Canadian Criminal Sentencing/Ancillary Orders/Section 161 Orders

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Generally[edit]

When an offender is convicted on an enumerated offence concerning persons under the age 16, section 161 of the Criminal Code permits the court to make an order prohibiting the offender’s from certain activities that may have them in contact with persons under the age of 16.

Order of prohibition
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;
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

...

R.S., 1985, c. C-46, s. 161; R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16.

CCC

The purpose of s.161 orders is to protect vulnerable children from dangerous convicted paeodphiles. They are preventative in nature.[1]

The restrictions on swimming areas will also include pools found in apartment buildings and other complexes.[2]

Applicable Offences[edit]

The applicable offences are listed in s. 161(1.1):

Offences
(1.1) The offences for the purpose of subsection (1) are

(a) an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1 or 172.2, subsection 173(2) or 212(1), (2), (2.1) or (4) or section 271, 272, 273, 280 or 281;
(b) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983; or
(c) an offence under subsection 146(1) (sexual intercourse with a female under 14) or section 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988.

R.S., 1985, c. C-46, s. 161; R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16.

...

CCC

Section 161(1.1)(b) and (c) list applicable offences as they existed pre-1988.

Offences listed include:


Certain sexual offences such as sexual exploitation (153), sexual exploitation of a disabled person (153.1), and voyeurism (162) are amongst those not listed.

  1. R. v. S.B., 2008 ONCJ 383
  2. R. v. D’Angelo (2002) 166 OAC 92 (ONCA)

Application[edit]

Simply because the CP consisted of drawings rather than images of child abuse will not be suffient reason to refrain from ordering a s.161 order.[1]

In practice, the judges will usually impose a 161 order for a period of 10 years or life for the most serious sexual predator offences.

  1. M.K. v. R., 2010 NBCA 71 at 26 to 28

Duration[edit]

The prohibition can be of any length of time up to life.[1] The starting point of the order would either be at the time of sentence or at the time of release from custody.[2]

  1. 161(2)
  2. s. 161(2)(a) and (b)

Variations[edit]

The condition can be varied by the same court.[1]

  1. s. 161(3)

Breaches[edit]

Violations of the Order is a hybrid offence, either on summary conviction or a maxiumum of 2 years on indictable election.[1]

  1. s. 161(4)

History[edit]

On August 9, 2012, section 161 was amended to add s. 161(1)(c) and (d) and to add other enumerated offences found in s. 161(1.1).[1]