By William Jaksa for LexWire.ca
Introduction
The Sex Offender Information Registration Act (SOIRA) requires individuals convicted of designated sexual offences to register on Canada’s National Sex Offender Registry (NSOR). Registration carries serious, lasting consequences, yet many defence lawyers treat a SOIRA order as an afterthought at sentencing. That is a mistake.
Since the Supreme Court’s landmark decision in R v Ndhlovu, 2022 SCC 38, and Parliament’s subsequent 2023 legislative overhaul, a SOIRA order is no longer automatic in every sexual offence case. For the right client, avoidance is a live and winnable argument. This article synthesizes the governing legal framework, the key Ontario Court of Appeal guidance in R v Eldon, 2025 ONCA 348, and recent trial-level decisions from Ontario, including R v Plummer, 2025 ONSC 4803, and R v Cellupica, 2026 ONCJ 164, to give defence counsel a practical roadmap.
Part I: Understanding the Regime
What SOIRA Does
SOIRA compels registered offenders to provide an extensive range of personal information to a national database, report annually and after any change to their name, address, employment, passport, or driver’s licence, and comply with onerous travel-reporting obligations for trips of seven days or more. Breach carries criminal liability.
The Supreme Court in Ndhlovu did not mince words about the burden this creates:
“The impact of a SOIRA order on an offender’s liberty can only fairly be described as serious…the mandatory measures also involve constraints on liberty that are insidious and pervasive.” — R v Ndhlovu, 2022 SCC 38 at para 55
The Current Statutory Framework (Post-2023)
Parliament’s response to Ndhlovu created a tiered regime under ss. 490.012(1)–(3) of the Criminal Code:
Mandatory Orders — s. 490.012(1): A SOIRA order must be imposed where all three of the following criteria are met:
- The designated offence was prosecuted by indictment;
- The sentence for the designated offence is two years or more; and
- The victim is under 18 years of age.
There is no judicial discretion where all three boxes are checked. The only recourse in that scenario is a Charter challenge (discussed below).
Prior Conviction — s. 490.012(2): An order is also mandatory where the offender has a prior conviction for a designated offence.
Presumptive Orders — s. 490.012(3): Where neither s. 490.012(1) nor (2) applies, the court shall make a SOIRA order unless the offender establishes one of two things:
(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; 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.
This is the terrain where defence counsel can win.
Part II: The Presumptive Framework — How It Actually Works
The Burden Is on the Defence
Under s. 490.012(3), SOIRA is the default. The court shall make the order unless the offender establishes otherwise. Defence counsel must bring an application and adduce evidence. Silence is a concession.
R v Eldon (2025 ONCA 348) is now the leading Ontario authority on this point. Writing for the Court of Appeal, Fairburn ACJO was emphatic:
“For the respondent to have shown that the public interest in his presumptive inclusion in the NSOR was not required, it had to be ‘clearly and substantially’ outweighed by the impact of the order on him, ‘including on [his] privacy or liberty’ interest. This required evidence.” — Eldon at para 65
In Eldon, the sentencing judge had declined to impose a SOIRA order without any evidentiary foundation from the defence. The Court of Appeal reversed that decision and imposed the order. The case is a cautionary tale: a SOIRA order can be avoided but not by argument alone.
The Mandatory Factors Under s. 490.012(4)
When assessing whether the defence has met its burden under s. 490.012(3), the court must consider the following factors:
| Factor | Key Considerations |
|---|---|
| (a) Nature and seriousness of the designated offence | Type and degree of sexual conduct; use of violence, drugs, or manipulation |
| (b) Victim’s age and other personal characteristics | Youth, vulnerability, disability, homelessness, refugee status |
| (c) Nature and circumstances of the relationship | Stranger vs. known person; position of trust; grooming |
| (d) Personal characteristics and circumstances of the offender | Age, health, housing stability, employment, substance use |
| (e) Criminal history | Prior record, age of prior offences, time at liberty without offending |
| (f) Expert opinions | Risk assessments, psychiatric evaluations |
| (g) Any other relevant factors | Open-ended; use it |
These factors are not a checklist to be ticked off — they inform a holistic assessment of whether the presumption has been displaced. In Eldon, the Court of Appeal found the sentencing judge had failed to apply several of these factors to the specific facts, including the victim’s homelessness and the predatory nature of the offending.
