Wednesday, October 21, 2015

Section 161 Orders Must Be Followed Or Very Bad Things Happen

Section 161 of the Criminal Code says:

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 [being in various places where young people may be found]. 

The Courts take these orders very seriously. See R. v. Exell, 2015 ONCA 704:

[1]          In November 2010, the respondent, who is now 63 years old, was convicted of sexual interference. He was sentenced to a term of imprisonment of two years less one day to be followed by a period of probation of three years. 

[2]          In addition, an order was made under s. 161 of the Criminal Code prohibiting him from attending various places where children under 16 might be expected to be present. Among the listed places, was any school ground. 

[3]          About four years later, while the s. 161 order remained in force, the respondent attended a "spa day" with a church group of which he was a member. The "spa day" was held at a secondary school in Brampton. As it turned out, both the complainant in the predicate offence and her brother attended that school. The complainant's brother reported the respondent's presence to the school authorities, who notified police. 

[4]          At the school, the respondent had his hair cut and his nails trimmed by students. There is no suggestion that the respondent engaged in any sexually inappropriate behaviour with any student. 

[5]          The respondent pleaded guilty to a single count of breaching the s. 161 prohibition. Crown counsel sought a term of imprisonment of six months, followed by probation for three years. Counsel for the respondent, who is also counsel on the appeal, sought a suspended sentence and a period of probation. 

[6]          The trial judge found the respondent guilty and ordered that he be discharged absolutely. The Crown appeals. 

[7]          In our view, the sentence imposed fails to apply the applicable sentencing principles, thus constitutes an error in principle. 

[8]          The predominant sentencing principles that control the disposition in cases involving a breach of a s. 161 order are denunciation and deterrence, both specific and general. This was not a technical breach. The respondent attended a secondary school, on a school day, where he would predictably interact with students, who were to perform spa services. It would be obvious to any person, who was subject to such an order, that such was its purpose and the conduct in which he engaged breached it. 

[9]          In our view, this case called for a custodial sentence in the range proposed by Crown counsel at trial and on appeal. Those who are subject to such orders must realize that contravention comes at a price. In this case, we consider that that price shall be: 

                             i.        a sentence of imprisonment of six months; and 

                            ii.        a period of probation of three years on statutory terms with further conditions that he have no contact directly or indirectly with the complainant or any members of her family; that he not be within 200 meters of St. Roch Secondary School in Brampton; that he participate in such treatment or other programs as may be approved and directed by his probation officer; and that he sign such releases as may be necessary for the probation officer to monitor his progress in those programs. 

[10]       Leave to appeal sentence is granted, the appeal is allowed, the sentence imposed at trial set aside and in its place the respondent shall serve a custodial sentence of six months to be followed by probation for three years on the dictated terms. 

[11]       A warrant for the respondent's arrest may issue if required. The respondent shall have 72 hours from release of this judgment to surrender into custody. Thereafter, police may execute the warrant of arrest.

Of the Law Societies of Upper Canada and Nunavut 

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