COURT OF APPEAL FOR ONTARIO DATE: 20210602 DOCKET: C62532

Feldman, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.D. Appellant

Counsel: Erin Dann, for the appellant Michael Perlin, for the respondent Matthew Gourlay and Michelle Psutka, for the intervener the Criminal Lawyers’ Association of Ontario

Heard: December 2, 2020 by video conference

On appeal from the convictions entered by Justice Beth A. Allen of the Superior Court of Justice, sitting with a jury, on January 17, 2014, and the sentence imposed on June 5, 2015.

Feldman J.A. :

A. INTRODUCTION

[1] On January 17, 2014, the appellant was convicted by a jury of sexual assault, sexual interference and invitation to sexual touching of the complainant, who was a young boy at the time of the alleged events between 1988 and 1993. The appellant was sentenced to three and a half years less six months’ credit for his strict bail conditions, and had various ancillary orders issued against him, including lifetime orders under ss. 161(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, which prohibited him from attending public parks or public swimming areas where persons under the age of 16 are present or can reasonably be expected to be present, daycare centres, school grounds, playgrounds or community centres, and from obtaining employment or becoming a volunteer where he would be in a position of trust or authority over persons under the age of 16.

[2] The appellant appeals both his convictions and his sentence. The conviction appeal is based on two grounds: (1) an alleged error by the trial judge in the R. v. W.(D.), [1991] 1 S.C.R. 742, jury instruction, and (2) a request to admit fresh evidence, which supports the appellant’s partial alibi that he did not reside with the complainant for the entire period of the alleged offences. With respect to the sentence appeal, the appellant was granted leave to appeal the s. 161 orders as unconstitutional, although the issue was not raised at trial. Section 161 of the Criminal Code was enacted in 1993. The appellant submits that the retroactive application of ss. 161(1)(a) and (b) contravene s. 11(i) of the Canadian Charter of Rights and Freedoms and cannot be saved by s.1.

[3] While I would dismiss the conviction appeal, I would allow the sentence appeal of the s. 161 orders for the reasons below.

B. Background facts

[4] The complainant testified that he met the appellant when he was 5 years old and the appellant was about 20 years old. They lived in the same house on Grafton Street, with the complainant’s family renting the apartment on the main floor and the appellant renting the apartment in the basement. The complainant and the appellant often played together in the appellant’s apartment. The complainant indicated that they stayed in touch when his family relocated to King Street approximately a year later.

[5] Before Christmas in 1987, the complainant’s mother moved with him and his older sister to an apartment in Scarborough on Mornelle Court. The appellant helped them move and ended up staying. The complainant testified that he initially thought the appellant would stay for a few weeks, but he ended up staying for a few years. The appellant slept on the floor in the complainant’s bedroom.

[6] The complainant claimed that the sexual contact began a few months after the appellant moved in. It involved mutual masturbation and oral sex several nights a week. The appellant told the complainant that what they were doing was normal, that he was his number one bud, and that their relationship should be kept a secret. At trial, the complainant recalled two specific incidents: on one occasion, the appellant took a picture of his penis, saying he was sending it to his girlfriend because she liked small penises; and on a second occasion, the appellant attempted anal intercourse, which the complainant resisted because he was uncomfortable. The appellant then simulated anal sex by thrusting his penis in and out between the complainant’s legs.

[7] The complainant said that all sexual contact took place when they were alone in his bedroom with the door closed. He also said that his mother was not checking on him regularly because she was an alcoholic at the time. His mother confirmed that the appellant stayed with them for a couple of years, but she claimed that she checked on the complainant multiple times a week and insisted that his bedroom door remain open.

[8] After the appellant left the complainant’s apartment, he moved in with another family in the same building who also had a young boy. The complainant testified that he was a friend of the young boy, would frequently sleep over there and continued to see the appellant. The complainant disclosed that one time, when he was sleeping over at his friend’s house, he woke up and found the appellant fondling him. He recalled telling his friend, but his friend did not remember the incident.

[9] According to the complainant, after the appellant moved to Kingston, Ontario, they kept in touch by phone and by letters which the appellant sent to the complainant’s friend in the building to pass on to the complainant. In the letters, the appellant told the complainant that he loved him and missed him. The friend recalled some calls, but not the letters. The complainant’s older brother recalled finding a letter, as the complainant said, but did not remember if it was signed.

[10] The complainant said that when the appellant moved back to Toronto, he would visit the appellant at his apartment. When the complainant was asked whether he had any further sexual contact with the appellant, he only reported an occasion when the appellant made a video of him playing with himself that he could use to attract a girl. The complainant testified that they later burned the video.

