Breach of Section 161 Orders (Offence)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 92274)


Breach of Section 161 Orders
s. 161(4) of the Crim. Code
Election / Plea
Crown Election Summary/Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 4 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

The offences relating to breaches of section 161 orders are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 161(4)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

161
[omitted (1), (1.1), (2) and (3)]

Offence

(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 161 R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16; 2014, c. 21, s. 1, c. 25, s. 5; 2015, c. 23, s. 6; 2019, c. 25, s. 55.

CCC (CanLII), (DOJ)


Note up: 161(4)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
161(4) breach of 161 order - term (a) "..., being bound by an order prohibited [name1] from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, to wit: [conduct], contrary to section 161(4) of the Criminal Code."
161(4) breach of 161 order - term (b) "..., being bound by an order prohibited [name1] from being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order, to wit: [conduct], contrary to section 161(4) of the Criminal Code."
161(4) breach of 161 order - term (c) "..., being bound by an order prohibited [name1] from having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate, to wit: [conduct], contrary to section 161(4) of the Criminal Code."
161(4) breach of 161 order - term (d) "..., being bound by an order prohibited [name1] from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court, to wit: [conduct], contrary to section 161(4) of the Criminal Code."

Interpretation of the Offence

There is no requirement to prove that the accused knew or was willfully blind to what the legal meaning of the restrictions are.[1]


  1. R v Allaby, 2017 SKCA 25 (CanLII), 353 CCC (3d) 476, per Ottenbreit JA, at para 44 ("The trial judge made [an error by] requiring the Crown to prove that the accused knew the law or was wilfully blind to the law. Mr. Allaby was not mistaken about what he had done. He was clearly aware that he was bound by two court orders ... He deliberately chose to go to the RPL. On the evidence presented at trial, Mr. Allaby was mistaken about the ambit of the term “community centre” and the legal consequences of his actions. Such a mistake was one of law and could not operate as a defence and negate his intention to commit the offences save in the case of officially induced error. ...")
    see also R v MacDonald, 2014 SCC 3 (CanLII), [2014] 1 SCR 37, per LeBel J

Sentencing Breaches of 161 Orders

The purpose of the orders are to protect children. Therefore, a breach of the order is inherently serious.[1]

The predominant principles of sentencing for breaches of s. 161 prohibition orders is denunciation and deterrence.[2]

An offender who breaches repeatedly is not likely deterred by community supervision. A CSO for "flagrant" breaches is not consistent with the purposes and principles of sentencing.[3]

There is some support to suggest that Friesen principles apply to breach of s 161.[4]

  1. R v RM, 2019 ONCJ 435 (CanLII), per Konyer J, at para 16 ("Typically, these orders attempt to manage that risk by, in part, restricting the offender’s ability to be with children in an unsupervised setting. It follows that any breach of such an order is inherently serious.")
    R v Marin, 2011 ONCJ 481 (CanLII), per Borenstein J, at para 23 ("The authority of the court is potentially undermined if courts do not treat breaches of their orders seriously. This is particularly so in cases such as LTO or section 161 orders where the court has determined that an accused represents a risk and that order is meant to lessen the risk to others.")
  2. R v Exell, 2015 ONCA 704 (CanLII), per curiam, at para 8
  3. R v Benson, 2022 ONCJ 370 (CanLII), per Green J, at para 105
  4. Benson, ibid., at para 105

Ranges

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 161 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also