Ancillary Orders

AuthorErin Winocur/Danielle Robitaille/Maya Borooah
Pages283-335

Ancillary Orders
8
I. Sex Oender Information Registration Act ..................... 
II. Section : Prohibitions to Protect Children . . . . . . . . . . . . . . . . . . . 
III. Section .: Prohibition on Access to the Internet ............. 
IV. Weapons Prohibitions...................................... 
V. Driving Prohibitions ....................................... 
VI. Sections  and .: Restitution........................... 
VII. Forfeiture Orders.......................................... 
VIII. Section .: Non-Communication Orders................... 
IX. DNA Orders ............................................. 
X. Section .: Prohibition on Managing Other People’s Money or
Property ................................................. 
XI. Section .: Prohibition on Owning Animals ................. 
XII. Section : Victim Surcharge ............................... 
Copyright © 2024 Emond Montgomery Publications. All Rights Reserved.
 Sentencing: Principles and Practice
Everyone impacted by a case wants to know the dramatic ending: will the oender
go to jail and for how long? While we understand the focus on the custodial element
of the sentence, the ancillary orders imposed at the time of sentence also have a sig-
nif‌icant impact on the oender, victim, and community. In our view, such orders also
warrant close attention. In general, ancillary orders fall into three categories: (1) those
meant to make the victims whole again after suering f‌inancial/economic loss as a
result of criminality; (2) those meant to assist police in the detection and protection
against future oences committed by the oender; and (3) those designed to restrict
the oender’s liberty beyond the sentence itself and directed specif‌ically at the type
of conduct at issue in the oence (for example, driving, violence, sexual oences
against children). This chapter will consider the types of orders that may be imposed
in addition to the types of sentences discussed in Chapter 5, Types of Sentences. We
encourage all involved in the sentencing process to resist the temptation to consider
these orders as a sort of afterthought to the real sentence and to ensure that they are
fully considered at the pre-trial phase and sentencing hearing. These provisions tend
to be dense and complicated. In general, attention should be paid to three questions:
What is the predicate oence? What is the test to be met? Has the test been met in the
particular case? Best practice for defence counsel dictates that ancillary orders, where
possible, should be included in the text of guilty plea directions.
I. Sex Offender Information Registration Act
In 2004, Canada passed the Sex Oender Information Registration Act.1 That Act was
amended in 2011, removing much of the discretion prosecutors had to seek SOIRA
orders and the discretion judges had to impose them.2 Since 2011, section 490.012 of
the Criminal Code mandated that persons convicted of one of the designated oences
listed in section 490.011(1)(a) register with the national sex oender registry. Where
a person has committed more than one of the designated oences, that registration,
and the accompanying obligations, was a lifetime order.3
In R v Ndhlovu,4 the Supreme Court of Canada considered the constitutionality
of section 490.012, the mandatory SOIRA provisions; and section 490.013(3.1), the
lifetime mandatory provisions for repeat oenders. The Court held both to violate
section 7 of the Charter. Neither is saved by section 1.5
The Court declared the mandatory registration provisions contained at section
490.012 to be of no force and eect.6 That declaration, made October 28, 2022, is
1 SC 2004 c 10 [SOIRA]; R v Ndhlovu, 2022 SCC 38 at para 2.
2 Ndhlovu, supra note 1 at paras 3-4.
3 Criminal Code, s 490.013(2.1).
4 Ndhlovu, supra note 1.
5 Ibid at para 27.
6 Ibid at para 136.
Copyright © 2024 Emond Montgomery Publications. All Rights Reserved.
Chapter  Ancillary Orders 
prospective and was suspended for a period of one year.7 Persons who are the subject
of a SOIRA order imposed pursuant to section 490.012 remain bound by it. Persons
bound by such orders may
ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed
from the registry if they can demonstrate that SOIRA’s impacts on their liberty bears no
relation or is grossly disproportionate to the objective of s. 490.012.8
Persons who are sentenced during the period of suspension of the declaration of inva-
lidity may similarly make an application pursuant to section 24(1) of the Charter to be
removed from the registry.
The Court declared the lifetime registration provision contained at section
490.013(2.1) to be of no force and eect. That declaration was immediate9 and retro-
spective.10 Oenders who are subject to a lifetime order having been convicted of
“more than one sexual oence without an intervening conviction can seek a s. 24(1)
remedy to change the length of their registration.11
Until October 28, 2023 or unless Parliament passes new legislation governing the
registration of persons convicted of sexual oences, section 490.012 remains in force.
Where a person is sentenced or found not criminally responsible for an oence
of a sexual assault or any one offence referred to in the Criminal Code, section
490.011(1),12 the court shall make an order requiring the oender to comply with
7 Ibid at paras 136, 140.
8 Ibid at para 140.
9 Ibid at para 136.
10 Ibid at para 142.
11 Ibid.
12 (a) Current oences: ss 7(4.1) (oence in relation to sexual oences against children outside of
Canada), 151 (sexual interference), 152 (invitation to sexual touching), 153 (sexual exploitation),
153.1 (sexual exploitation of person with disability), 155 (incest), 160(2) (compelling the commis-
sion of bestiality), 160(3) (bestiality in presence of or by a child), 163.1 (child pornography), 170
(parent or guardian procuring sexual activity), 171.1 (making sexually explicit material available
to child), 172.1 (luring a child), 172.2 (making an agreement or arrangement to commit a sexual
oence against child), 173(2) (exposure), 271 (sexual assault), 272 (sexual assault with a weapon,
threats to a third party or causing bodily harm), 273(2)(a) (aggravated sexual assault—use of a
restricted f‌irearm or prohibited f‌irearm or any f‌irearm in connection with criminal organization),
273(2)(a.1) (aggravated sexual assault—use of a f‌irearm), 273(2)(b) (aggravated sexual assault),
273.3(2) (removal of a child from Canada), 279.011 (trafficking—person under 18 years),
279.02(2) (material benef‌it—tracking of person under 18 years), 279.03(2) (withholding or
destroying documents tracking of person under 18 years), 286.1(2) (obtaining sexual services
for consideration from person under 18 years), 286.2(2) (material benef‌it from sexual services
provided by person under 18 years), and 286.3(2) (procuring person under 18 years).
...
(c) Oences that existed prior to 4 January 1983: ss 144 (rape), 145 (attempt to commit
rape), 149 (indecent assault on female), 156 (indecent assault on male), and 246(1) (assault
with intent to commit sexual oence).
Copyright © 2024 Emond Montgomery Publications. All Rights Reserved.

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