Breach of Section 161 Orders (Offence)

This page was last substantively updated or reviewed January 2020. (Rev. # 83119)

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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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Offence Wording

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)

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]

↑ 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.")
↑ R v Exell, 2015 ONCA 704 (CanLII), per curiam, at para 8
↑ R v Benson, 2022 ONCJ 370 (CanLII), per Green J, at para 105
↑ Benson, ibid., at para 105

Ranges

R v Ward, 2023 NSPC 5 (CanLII) (working hyperlinks pending), per Begin J - 18 months
R v Benson, 2022 ONCJ 370 (CanLII), per Green J - 12 months
R v Buschemeyer, 2021 ABQB 1008 (CanLII), per Gates J - 18 months
R v IP, 2020 ONSC 1754 (CanLII), per Sosna J - 12 months
R v RM, 2019 ONCJ 435 (CanLII), per Konyer J - conditional sentence
R v Fitzpatrick, 2019 ONSC 2407 (CanLII), per Byrne J - 12 months
R v FB, 2018 ONSC 5812 (CanLII), per Shaw J - 6 months
R v Exell, 2015 ONCA 704 (CanLII), per curiam - 6 months
R v Billings, 2014 ABPC 124 (CanLII), per Redman J - 3 months

[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

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