R. v. K.R.J.

R. v. K.R.J.
Collection
Supreme Court Judgments
Date
2016-07-21
Neutral citation
2016 SCC 31
Report
[2016] 1 SCR 906
Case number
36200
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 36200
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906
Appeal heard: December 2, 2015
Judgment rendered: July 21, 2016
Docket: 36200
Between:
K.R.J.
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario,
Association des avocats de la défense de Montréal,
David Asper Centre for Constitutional Rights,
Criminal Lawyers’ Association (Ontario) and
British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 116)
Reasons Dissenting in Part:
(paras. 117 to 130)
Reasons Dissenting in Part:
(paras. 131 to 162)
Karakatsanis J. (McLachlin C.J. and Cromwell, Moldaver, Wagner, Gascon and Côté JJ. concurring)
Abella J.
Brown J.
R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906
K.R.J. Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Association des avocats de la défense de Montréal,
David Asper Centre for Constitutional Rights,
Criminal Lawyers’ Association (Ontario) and
British Columbia Civil Liberties Association Interveners
Indexed as: R. v. K.R.J.
2016 SCC 31
File No.: 36200.
2015: December 2; 2016: July 21.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Benefit of lesser punishment — Sentencing — Accused pleaded guilty to incest and making child pornography — Retrospective application of amendments to Criminal Code expanding scope of community supervision measures sentencing judge can impose on sexual offenders — Offences committed prior to amendments but accused sentenced after — Whether new prohibition measures contained in Criminal Code constitute punishment such that their retrospective operation limits right protected by s. 11 (i) of Charter — If so, whether limit is justified — Reformulation of s. 11 (i) test for punishment — Canadian Charter of Rights and Freedoms, ss. 1 , 11 (i) — Criminal Code, R.S.C. 1985, c. C‑46, s. 161(1) (c), (d).
Section 11 (i) of the Charter provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to “the benefit of the lesser punishment”. When offenders are convicted of certain sexual offences against a person under the age of 16 years, s. 161(1) of the Criminal Code gives sentencing judges the discretion to prohibit them from engaging in a variety of everyday conduct upon their release into the community, subject to any conditions or exemptions the judge considers appropriate. In 2012, Parliament expanded the scope of s. 161(1) , empowering sentencing judges to prohibit sexual offenders from having any contact with a person under 16 years of age (s. 161(1) (c)) or from using the Internet or other digital network (s. 161(1) (d)). In doing so, Parliament intended to give sentencing judges the discretion to impose the expanded prohibition measures on all offenders, even those who offended before the amendments came into force. In March 2013, the accused pleaded guilty to incest and the creation of child pornography. The offences were committed between 2008 and 2011. By virtue of the convictions and the age of the victim, the sentencing judge was required to consider whether to impose a prohibition under s. 161(1) . The question arose as to whether the 2012 amendments could operate retrospectively such that they could be imposed on the accused.
The sentencing judge concluded that an order under the new s. 161(1) (c) and (d) constitutes punishment within the meaning of s. 11 (i) of the Charter , such that the provisions cannot be applied retrospectively. He therefore imposed a prohibition order under s. 161 , but limited the prohibited activities to those described in the version of s. 161(1) that existed when the accused committed the offences. On the Crown appeal, the majority of the Court of Appeal concluded that the 2012 amendments were enacted to protect the public, rather than to punish offenders, and therefore, they do not qualify as punishment within the meaning of s. 11 (i). The majority allowed the appeal and imposed the conditions in s. 161(1) (c) and (d) retrospectively on the accused.
Held (Abella and Brown JJ. dissenting in part): The appeal should be allowed in part. The amendments to s. 161(1) (c) and (d) of the Criminal Code qualify as punishment such that their retrospective operation limits the right protected by s. 11 (i) of the Charter . Under s. 1 of the Charter , while the retrospective operation of the no contact provision in s. 161(1) (c) is not a reasonable limit on the s. 11 (i) right, the retrospective operation of the Internet prohibition in s. 161(1) (d) is a reasonable limit. Accordingly, the appeal should be allowed with respect to s. 161(1) (c), but dismissed with respect to s. 161(1) (d).
