Sex Crimes – Further Reading

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.

SECTION (b)
• 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

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.