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, of an offence referred to in subsection (1.1) 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.

...
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.

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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."

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.

Applicable Offences

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

161.
...
Offences
(1.1) The offences for the purpose of subsection (1) are

(a) an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1 or 172.2, subsection 173(2), section 271, 272, 273 or 279.011, subsection 279.02(2) or 279.03(2), section 280 or 281 or subsection 286.1(2), 286.2(2) or 286.3(2);

(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.

...
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.

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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".

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".

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.

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

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".

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.

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.

...
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.

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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))

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.
...
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.

...
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.

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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.
...
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.
...
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

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Breaches

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

161.
...
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 and is liable to imprisonment for a term of not more than 18 months.

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.

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History

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

Order of prohibition
161. (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) 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.

...
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.

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2008 to 2012

Order of prohibition
161. (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) 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;

(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; or

(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.

...
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.

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Digest

• R v W.A.E. 2009 CanLII 42861 (NL PC) - 20 years - no prior record. Possession of child pornography.

See Also

• SOIRA Orders
• DNA Orders