Criminal Law Notebook

Section 161 Orders

Revision as of 08:22, 24 January 2023 by Admin (talk | contribs) (→‎Ranges)

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]

– CCC

Note up: 161(1)

Purpose

The purpose of s. 161 orders is to protect vulnerable children from sexual violence.[1] They are preventative in nature.[2] 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."[3] 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".[4]

Punishment

It is considered a "punishment" and is part of the arsenal of sanctions available to a judge.[5]

Constitutionality and Retrospectivity

Section 161(1)(c) is not retrospective as it violates s. 11(i) of the Charter prohibiting retroactive punishments.[6] 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.[7]

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".[8]

  1. ↑ R v KRJ, 2016 SCC 31 (CanLII), [2016] 1 SCR 906, per Karakatsanis J, at paras 44 to 46
    R v Shultz, 2018 ONCA 598 (CanLII), 142 OR (3d) 128, 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 RM, 2019 ONCJ 435 (CanLII), per Konyer J, at para 16 ("Section 161 orders are protective in nature. They are designed to protect the most vulnerable members of society – children – from the ongoing risk presented by those who have been convicted of sexual offences against children. ")
  2. ↑ R v SB, 2008 ONCJ 383 (CanLII), per Hackett J
  3. ↑ R v RMG, 2001 CanLII 21827 (NLPC), [2001] NJ No 269 (NLPC), per Gorman J
  4. ↑ R v Brar, 2016 ONCA 724 (CanLII), 134 OR (3d) 95}, per Rouleau JA, at para 17
    Shultz, supra, at para 42
    KRJ, supra, at para 108
  5. ↑ KRJ, supra, at paras 50 and 57
    R v Miller, 2017 NLCA 22 (CanLII), 354 CCC (3d) 58, per Hoegg JA, at para 8
  6. ↑ KRJ, supra
    see also Charter Issues in Sentencing
  7. ↑ KRJ, supra
  8. ↑ Shultz, supra, at para 43
    R v WQ, 2006 CanLII 21035 (ON CA), 210 CCC (3d) 398, per Macfarland JA, at para 25
    Brar, supra, at para 26

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 280 [abduction of a person under 16] or 281 [abduction of a person under 14] 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]

– CCC

Note up: 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:

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.[1] However, that discretion must be exercised "judicially".[2]

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".[3]

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".[4]

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".[5]

It has been suggested that courts should not be reluctant on the imposition of an order.[6]

A judge may refuse to make an order where the victims and the public are adequately protected by other means such as probation.[7]

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.[8]

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.[9]

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".[10]

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).[11]

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.[12]

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.[13]

  1. ↑ R v DK, 2013 ONSC 1851 (CanLII), per Conlan J, at para 22
    R v Miller, 2017 NLCA 22 (CanLII), 354 CCC (3d) 58, 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...")
  2. ↑ Miller, ibid., at para 19
    R v Bussey, 2014 NLCA 18 (CanLII), 347 Nfld & PEIR 349, per Welsh JA, at para 12
  3. ↑ R v Schultz, 2018 ONCA 598 (CanLII), 142 OR (3d) 128, 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: ...")
  4. ↑ Schutz, ibid., at para 41
    R v KRJ, 2016 SCC 31 (CanLII), [2016] 1 SCR 906, per Karakatsanis J, at paras 48 to 49
  5. ↑ R v RKA, 2006 ABCA 82 (CanLII), 208 CCC (3d) 74, 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” ... .")
  6. ↑ RMG, ibid.
  7. ↑ DK, ibid., at para 23
  8. ↑ R v MK, 2010 NBCA 71 (CanLII), 261 CCC (3d) 359, per Robertson JA, at paras 26 to 28
  9. ↑ R v CF, 2020 ONSC 5975 (CanLII), per Leibovich J, at para 63
    R v Schulz, 2018 ONCA 598 (CanLII), [2018] O.J. No. 3526, per Brown JA
  10. ↑ Miller, supra, at para 9
    KRJ, supra, at para 48
  11. ↑ R v Schultz, 2008 ABQB 679 (CanLII), 239 CCC (3d) 535, per Topolniski J, at para 54
  12. ↑ RKA, supra, at para 28
  13. ↑ e.g. Shultz, supra

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.

– CCC

Note up: 161(1)

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.'"[1]

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.[2]

  1. ↑ e.g. R v Schultz, 2018 ONCA 598 (CanLII), 142 OR (3d) 128, per Brown JA, at para 56
  2. ↑ R v Brar, 2016 ONCA 724 (CanLII), 134 OR (3d) 95, 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.")

Definitions

"Attending"

Restriction on "attending" will refer to being present on the property and not simply across the street from the location.[1]

Community Centre

A community centre will include public libraries.[2] It also includes places where members of a "community can congregate for ... purposes including recreational, social or educational" purposes.[3]

Park or Playground

A carnival is neither a park or playground.[4]

Swimming Areas

The restrictions on swimming areas will also include pools found in apartment buildings and other complexes.[5]

  1. ↑ R v Jacobs, 2014 CanLII 979 (NL PC), per Walsh J
  2. ↑ R v Allaby, 2017 SKCA 25 (CanLII), 353 CCC (3d) 476, per Ottenbreit JA, at paras 29to 38
  3. ↑ R v Jones, 2018 ONSC 4616 (CanLII), per Di Luca J
  4. ↑ R v Lachapelle, 2008 BCSC 511 (CanLII), 78 WCB (2d) 501, per Butler J see also R v Cameron, 2010 ABPC 311 (CanLII), 501 AR 15, per Creagh J
  5. ↑ R v D’Angelo, 2002 CanLII 12379 (ON CA), , (2002) 166 OAC 92 (ONCA), per MacPherson JA

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.

– CCC

Note up: 161(2)

The prohibition can be of any length of time up to life.[1] The starting point of the order would either be at the time of sentence or at the time of release from custody.[2]

A 20 year order would generally be reserved for only some of the worst offenders.[3]

Sexual assaults will typically be under 10 years.[4]

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.[5]

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.[6]

  1. ↑ 161(2)
  2. ↑ s. 161(2)(a) and (b)
  3. ↑ R v RRB, 2013 BCCA 224 (CanLII), 338 BCAC 106, per Prowse JA, at para 32
  4. ↑ RRB, ibid. (3 years) touching/fellatio of a minor
  5. ↑ R v Able, 2013 ONCA 385 (CanLII), 116 OR (3d) 500, per Tulloch JA, at paras 11 to 29
  6. ↑ R v Stupnikoff, 2013 SKPC 57 (CanLII), 416 Sask R 307, per Agnew J, at para 61

Variations

The condition can be varied by the same court.[1]

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.

– CCC

Note up: 161(3)

  1. ↑ s. 161(3)

Breaches

Violations of the Order is a hybrid offence, either on summary conviction or a maximum of 2 years on indictable election.[1]

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

Note up: 161(4)

  1. ↑ s. 161(4)

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

History

Digest

Precedent

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Section_161_Orders&oldid=82567"