Part III: The Two Grounds for Avoidance
Ground 1 — No Connection
The first ground requires the offender to demonstrate there is no connection between making the SOIRA order and the purpose of helping police prevent or investigate sexual crimes. In practice, this means showing a negligible risk of sexual recidivism.
What courts are looking for:
Courts have generally accepted that the threshold is not that the offender must prove they present no greater risk than the general population, that bar is nearly impossible to meet, since prior sexual offending is itself a statistically validated predictor of recidivism. What courts look for is whether the offender has demonstrated a sufficiently low risk profile in comparison to other sexual offenders.
Trial courts have relied on psychological risk assessments concluding the offender is a “low risk to reoffend in comparison to other individuals that have been convicted of sexual crimes” as sufficient to meet this test — see R v Bilo, 2025 ABCJ 50; R v HCD, 2025 BCSC 450.
Warning on conflicting case law: Some courts have taken a harder line, holding that “no connection” means no elevated risk relative to the general population, not just relative to other offenders. Defence counsel should be ready to distinguish or argue against R v Tremblay, 2024 BCPC 75, which adopts this more demanding standard and may be inconsistent with Ndhlovu itself.
Ground 2 — Grossly Disproportionate Impact
The second ground requires the offender to show that the impact of the order on them personally would be grossly disproportionate to the public interest served by the registry. “Grossly” is not a low bar.
As articulated in Eldon:
“‘Grossly’ signifies more than a minor imbalance. It means ‘plainly, obviously, excessively, to a startling degree, flagrantly or glaringly’ disproportionate.” — Eldon at para 63
Drawing from the DNA databank jurisprudence, the Court in Eldon confirmed the test is whether the public interest in registration is “clearly and substantially” outweighed by the impact on the offender’s privacy or liberty.
Factors that courts have found compelling on this ground:
- Work requiring prolonged travel — frequent travel makes reporting requirements particularly onerous: R v Harding, 2024 ABKB 144
- Small, non-anonymous communities — registration in a small community undercuts anonymity, which the scheme is meant to preserve: R v Gordon, 2024 NUCA 6
- Serious health conditions — where health issues could make compliance difficult or impossible, risking criminal sanction: R v Maslehati, 2024 BCSC 121
- Homelessness or housing instability — constant address changes create a uniquely onerous reporting burden: R v Capot Blanc, 2023 NWTTC 7; Ndhlovu at para 46
Part IV: Reading the Recent Ontario Decisions
R v Eldon, 2025 ONCA 348 — The Cautionary Tale
Facts: The respondent, a stranger to a newly homeless 15-year-old girl, lured her with drugs and food, then forced oral sex and vaginal intercourse on her. He pleaded guilty to sexual interference and received two years less a day plus three years’ probation, one day short of the mandatory SOIRA threshold under s. 490.012(1). The sentencing judge refused to impose a SOIRA order, finding it “grossly disproportionate” to the risk of reoffending. The defence had led no evidence on the impact of SOIRA on the offender. The Crown appealed.
Held: Crown appeal allowed. SOIRA order imposed for 20 years.
Key principles from the Court of Appeal:
- Start with the presumption. The sentencing judge erred by approaching the question from Ndhlovu’s general critique of the regime rather than from the statutory presumption that the order shall be made.
- All the s. 490.012(4) factors must be considered. The sentencing judge failed to assess the victim’s personal characteristics beyond age (specifically her homelessness and particular vulnerability), the stranger-danger relationship, and the predatory nature of the offending.
- Evidence is not optional. The burden is on the offender to establish gross disproportionality. Without evidence of the specific impact of the order on this offender, the presumption cannot be displaced. The respondent’s mere substance use issues, argued by counsel from the record, were insufficient.
