When offenders are convicted of certain sexual offences against a person under the age of 16 years, section 161 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.

            See generally R. v. K.R.J., 2016 SCC 31 (CanLII).

One of the prohibitions that a sentencing court shall consider and may make as part of the 161 Order is the prohibition that the offender attend “a public park or swimming area where person under the age of 16 years are present and can reasonably be expected to be present…”

Section 161(1)(a), Criminal Code.  

In my experience, when 161 Orders are made this particular prohibition is almost always imposed.

In R. v. R.L.S., 2020 ONCA 338, that part of a 161 order prohibiting the offender from not attending “a public park or public swimming area…” was varied on appeal to prohibit the offender’s attendance at “a public swimming area or community centre“.  [Emphasis mine] 

The Appellant had argued that the definition of “park” is so broad that he was left unable to safely assess where he can and cannot go.  The Court of Appeal for Ontario held that the Appellant’s past conduct did not suggest that he constituted a risk to persons present in parks and that the specific condition in the 161 order that he not attend parks could be tailored to target the remaining risks more narrowly (as set out above).

            R. v. R.L.S., 2020 ONCA 338, at para. 14.

 

Written by Stuart O’Connell (Barrister/Solicitor)

 

CRIMINAL CODE

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.