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| John L. Hill |
Then, on Oct. 27, 2023, Parliament passed new legislation making SOIRA orders mandatory where the designated offence was prosecuted by indictment, the sentence for the designated offence is a term of imprisonment of two years or more; and the victim of the designated offence is under the age of 18 years, or the offender was already on the registry for another conviction. The order was Parliament’s attempt to help the police prevent or investigate crimes of a sexual nature. Under the new provisions, sentencing judges retained a discretion to exempt an offender from registration if a SOIRA order would be “grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature.”
B.G. was a 15-year-old girl, homeless and hungry, living on the streets of Toronto when Dylan James Eldon approached her. He offered her food and drugs to lure her to a room where she was forced to fellate Eldon and then made to have sexual intercourse with him. Eldon later pleaded guilty to one count of sexual interference and was sentenced in the
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At his sentencing, the Crown had asked for a SOIRA order, but the judge declined. She said it would be “grossly disproportionate” to the public interest to make a mandatory order with a 20-year lifespan when Eldon’s behaviour was not predatory. It had been pointed out that Eldon had a five-page criminal and youth record but had never been convicted of sexual assault. He was Indigenous and had substance use issues. Although sentencing was supposed to proceed with a joint submission, defence counsel would not agree to a SOIRA order made under s. 490.012(3) of the Criminal Code. The sentencing judge refused to grant it.
The Crown appealed the refusal to impose the order. The court noted that there is a presumption in favour of making a SOIRA order unless (a) the accused can establish that such an order would be unlikely to help prevent or investigate crimes of a sexual nature and (b) that the impact on the offender, including their privacy and liberty rights, would be grossly disproportionate to the public interest. The Crown’s argument focused on the position that Eldon’s act was the commission of a designated offence and precisely the kind of offence SOIRA orders should include.
Defence counsel argued the length of time for which the order would apply would be an “exceedingly long term” and be “grossly disproportionate.” The offence for which Eldon pleaded guilty was out of character for him and represented an isolated incident.
On May 6, 2025, the Ontario Court of Appeal considered the arguments and decided the trial judge had committed an error in principle (R. v. Eldon, 2025 ONCA 348). The Appeal Court held that a proper analysis ought to have started with a recognition that there was a statutory presumption that an order would be made unless Eldon could rebut the conditions listed as (a) and (b) above. It was recognized in Ndhlovu that sexual offending is one of several “empirically validated predictors of increased sexual recidivism.” It has also been shown that the National Sex Offender Registry has assisted police in preventing and detecting crime.
Further, the sentencing judge has discounted the seriousness of Eldon’s acts and how he had taken advantage of an underage victim in a calculated manner and manipulated her behaviour with drugs. His actions could be construed as predatory. The judge had considered the woman’s age without contextualizing her position as being hungry and homeless. This was the case of a stranger exploiting a child. Even though the offender admitted his drug addiction and expressed remorse, his admissions of these frailties do nothing to assuage concerns about his potential for reoffending.
The judge further failed to consider what is meant by “grossly disproportionate.” The term means more than a minor imbalance. The terms indicate “plainly, obviously, excessively, to a startling degree, flagrantly or glaringly” disproportionate” (R. v. Debidin (2008), 94 O.R. (3d) 421 (C.A.)) The term has also been defined as meaning “clearly and substantially” in R. v. R.C., 2005 SCC 61. To satisfy this condition the Court of Appeal stated that Eldon must have been able to show that “the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act” is clearly and substantially inferior to “the impact of the order on the person, including on their privacy or liberty”. The Appeal Court imposed the SOIRA order.
The 2023 amendments made SOIRA orders mandatory when the offence was prosecuted by indictment and a sentence of two years or more was imposed. This judgment seemingly expands what Parliament intended by judicial interpretation, making SOIRA orders hard to avoid if, as in Eldon, a sentence of less than two years is levied.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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