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Criminal - Sentencing - Prohibition Orders (Sex Offences) [CCC 161]. R. v. E.H.
In R. v. E.H. (Ont CA, 2023) the Court of Appeal illustrates the operation of the CCC 161 sex offence 'prohibition orders':(2) The s. 161 order
[98] Section 161(1) (a.1) of the Criminal Code authorizes sentencing judges to make orders prohibiting persons convicted of sexual offences from:... being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order. [99] In the case at bar, the trial judge made a lifetime order under this subsection that prohibits the appellant from “being within two kilometres of the dwelling-house where [the complainant] and his immediate family … normally resides”.
[100] Amicus curiae raised concerns with the trial judge about the breadth of this order, pointing out that:Two kilometres in farm talk or farm measurements is not a whole lot of distance and so [the appellant] had a 500 metre radius when he was on bail and he went out of his way to go in a different direction. We’re worried that ... with the strict interpretations of the law that ... [the appellant] could find himself at the 1.8 kilometre mark just by being in transit on the way to a grocery store or you know on a piece of farm equipment or something like that. [101] The trial judge expressed his willingness to revisit the scope of the s. 161(1)(a.1) order if the Crown, the complainant, and the complainant’s family consented, but advised that he did not have time to do so that day and cautioned that he “may be functus by the time you come to a position”. There is no evidence in the material before us that the order was ever varied. The copy of the order that has been included in the appeal book includes a lifetime ban on the appellant being within two kilometres of the complainant and his immediate family’s dwelling-house, although I would note that this copy is not signed by the trial judge.
[102] On appeal, Mr. Herscovitch renews amicus curiae’s concern about the geographical ambit of the s. 161(1) (a.1) order. He raises the further concern that there may be parts of the appellant’s family’s farm property that are less than two kilometres from the complainant’s family’s dwelling-house.
[103] For the Crown, Ms. Whitford argues that we should not vary the s. 161(1)(a.1) order without better evidence about whether the existing order will in fact cause any practical problems for the appellant once he is released from custody and returns to working on his family’s farm.
[104] I share Mr. Herscovitch’s concerns about the geographical scope of the order, particularly since the appellant seems to have been under pre-sentence bail conditions that only prohibited him from being within 500 metres of the complainant’s residence, apparently without incident. On the record before us, it is not apparent why the trial judge decided that a two-kilometre order was justified. I also have concerns about the lack of explanation in the trial judge’s reasons for why he considered it necessary to make this order last for the appellant’s lifetime, rather than for some shorter period.
[105] However, I agree with the Crown that it would not be appropriate for us to interfere with the trial judge’s discretionary decision to make the order that he did without better evidence that the order will, in fact, cause practical difficulties for the appellant after his release. I would also note that s. 161(3) of the Criminal Code allows the appellant to apply to the Ontario Court of Justice at any time and seek to have the conditions of the s. 161(1)(a.1) order varied.
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