[11] The appellant testified in his defence and described the timeline of his living arrangements during the relevant period. His account was that he moved out of the Grafton triplex in January 1986 (before the complainant’s family did) and lived with various friends until June 1987, when he moved to Edmonton to join his girlfriend, R.P. She returned to Ontario in September 1987, and he returned two months later. He initially moved in with R.P. in Barrie. He then lived with another woman in Barrie from December 1987 until March or April 1988 when he moved back with R.P.

[12] The appellant said that he did not help the complainant’s family move to Mornelle Court in December 1987 and did not have any contact with them while he was in Edmonton. However, he visited them when he lived in Barrie. He said that he began to live with the mother of the complainant’s friend (and the girlfriend of the appellant’s friend) at Mornelle Court in the summer of 1988 and stayed there for six to eight months, at which time he had daily interaction with the complainant and his family. He agreed that the complainant would sleep over there on occasion.

[13] The appellant claimed that he moved to Lawrence Avenue sometime in 1989 until late 1990, when he moved in with the complainant’s family. He first testified that he stayed with the complainant’s family for four to six weeks. He subsequently testified that he lived with the complainant’s family from the end of 1990 until April 1991, a period of approximately three to four months. At that time, he did sleep on the floor in the complainant’s room, but denied any sexual contact with the complainant. He also said that the bedroom door was open and that at night, the complainant’s mother would check on the complainant from time to time. The appellant had to leave the complainant’s apartment around April 1991, when he was accused of stealing tools from the complainant’s uncle. That is when he moved to Kingston. He stayed there until around March 1992. He denied having any phone calls or writing any letters to the complainant during that time.

[14] After Kingston, the appellant moved back to Barrie and then to Toronto, eventually returning to Mornelle Court in another apartment with a woman and her daughter. At that time, the complainant would come to the apartment and hang out. The appellant denied ever taking nude pictures or a video of the complainant.

[15] R.P. testified and essentially corroborated the appellant’s version of the events, but with some discrepancies as to the dates.

C. THE VERDICT AND SENTENCE

[16] The same day that the trial judge delivered her instructions to the jury, they rendered a guilty verdict on all three counts.

[17] On June 5, 2015, the trial judge sentenced the appellant to three and a half years of imprisonment less six months’ credit for strict bail conditions. In addition, she made a SOIRA order for life, a DNA order, a weapons prohibition order for ten years, and orders under ss. 161(1)(a) and (b) prohibiting the appellant for life from attending at a public park or swimming pool where persons under 16 are or could reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, and from seeking employment or volunteering in any place that would put him in a position of trust or authority over a child under age 16.

D. Issues on appeal

[18] The appellant appeals his conviction based on two grounds: (1) the trial judge erred in her formulation of the W.(D.) jury instruction; and (2) the introduction of fresh evidence with respect to his alibi defence, verifying that he was not physically living with the complainant for the full time alleged. He also appeals his sentence on the basis that the ancillary orders under ss. 161(1)(a) and (b) of the Criminal Code offend s. 11(i) of the Charter because the provisions, which were enacted in 1993 after the commission of these offences, were applied retroactively and, consequently, represented a greater sentence than was applicable when he committed the offences. The appellant asserts that the retroactive application of ss. 161(1)(a) and (b) is not saved by s.1 of the Charter.

E. Analysis

(1) Issue 1: Did the trial judge err in her formulation of the W.(D.) jury instruction?

[19] The trial judge provided the following W.(D.) instruction to the jury both orally and in writing:

H. How to assess reasonable doubt

1. The real issue here is whether the offences alleged by [the complainant] actually occurred. You have heard evidence that [the appellant] was in other places for much of the period when the offences were alleged to have been committed.

2. You do not decide whether something happened by simply comparing one version of events with another, and choosing between them. You have to consider all the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that form the basis of the crimes charged in fact took place.

3. The law provides guidelines to assist you as finders of fact to assess the evidence in coming to your decision.

4. If you believe the evidence that [the appellant] was elsewhere during the period of times when the offences were allegedly committed and you believe his evidence that he did not commit these offences during the discrete periods of time he admits to living at the [complainant’s friend’s] and [the complainant’s] homes, you must find [the appellant] not guilty.

5. If you do not believe the evidence that [the appellant] was elsewhere during the period of time when the offences were allegedly committed and you do not believe his evidence that he did not commit these offences during the discrete periods of time he admits to living at the [complainant’s friend’s] and [the complainant’s] homes, you must find [the appellant] not guilty.

