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Criminal - Child Sex Offences (2). R. v. Terwilligar
In R. v. Terwilligar (Ont CA, 2025) the Ontario Court of Appeal considered child sex offence 'prohibition orders' under CCC 161:A s. 161 order was available to the sentencing judge
[22] The sentence appeal is focused on the availability of an order under s. 161 of the Criminal Code. Section 161 provides: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 [Listed prohibitions omitted. Emphasis added.] [23] The appellant argues that the reference to “a person who is under the age of 16 years” limits the scope of s. 161 to situations where an actual child has been the subject of criminal conduct under one of the listed prohibitions. According to the appellant, as no child was the victim of his conduct (since his communications were with an undercover officer posing as a child), no order under s. 161 was available to the sentencing judge.
[24] The appellant contrasts the language of s. 161 with the description of the child luring offence under s. 172.2(1) which refers both to a person who is under 18 years of age, or a person who the offender believes is under 18. Section 172.2(1) states:172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence
(a) under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) with respect to another person who is, or who the accused believes is, under the age of 18 years;
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or
(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years. [Emphasis added.] [25] According to the appellant, Parliament intended an order pursuant to s. 161 only to apply in situations where an actual child was present in the commission of the offence rather than an undercover officer. Had Parliament intended such orders to apply where undercover officers are involved, the appellant contends that it would have amended s. 161 to include “or who the offender believed” language.
[26] The Crown highlights that the Supreme Court in R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 44-48, and this Court in R. v. J.D., 2021 ONCA 376, 156 O.R. (3d) 126, at para. 58, leave to appeal refused, [2021] S.C.C.A. No. 297, affirmed that the objective of s. 161 orders is to protect children from individuals who have committed child sex offences and give courts tools to prevent those posing a risk to children from having access to them. The Crown argues that the appellant’s interpretation of s. 161 cannot be reconciled with the protective purpose of s. 161.
[27] The Crown further relies on the analysis undertaken by Stribopoulos J. (then of the Ontario Court of Justice) in R. v. Barnes, 2018 ONCJ 302, 141 O.R. (3d) 509, interpreting s. 161. In Barnes, Stribopoulos J. explained that interpreting "a person who is under the age of 16 years" as requiring an actual child would insert an arbitrary distinction into the legislative scheme governing the availability of s. 161 orders: although offenders who commit a listed offence involving an actual child could be subject to a prohibition order, other offenders who may pose a similar or even greater risk to children, would not be. Arbitrarily excluding some offenders would be at odds with the protective and preventative purpose of s. 161.
[28] The sentencing judge rejected the appellant’s argument in his reasons, explaining:I agree with the Crown’s submission on this, and what some of the cases have found, that a purposive interpretation of the legislation is proper, and that contemporary statutory interpretation would invite extending the protective goal of Section 161 to cases involving police filling the place of young children. So, notwithstanding there not being a young child involved, that the Section is properly invoked. I am satisfied that the offending for which the Accused has been found guilty does support a finding that he poses some future risk to teenage and/or pubescent girls, and, therefore, the Order is properly put in place to minimize that risk. The Order will be for a period of eight years. [29] I agree with the sentencing judge that s. 161, properly interpreted, was available to him.
[30] The sentencing judge adopted the interpretive approach Stribopoulos J. set out in the following passage in Barnes, at para. 82:In summary, understood in isolation, the plain meaning of the words “a person who is under the age of 16 years” suggests an interpretation that does not reach situations where an offender commits an offence listed in subsection (1.1) by communicating with an undercover police officer posing as a child. But plain meaning alone is not decisive. Read as required by the modern approach, in context, remembering the purpose of section 161, supports an interpretation that makes a prohibition order available to a sentencing judge where an offender commits a listed offence believing that their interlocutor was “a person under the age of 16 years.” Importantly, this interpretation best achieves a harmonious reading of the whole of section 161. Accordingly, this is the correct interpretation. [31] This interpretation of s. 161 also is consistent with s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides: “Every enactment is deemed remedial, and shall be given such fair, large and liberation construction and interpretation as best ensures the attainment of its objects.” The object of s. 161 is to protect children, and the interpretation set out in Barnes best ensures the attainment of that object.
[32] In M.K. v. R., 2010 NBCA 71, 261 C.C.C. (3d) 359, Robertson J.A. made a similar point in rejecting a similar argument from the appellant in the case before him involving a conviction for possession of child pornography, at para. 28:I find no justiciable reason to read down s. 161 so as to perpetuate the understanding that the section only applies if there is an actual victim. True, all of the offences listed in s. 161, other than s. 163.1, involve an actual victim. The fact remains that Parliament chose to make s. 161 apply also to the offence of possessing child pornography. Furthermore, Parliament decided that child pornography would include both photographic and digital images of actual children, and pornographic drawings or illustrations of children. It matters not how the images came into existence; what matters is that the images exist and that they come within the definition of child pornography set out in s. 163.1(1). With great respect, the appellant has not laid the foundation for an interpretative argument that warrants further consideration. [33] While neither Robertson J.A. in M.K. or Stribopoulos J. in Barnes addressed the wording of the offences in s. 172.2 of the Criminal Code, I see no basis in the wording of the child luring offence that would lead to a different conclusion on the availability of s. 161 orders for those convicted of this offence (whether based on a victim who was a child or an undercover police officer who the offender believed to be a child). Indeed, the fact that the wording of s. 172.2 expressly includes a person who engages in the prohibited activity with someone they believe to be a child, and that this offence is listed as one of the offences to which a s. 161 order may apply, reinforces that s. 161 is available in these circumstances.
[34] Section 161 comes into play when someone is convicted of one of the listed offences and is found by a sentencing judge to pose an ongoing and/or future risk to children. This is a finding the sentencing judge clearly made in the context of the appellant.
[35] I see no error in the sentencing judge’s analysis of the availability of s. 161, or in the actual order made in relation to the appellant.
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