[Indexed as: R. v. Brar]
2016 ONCA 724
Court of Appeal for Ontario, Rouleau, Hourigan and Pardu JJ.A.
October 5, 2016
Criminal law — Sentencing — Prohibition order — Accused convicted of sexual assault, child luring, prostitution offence and breach of recognizance after contacting teenaged children via social networks on Internet for purpose of luring them into having sex with him — Trial judge imposing 20-year order under s. 161(1)(d) of Criminal Code prohibiting accused from using Internet except at work and from owning and/or using any mobile device with Internet capabilities — Given widespread innocent use of Internet for shopping, seeking employment, staying in touch with friends and family, etc., almost total ban on access to Internet could have adverse impact on accused’s rehabilitation and future employment prospects — Scope of ban imposed not necessary to protect children as accused was also subject to order under s. 161(1)(c) of Code prohibiting him from contacting children via Internet — Section 161(1)(d) not permitting court to prohibit ownership of mobile device — Section 161(1)(d) order varied to prohibit accused from accessing any illegal content and from participating in any social networks, online forums or chat rooms — Criminal Code, R.S.C. 1985, c. C-46, ss. 161(1)(c), 161(1)(d).
The accused, a 35-year-old first offender, was convicted of sexual assault, child luring, prostitution of a person less than 18 years of age, and breach of recognizance. His offending conduct consisted of contacting teenaged children via social networks on the Internet for the purpose of luring them into having sex with him, purportedly in exchange for payment. In addition to a custodial sentence, the trial judge imposed 20-year prohibition orders under s. 161(1)(b), (c) and (d) of the Criminal Code. The s. 161(1)(d) order prohibited the accused from using the Internet except at work and from owning and/or using any mobile device with internet capabilities. The accused appealed his sentence, challenging the ss. 161(1)(c) and 161(1)(d) orders.
Held, the appeal should be allowed in part.
Because the retrospective effect of s. 161(1)(c) had been found by the Supreme Court of Canada to be unconstitutional, the order imposed under the current version of s. 161(1)(c) was struck and an order under the former s. 161(1)(c) prohibiting the accused from using a computer system for the purpose of communicating with a person under the age of 16 was made in its place.
Given the commonplace and innocent use of the Internet for banking, communicating with friends and family, shopping, seeking employment, among other things, an almost total ban on access to the Internet could have had an adverse impact on the accused’s prospects for rehabilitation and also possibly in seeking future employment. In light of the accused’s predatory and egregious conduct, some form of s. 161(1)(d) order was appropriate. However, as the accused was subject to the s. 161(1)(c) order, the almost total prohibition on Internet use in the s. 161(1)(d) order was not necessary in order to protect children. Moreover, s. 161(1)(d) permits the courts to prohibit Internet use, but does not provide the court with the power to restrict ownership of Internet-capable devices. Nor should such a power be inferred. The s. 161(1)(d) order should be varied to prohibit the accused from accessing any illegal content and from participating in any manner in any social network, online forums or chat rooms.
R. v. J. (K.R.),  S.C.J. No. 31, 2016 SCC 31, 30 C.R. (7th) 1, 337 C.C.C. (3d) 285, 400 D.L.R. (4th) 398, 486 N.R. 1, 390 B.C.A.C. 1, 358 C.R.R. (2d) 204, 2016EXP-2359, J.E. 2016-1303, EYB 2016-268160, 130 W.C.B. (2d) 668, apld
Other cases referred to
R. c. Perron,  J.Q. no 2916, 2015 QCCA 601, 2015EXP-1204, J.E. 2015-664, EYB 2015-250483, 122 W.C.B. (2d) 421; R. v. D’Angelo,  O.J. No. 4312, 166 O.A.C. 92, 8 C.R. (6th) 386, 55 W.C.B. (2d) 629 (C.A.); R. v. Branton,  N.J. No. 408, 2013 NLCA 61, 341 Nfld. & P.E.I.R. 329, 301 C.C.C. (3d) 408, 109 W.C.B. (2d) 606; R. v. M. (C.A.),  1 S.C.R. 500,  S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. Woodward (2011), 107 O.R. (3d) 81,  O.J. No. 4216, 2011 ONCA 610, 284 O.A.C. 151, 276 C.C.C. (3d) 86, 97 W.C.B. (2d) 665
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 11(i)
Criminal Code, R.S.C. 1985, c. C-46, ss. 161 [as am.], (1)(b), (c) [as am.], (d), (3), (4), 342.1(2) [as am.], 486.4(1) [as am.], (2) [as am.], (2.1), (2.2), (3), (4), 486.6(1), (2), 687, 718.01
Appeal by the accused from the sentence imposed on June 26, 2015 by Milanetti J. of the Superior Court of Justice, sitting without a jury.