Per McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.: Section 11 (i) of the Charter constitutionally enshrines the fundamental notion that criminal laws should generally not operate retrospectively. This constitutional aversion for retrospective criminal laws is primarily motivated by the desire to protect the fairness of criminal proceedings and safeguard the rule of law. Rules pertaining to criminal punishment should be clear and certain. To attract the protection of s. 11 (i), the new prohibition measures must qualify as “punishment”. In R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, this Court developed a two‑part test for determining whether a consequence amounts to punishment under s. 11 (i): (1) the measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence; and (2) it must be imposed in furtherance of the purpose and principles of sentencing.
This test requires two clarifications. First, while not all measures imposed to protect the public constitute punishment, public protection is at the core of the purpose and principles of sentencing and is therefore an insufficient litmus test for defining punishment. Thus, sanctions intended to advance public safety do not constitute a broad exception to the protection s. 11 (i) affords and may qualify as punishment. Second, the s. 11 (i) test for punishment must embody a clearer, more meaningful consideration of the impact a sanction can have on an offender. Doing so enhances fairness and predictability in punishment and is consistent with this Court’s jurisprudence.
Accordingly, the s. 11 (i) test for punishment should be restated as follows: a measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender’s liberty or security interests. To satisfy the third branch of this test, a consequence of conviction must significantly constrain a person’s ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public.
Applying this reformulated test, the 2012 amendments to s. 161(1) constitute punishment. The prohibitions found in these amendments are a consequence of conviction, imposed in furtherance of the purpose and principles of sentencing, and they can have a significant impact on the liberty and security of offenders. Clearly, the 2012 amendments constitute greater punishment than the previous prohibitions. Accordingly, the retrospective operation of these provisions limits the s. 11 (i) right as it deprives the accused of the benefit of the less restrictive community supervision measures captured in the previous version of s. 161 — that is, the lesser punishment.
To be justified under s. 1 of the Charter , a law that limits a constitutional right must do so in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society. The legislative history, judicial interpretation, and design of s. 161 all confirm that the overarching goal of the section is to protect children from sexual violence perpetrated by recidivists. It follows naturally that the objective of the retrospective operation of the 2012 amendments — the infringing measure — is to better protect children from the risks posed by offenders like the accused who committed their offences before, but were sentenced after, the amendments came into force. This latter objective anchors the s. 1 analysis and is of sufficient importance to warrant further scrutiny.
There is clearly a rational connection between this objective and retrospectively giving sentencing judges the discretionary power to limit those offenders who pose a continuing risk to children in contacting children in person or online, and in engaging with online child pornography (the means chosen). Reason and logic suffice to establish that Parliament proceeded rationally in opting to give s. 161(1) (c) and (d) retrospective effect. Further, given the discretionary and tailored nature of s. 161 and the fact that a purely prospective application of the amendments would have compromised Parliament’s full objective, the retrospective operation of s. 161(1) (c) and (d) impairs the s. 11 (i) rights as little as reasonably possible.
Finally, the deleterious and salutary effects of the law must be assessed. This final stage of the proportionality inquiry is important because it allows courts to transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society in direct and explicit terms. Although this examination entails difficult value judgments, it is preferable to make these judgments explicit, as doing so enhances the transparency and intelligibility of the ultimate decision. While the minimal impairment test has come to dominate much of the s. 1 discourse in Canada, this final step permits courts to address the essence of the proportionality enquiry at the heart of s. 1 .
The deleterious effects flowing from the retrospective operation of s. 161(1) (c) are substantial. The new s. 161(1) (c) goes much further and prohibits any contact — including communicating by any means — with a person who is under the age of 16 years in a public or private space. By impacting people like the accused with a punishment of which they had no notice, the retrospective operation of s. 161(1) (c) undermines fairness in criminal proceedings and compromises the rule of law. Unfortunately, sexual offences against children have persisted for centuries. The Crown has failed to lead much, if any, evidence to establish the degree of enhanced protection s. 161(1) (c) provides in comparison to the previous version of the prohibition. The benefits society stands to gain are marginal and speculative. The Crown has provided no temporal justification for the retrospective limitation, yet, at its root, s. 11 (i) is about the timing of changes to penal laws. The retrospective operation of s. 161(1) (c) therefore cannot be justified under s. 1 . As a result, s. 161(1) (c) should apply only prospectively — that is, only to offenders who committed their offences after the 2012 amendments came into force.
