|
Criminal - Sentencing - Prohibition Orders (Sex Offences) [CCC 161]. R. v. Rogers
In R. v. Rogers (Ont CA, 2026) the Ontario Court of Appeal allowed in part a Crown sentencing appeal, this respecting a conviction for "a single count of invitation to sexual touching".
Here the court considers the CCC 161 ['Sexual Offences - Order of prohibition'] provisions:[17] Section 161(1) of the Criminal Code permits a court sentencing an offender for various offences committed against persons under the age of 16, including invitation to sexual touching, to prohibit the offender from doing any of the things listed in s. 161(1)(a) through (d). Under s. 161(2), the duration of an order made under s. 161(1) “may be for life or for any shorter duration that the court considers desirable”. Section 161 orders are an additional form of punishment: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 49-57.
....
[28] We agree with amicus curiae. As a matter of fairness, Mr. Rogers was entitled to notice that the sentencing judge was considering making a s. 161(1) order on her own motion and to an opportunity to make submissions about these terms: see R. v. Nahanee, 2022 SCC 37, [2022] 3 S.C.R. 3, at paras. 43-50.
[29] We do not agree with the Crown that no notice was required because the sentence Mr. Rogers received, viewed globally, was less severe than what the Crown was seeking. While the Crown’s primary position was that Mr. Rogers should receive a jail sentence and probation, Crown counsel also made submissions about the terms that should be included if the sentencing judge instead imposed a conditional sentence and probation. The critical point is that the Crown never suggested that any of these terms should extend beyond the duration of Mr. Rogers’s probation, which the Crown submitted should last for two years, and which by law could be no longer than three years: Criminal Code, s. 732.2(b).
....
[30] We also do not agree that Mr. Rogers received sufficient notice when the sentencing judge referred to the terms that had been recommended by the author of the pre-sentence report, which included terms that he “not contact or communicate … with the victim” and “not be within 200 metres of the victim”, and asked him to comment on “how long of a period” would be appropriate for these terms to remain in force. Viewed in context, Mr. Rogers would have understood the sentencing judge to be inviting submissions about the length of a probation order, not about the appropriateness of her making a lifetime order under s. 161(1).
[31] Finally, we do not agree with the Crown that the sentencing judge’s failure to give Mr. Rogers notice of her intention to make a s. 161(1) order had no impact on his sentence: see Nahanee, at paras. 51-61. A lifetime order prohibiting Mr. Rogers from being within 2 kilometres of any place he knows the complainant or her mother to be could significantly interfere with his daily life and freedom of movement – for instance, if he were to learn that the complainant or her mother were living or working less than two kilometres from his own residence or workplace. As amicus curiae notes, even though Mr. Rogers could apply to the trial court under s. 161(3) to have the s. 161(1) order varied based on changed circumstances, this process could take some time.
[32] If this had been pointed out to the sentencing judge, she might very well have decided that the salutary effects of her proposed s. 161(1) order were outweighed by its potential deleterious impact on Mr. Rogers, for many of the same reasons she gave when she declined to subject him to the “onerous obligations” of a registration order under the Sex Offender Information Registration Act, S.C. 2004, c. 10.
[33] In these circumstances, we find that it would not be in the interests of justice for us to now make a s. 161(1) order. We agree with amicus curiae that the situation here is distinguishable from that in R. v. Vannoordennen, 2026 ONCA 236, where the sentencing judge, without having heard submissions, made a s. 161(1)(d) order barring the self-represented accused from using the internet for 20 years, with no exceptions. This court decided that the appropriate remedy in that case was to vary the terms of the s. 161(1)(d) order to include various exceptions, noting that the accused in that case had been put on notice that the Crown was seeking a s. 161(1) order with different terms, and that there was a basis in the record to also include a term limiting his use of the internet.
[34] Here, the Crown did not seek any s. 161(1) order at trial, and no such order was actually made. Moreover, most of the terms the sentencing judge said she planned to include in a s. 161(1) order would not have extended beyond the end of Mr. Rogers’s probation, and have already been included as terms of his probation order. Having regard to the Crown’s position at trial, we are not persuaded that it would be appropriate for us to now make a s. 161(1) order that would restrict Mr. Rogers’s freedom of movement and use of the internet beyond the term of his probation. . R. v. Ouedraogo
In R. v. Ouedraogo (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal sentencing appeal.
Here the court considers a 'lifetime prohibition' (minor-contact) order [under CCC 161 -'Order of prohibition']:(4) Issue 4: The Lifetime Prohibition Orders
[51] The appellant claims the lifetime prohibition orders under s. 161 of the Criminal Code should be reduced to 10 years as the evidence does not establish that the appellant had a sexual preference for children and the sentencing judge found that there was a reasonable possibility of eventual control in the community.
[52] The objective of s. 161 is to protect children. Prohibition orders under this section are discretionary and appellate intervention is only justified where there is an error in principle affecting the sentence or the sentence is demonstrably unfit: R. v. Durigon, 2021 ONCA 775, at para. 5. The terms of such orders are case specific and there is no requirement to have other related convictions or a finding of pedophilia: R. v. J.B., 2022, ONCA 214, at para. 56.
[53] In this case, the appellant committed two very similar violent sexual offences within a short period on very young-looking people, one of whom was in fact a minor. There was no evidence as to the appellant’s insight into the offence as he chose not to participate in the assessment. Moreover, the possibility of eventual control in the community alone does not mean that the appellant will no longer pose a risk to children such that a s. 161 protective order is unreasonable.
[54] It is important to note that should the appellant successfully participate in treatment or gain insight into his offences, he may return to court to seek a variation in this term of the order pursuant to s. 161(3) of the Criminal Code. . 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.
|
