R. v. K.R.J., [2016] 1 SCR 906

In considering the retroactive effect of new probation provisions for sexual offenders, the Supreme Court considered the effect of section 1 of the Charter (reasonable limits) on subsection 11(i) thereof (benefit of the lesser punishment).

The Criminal Code provisions at issue were 161(1)(c), permitting sentencing judges to prohibit sexual offenders from having any contact with a person under 16 years of age; and 161(1)(d), allowing for an absolute ban on internet communication.

The legislative intent of protecting children from sexual abuse was clearly a pressing and substantial objective, and both provisions were found to be rationally connected to that objective.

In balancing salutary and deleterious effects of the law pursuant to the Oakes test, the majority held that a retroactive ban on contact with anyone under the age of 16 was not reasonably justifiable. Such a ban had a tremendous effect on offenders, who “might be prohibited from conversing with younger members of their family, or from freely moving about certain private and public spaces where children are present.” Meanwhile, “the benefits society stands to gain [were] marginal and speculative,” and did not justify “Parliament’s decision to reach back in time to impose these enhanced prohibitions on offenders who had no notice of them.”

Conversely, with respect to the ban on internet communication, the Court noted that “the proliferation of new technologies has altered the nature and degree of risk facing children, which, in turn, created a legislative gap in s. 161.” This was found to be a “compelling temporal justification for giving s. 161(1)(d) retrospective effect,” therefore demonstrably justifying the infringement of s. 11(i) of the Charter.

Decided by the Supreme Court of Canada on July 21, 2016.
Click here for the full text of the decision.

Leave a Comment

Filed under Section 1: Reasonable Limits, Section 11: Legal Rights, Section 11(i): Lesser Punishment

Leave a Reply

Your email address will not be published. Required fields are marked *