View source for Breach of Section 161 Orders (Offence)

[[fr:Violations des ordonnances d'article 161 (infraction)]]
{{Currency2|January|2020}}
{{LevelZero}}{{HeaderOffences}}

{{OffenceBox 
|OffenceTitle=Breach of Section 161 Orders
|OffencePage=Breach of Section 161 Orders
|Section=161(4)
|Act={{OBCCC}} 
|CrownElection={{OBHybridSummaryElection}}
|Jurisdiction={{OBJurisdictionAll-Under5}}
|Bail={{OBBailAll}} 
|SummaryDisp= {{OBDispAll}}
|SummaryMin= {{OBMinNone}} 
|SummaryMax= {{OBSConviction}} 
|IndictableDisp={{OBDispSame}}
|IndictableMin= {{OBMinNone}}
|IndictableMax= {{OBTime|4 years}} }}

==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". 
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; Pleadings
{{PleadingsHeader-N}}
{{PleadingsHybridList-N|s. 161(4) {{DescrSec|161(4)}} | {{Yes}} | {{Yes-IfCrown}}| {{No-Under14}} }}
{{PleadingsSummaryList-N|s. 161(4) {{DescrSec|161(4)}} | {{No}} | {{No}} | {{No-Under14}} }}
{{PleadingsEnd}}

{{PleadingsHybridElection-Under14|s. 161(4) {{DescrSec|161(4)}}}}

{{PleadingsSummary|s. 161(4)}}

; Release
{{ReleaseOptions-Hybrid|s. 161(4) {{DescrSec|161(4)}}}}

:''<u>Reverse Onus Bail</u>''
{{ReverseOnusCirc}}

:''Fingerprints and Photos''
{{IDCriminalAct|s. 161(4) {{DescrSec|161(4)}}}}

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; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}}
|-
|s. 161(4) {{DescrSec|161(4)}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent--> || {{XMark}} <!-- IRPA --> 
{{DesignationEnd}}
{{SeeBelowForAncillary}}

==Offence Wording==
{{quotation2|
161<br>
{{Removed|(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., {{LegHistory80s|1985, c. C-46}}, s. 161 
R.S., {{LegHistory80s|1985, c. 19 (3rd Supp.)}}, s. 4;
{{LegHistory90s|1993, c. 45}}, s. 1; 
{{LegHistory90s|1995, c. 22}}, s. 18; 
{{LegHistory90s|1997, c. 18}}, s. 4; 
{{LegHistory90s|1999, c. 31}}, s. 67; 
{{LegHistory00s|2002, c. 13}}, s. 4;
{{LegHistory00s|2005, c. 32}}, s. 5; 
{{LegHistory00s|2008, c. 6}}, s. 54; 
{{LegHistory10s|2012, c. 1}}, s. 16; 
{{LegHistory10s|2014, c. 21}}, s. 1, {{LegHistory10sA|2014|c. 25}}, s. 5; 
{{LegHistory10s|2015, c. 23}}, s. 6; 
{{LegHistory10s|2019, c. 25}}, s. 55.
|{{CCCSec2|161}}
|{{NoteUp|161|4}}
}}

{{reflist|2}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
|161(4)
| breach of 161 order - term (a)
|"{{ellipsis1}}, 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{{ToWit-Conduct}} {{contrary|161(4)}}."
|-
|161(4)
| breach of 161 order - term (b)
|"{{ellipsis1}}, 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{{ToWit-Conduct}} {{contrary|161(4)}}."
|-
|161(4)
| breach of 161 order - term (c)
|"{{ellipsis1}}, 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{{ToWit-Conduct}} {{contrary|161(4)}}."
|-
|161(4)
| breach of 161 order - term (d)
|"{{ellipsis1}}, 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{{ToWit-Conduct}} {{contrary|161(4)}}."
{{DraftEnd}}

==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.<ref>
{{CanLIIRP|Allaby|h306h|2017 SKCA 25 (CanLII)|353 CCC (3d) 476}}{{perSKCA|Ottenbreit JA}}{{atL|h306h|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. ...")<br>
see also {{CanLIIRP|MacDonald|g2ng9|2014 SCC 3 (CanLII)|[2014] 1 SCR 37}}{{perSCC|LeBel J}}
</ref>


{{reflist|2}}

==Sentencing Breaches of 161 Orders==
The purpose of the orders are to protect children. Therefore, a breach of the order is inherently serious.<REf>
{{CanLIIR|RM|j1675|2019 ONCJ 435 (CanLII)}}{{perONCJ|Konyer J}}{{atL|j1675|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.")<Br>
{{CanLIIR|Marin|fn82l|2011 ONCJ 481 (CanLII)}}{{perONCJ|Borenstein J}}{{atL|fn82l|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.")
</ref>

The predominant principles of sentencing for breaches of s. 161 prohibition orders is denunciation and deterrence.<Ref>
{{CanLIIR|Exell|glpbh|2015 ONCA 704 (CanLII)}}{{TheCourtONCA}}{{atL|glpbh|8}}
</ref>

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.<Ref>
{{CanLIIR|Benson|jrg1x|2022 ONCJ 370 (CanLII)}}{{perONCJ|Green J}}{{atL|jrg1x|105}}
</ref>

There is some support to suggest that ''Friesen'' principles apply to breach of s 161.<ref>
{{ibid1|Benson}}{{atL|jrg1x|105}}
</ref>

{{reflist|2}}
===Ranges===


==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}

; Offence-specific Orders
* None

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 
{{RecordSuspension|s. 161}}

==History==
{{seealso|List of Criminal Code Amendments|Table of Concordance (Criminal Code)}}

==See Also==
* [[Breach of SOIRA Orders (Offence)]]