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Child Sex Offender Monitoring

Prohibition Orders for Sex Offenders are set out in section 161 of the Criminal Code. These kinds of orders encompass a variety of sexual crimes including sexual interference, invitation to sexually touch, child pornography, and more. More specifically, a prohibition order is issued for people who have been convicted of a criminal offence involving minors who are under the age of 16.

Being convicted of a sexual offence, especially toward minors, carries consequences that can follow you around for life, even after serving your sentence. One of the penalties could be the issuance of a prohibition order, which outlines what kind of behaviour the offender is not allowed to engage in or places they are not allowed to be.

What are some examples of prohibition orders that can be issued?

Some examples of what a prohibition order might entail is restriction where the sex offender can go. This includes banning sex offenders from parks, recreational centres, swimming pools, schools, and so on. This is because minors, children under the age of 16, are likely to frequent these areas. Another example of a prohibition order might be restrictions being put on the offender’s social media and Internet use.

Additionally, these kinds of orders might prevent the offender from getting a job in which they would reasonably expect to be in an authoritative position over persons under 16 years of age. This might include jobs like a children’s soccer coach or a tutor for youth. A more stringent order might be to ban communication with persons under the age of 16 altogether unless a Court-appointed supervisor is present.

The judge sets out the conditions of the prohibition order after taking numerous factors into account. This could include factors like the type of offence committed, the circumstances surrounding the offence, the likelihood that the individual will re-offend, the age of the victim, and the offender’s criminal background. The prohibition order might entail, for example, a ban on visiting the residence where the victim lives or a ban on communicating with minors. The judge determines how long this order will last during the trial.

What is a sexual offence?

In this context, a sexual offence against a minor is any sexual offence against a child under the age of sixteen that is carried out with force, coercion, intimidation, threat, or any other form of force. The force could either be explicit or implicit. For example, a child under the care of a trusted authority figure might feel compelled to engage in sexual activities simply because the other person is a trusted adult figure. The following are potential consequences for a minor found guilty of a sexual crime.

Note that force is generally held to the same standard across these sexual offences. The threshold for the force used in sexual assault is generally the same as that for invitation to sexual touching or sexual interference. This counters the common misconception that the force required for sexual assault needs to somehow be higher than for other sexual offences.

What are penalties if I break the prohibition order?

If you breach the prohibition order, you may be subject to penalties under section 161(4) of the Criminal Code. If the Crown decides to treat this breach of prohibition order as an indictable offence, you could possibly face up to 4 years in prison. If the Crown proceeds summarily, you could be facing up to 2 years of jailtime.

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How long can the order Remain in Force?

A prohibition order for sex offenders can remain in effect for as long the sentencing judge deems fit—which could be up to a lifetime in the most serious cases.

The start date for a prohibition order that is not lifelong would be the day that the actual order is made or when the offender is released from serving their custodial sentence for the offence. This could encompass the day that the offender is released on supervision, parole, or statutory release. The start date depends on which one of these conditions occurs the latest.

For instance, if an offender was issued a prohibition order in 2019, but they were not released from jail until 2021, the start date would be in 2021 since that is the later date.

To issue prohibition orders, the Court has to be able to point to some reasonable evidence that the offender poses a level of risk from being around minors.

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Recent Cases

R. v. Brar, 2016 ONCA 724

This case was about a 35-year-old defendant who was charged with and found guilty of sexual assault, child luring, and prostitution of a minor. This was the defendant’s first offence. The accused’s inappropriate conduct involved him initiating contact with minors online by messaging them on social media sites and then trying to persuade these children to have sex with him. To make matters worse, he used money as a way to entice these minors into having sex with him. This might be seen as “grooming” behaviours in which the accused attempts to develop a trusting relationship with a minor and exert some level of coercion or control over them.

Here, the Court ended up imposing 20-year prohibition orders under Criminal Code sections 161(1)(b), (c), and (d), as well as a certain amount of time in jail. Moreover, the accused was not permitted to own or use any mobile device with Internet or social media access, nor could the accused use the Internet anywhere other than at work, according to the prohibition order.

K. v. K. W., 2020 BCCA 286

Here, the defendant K.W. was found guilty of sexual interference with minors. The trial judge initially sentenced him to six and a half years in prison, but later shortened it to five years instead after taking pre-sentence custody credit into account. Moreover, five 20-year prohibitions were imposed under s. 161 of the Criminal Code. K. W. appealed this sentence and the contested lengthy duration of the prohibition orders. The appellate court lowered K. W.’s custodial sentence and modified the prohibition orders to make them effective for a shorter period of time. The appellate court reduced the prohibition orders to ten years and amended the Internet access prohibition.

K. W. offences involved the usage of a social media platform to connect with the victims, M.B. and N.D., who were both under the age of 16. K. W. capitalized on the minors’ vulnerabilities through authoritative and controlling behaviour, thereby inflicting significant emotional damage to the victims. The victims were afraid and felt that they had no one to turn to. This process might also be referred to as “grooming”, conduct that is commonly present in sexual assault cases. The judge stressed that this kind of conduct against children is serious and warrants serious penalties.

On appeal, the Court considered the principles from previous case law such as R. v. Friesen. Previous case law emphasizes how important it is to adhere to the principles of proportionality when imposing a sentence, especially for sexual offences against children.

The Court noted that the first sentence that was imposed on K. W.’s was significantly different from what would be expected from similar types of offences. The Court found that there were significant errors in the trial judge’s failure to consider K. W.’s mental health issues and other mitigating factors. Consequently, the Court reduced the net custodial sentence to four years, with a final effective sentence of two and a half years after pre-trial credit.

The SCC re-emphasized how seriously wrong it is to commit sexual offences against minors. As such, they encouraged courts to account for the profound emotional and psychological harm caused by such offences to children. As such, this case reminds us that sentences and penalties should reflect the severity of sexual crimes against children.

R. v. D. A. 2017 ONCA 122

Here, an older man was convicted of sexual interference with a young girl. He befriended her in a park, and regularly text messaged her. He arranged a meeting where he sexually assaulted her despite her resistance. D. A. pleaded guilty and received a 30-month sentence.

The Court of appeal concurred with the Crown, accepting the notion that sexual crimes against minors have to be taken extra seriously. As such, a lenient sentence does not accurately reflect the severity of such crimes. It also does not advance the principles of rehabilitation and deterrence. If people are able to get away with sexual offences against minors by being given lenient sentences, this would not be effective in deterring people from committing such offences. It is highly important to denounce and condemn people who commit these kinds of crime.

Also, the fact that the defendant initiated contact with the victim made his moral culpability higher. The sentencing judge did not adequately account for the profound psychological harm inflicted on the victim of the sexual assault. This included hospitalization for suicidal ideation and self-harm. The Criminal Code mandates that the impact on the victim be treated as an aggravating factor. As such, the appellate court in this case imposed a stricter sentence than what was originally given to the defendant, in recognition of the seriousness in which the Canadian justice system views the sexual exploitation of minors.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.