The deleterious effects resulting from the retrospective operation of s. 161(1)(d) are also significant. A complete ban on using the Internet or other digital network is more intrusive than the previous ban on using a computer system for the purpose of communicating with young people. As with the retrospective operation of s. 161(1)(c), the imposition of punishment without notice translates into broader societal harms, including compromising the fairness of criminal proceedings and challenging the rule of law. However, s. 161(1)(d) is directed at grave, emerging harms precipitated by a rapidly evolving social and technological context. This evolving context has changed both the degree and nature of the risk of sexual violence facing young persons. As a result, the previous iteration of s. 161 became insufficient to respond to the modern risks children face. By closing this legislative gap and mitigating these new risks, the benefits of the retrospective operation of s. 161(1)(d) are significant and fairly concrete. The previous prohibition was insufficient to address the evolving risks. On balance, Parliament was justified in giving s. 161(1)(d) retrospective effect in the unique context within which it was legislating. The harms at stake are particularly powerful. The statutory regime is highly tailored and discretionary. An Internet prohibition, while invasive, is not among the most onerous punishments, such as increased incarceration. The benefits of the law outweigh its deleterious effects.
In summary, the 2012 amendments to s. 161(1)(c) and (d) qualify as punishment based on both the objective and impact of the prohibitions. The retrospective imposition of these prohibitions therefore limits the right protected by s. 11 (i) of the Charter . While the retrospective operation of the no contact provision in s. 161(1) (c) is not a reasonable limit on the s. 11 (i) right, the retrospective operation of the Internet prohibition in s. 161(1) (d) is a reasonable limit.
Per Abella J. (dissenting in part): The Charter breach of s. 161(1) (d) cannot be justified. The wording of s. 11 (i) is unequivocal. The absolutist language used by the drafters of the Charter in s. 11 must colour the s. 1 analysis by demanding the most stringent of justifications.
The Crown has the highest possible evidentiary burden, namely, to demonstrate through compelling evidence that the previous provisions so significantly undermined the government’s objectives, that the retrospective application of the greater punishment was justified. The Crown’s evidentiary record here was insufficient to justify the retrospective application of the impugned provisions. Far from offering compelling evidence, the Crown offered no evidence in the context of s. 161(1) (d), to show that the former provisions so significantly undermined its objectives, that the retroactive application of greater restrictions was justified. If all that is needed to justify a breach of s. 11 (i) is the suggestion of a possible reduction in recidivism rates, whether based on changes in technology or otherwise, the state could, in theory, justify the retrospective application of more stringent punishments so routinely that s. 11 (i) is written out of the Charter . In this case, there was no evidence about how the retrospective application of s. 161(1) (d) was expected to, or would, reduce recidivism rates any more than those under the former restrictions. As a result, while there is agreement with the majority that both s. 161(1) (c) and (d) of the Criminal Code violate s. 11 (i) of the Charter and that s. 161(1) (c) cannot be justified under s. 1 , neither can s. 161(1) (d) be justified.
Per Brown J. (dissenting in part): There is agreement with the majority that the conditions which a sentencing judge may impose under s. 161(1) (c) and (d) of the Criminal Code constitute punishment within the meaning of s. 11 (i) of the Charter and that their retrospective application infringes s. 11 (i). There is also agreement that the Crown has met its burden of justifying the infringement of s. 11 (i) in respect of the conditions relating to Internet use contained in s. 161(1) (d). However, the Crown has also done so in respect of the conditions imposable under s. 161(1) (c) relating to contact with children. The retrospective application of both conditions should therefore be upheld under s. 1 of the Charter .
The harm addressed by s. 11 (i) is not the punishment itself, but rather the means by which it is imposed. This means‑based quality of the s. 11 (i) protection affects the analysis to be applied under s. 1 , since the Oakes analysis considers the proportionality between a legislative objective and the Charter ‑infringing effects resulting from its pursuit, not the choice of means that, by itself, constitutes a Charter infringement. The Oakes test is not, and should not be treated as, a technical inquiry. The majority’s rigid and acontextual application of Oakes causes it to lose sight of the broader context and overall goals sought by Parliament. It holds Parliament to an exacting standard of proof, thereby denying Parliament the room necessary to perform its legislative policy‑development role when addressing a chronic social problem. And it also insists on direct evidence of anticipated benefits which, given that chronic nature of the harm, is likely impossible to obtain.