6. If you do not believe the evidence that [the appellant] was elsewhere during the period of time when the offences were allegedly committed and you do not believe his evidence that he did not commit these offences during the discrete periods of time he admits to living at the [complainant’s friend’s] and the [complainant’s] homes, and that evidence does not raise a reasonable doubt in your mind that [the appellant] committed it, you must consider whether the rest of the evidence that you accept satisfies you beyond a reasonable doubt that [the appellant] committed the offence charged.

[20] The trial judge erred by omitting from the second section of the W.(D.) instruction, the phrase, “but that evidence raises a reasonable doubt in your mind”. When Crown counsel brought the omission to her attention, the trial judge recharged the jury with the following W.(D.) instruction, which was agreed to by both counsel:

[T]he last amendment is on page 48. It’s a more important amendment. I left out a portion of paragraph five by mistake and I will read it to you and I’ll tell you exactly where to add the portion that I left out.

Paragraph five on page 48: if you do not believe the evidence that [the appellant] was elsewhere during the period of time when the offences were allegedly committed, and you do not believe his evidence that he did not commit these offences during the discrete periods of time he admits to living at the [complainant’s friend’s] and [the complainant’s] homes, but that evidence raises a reasonable doubt in your mind that [the appellant] committed the offences, you must find [the appellant] not guilty.

Let me just repeat that and it comes where I mentioned; he admits to living at the [complainant’s friend’s] and [the complainant’s] homes, and it comes in right after that, but that evidence raises a reasonable doubt in your mind that [the appellant] committed the offences, you must find [the appellant] not guilty.

[21] Although the trial judge corrected the omission of the reasonable doubt component in her recharge to the jury, the appellant alleges that the original charge contained an additional error in the W.(D.) instruction. Specifically, the trial judge used the conjunctive “and” between the phrases: “[i]f you do not believe the evidence that [the appellant] was elsewhere during the period of time when the offences were allegedly committed” and “you do not believe his evidence that he did not commit these offences during the discrete periods of time he admits to living at the […] homes”. In so doing, the appellant argues, the trial judge effectively instructed the jury that in order to acquit him, they had to have a reasonable doubt about both the “partial alibi” defence and the appellant’s blanket denial of the offences.

[22] The Crown acknowledges that the trial judge’s formulation of the W.(D.) instruction was not ideal, but submits that there was no possibility that the alleged error could have affected the jury’s verdict.

[23] By treating the two elements of the appellant’s defence conjunctively, the issue for this court is whether the jury understood from the trial judge’s instruction that they must acquit if any of the defence evidence raised a reasonable doubt about his guilt.

[24] I agree with the Crown that this instruction was not ideal because the first two prongs of the W.(D.) test should have been formulated in a way that did not separate the defences, but focused the jury on whether the evidence that favoured the defence raised a reasonable doubt about his guilt.

[25] However, in this particular case, a reasonable doubt about the appellant’s timeline of his whereabouts, and whether he had the opportunity to commit the offences throughout the whole multi-year period alleged by the complainant would not have led to an acquittal on its own, because there was at least a four to six week period when the appellant admitted he slept in the same room as the complainant, i.e. he had the opportunity to commit the offences. For that period, the jury would have to decide if the appellant’s evidence or other evidence in support of his version of events raised a reasonable doubt. If not, they had to consider whether, based on all of the evidence, including the evidence of the complainant, they were satisfied of the appellant’s guilt beyond a reasonable doubt.

[26] The appellant submits that if the jury had a reasonable doubt raised by the timeline of his whereabouts and his corresponding partial alibi, then that doubt could have undermined the credibility and reliability of the complainant, and therefore resulted in an acquittal. He argues that even though the trial judge properly instructed the jury about the third prong of the W.(D.) framework and told them to assess the evidence as a whole, this did not negate the error from the first two prongs in which the trial judge conflated the two aspects of the defence evidence and failed to provide the jury with a proper route to acquittal.

[27] While it is true that the jury was told to assess the evidence as a whole, so they could consider the complainant’s evidence when deciding whether the appellant’s evidence raised a reasonable doubt, the W.(D.) instruction asked them to focus on the defence evidence, and if it raised a reasonable doubt, to acquit the accused. In this case, the appellant’s evidence on the timeline of his whereabouts and his partial alibi, taken on its own, would not lead to an acquittal because of the lack of alibi for the four to six week period that he admitted to staying with the complainant. However, if the appellant’s evidence of his alibi left the jury with a reasonable doubt because it led them to question the complainant’s evidence overall, they could have acquitted on that basis.

