Criminal Code — C-46 490.04
Application for exemption order 490.04 (1) A person may apply to a court for an order exempting them from (a) an order made under section 490.012 on or after April 15, 2011 but before the day on which this paragraph comes into force; or (b) an obligation under section 490.02901, or under section 36.1 of the International Transfer of Offenders Act , that began before the day on which this paragraph comes into force. Limitation — application (2) A person is not permitted to apply under paragraph (1)(b) if, on or after the day on which this subsection comes into force, they have made an application for an exemption order under section 490.02905 or 490.029111 in respect of the same obligation. Jurisdiction (3) The application shall be made to (a) a superior court of criminal jurisdiction, if the application is made under paragraph (1)(a) in respect of an order made by such a court; or (b) a court of criminal jurisdiction, in any other case. Limitation — exemption order (4) The court shall not make an exemption order in respect of an application made under paragraph (1)(a) if (a) the designated offence that is the basis of the order made under section 490.012 was prosecuted by indictment, the sentence for that offence is a term of imprisonment of two years or more and the victim of that offence was under the age of 18 years; or (b) before or after the order under section 490.012 was made, the person (i) was convicted of a primary offence — or convicted of an offence under section 130 of the National Defence Act in respect of a primary offence — that is not the offence on the basis of which the order was made, or (ii) is or was, as a result of a conviction, subject to another order or obligation under this or another Act of Parliament to comply with the Sex Offender Information Registration Act . Exemption order (5) Subject to subsection (4), the court shall make an exemption order if it is satisfied that the person has established that, at the time the order was made or the obligation began, (a) there was no connection between the order or obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act ; or (b) the impact of the order or the obligation on the person, including on their privacy or liberty, was grossly disproportionate to 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. Factors (6) In determining whether to make the exemption order, the court shall consider (a) the nature and seriousness of the offence that is the basis of the order or obligation; (b) the victim’s age and other personal characteristics; (c) the nature and circumstances of the relationship between the person and the victim; (d) the personal characteristics and circumstances of the person; (e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (f) the opinions of experts who have examined the person; and (g) any other factors that the court considers relevant. Reasons for decision (7) The court shall give reasons for its decision. Removal of information from database (8) If the court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of a copy of the order made under section 490.012, the notice referred to in section 490.02901 or the Form 1 referred to in subparagraph 8(4)(a)(ii) of the International Transfer of Offenders Act , as the case may be. 2023, c. 28, s. 32