Background
In February 2020, Kelly Dale Humphreys pleaded guilty to possession of child abuse and exploitation material under s. 163.1(4) of the Criminal Code. The underlying facts were severe: Humphreys had actively encouraged his common-law partner to produce and transmit sexually explicit images of her then-five-year-old son while Humphreys was deployed at sea, and the pair exchanged detailed messages discussing plans to sexually assault the child. At sentencing, the court imposed an 18-month conditional sentence, two years of probation, and a mandatory 20-year registration order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA).
The legal landscape shifted in 2022 when the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38, struck down the mandatory nature of SOIRA registration as constitutionally overbroad with respect to the lowest-risk offenders. Parliament responded by enacting amendments to the Criminal Code that created a new freestanding exemption application process under s. 490.04, allowing offenders subject to mandatory orders imposed between 2011 and 2023 to seek exemption from SOIRA obligations. Humphreys applied for a full exemption under this provision.
On May 22, 2025, the Provincial Court judge declined to grant a full exemption but purported to reduce the registration period from 20 to 15 years and made the order subject to further applications and fresh evidence. Both the Crown and Humphreys appealed: the Crown challenging the judge’s jurisdiction to shorten the order or attach conditions, and Humphreys cross-appealing on the ground that he should have received a complete exemption.
The Court’s Holding
The Court of Appeal, per Edelmann J.A. (Marchand C.J.B.C. and Fisher J.A. concurring), allowed the Crown’s appeal and dismissed Humphreys’s cross-appeal. On the Crown’s appeal, the court held that s. 490.04 provides only a binary outcome — the application is either dismissed, leaving the existing order intact, or granted, permanently removing the offender from the registry. The provision confers no discretion on a judge to reduce the mandated duration or to attach conditions permitting future re-applications. The appropriate remedy for a registration period that may be grossly disproportionate in duration is a termination application under s. 490.015, for which Humphreys will be eligible in 2030. The court quashed the variation order and substituted a dismissal of the exemption application.
On the cross-appeal, the court rejected Humphreys’s arguments that the judge was functus officio or bound by issue estoppel with respect to findings made at sentencing. Because a s. 490.04 application is a freestanding proceeding, the judge was entitled — indeed required — to assess risk and the gravity of the offence afresh under the enumerated statutory factors. The court also rejected the argument that the judge improperly relied on evidence from the co-accused’s sentencing; the judge had expressly limited his reliance to evidence that was before him at Humphreys’s own sentencing, which was more than sufficient to support his conclusions. On the merits, Humphreys had not established either that there was no connection between the SOIRA order and the purpose of helping police investigate sexual offences, or that the impact of registration was grossly disproportionate — the two grounds for exemption under s. 490.04(5).
Key Takeaways
- Section 490.04 of the Criminal Code provides only two outcomes on an exemption application: full dismissal or full exemption. A judge has no jurisdiction to reduce the statutory duration of a SOIRA order or to make it conditional on future applications.
- A s. 490.04 exemption application is a freestanding proceeding, not an appeal from the original sentencing order; doctrines of functus officio and issue estoppel do not bar a judge from reconsidering risk or the gravity of offending in light of current law, including R. v. Friesen, 2020 SCC 9.
- An offender who claims registration is grossly disproportionate in duration — but who does not meet the threshold for a full exemption — may seek relief through a termination application under s. 490.015 once the applicable waiting period has elapsed.
- To establish the “no connection” ground under s. 490.04(5)(a), an applicant must demonstrate a risk profile comparable to the lowest-risk offenders described in Ndhlovu; a “low-moderate” risk assessment relative to similar offenders is insufficient.
Why It Matters
This decision clarifies the precise boundaries of judicial authority in the post-Ndhlovu SOIRA exemption framework. Courts and practitioners now have clear confirmation that s. 490.04 is an all-or-nothing mechanism: partial relief — such as a shortened registration period — is simply not available at the exemption stage. Judges who find themselves sympathetic to an applicant’s circumstances but unwilling to grant a full exemption cannot craft an intermediate remedy; the termination provisions of s. 490.015 are the legislatively prescribed safety valve.
The decision also provides useful guidance on the evidentiary standard for the “no connection” ground, making clear that a low-moderate recidivism risk does not meet the threshold established in Ndhlovu, and that contextual aggravating facts — such as soliciting a partner to produce child abuse material and discussing the luring of neighbourhood children — are directly relevant to whether registration serves the statute’s law-enforcement purpose.