A broad examination of Parliament’s purpose is necessary in order to anchor a useful proportionality analysis because of the unique means‑based quality of s. 11 (i)’s protection. The measure that gave rise to the Charter infringement, and which should anchor the proportionality analysis, comprises the amendments to s. 161 as a whole. And, as to that measure, the majority’s characterization of the objective should be accepted: the objective is to enhance the protection s. 161 affords to children against the risk of harm posed by sexual offenders. The retrospective application of these amendments is rationally connected to that protective purpose, since the risk an offender poses to reoffend sexually against children is not affected by whether the offence occurred before or after the measure’s enactment. And, given Parliament’s objective of enhancing the protections that s. 161 affords to children, there are no less‑impairing alternate measure that would allow for s. 161(1) ’s protections to be realized in respect of an offender who committed his or her offence before the amendments came into force and who poses a risk to reoffend.
The final stage of the proportionality analysis is tied to the practical impacts and benefits of the law, but what is ultimately being weighed is much more abstract and philosophical: the detriment to Charter ‑protected rights against the public benefit sought. Insisting upon too strict an evidentiary burden must be carefully avoided. However, the majority does precisely that by demanding empiricism where none can exist. Given the complex social context in which Parliament develops policy, it will sometimes be difficult, if not impossible, for the state to provide reliable and direct evidence of the benefits its measure will achieve.
The majority errs by overstating the deleterious effects of s. 161(1) (c)’s retrospective operation while understating its salutary effects. Section 161(1) (c) prohibits only unsupervised contact with children, and is subject to any other exemptions that the sentencing judge sees fit to impose. The majority’s interpretation of the restriction on liberty worked by s. 161(1) (c) is over‑expansive and is at odds with the well‑established principle that the criminal law’s prohibitions on conduct should be construed strictly. Further, the majority’s insistence on a compelling temporal justification for the retrospective operation of s. 161(1) (c) when assessing the deleterious impact of its retrospective operation on the rule of law is inappropriate. The majority is, in substance questioning whether Parliament’s objective in enacting a retrospective increase in punishment was truly pressing and substantial. Temporal considerations are not relevant when assessing the deleterious effect of a retrospective punishment on the rule of law because all retrospective changes to the law derogate from the rule of law, irrespective of Parliament’s reasons for enacting them.
As to the salutary effects, the risk posed to children by offenders like the accused simply cannot be mitigated by the original version of s. 161(1) . The evidence before Parliament showed that a majority of sexual offences against children were committed by family members or acquaintances. The previous version of s. 161(1) could not be used to restrict an offender’s ability to interact with children in private, even if that is where the offender poses the greatest risk to reoffend sexually against children. The salutary effects of s. 161(1) (c)’s retrospective operation seem manifest.
All the reasons identified by the majority in support of the conclusion that the limit imposed on the s. 11 (i) right by the retrospective application of s. 161(1) (d) is justified are equally applicable to the retrospective application of s. 161(1) (c). The condition in s. 161(1) (c) is also highly tailored and discretionary, since it is imposed only where the sentencing judge deems it necessary, and also since it is subject to such exemptions as the sentencing judge sees fit to allow. If the retrospective operation of s. 161(1) (d) is a proportional and justified limit on an offender’s s. 11 (i) right, the retrospective operation of s. 161(1) (c) must be as well.
Balancing the salutary and deleterious effects of a Charter ‑infringing law is not an objective calculation because it requires the court to weigh incommensurables — in this case, to weigh the deleterious impact on the sexual offender and the rule of law against the possible benefit of protecting children from sexual offenders. However, despite the impossibility of weighing incommensurables objectively, a reviewing court must nevertheless come to a reasoned conclusion. The salutary effects pursued in this case are worth the cost in rights limitation: the harms sought to be addressed are grave, persistent, and worthy of Parliament’s efforts in the criminal law realm. The provisions are sufficiently tailored so that no offender’s s. 11 (i) rights will be unduly limited. Neither of the impugned provisions works a drastic increase in the punishment imposed. On balance, the potential salutary effect of the retrospective operation of s. 161(1)(c) and (d) of better protecting children from all sexual offenders who pose a risk to reoffend sexually against them, regardless of when the offender committed a designated offence, outweighs the modest impact on fairness and the rule of law.
Cases Cited
By Karakatsanis J.