- The “grossly disproportionate” threshold is high. The court cannot substitute an implicit finding that the risk of reoffending is low for the required analysis of how the order’s impact specifically outweighs the public interest.
- The registry is not speculative. The Court rejected the argument that SOIRA orders should be refused because the registry has “questionable effectiveness.” Parliament’s goals are laudable; the prior unconstitutionality was about overbreadth, not utility.
R v Plummer, 2025 ONSC 4803 — Avoidance Succeeded
Facts: The 18-year-old offender (a first-time offender) sexually assaulted his close friend M.C. while she was sleeping, by vaginally penetrating her without a condom. They had been friends since grade 7. He was convicted after trial of sexual assault and sentenced to 33 months. The Crown sought a 20-year SOIRA order under s. 490.012(3).
Held: SOIRA order declined.
Why the court was persuaded:
Macfarlane J. applied Eldon and R v Thring, 2025 ONCA 389, confirming the presumptive but non-mandatory nature of the order. He then turned to the specific circumstances:
- The offender was 18, a first-time offender with no criminal history;
- The offence arose in the context of a known friendship, not a predatory stranger scenario;
- The offender had a pro-social background — gainful employment, continuing education;
- The court was “extremely confident” recidivism was “highly unlikely” in any context.
The court applied the R v Wong, 2024 ONSC 7122 analysis, finding itself in a “similar situation” to that case, where the intimacy of the relationship and the specific personal circumstances of the offender supported the inference that inclusion in the registry served no practical preventive purpose.
Defence takeaway: Plummer confirms that avoidance remains available even after Eldon, but the facts must support it. A youthful first offender, known to the victim, with no history of predatory behaviour and strong rehabilitative indicators, can meet the burden under s. 490.012(3)(a).
R v Cellupica, 2026 ONCJ 164 — Avoidance Failed for Lack of Evidence
Facts: The 25-year-old offender was convicted of two counts of sexual assault against a transgender refugee claimant she had met at a shelter. The assaults included digital penetration after the victim said “No,” and a second incident of breast touching. The offender had a complex and difficult personal history including C-PTSD, substance use disorder, and a history of homelessness. A CAMH psychiatric assessment was before the court. The Crown sought a 10-year SOIRA order.
Held: SOIRA order imposed for 10 years.
Why avoidance failed despite sympathetic circumstances:
Jones J. was candid that the offender was a marginalized, vulnerable individual with genuine rehabilitative potential. However:
“I agree with Ms. Kaur that in the absence of an application by the defence for an exemption order, supported by relevant evidence, the order must be imposed… Any evidence presented in support of a request for an exemption order must permit the trial judge to make a factual finding that the public interest associated with including a convicted sexual offender in the national database is ‘clearly and substantially’ outweighed by the impact of the order on them.” — Cellupica at para 85
The psychiatric report (Dr. Benassi’s CAMH assessment) addressed Ms. Cellupica’s mental health vulnerabilities — but it did not squarely address the impact of the SOIRA order on her specifically. The court declined to draw the inferences necessary to displace the presumption.
Defence takeaway: Evidence of the offender’s vulnerability is necessary but not sufficient. Experts must be directed to address the specific reporting obligations and their specific impact on this client. A psychiatric report that diagnoses C-PTSD without analyzing how compliance with SOIRA requirements would interact with those diagnoses will not get the job done.
Part V: Practical Guidance for Defence Counsel
Before Sentencing
1. Identify the right category early. Determine at the outset whether your client faces a mandatory order under s. 490.012(1) or (2). If sentence is heading toward two years or more, on indictment, with a victim under 18, SOIRA is mandatory and your only route is a Charter challenge. Plan accordingly.
2. Avoidance must be litigated, not assumed. Do not wait for the Crown to seek the order. If SOIRA is not mandatory, signal to Crown counsel early that you will be contesting it, and explore whether it can be excluded as part of plea negotiations. In a joint submission, the Crown may agree not to seek the order.