Anna Cooper and Erin Dann, for appellant.
Lisa Henderson, for respondent.
The judgment of the court was delivered by
 Rouleau J.A.: — On May 20, 2015, Mr. Brar was convicted of sexual assault, prostitution of a person less than 18 years of age, two counts of failure to comply with a recognizance and three counts of child luring. Mr. Brar was sentenced to six years aggregate less 39 months of pre-trial custody. In addition to other corollary orders, prohibition orders were imposed under ss. 161(1)(b), (c) and (d) of the Criminal Code, R.S.C. 1985, c. C-46.
 Mr. Brar is 35 years old, married and has no children. He pleaded guilty, expressed remorse and took full responsibility for the offences. He had no prior criminal record.
 On his sentence appeal, Mr. Brar argued that the sentencing judge erred in failing to grant enhanced credit for pre-sentence custody. He also challenged both the fitness of the ss. 161(1)(c) and (d) orders and the constitutionality of the retrospective operation of those subsections as they came into force after the offences were committed but before the sentence was imposed.
 At the time of oral argument in this appeal, the issue of the retrospective operation of ss. 161(1)(c) and (d) was under reserve before the Supreme Court of Canada. Submissions were made on the fitness of the s. 161 orders and the panel agreed to reserve judgment on this ground of appeal pending release of the Supreme Court’s decision. The remainder of the sentence appeal was dismissed.
 The Supreme Court released its decision on July 21, 2016: R. v. J. (K.R.),  S.C.J. No. 31, 2016 SCC 31. The parties have provided the court with written submissions as to the impact J. (K.R.) has on the sentence and the panel is now prepared to issue judgment on the s. 161 issue.
A. Position of the Parties Following the R. v. J. (K.R.) Decision
 In J. (K.R.), the majority of the Supreme Court, per Karakatsanis J., held that the retrospective operation of ss. 161(1)(c) and (d) constitutes a violation of an offender’s right to the benefit of the lesser punishment under s. 11(i) of the Canadian Charter of Rights and Freedoms. It further held that while the retrospective operation of the no contact prohibition in s. 161(1)(c) is not a reasonable limit under s. 1 of the Charter, the retrospective operation of the Internet prohibition in s. 161(1)(d) does constitute a reasonable limit and is saved by s. 1.
 In their submissions made subsequent to the Supreme Court’s ruling in J. (K.R.), the parties jointly submitted that the condition in the order imposed under the current version of s. 161(1)(c) should be struck and an order under the former version of that subsection be made in its place.
 When the appellant committed the offences, s. 161(1)(c) of the Criminal Code read as follows:
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:
. . . . .
(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.
 The parties relied on their earlier oral and written submissions as well as the J. (K.R.) decision with respect to the appropriateness of the s. 161(1)(d) order. That issue, therefore, remains in dispute. Section 161(1)(d) provides that a sentencing judge can prohibit an offender from:
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
B. Fitness of the Internet Prohibition Order
 The sentencing judge’s order under s. 161(1)(d) consisted of a 20-year prohibition on Internet use except when the appellant is “at employment” and prohibited the appellant from owning and/or using “any mobile device with Internet capabilities”.
(1) Position of the parties
 The appellant argues that the s. 161(1)(d) order was demonstrably unfit and therefore justifies this court’s intervention pursuant to s. 687 of the Criminal Code: R. v. M. (C.A.),  1 S.C.R. 500,  S.C.J. No. 28, at p. 565 S.C.R. First, he submits that s. 161(1)(d) does not permit a court to impose a prohibition on owning a mobile device with Internet capabilities. Further, he maintains that the prohibition on Internet use is overbroad and not adequately tailored to his circumstances.
