Section 161 Orders
When an offender is convicted on an enumerated offence concerning persons under the age 16, section 161 of the Criminal Code permits the court to make an order prohibiting the offender’s from certain activities that may have them in contact with persons under the age of 16.
The purpose of s. 161 orders is to protect vulnerable children from sexual violence. They are preventative in nature. It limits the offender's contact with children and prevents "them from obtaining access to children through positions where children will be vulnerable to them." The 2012 changes to s. 161(1)(d) was enacted to "close a legislative gap created by rapid social and technological changes" as the this is so that the "court is better able to monitor offenders' use of the Internet thereby limiting their opportunities to offend and preventing such behaviour".
It is considered a "punishment" and is part of the arsenal of sanctions available to a judge.
- Constitutionality and Retrospectivity
Section 161(1)(c) is not retrospective as it violates s. 11(i) of the Charter prohibiting retroactive punishments. However, s. 161(1)(d) is retrospective as the violation of s. 11(i) of the Charter is permitted under s. 1 of the Charter.
- Standard of Appellate Review
The order under s. 161 is discretionary and so appellate courts should not intervene "absent an error in principle" or where a prohibition is "demonstrably unfit and unreasonable".
R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J, at paras 44 to 46
R v Shultz, 2018 ONCA 598 (CanLII), per Brown JA, at para 41 ("The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence")
- R v SB, 2008 ONCJ 383 (CanLII), per Hackett J
- R v RMG, 2001 CanLII 21827 (NL PC),  N.J. No. 269 (NLPC), per Gorman J
R v Brar, 2016 ONCA 724 (CanLII), per Rouleau JA, at para 17
Shultz, supra, at para 42
KRJ, supra, at para 108
KRJ, supra, at paras 50 and 57
R v Miller, 2017 NLCA 22 (CanLII), per Hoegg JA, at para 8
R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J
see also Charter Issues in Sentencing
- KRJ, ibid.
Shultz, supra, at para 43
R v WQ, 2006 CanLII 21035 (ON CA), per Macfarland JA, at para 25
Brar, supra, at para 26
The applicable offences are listed in s. 161(1.1):
The amendment of 2019, c. 25 removed s. 159 (anal intercourse) from the list found in s. 161(1.1)(a).
Section 161(1.1)(b) and (c) list applicable offences as they existed pre-1988.
Offences listed include:
- Sexual Interference (151)
- Invitation to Sexual Touching (152)
- Sexual Exploitation (153)
- Incest (155)
- Anal Intercourse (159)
- Bestiality (160(2) or (3))
- Child Pornography (163.1)
- Parent or guardian procuring sexual activity (170)
- Householder permitting sexual activity (171)
- Making Sexual Explicit Materials Available to Child (171.1)
- Child Luring (172.1)
- Agree or Arrange a Sexual Offence Against Child (172.2)
- Indecent Acts (173(2))
- Procuring and Living on the Avails of Prostitution (212)
- Sexual Assault (271)
- Sexual Assault with a Weapon (272)
- Sexual Assault Causing Bodily Harm (272)
- Aggravated Sexual Assault (273)
- Trafficking of a person under the age of eighteen years (279.011)
- Material benefit — trafficking of person under 18 years (279.02(2))
- Withholding or destroying documents — trafficking of person under 18 years (279.03(2))
- Abduction of person under sixteen (280)
- Abduction of person under fourteen (281)
- Obtaining sexual services for consideration (286.1(2))
- Material benefit from sexual services (286.2(2))
- Procuring (286.3(2))
Certain sexual offences such as sexual exploitation of a disabled person (153.1), and voyeurism (162) are among those not listed.
It should not be applied as a "matter of course". There must be an "evidentiary basis upon which to conclude that the particular offender poses a risk to children".
The terms of the order "order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender’s specific circumstances".
The sentencing judge should take a "purposive approach" to the imposition of s. 161 and assess "the extent of the risk to children based on a number of factors, including the circumstances of the offence and offender".
It has been suggested that courts should not be reluctant on the imposition of an order.
A judge may refuse to make an order where the victims and the public are adequately protected by other means such as probation.
Simply because the child pornography consisted of drawings rather than images of child abuse will not be sufficient reason to refrain from ordering a s.161 order.
- Evidentiary Basis
It is necessary that there be an "evidentiary basis upon which to conclude that the particular offender poses a risk to children" and the judge is satisfied that the specific terms of the order are "a reasonable attempt to minimize that risk".