3. Obtain an expert assessment — ideally a forensic psychiatrist. Courts routinely rely on psychological risk assessments that rate the offender as low risk to reoffend relative to other sexual offenders. A clinical assessment alone is insufficient; the expert must address sexual recidivism risk using validated instruments (Static-99R, RRASOR, etc.) and should ideally comment specifically on the impact of SOIRA compliance on the offender given their individual circumstances.
4. Build a factual record on impact. Ask yourself: what is it about this client’s life that makes SOIRA particularly onerous? Relevant considerations include:
- Employment that requires extended travel
- Housing instability or homelessness
- Mental or physical health conditions that would impede compliance
- Living in a small or remote community with limited anonymity
- History of difficulty complying with court orders (which paradoxically argues against the utility of adding SOIRA obligations)
5. Tailor your expert’s mandate. Based on Cellupica, a psychiatric report that diagnoses mental illness but does not address SOIRA specifically will be insufficient. Instruct your expert to opine on how the reporting obligations would interact with the offender’s specific diagnoses, housing situation, and life circumstances.
6. Know the statutory duration you’re fighting. The presumptive 20-year order for s. 490.012(3) offences (where the maximum is 10 or 14 years) can be terminated after 10 years: s. 490.015(1)(b). While this does not lower the avoidance threshold, it is relevant to the gross disproportionality argument.
At the Hearing
7. Lead the application formally. File a notice of application or at minimum a written argument. Courts in Eldon and Cellupica made clear that the burden is the offender’s. Treat this as a contested evidentiary hearing, not an addendum to sentencing submissions.
8. Do not minimize the registry — engage it. The Crown will argue SOIRA is a modest administrative burden. Arm yourself with Ndhlovu’s language about the insidious, pervasive nature of the scheme. Courts should be educated on what registration actually means day to day.
9. Distinguish Eldon carefully. The Crown will lead Eldon as authority for a high threshold. It is — but Eldon also involved stranger predatory offending against a particularly vulnerable victim, with zero defence evidence. In non-predatory, known-person cases with a proper evidentiary record, Eldon is distinguishable. Plummer confirms that.
10. If SOIRA is ordered, advise on registration timelines immediately. Clients released on a non-custodial sentence or bail pending appeal must register within 7 days. They cannot leave Canada until registration is complete. This is not optional and the stakes of non-compliance are criminal.
Part VI: The Five Avenues — A Quick Reference
For any client whose order has already been imposed, or who is heading to sentencing, here is the menu of options:
| Route | Who It’s For | Test |
|---|---|---|
| Avoidance | Client not yet sentenced | No connection or gross disproportionality (s. 490.012(3)) |
| Charter challenge | Mandatory order under s. 490.012(1)/(2) | Constitutionality of the mandatory regime |
| Exemption | Order imposed between April 15, 2011 and late 2023 | No connection or gross disproportionality (s. 490.04); cannot apply if order would be mandatory today |
| Variation | Lifetime order imposed pre-Ndhlovu or for foreign conviction | No pattern of behaviour indicating increased risk; order shortened to what would have been made originally (s. 490.05) |
| Termination | Offender already registered for sufficient time | No connection or gross disproportionality; available at halfway point (5/10/20 years depending on order length) (s. 490.015(1)) |
Conclusion
SOIRA avoidance is not a Hail Mary, it is a structured legal argument that requires preparation, evidence, and a client-specific approach. Since Ndhlovu and the 2023 amendments, the regime has real flexibility built into it. The problem is that the default is always registration. Defence counsel must affirmatively displace that default with evidence and argument.
The lessons from Eldon, Plummer, and Cellupica are consistent: courts will grant avoidance where the evidence supports it, and refuse where it does not. The difference between Plummer (avoidance granted) and Cellupica (avoidance refused) was not the sympathies of the judge, it was the state of the record before them.
Do the work. Build the record. Fight the order.
This article is intended for informational and educational purposes. It does not constitute legal advice. The law in this area continues to evolve; counsel should review the most current case law before proceeding.
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