 According to the appellant, banning a young adult from using the Internet and from owning Internet capable devices for 20 years is tantamount to banning an individual from meaningful participation in modern life. The Internet is the dominant medium through which events are planned, services are accessed and directions are found. The appellant argues that such a blanket prohibition will rarely be warranted and that orders pursuant to this provision must be carefully tailored to the individual’s particular circumstances and to the nature of the impugned conduct.
 In response, the Crown maintains that the prohibition is appropriate in the circumstances and consistent with the public protection purpose of s. 161 as expressed in R. v. D’Angelo,  O.J. No. 4312, 166 O.A.C. 92 (C.A.), at paras. 19-20. Should the conditions imposed later prove to be unnecessary or inappropriate due to a change in circumstances, the court, on application by the offender or the prosecutor, has the authority under s. 161(3) to vary the conditions prescribed in the order.
 In the Crown’s submission, the restrictions are appropriate at the present time and are required given the severity of the offences for which the appellant was convicted. Should the appellant’s circumstances change, he is at liberty to seek to vary the order.
 The Crown further submits that the sentencing judge’s decision is entitled to deference. The sentencing judge noted the concern that the order should not be “unduly limiting [to] one’s employment opportunities” and recognized that the sentence imposed would “present a significant lifestyle limitation, particularly to a young person”. Taking all of the factors into account, she nonetheless concluded that the limitation was warranted given the nature of the offences.
(a) Sentencing principles
 It is well established that, in cases of sexual crimes involving children, the principles of denunciation, deterrence and public safety must take precedence over other recognized objectives of sentencing, including rehabilitation: R. v. Woodward, (2011), 107 O.R. (3d) 81,  O.J. No. 4216, 2011 ONCA 610, at para. 39; also see Criminal Code, s. 718.01. The necessary primary focus on denunciation, deterrence and public safety in such cases does not, however, mean that those objectives trump all other sentencing concerns: see R. v. Branton,  N.J. No. 408, 2013 NLCA 61, 341 Nfld. & P.E.I.R. 329, at paras. 24-25. The court must, nevertheless, remain cognizant of the need to avoid an order under s. 161(1)(d) that might unduly prevent a first time offender from making serious rehabilitative efforts in light of his particular circumstances: see R. c. Perron,  J.Q. no 2916, 2015 QCCA 601, 122 W.C.B. (2d) 421, at para. 36.
(b) The Supreme Court’s analysis in R. v. J. (K.R.)
 In J. (K.R.), the majority of the Supreme Court confirmed that orders made under s. 161 have a predominantly protective purpose, that is, to shield children from sexual violence (at para. 44). In its analysis of s. 161(1)(d), the court addressed the need for such a provision. Section 161(1)(d) was enacted in 2012 to close a legislative gap created by rapid social and technological changes. Those changes have created a space for harmful behaviour not captured by the former iteration of s. 161, which allowed sentencing judges to prohibit offenders only from using computer systems to contact children directly. The new harmful behaviours now captured by s. 161(1)(d) include accessing and distributing child pornography and contacting other adults for the purposes of planning and facilitating criminal behaviour (J. (K.R.), at para. 107). With the broadened powers under s. 161(1)(d), the court is better able to monitor offenders’ use of the Internet thereby limiting their opportunities to offend and preventing such behaviour (J. (K.R.), at para. 108).
 The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 “was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community” (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore, “carefully respond to an offender’s specific circumstances” (at para. 48).
(c) Application to this appeal
 In the present case, it is apparent that some form of s. 161(1)(d) order was appropriate. Mr. Brar’s conduct was predatory and egregious, particularly when viewed in combination with his breach of recognizance conditions. It warrants both a significant term of imprisonment for the purposes of denunciation and deterrence, as well as strict community supervision measures upon his release for the purpose of protecting the public. Still, this court must consider whether the prohibition imposed by the sentencing judge under s. 161(1)(d) is reasonably tailored to Mr. Brar’s specific circumstances.
