Section 161(1) of the Criminal Code indicates that where an offender is convicted or discharged of certain sexual offences where the victim was a person under the age of 16, the sentencing court must make an order prohibiting the offender from interacting with children in a variety of situations. Specifically, the offender may be prohibited from
- attending places that individuals under the age of 16 are present or can reasonably be expected to be present including schools, public parks, community centres, day cares, public swimming pools and playgrounds;
- being within any distance indicated in the order from the residence of the victim or any other location specified in the order;
- seeking, obtaining, or continuing employment or volunteer work that puts the offender in a position of trust, power, or authority over a person under the age of 16;
- having any contact with a person under the age of 16 unless under the direct supervision of a person whom the court considers appropriate;
- using the internet or any other digital network unless in accordance with conditions named in the order.
What is an Order Restricting Access to Children?
An order restricting access to children is an ancillary order made by the court when an offender is being sentenced for certain sexual offences against a person under the age of 16 years old. The order prohibits the offender from interacting with people under the age of 16 for a set period of time.
As outlined above, the order prohibits the offender from attending public places children are known to frequent, from being within a certain distance of the victim’s home or any other place they are known to frequent, from working or volunteering with children, from being alone with children unless in the direct presence of a person deemed suitable by the court and from accessing the internet except in accordance with conditions set by the court.
The court is not required to impose all the conditions listed in the section. They may use their discretion when making the order and include only the restrictions they deem necessary.
At sentencing, the offender or their counsel will have an opportunity to make submissions to the court requesting that certain exceptions be added to the order. For example, if the offender has children of their own, the court may make an exception to allow the offender to be alone with their own children. The court may also name certain individuals that must be present if the offender wishes to be in the presence of individuals under the age of 16. For example, an offender who has young nieces or nephews may be required to have their partner present at all times while visiting with their young family members.
The court may also add exceptions to the condition prohibiting the use of the internet. The court will usually agree to exceptions allowing the offender to use the internet while at work or for the purposes of employment. The court may also agree to exceptions to allow the offender to use the internet in the direct presence of a named individual, for the purposes of seeking employment.
When are Orders Restricting Access to Children Imposed?
Pursuant to section 161(1) of the Criminal Code, the court must make an order restricting access to children where the offender has been convicted of an offence listed in subsection 161(1.1) and where the victim of the offence was a person under the age of 16 years. The offences listed in section 161(1.1) are all sexual offences.
What are the Consequences of a section 161(1) Order?
An offender who has been restricted from accessing children under section 161(1) will be unable to attend several locations until the order has expired.
Such an offender would be prohibited from attending any public park, swimming pool or playground. This means that offender cannot attend these locations under any circumstances, including if they have children of their own. Such an offender if also prohibited from attending schools, community centres or day cares. If the offender has children of their own, they will need to make other arrangements to have their children transported to and from these locations by a third party.
An offender with a section 161 order will be prohibited from attending their victim’s home or any other place their victim is known to be for the duration of the order. This means that the offender will not be permitted to attend any location they know the victim to be or any location the victim can reasonably be expected to be. This may require the offender to make changes in their everyday routine to avoid contact.
An offender prohibited from being around children will be unable to work or volunteer with children. An offender who was previously working or volunteering with children would be required to leave that position for the duration of the order. Such an offender would also be prohibited from participating in their own children’s extracurricular activities. For example, a section 161 would prohibit the individual from coaching their child’s soccer team.
An offender who has been issued a section 161(1) order will be prohibited from having contact of any kind with people under the age of 16 unless under the direct supervision of someone the court deems appropriate. This means that if, for example, the offender was on an elevator and an unaccompanied child were to get on the elevator, the offender would be required to get off and wait for the next elevator. This condition would also prohibit the offender from babysitting children or being alone with family or friends who are under the age of 16 years, unless a specific exception is noted in the order.
Finally, an offender with a section 161 order will be prohibited from using the internet or any other digital network except under certain restrictive circumstances. As outlined above, the court will typically agree to exceptions to allow the offender to work. In some cases, they will allow exceptions to allow the offender to access the internet under the direct supervision of someone deemed appropriate by the court.
Unless specifically mentioned as an exception in the order, the offender will be prohibited from using the internet in all other circumstances. This exception can be particularly onerous, especially in the current digital age, and can leave offenders unable to do everyday things like order food or look up transportation schedules.
How long does an Order Restricting Access to Children Last?
The sentencing court will determine how long the order will remain in place. The length of the order is completely within the discretion of the court and may be as long as the rest of the offender’s life.
What Happens if the Offender Breaches the Order?
An offender who breaches their section 161(1) order will be arrested and charged with a criminal offence under section 161(4) and will be liable to imprisonment for up to four years.