Discussed: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; referred to: R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Black‑Clawson International Ltd. v. Papierwerke Waldhof‑Aschaffenburg A.G., [1975] A.C. 591; R. v. Kelly, [1992] 2 S.C.R. 170; R. v. Murrins, 2002 NSCA 12, 201 N.S.R. (2d) 288; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81; R. v. Cross, 2006 NSCA 30, 138 C.R.R. (2d) 163; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Heywood (1992), 20 B.C.A.C. 166, aff’d [1994] 3 S.C.R. 761; R. v. A. (R.K.), 2006 ABCA 82, 208 C.C.C. (3d) 74; R. v. Perron, 2009 ONCA 498, 244 C.C.C. (3d) 369; R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106; R. v. Levin, 2015 ONCJ 290; R. v. Schledermann, 2014 ONSC 674; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Budreo (2000), 46 O.R. (3d) 481; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
By Abella J. (dissenting in part)
Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; Liang v. Canada (Attorney General), 2014 BCCA 190, 311 C.C.C. (3d) 159.
By Brown J. (dissenting in part)
R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Keegstra, [1990] 3 S.C.R. 697; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; M. v. H., [1999] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; R. v. Butler, [1992] 1 S.C.R. 452; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; New Jersey v. T.L.O., 469 U.S. 325 (1985).
Statutes and Regulations Cited
Act to amend the Criminal Code and the Young Offenders Act, S.C. 1993, c. 45, s. 1.
Canadian Charter of Rights and Freedoms, ss. 1 , 11 .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 161 , 258(1) (d.1), 718 et seq., 718.1, 718.2, 810, 810.1, 810.2.
Safe Streets and Communities Act, S.C. 2012, c. 1, s. 16(1) .
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APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Kirkpatrick and Groberman JJ.A.), 2014 BCCA 382, 316 C.C.C. (3d) 540, 14 C.R. (7th) 30, 321 C.R.R. (2d) 75, 362 B.C.A.C. 86, 622 W.A.C. 86, [2014] B.C.J. No. 2495 (QL), 2014 CarswellBC 2955 (WL Can.), setting aside in part a sentencing decision. Appeal allowed in part, Abella and Brown JJ. dissenting in part.
Eric Purtzki and Garth Barriere, for the appellant.
Lesley A. Ruzicka, for the respondent.
Richard Kramer and Marc Ribeiro, for the intervener the Attorney General of Canada.
Stacey D. Young and Jennifer A. Crawford, for the intervener the Attorney General of Ontario.
Nicholas St‑Jacques and Lida Sara Nouraie, for the intervener Association des avocats de la défense de Montréal.
John Norris and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.
Matthew R. Gourlay, for the intervener the Criminal Lawyers’ Association (Ontario).
Emily MacKinnon and Michael A. Feder, for the intervener the British Columbia Civil Liberties Association.
The judgment of McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] People’s conduct and the legal consequences that flow from it should be judged on the basis of the law in force at the time. This is a basic tenet of our legal system.
[2] In recognition of this principle, s. 11 (i) of the Canadian Charter of Rights and Freedoms provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to “the benefit of the lesser punishment”. Like the other legal rights enshrined in s. 11 of the Charter , s. 11 (i) is fundamentally important to our justice system because it protects the fairness of criminal proceedings and safeguards the rule of law.
[3] When offenders are convicted of certain sexual offences against a person under the age of 16 years, s. 161(1) of the Criminal Code, R.S.C. 1985, c. C-46 , gives sentencing judges the discretion to prohibit them from engaging in a variety of everyday conduct upon their release into the community, subject to any conditions or exemptions the judge considers appropriate. In 2012, Parliament expanded the scope of s. 161(1) , empowering sentencing judges to prohibit sexual offenders from having any contact with a person under 16 years of age (s. 161(1) (c)) or from using the Internet or other digital network (s. 161(1) (d)).
[4] In doing so, Parliament intended to give sentencing judges the discretion to impose the expanded prohibition measures on all offenders, even those who offended before the amendments came into force. In other words, Parliament intended the 2012 amendments to operate retrospectively.
[5] The issue in this appeal is whether the retrospective operation of the 2012 amendments to s. 161(1) (c) and (d) of the Criminal Code is constitutional. This issue engages two subsidiary questions. First, do the prohibition measures contained in s. 161(1) (c) and (d) constitute “punishment” such that their retrospective operation limits s. 11 (i) of the Charter ? Second, if so, is the limit a reasonable one as can be demonstrably justified under s. 1 of the Charter ? The application of these expanded prohibition measures to offenders who committed their offences after the amendments came into force is not at issue.
