When sentencing someone for certain sexual offences involving children, a Court can make orders in addition to imprisonment. These orders, which aim to prevent reoffending, include restricting the ability of the offender to access to places where children might be present. They can also prohibit the offender from accessing the internet.
The offender can appeal these conditions and a recent decision settles which courts have jurisdiction over deciding the fate of such appeals.
Section 161 of the Criminal Code
When someone is convicted of certain offences, Section 161 of the Criminal Code permits the sentencing Court to apply conditions the offender must follow. Failure to comply with the s. 161 orders is a criminal offence. The orders may be applied for life from the moment the offender is released from prison. The s. 161 conditions prohibit the offender from:
- attending public places where persons under the age of 16 years are or can reasonably be expected to be present
- working or volunteering in a capacity, that involves being in a position of trust or authority towards anyone under the age of 16
- having any contact or communicating in any way with a person under the age of 16 without appropriate supervision
- using the Internet or other digital network
The Court is allowed to vary or apply conditions it deems appropriate to these restrictions. The Crown must provide evidence that the offender poses a risk of reoffending in order to impose s. 161 orders. The offender is may also seek to lift or vary the conditions on appeal.
Who rules on applications to vary s. 161 orders?
A recent case answered the question of whether appeals courts could hear appeals to refusals to vary s. 161 orders. The case involved a man convicted of sexual interference with a person under the age of 16 and making child pornography.
He appealed a court’s refusal to vary restriction imposed at his sentencing. The appellant sexually abused his stepdaughter for more than a year when she was 10 and 11-years-old. The sentencing judge described his actions as “depraved and loathsome” and noted the offences rendered the stepdaughter suicidal.
After the appellant’s arrest, he started a new relationship, moving in with his new partner. They subsequently had a daughter while he was on bail awaiting sentencing.
When sentencing came around, the judge sentenced the appellant to seven years in prison. The judge also imposed two s. 161 orders for a period of 20 years. The first prohibited him from having any contact with his daughter for upon his release. The second prohibited him from using the internet or other digital network.
The offender sought to vary the conditions to appoint his partner as a supervisor to enable him to have contact with their daughter and to vary the prohibition on him using the internet. The sentencing judge refused the application to designate his partner as an appropriate supervisor, however, the Court did alter the conditions to allow him to use the internet for work or an RCMP program on the condition that he would not access pornography.
The offender appealed this refusal at the Court of Appeal of BC on the grounds they were “demonstrably unfit”.
The first issue the Court of Appeal for BC had to decide was whether it had jurisdiction to hear the appeal. The Crown argued that while there was a right to appeal against the conditions, there was no subsequent statutory framework to appeal the refusal to vary the conditions. The Court, however, decided it does have jurisdiction to hear the second appeal.
The Court found that while the trial judge erred made one error in deciding to refuse to vary the appellant’s conditions to have contact with his daughter, this error was outweighed by other relevant factors the judge properly considered. These factors included the appellant’s risk of reoffending, lack of sex offender counselling, the lack of a specific plan governing contact with the child, and the appellant’s continued victim-blaming and apparent lack of remorse.
The judge did, however, overturn the prohibition on his use of the internet, provided he did not use it to contact anyone under the age of 16 or access pornography. The appeal court judge noted: “The Internet is of sufficient importance and necessity in everyday life to make the current prohibition overly broad and thus demonstrably unfit.”