Section 161 Orders

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General Principles

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.

Order of prohibition

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730 [order of discharge], of an offence referred to in subsection (1.1) [161 prohibition order – applicable offences] in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) 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;

(a.1) 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;

(b) 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;

(c) 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; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

[omitted (1.1), (2), (3) and (4)]
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.
[annotation(s) added]

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Purpose

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".

Punishment

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".

Applicable Offences

The applicable offences are listed in s. 161(1.1):

161
[omitted (1)]

Offences

(1.1) The offences for the purpose of subsection (1) [161 prohibition order – power and conditions] are

(a) an offence under section 151 [sexual interference], 152 [invitation to sexual touching] or 155 [incest], subsection 160(2) [compelling bestiality] or (3) [bestiality in presence of or by child], section 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 171.1 [making sexually explicit materials available to child], 172.1 [child luring] or 172.2 [agree or arrange sexual offence against child], subsection 173(2) [exposure to person under 16], section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault] or 279.011 [trafficking in persons, under 18], subsection 279.02(2) [material benefit from trafficking, under 18] or 279.03(2) [withholding or destroying docs, under 18], section [abduction of a person under 16] 280 or [abduction of a person under 14] 281 or subsection 286.1(2) [comm. to obtain sexual services for consideration – person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18];

(b) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983;

(c) an offence under subsection 146(1) (sexual intercourse with a female under 14) or section 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(d) an offence under subsection 212(1) (procuring), 212(2) (living on the avails of prostitution of person under 18 years), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years) or 212(4) (prostitution of person under 18 years) of this Act, as it read from time to time before the day on which this paragraph comes into force.

[omitted (2), (3) and (4)]
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.

[annotation(s) added]

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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.

Application

Section 161 Order is a discretionary order. However, that discretion must be exercised "judicially".

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.

Decline to Order

The judge may decline to make an order under s. 161 where they find that there is no future risk of harm to young persons.

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.

Terms and Conditions

Section 161(1)(a) to (d) sets out the available conditions for a s. 161 order:

Order of prohibition

161 (1) ... the court that sentences the offender ... shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) 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;

(a.1) 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;

(b) 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;

(c) 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; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

[omitted (1.1), (2), (3) and (4)]
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.

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The order would prevent an offender from:

1. 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))
2. 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))
3. 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));
4. 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))
5. using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court (161(1)(d))

Internet Access

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.

Definitions

"Attending"

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.

Duration

161
[omitted (1) and (1.2)]

Duration of prohibition

(2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of

(a) the date on which the order is made; and

(b) where the offender is sentenced to a term of imprisonment, the date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release.

[omitted (3) and (4)]
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.

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The prohibition can be of any length of time up to life. The starting point of the order would either be at the time of sentence or at the time of release from custody.

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.

Variations

The condition can be varied by the same court.

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

Court may vary order

(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
[omitted (4)]
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.

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Breaches

Violations of the Order is a hybrid offence, either on summary conviction or a maximum of 2 years on indictable election.

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.

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History

• History of Section 161 Orders

Digest

• R v WAE, 2009 CanLII 42861 (NL PC), 890 APR 214, per Gorman J - 20 years - no prior record. Possession of child pornography.

Precedent

• Precedent - Section 161 Orders

See Also

• SOIRA Orders
• DNA Orders