[28] In my view, that possibility was made clear by the third prong of the trial judge’s W.(D.) instruction, where the jury was told that they could not convict unless they were satisfied of the appellant’s guilt beyond a reasonable doubt based on all the evidence. It was clear that to convict, they had to believe the complainant that what he said did actually occur during the time period covered by the indictment.

[29] The Crown submits that, taken as a whole, the charge made it clear to the jury that they could only convict if they were satisfied beyond a reasonable doubt that the appellant committed the offences. This point was reinforced in the closing submissions of both trial counsel. Furthermore, the jury was instructed at the beginning of the W.(D.) instruction that they had to consider all of the evidence.

[30] The Crown also relies on trial counsel’s agreement with the wording of the W.(D.) instruction as an indication that its meaning was clear to all the participants and would not have confused the jury.

[31] I accept the submission of the Crown. It was clear to the jury that the alibi defence did not cover the whole period of time outlined in the indictment, and that the appellant admitted to living with the complainant’s family and sleeping on the floor of the complainant’s bedroom for either four to six weeks or three to four months, beginning in late 1990.

[32] In addition, as part of the charge, the trial judge summarized the evidence on the different timelines, as provided by the appellant, his girlfriend, and other witnesses, and left the jury with the task of deciding what to make of the inconsistencies and the 20-year passage of time since the events. At the end of the section on alibi, which came immediately before the positions of the parties in the jury charge, the trial judge told the jury:

20. In the end, you have the task of deciding whether you are left with a reasonable doubt that [the appellant] was somewhere else and not at […] Mornelle Crt. at the relevant time that the offences alleged occurred. There is no magical formula to arrive at a decision. You must use your experience and common sense.

21. Crown counsel has the burden to prove beyond a reasonable doubt that [the appellant] was at […] Mornelle Crt. at the [complainant’s] apartment during the period set out in the indictment sometime between January 1, 1988 and October 10, 1993, and committed the acts of sexual interference, invitation to sexual touching and sexual assaults against [the complainant].

[33] The trial judge’s W.(D.) instruction would not have misled the jury. I would not give effect to this ground of appeal.

(2) Issue 2: Should the appellant’s fresh evidence be admitted?

(a) Overview

[34] The appellant seeks to introduce fresh evidence on appeal that he submits meets the criteria set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, and if accepted, would require this court to order a new trial. There are two components to the fresh evidence.

[35] The first piece of proposed fresh evidence is records obtained by the appellant after trial from the Alberta Works Income Support program and Child Intervention Services (collectively, the “Edmonton records”). These records state that the appellant received income support benefits in Alberta from July to November 1988, and show that his family was involved with Child Intervention Services in Alberta between August and October 1988. This evidence would corroborate that the appellant was in Edmonton, Alberta between July and November 1988 and could not have committed the offences then, as alleged by the complainant. It would, he submits, have supported his credibility and undermined the credibility of the complainant at trial.

[36] The second piece of proposed fresh evidence is records from the Ontario Ministry of Transportation (the “MTO record”) that were obtained by the police officer in charge of the original investigation as part of his follow-up on the fresh evidence application. Although the appellant testified that he did not obtain an Ontario driver’s license until 1996 or 1998, the evidence is a driver’s license history which reflects address information the appellant gave to police officers when he was pulled over while driving between 1981 and 2009. This evidence indicates that on December 14, 1989, he reported his address to be on Lawrence Avenue East in Scarborough; on August 21, 1990 and again on August 20, 1992, he reported his address to be on Mornelle Court (specifically, the complainant’s apartment). In March 1992, he reported his address to be on Russell Street in Kingston, Ontario. In his testimony for the fresh evidence application, the appellant explained that he did not live with the complainant in 1992, but may have given the police this address when he was pulled over. He verified that the other entries were largely consistent with his memory.

[37] The Crown opposes the admission of the fresh evidence and submits that it does not meet the Palmer criteria.

(b) The Law and its Application to the Facts

(i) The Palmer criteria

[38] Under ss. 683(1) of the Criminal Code, an appellate court may receive fresh evidence on appeal when it is in the interests of justice to do so. The burden to establish admissibility is on the applicant. In R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, this court applied the Palmer criteria as restated by this court in R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 502, at para. 92. The three tests are: (1) admissibility – is the evidence admissible under the operative rules of evidence?; (2) cogency – would the evidence reasonably have affected the verdict at trial?; and (3) due diligence – what is the explanation for not introducing the evidence at trial and should that affect its admissibility?