An absence of any evidence that the offender had attempted to contact children is valid reasons for the judge to decline to make orders under s. 161(1)(a), (b) or (c).
- Absence of Risk of Recidivism
Neither the absence of a prior record or other evidence of recidivism are reasons not to impose a s. 161 order. The circumstances of the case themselves can often be reason enough.
Even with an assessment that shows the offence as a low risk of recidivism, it may still be appropriate to order a s. 161 order.
R v DK, 2013 ONSC 1851 (CanLII), per Conlan J, at para 22
R v Miller, 2017 NLCA 22 (CanLII), per Hoegg JA, at para 19 ("...the imposition of a section 161 order is a discretionary decision. A judge’s discretion, of course, must be exercised judicially..., which in this case would require the judge to have a proper basis for imposing the order. If a sentencing judge errs in a manner which impacts the imposition or the terms of the order, this Court could intervene...")
Miller, ibid., at para 19
R v Bussey, 2014 NLCA 18 (CanLII), per Welsh JA, at para 12
R v Schultz, 2018 ONCA 598 (CanLII), per Brown JA, at para 41 ("The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: ... . An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender’s specific circumstances: ...")
Schutz, ibid., at para 41
R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J, at paras 48 to 49
R v RKA, 2006 ABCA 82 (CanLII), per Paperny JA, at para 26
Miller, supra, at para 11 ("In A.(R.K.), the Court set out a number of factors to be considered in deciding whether to impose a section 161 order. The Court directed that a court must take “a purposive approach” to the imposition of a section 161 order and “must assess the extent of the risk to children based on a number of factors, including the circumstances of the offence and the offender” ... .")
- RMG, ibid.
- DK, ibid., at para 23
- R v MK, 2010 NBCA 71 (CanLII), per Robertson JA, at paras 26 to 28
Miller, supra, at para 9
KRJ, supra, at para 48
R v Schultz, 2008 ABQB 679 (CanLII), per Topolniski J, at para 54
RKA, supra, at para 28
- e.g. Shultz, supra
Terms and Conditions
Section 161(1)(a) to (d) sets out the available conditions for a s. 161 order:
The order would prevent an offender 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 (161(1)(a))
- 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; (161(1)(a.1))
- seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years (161(1)(b));
- 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 (161(1)(c))
- using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court (161(1)(d))
Where a s. 161(1)(d) order is being made limited use of a computer may be appropriate where risk can be minimized. Exceptions can be done for situations such as the use of "devices capable of accessing the Internet or email not only at the appellant’s place of employment, but also 'as required for employment-related purposes.'"
It is inappropriate for s. 161(1)(d) as being used to impose terms that restrict ownership or use of electronic devices. It is designed only to limit internet access.
e.g. R v Schultz, 2018 ONCA 598 (CanLII), per Brown JA, at para 56
- R v Brar, 2016 ONCA 724 (CanLII), per Rouleau JA, at para 27 ("Further, I agree with the appellant’s submissions that the sentencing judge erred in imposing a prohibition on owning or using a smart phone, tablet or any mobile device with Internet capabilities. Section 161(1)(d) permits the courts to prohibit Internet use but does not provide the court with the power to restrict ownership of such Internet capable devices. Nor should such a power be inferred.")
Restriction on "attending" will refer to being present on the property and not simply across the street from the location.
- Community Centre
A community centre will include public libraries.
- Park or Playground
A carnival is neither a park or playground.
- Swimming Areas
The restrictions on swimming areas will also include pools found in apartment buildings and other complexes.
A 20 year order would generally be reserved for only some of the worst offenders.
Sexual assaults will typically be under 10 years.
When considering the effect of prior-related records, convictions for sexual offences while the offender was a youth should not be considered if it occurred more than 5 years prior to the adult offence.
In practice, the judges will usually impose a 161 order for a period of 10 years or life for the most serious sexual predator offences.
Second time child pornography offence got 15 years order under 161.
The condition can be varied by the same court.
- s. 161(3)
Violations of the Order is a hybrid offence, either on summary conviction or a maximum of 2 years on indictable election.
- s. 161(4)
On August 9, 2012, section 161 was amended to add s. 161(1)(c) and (d) and to add other enumerated offences found in s. 161(1.1).
On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties for convictions under s. 161(4). On summary conviction, the maximum penalties increased from 6 months to 18 months. On indictable election, the maximum penalties increased from 2 years to 4 years.
2012 to 2015
2008 to 2012
- R v WAE, 2009 CanLII 42861 (NL PC), per Gorman J - 20 years - no prior record. Possession of child pornography.