Retrospective operation of the Internet prohibition in s. 161(1) (d) of Criminal Code held to be under reasonable limit

Supreme Court of Canada: While dealing with the issue relating to the retrospective operation of s. 161(1)(c) and (d) of the Criminal Code, the Court allowed KRJ’s appeal in part, ordering that s. 161(1)(c) could not be applied retrospectively, but that a retrospective application of s. 161(1)(d) held justified.

In the present case, in 2013, KRJ pleaded guilty to incest and the creation of child pornography. The offences were committed between 2008 and 2011. When a person is found guilty of incest or the creation of child pornography, s. 161 of the Criminal Code obliges the sentencing judge to consider making an order prohibiting the offender, upon release, from engaging in certain enumerated activities that might lead to the offender coming into contact with children (Criminal Code of Canada, RSC 1985, c C-46, s. 161). The issues which were dealt by this Court were (1) Does the retrospective operation of s. 161(1)(c) and (d) of the Criminal Code limit s. 11(i) of the Charter? (2) If so, is the limitation a reasonable one prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter?

The majority judgment answered issue 1 in the affirmative and found that a retrospective application of s. 161(1)(c) was not justified, but that a retrospective application of s. 161(1)(d) was held justified. The Court further quoted the legal test to determine whether a prohibition or sanction is a punishment under section 11(i) as was established in R v Rodgers 2006 SCC 15 (CanLII) (“Rodgers”) i.e. (1) the measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and (2) the measure must be imposed in furtherance of the purpose and principles of sentencing. The Court further adopted the ruling of BC Court of Appeal that the sanctions under s. 161(1) were not imposed in the furtherance of the purpose and principles of sentencing because they were aimed at public safety. Applying the reformulated s. 11(i) test to s. 161(1), Karakatsanis J. found that the 161(1)(c) and (d) prohibitions were consequences of conviction that form part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence. Section 161(1)(c) and (d) prohibitions also had the potential for a non-trivial impact on the liberty and security interests of offenders because of the stigma attached, restrictions on employment, restrictions on the ability of an offender to interact in public and private spaces, and a possible significant deprivation of internet access. Karakatsanis J. further concluded that the newer version of s. 161 was “clearly” a more severe punishment than the previous version because of the expanded scope of activities covered in s. 161(1)(c) and (d). Therefore, a retrospective application of the new version of s. 161 infringed KRJ’s s. 11(i) right to the benefit of the lesser punishment and had to be justified under s. 1 of the Charter. [R. v. K.R.J., 2016 SCC OnLine Can SC 6 : 2016 SCC 31, decided on July 21, 2016]

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