2016 ONCA 724

In 2016 ONCA 724, Mr. B, a 35-year-old man, pleaded guilty to sexual assault, obtaining sexual services of a person under 18, failure to comply with a recognizance and child luring.

Mr. B expressed remorse, took full responsibility for his behaviour, and had no previous criminal record, but his behaviour was considered “predatory and egregious”. He had contacted teenaged children over social media to lure them into having sex with him for money. He also reoffended while on release pending trial, committing similar offences.

Mr. B appealed the sentencing judge’s order that restricted him from using the Internet except when “at employment” and prohibiting Mr. B from owning or using “any mobile device with internet capabilities”, arguing that it was demonstrably unfit and overbroad. These types of orders are discretionary and are intended to protect children. The parties were waiting on a decision by the Supreme Court on the constitutionality of these types of orders applying retrospectively.

Once 2016 SCC 31 was released (which declared the retrospective operation of the prohibition not to use a computer to contact a person under 16 was not a reasonable limit, where the retrospective operation of the prohibition not to use the internet or other digital networks, unless in accordance with the court order, was reasonable), the Court of Appeal heard Mr. B’s appeal.

The parties agreed that a prohibition on any future contact with young people via the internet should be imposed. The second order that prohibited Mr. B from owning or using an internet connected device was meant to prevent perpetrators from sharing child pornography or communicating with people who wanted to facilitate offences against children. There was no evidence that Mr. B posed a risk of doing these things and the order forbidding him from owning these devices was removed.

The court stated:

The sentencing judge’s prohibition on Internet use except when “at employment” assumes that he can seek and obtain employment upon release without the need to access the Internet. Although the sentencing judge noted that the appellant has employment to which he can return, this position may not be available upon release and, in any event, he may also wish to advance his career and seek alternative employment. Increasingly, applying for employment requires access and use of the Internet and many positions require use and access of the Internet even when not at the employer’s premises. Moreover, given the appellant’s age, education and occupational history as a computer science specialist and IT technician, the dangers of inhibiting his search for employment and rehabilitation by way of such a broad Internet prohibition appear particularly acute.

In modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions. In many homes the telephone operates using the Internet, rather than traditional telephone wires. Simply placing a phone call from one such residence would put the appellant in breach of the s. 161(1)(d) order. Further, as Karakatsanis J. stated in K.R.J., at pa-ra. 54, “depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life”. Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, bank-ing, reading the news, watching movies, attending classes and so on.


In the present case, I agree that because of the nature of the offences and [Mr. B’s] conduct, the imposition of a s. 161(1)(d) order is warranted to minimize the risk [Mr. B] poses to children. Imposing strict limits on [Mr. B’s] Internet use will reduce the likelihood of his offensive conduct occurring again in the future. However, given the myriad of innocent and perhaps unavoidable activities for which some Internet use may be required, the virtually unconditional prohibition on any Internet use imposed by the sentencing judge for a period of 20 years is, in my view, demonstrably unfit and unreasonable in the circumstances. I do not view a total prohibition on all Internet use other than “at employment” as being necessary to advance the objective of protecting children, nor will it meaningfully assist in preventing the conduct already captured by the order imposed under the former s. 161(1)(c). This court is reluctant to impose a prohibition so harsh as to unreasonably hinder [Mr. B’s] rehabilitation efforts and so broad as to make a breach almost inevitable with the attendant criminal consequences under s. 161(4).

Further, I agree with the appellant’s submissions that the sentencing judge erred in imposing a prohibition on owning or using a smart phone, tablet or any mobile de-vice with Internet capabilities. Section 161(1)(d) permits the courts to prohibit Internet use but does not provide the court with the power to restrict ownership of such Internet capable devices. Nor should such a power be inferred. [1]

The appeal judge substituted the order with a 20 year order that prohibited Mr. B from access-ing any illegal content and using social media, including online forums and chatrooms, as well as contacting persons under 16 using a computer system. The court specifically noted Face-book, Twitter, Tinder, and Instagram as programs Mr. B was prohibited from using.

Also see: 2016 ONCA 734 (Sentencing); 2014 ONSC 4291 (Pre-trial motion).

Criminal Offence(s): Sexual Assault

[1] 2016 ONCA 724 at paras 23-28.