 In her reasons for imposing such a broad s. 161(1)(d) order, the sentencing judge acknowledged the hardship the order would cause to the appellant and also noted that it would impose a limit on his employment opportunities. She did not, however, seek to tailor the order to carefully respond to Mr. Brar’s specific circumstances, nor to relate the terms of the order to the type of risk Mr. Brar poses. In fairness to the sentencing judge, she did not have the benefit of the Supreme Court’s decision in J. (K.R.).
 Mr. Brar’s offending conduct consisted of contacting teenaged children via social networks on the Internet for the purpose of luring them into having sexual relations with him in purported exchange for payment. A prohibition on any further contact with youth via the Internet, for any purpose, is captured by the prohibition order imposed under the former version of s. 161(1)(c). The parties agree that such an order should be put in place in substitution for the s. 161(1)(c) order imposed by the sentencing judge that has been found to be unconstitutional in J. (K.R.).
 The record, however, does not indicate that Mr. Brar posed many of the risks that s. 161(1)(d) was enacted to prevent. There is no allegation that he possessed or distributed child pornography, nor that he communicated or collaborated with other adults online to facilitate or plan his offences.
 The sentencing judge’s prohibition on Internet use except when “at employment” assumes that he can seek and obtain employment upon release without the need to access the Internet. Although the sentencing judge noted that the appellant has employment to which he can return, this position may not be available upon release and, in any event, he may also wish to advance his career and seek alternative employment. Increasingly, applying for employment requires access and use of the Internet and many positions require use and access of the Internet even when not at the employer’s premises. Moreover, given the appellant’s age, education and occupational history as a computer science specialist and IT technician, the dangers of inhibiting his search for employment and rehabilitation by way of such a broad Internet prohibition appear particularly acute.
 In modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions. In many homes the telephone operates using the Internet, rather than traditional telephone wires. Simply placing a phone call from one such residence would put the appellant in breach of the s. 161(1)(d) order. Further, as Karakatsanis J. stated in J. (K.R.), at para. 54, “depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life”. Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on.
 While I acknowledge, as noted by the Crown, that the court has the power to vary a s. 161 order on application of the offender or prosecutor, such a variation requires a change of circumstance and imposes a significant burden on the offender. Variation of prohibition orders under s. 161(3) is not a matter of course but requires a full hearing. The fact that s. 161 orders may later be varied does not justify imposing orders that create overbroad or unreasonable restrictions on an individual’s liberty.
 In the present case, I agree that because of the nature of the offences and Mr. Brar’s conduct, the imposition of a s. 161(1)(d) order is warranted to minimize the risk Mr. Brar poses to children. Imposing strict limits on Mr. Brar’s Internet use will reduce the likelihood of his offensive conduct occurring again in the future. However, given the myriad of innocent and perhaps unavoidable activities for which some Internet use may be required, the virtually unconditional prohibition on any Internet use imposed by the sentencing judge for a period of 20 years is, in my view, demonstrably unfit and unreasonable in the circumstances. I do not view a total prohibition on all Internet use other than “at employment” as being necessary to advance the objective of protecting children, nor will it meaningfully assist in preventing the conduct already captured by the order imposed under the former s. 161(1)(c). This court is reluctant to impose a prohibition so harsh as to unreasonably hinder Mr. Brar’s rehabilitation efforts and so broad as to make a breach almost inevitable with the attendant criminal consequences under s. 161(4).
 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.
 As a result, I would substitute the sentencing judge’s s. 161(1)(d) order with an order which imposes restrictions on Mr. Brar’s use of the Internet tailored along the lines of the order imposed in R. c. Perron. Specifically, Mr. Brar will be prohibited from accessing any illegal content and from participating in any manner in any social network, online forums or chat rooms.
 For these reasons, I would allow the sentence appeal in part and strike the prohibition order made by the sentencing judge under s. 161(1)(c) and (d) and substitute the following:
(1) Pursuant to s. 161(1)(c) of the Criminal Code, for a period of 20 years following his release from custody Mr. Brar will not use a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years, except for immediate family members.
(2) Pursuant to s. 161(1)(d) of the Criminal Code, for a period of 20 years following his release from custody Mr. Brar will not use the Internet or any similar communication service to:
(a) access any content that violates the law;
(b) directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (e.g., Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).
Appeal allowed in part.