[6] I conclude that the 2012 amendments to s. 161(1) (c) and (d) qualify as punishment based on both the objective and impact of the prohibitions. The retrospective imposition of these prohibitions therefore limits s. 11 (i) of the Charter .
[7] Turning to s. 1 of the Charter , I reach opposite conclusions with respect to s. 161(1) (c) and (d): while the retrospective operation of the no contact provision in s. 161(1) (c) is not a reasonable limit on the s. 11 (i) right, the retrospective operation of the Internet prohibition in s. 161(1) (d) is a reasonable limit. My conclusion with respect to s. 161(1) (d) is chiefly due to the fact that Parliament enacted the provision within a rapidly evolving social and technological context, which changed both the degree and nature of the risk of sexual violence facing young persons. Accordingly, I would allow the appeal in part.
II. Facts and Legislative History
[8] On March 6, 2013, the appellant pleaded guilty to incest and the creation of child pornography. The offences were committed between 2008 and 2011, and involved the appellant’s preschool-aged daughter.
[9] When the appellant committed the offences, s. 161(1) 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
(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.
[10] After the appellant committed the offences, but before he was sentenced, s. 161(1) was amended by the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 16(1) , which came into force on August 9, 2012. Section 161(1) (a) and (b) remained unchanged. But the Act modified s. 161(1) (c) to include prohibiting all contact with young persons, no matter the means, and introduced a new Internet prohibition through s. 161(1) (d). These amendments had the effect of expanding the scope of the community supervision measures a sentencing judge can impose on sexual offenders. Section 161(1) (c) and (d) now provide that a sentencing judge can prohibit an offender from:
(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.
[11] After the 2012 amendments came into force, the appellant was sentenced to nine years’ imprisonment. By virtue of the appellant’s convictions and the age of the victim, the sentencing judge was required to consider whether to impose a prohibition order under s. 161(1) . The question arose as to whether the 2012 amendments could operate retrospectively such that they could be imposed on the appellant.
III. Decisions Below
A. British Columbia Provincial Court — Klinger Prov. Ct. J.
[12] The sentencing judge found that an order under s. 161 would be appropriate because “there is a serious risk to the safety of children under the age of 16 after [the appellant] is released”. However, on the basis of the test for punishment set out by this Court in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 63, he concluded that an order under the new s. 161(1) (c) and (d) constitutes punishment within the meaning of s. 11 (i) of the Charter , such that the provisions cannot be applied retrospectively. Since no formal constitutional challenge was brought and the sentencing judge merely used s. 11 (i) as a tool of statutory interpretation, no consideration was given to s. 1 of the Charter .
[13] In the result, the sentencing judge imposed a prohibition order under s. 161 for a period of seven years, but limited the prohibited activities to those described in the version of s. 161(1) that existed when the appellant committed the offences.
B. British Columbia Court of Appeal — 2014 BCCA 382, 316 C.C.C. (3d) 540
[14] On the Crown appeal, the appellant filed a formal constitutional challenge to the retrospective operation of the 2012 amendments. The Court of Appeal split over whether a violation of s. 11 (i) had been established. Writing for the majority, Newbury J.A. concluded that the 2012 amendments were enacted to protect the public, rather than to punish offenders; therefore, they do not qualify as punishment within the meaning of s. 11 (i). Newbury J.A. allowed the appeal and imposed the conditions in s. 161(1) (c) and (d) retrospectively on the appellant for a period of seven years.
[15] Groberman J.A., dissenting in part, concluded that the retrospective application of the 2012 amendments infringes s. 11 (i). Applying Rodgers, Groberman J.A. concluded that s. 161 orders are consequences of conviction, imposed in furtherance of the purpose and principles of sentencing, and thus qualify as “punishment”.
[16] Because the majority found that s. 11 (i) was not engaged, the parties and the Court of Appeal did not address s. 1 of the Charter .
IV. Issues
[17] This case raises two constitutional questions:
(1) Does the retrospective operation of s. 161 (c) and (d) of the Criminal Code limit s. 11 (i) of the Charter ?
(2) If so, is the limitation a reasonable one prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter ?
V. Analysis
[18] As a preliminary matter, I observe that although there is a presumption against the retrospective application of legislation that affects substantive rights (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10), the parties do not dispute the Court of Appeal’s finding that the presumption has been rebutted in this case because Parliament intended the 2012 amendments to operate retrospectively. I agree.
[19] This appeal thus turns on whether such retrospective application complies with constitut