if a guilty person is acquitted. Therefore, our legal system prefers that many guilty people get away with their crimes than the alternative. And so, it is a reality that rapists and victimizers will and often do walk unpunished.

This is a reality every criminal lawyer indirectly facilitates. Do I not desire a society where heinous offenders are brought to justice? I do, but more than that, I desire a society where the chance that an innocent law abiding person will be incarcerated for a crime s/he did not commit is infinitesimally small or non-existent. Sadly, our freedoms come with a price.

What are the Costs of our Legal Freedoms?

First let us consider the alternative ie. a society without such freedoms. Imagine a state where a multitude of allegations is not only sufficient for arrest and prosecution by the state (as is the case), but also sufficient for a conviction. Imagine if the only thing required for the incarceration of a free citizen was a rape allegation from enough women to conclude “they can’t all be lying”. Imagine a dystopia where women who claim to be victims of sex crimes are believed simply because they are women who claim to be victims of sex crimes. A woman could easily make an allegation against someone for the mere purpose of damaging his/her reputation, and this could be consequence free.

Such allegations would be used by wicked people with nefarious intent to remove men from their positions in society. Just imagine. Are you dealing with a demanding and verbally abusive employer? Give him an all-expense paid vacation to the pen with a rape allegation! Your boyfriend cheated on you with your best friend? Send them both to jail with claims of gang rape! Are you stuck in a bitter custody battle for the kids? Why fight for custody when your partner can be in custody for a sex crime he did not commit? Just make up a little lie.

Such allegations are already used by wicked people with nefarious intent to remove men from their positions in society. I have seen many many cases of sexual assault fabricated for ulterior motives. At face value there was no reason to disbelieve the complainant. I’ve seen complainants pressured into embellishing allegations by overzealous friends and family who refused to accept the truth about their daughter’s indiscretions. I have watched a conspiracy between a mother and grandmother to win custody through a sexual assault allegations unravel under my cross-examination. I’ve seen a woman charged and convicted with domestic assault turn and “re-victimize” her male victim by making up the most heinous sexual assault allegations I have ever heard when he refused reconciliation.

The innocent accused in all of these cases, and countless others, would be jailed if female complaints were believed merely for being female. It is true; men abuse their positions for gain. They lie, cheat, and exploit the system. But women do the same thing. Wickedness – particularly in the form of dishonesty is not exclusive to a gender. It is not only endemic to powerful men. It is not the calling card of “jilted ex-girlfriend[s]”. It is a human problem. Hence, anytime a person is levelling allegations in court, these allegations ought to be thoroughly scrutinized for any trace of dishonesty.

…So What are the Costs of our Legal Freedoms?

I have seen friends who were victims of rape not report the crime because of the legal process and accompanying stigma. I have spoken with a friend who began to question the reality of her experience in the face of skilled lawyers suggesting the contrary. I have seen victims abandon their cases after being wearied by questions and scrutiny. I have also had prosecutors offer lenient sweetheart deals to secure a guilty plea and to protect a child witness from the trauma of testifying. There is a great cost for protecting innocence.

The common law legal system is as perfect as those who administer it. Yet in its imperfections it strives to create the least imperfect system possible. And so, the system errs on the side of caution in protecting innocence because in a system where a law abiding person is rewarded with punishment, there will be no incentive for obeying laws. John Adams put it best when he proclaimed:

“when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me whether I behave well or ill, for virtue itself is no security. And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.”

Protecting innocence is costly, but punishing it is even costlier.

Why Did Jian Ghomeshi Have His Sexual Assault Charge Dropped for a Peace Bond?

The criminal proceedings against former CBC radio host Jian Ghomeshi for sexual assault have reached a conclusion this week, after it was reported that the Crown would withdraw the final sexual assault charge that was alleged to have occurred by a former colleague at the CBC. The Crown is expected to announce later this week that Ghomeshi will sign a peace bond that may include a provision to stay away from the complainant.

The alleged sexual assault was said to have occurred in 2007 during a producer meeting for Mr. Ghomeshi’s radio show, at which time the complainant had yawned, prompting Mr. Ghomeshi to say “I want to hate fuck you, to wake you up”. The complainant also alleged that Mr. Ghomeshi gave her “uninvited back massages [where his] hands would slide down just a little too close to the tops of my breasts”, and that “he grabbed my rear end and claimed he couldn’t control himself because of my skirt”.

The CBC fired Ghomeshi in October 2014, which occurred days after Ghomeshi voluntarily showed CBC executives a cell phone video depicting a woman he dated with bruises on her body that were apparently caused by a cracked rib. Ghomeshi blamed a woman he described as an ex-girlfriend for spreading lies about him and orchestrating a campaign with other women to “smear” him. In March 2016, Mr. Ghomeshi was found not guilty of sexual assault and the choking of three complainants.

The decision was widely condemned by the public, however most in the legal community agreed (however begrudgingly) with the verdict, particularly after the complainants in that decision had their testimonies impeached by the defence. Some legal experts even went as far as suggesting that Mr. Ghomeshi may arguably have a case for malicious prosecution against the Crown.

The media focused a great deal of its attention on the Crown’s use of peace bonds (see for example: CBC, National Post, ­­CP24), and the result was heralded as a definitive victory for Mr. Ghomeshi’s defence team. In effect, the peace bond was made as the result of the Crown conceding that it did not have adequate evidence with which to pursue the sexual assault allegations against Mr. Ghomeshi.

A peace bond is a court order to keep the peace and to be on good behaviour for a period of time, and it can also include conditions that restrict the accused from contacting the complainant, as well as a number of other conditions. As noted by various media legal analysts, peace bonds are commonly used in such circumstances where the Crown wishes to withdraw charges that are based on the allegations of a complainant.

In the case of Mr. Ghomeshi, the resolution of the allegations in exchange for a peace bond is presumably a win-win scenario, as the circumstances surrounding the case do not suggest that Mr. Ghomeshi is alleged to pose an imminent threat of danger to the complainant in this case. For many other accused persons in Canada who agree to such peace bonds however, peace bonds can lead to a tumultuous path where they can become more prone for re-arrest. As discussed in previous blog posts, breaches of court orders such as peace bonds can lead to a greater risk of criminal sanctions for previously accused persons.

In a 2015 report submitted to the federal government by criminologist Cheryl Wesbter, it was observed that in the past 15 years, the proportion of individuals charged with a “failure to comply with court order” as their most serious charge had more than doubled for both adults and youths. This phenomenon led Ms. Webster to conclude that “a vicious cycle is seemingly being created whereby the criminal justice system manufactures, in effect, its own crime”.

While the Crown’s offer of a peace bond resolution would appear to be an unequivocal sign of victory in the case of Mr. Ghomeshi, the subtext of the media’s coverage that the peace bond is a meaningless concession made by the defence is not entirely accurate. Although Mr. Ghomeshi himself would not appear to be at a high risk to breach a peace bond, other accused individuals subject to peace bonds may in effect be introducing themselves to the vicious cycle described by Ms. Webster.

For anyone who has been accused in a crime, it is important that they carefully understand the consequence of any resolutions reached with the Crown, including peace bonds. Failure to fully appreciate the scope of peace bonds can lead to re-arrest for breaching conditions, which can include prohibitions on possessing weapons or from being in proximity to certain locations.

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