[39] As the evidence here consists of government records, their admissibility under the first test, i.e. the rules of evidence, is not disputed. The two issues are due diligence and cogency.

(ii) Due diligence in obtaining the fresh evidence

[40] The appellant’s evidence on the application is that before trial he wrote to the Alberta Information and Privacy Office seeking documents regarding his “welfare status in 1988” and was told that no records could be found. In cross-examination, he said that, before trial, he also sent a second letter, he called Brampton welfare, he contacted the Canada Revenue Agency, he talked to police in Edmonton, and he contacted a hospital he attended after an overdose. After he was convicted, he again contacted the Alberta Information and Privacy Office, spoke to someone, gave them all the information he could to help find a record, and received the fresh evidence.

[41] The Crown submits that despite the appellant’s testimony, he was not duly diligent in his efforts to obtain the fresh evidence to support his alibi defence. In particular, the appellant offered no explanation as to why he did not pursue the issue further with the Alberta Information and Privacy Office before trial or why he did not try to get the MTO record.

[42] I agree with the Crown’s submission. The evidence shows that the appellant did not make the necessary efforts to obtain the proposed fresh evidence that existed before trial. In addition, he did not provide an explanation for his failure to pursue this issue, given its potential importance for his defence.

(iii) Cogency of the fresh evidence

[43] The Crown also submits that had the fresh evidence been available at the trial, it could not reasonably be expected to have affected the verdict. The appellant, by contrast, argues that the proposed evidence would have established part of his alibi for the period between July and November 1988, and would have undermined the credibility of the complainant, who took the position that the appellant lived with his family for a number of consecutive years after Christmas 1987.

[44] I again accept the Crown’s position. With respect to the ability of the fresh evidence to have enhanced the appellant’s credibility at trial, the Crown submits that the fresh evidence would instead have undermined the appellant’s credibility, because it contradicts some of his trial testimony, demonstrates that his timelines are unreliable, shows that he is willing to lie to protect himself, and reveals that he guessed some dates and coordinated his evidence with that of his girlfriend, R.P.

[45] Two examples of inconsistencies between the fresh evidence and the appellant’s trial testimony demonstrate the Crown’s point. First, with respect to when the appellant lived at the complainant’s apartment on Mornelle Court, a very significant issue, he says the MTO record is correct and he was there from August to October 1990. This is inconsistent with his trial evidence, which indicates that he stayed with the complainant’s family for four to six weeks, or three to four months, from late 1990 onward.

[46] Second, at trial, the appellant contradicted himself about when he was in Edmonton, 1987 or 1988. In his testimony on the fresh evidence application, the appellant acknowledged that when the contradiction was put to him by the trial Crown in cross-examination, he defended himself by denying something he knew was true.

[47] The probative value of the MTO record is also undercut by the fact that it essentially consists of a series of self-reports made by the appellant of his current address at the specific times he was stopped by police while driving without a license. In other words, because its value depends on his credibility, it is difficult to see how it can enhance that credibility by providing further discrepancies. On the cross-examination on his affidavit, the appellant himself took the position that some of the MTO entries were correct and some were not.

[48] With respect to the Edmonton records, while they provide some support for the assertion that the appellant was in Alberta from July to November 1988, they do not prove his residency in the province, or that he did not come and go. For example, R.P. testified that she came back to Ontario in September 1988, when the family investigations by the Alberta authorities would still have been ongoing.

[49] More significantly, I note the trial Crown took the position with the jury that the case did not turn on how long the appellant was in Edmonton during the period of the alleged offences. In his closing address, he told the jury that despite evidence from an Alberta family agency indicating that the appellant was in Edmonton on August 29, 1988, not much turned on this fact because it was not clear how long he was there and because the complainant’s mother had testified about times when the appellant had disappeared during the period he was staying with them. In addition, defence counsel at trial also minimized the significance of the 1987/1988 discrepancy in the appellant’s testimony about when he was in Edmonton, when he told the jury in his closing address that the appellant was confused about the dates. He stated that such confusion was not unusual because all the witnesses, except R.P., were inconsistent with the timeline, and emphasized to the jury that the alleged offences occurred many years ago.

[50] In my view, taking the fresh evidence at its highest, while it had the potential to enhance the appellant’s partial alibi, it did not undermine the critical fact that the appellant acknowledged his residence with the complainant’s family for a significant period of time. He therefore had the opportunity to commit the offences.

[51] The key to the case was whether the jury was satisfied beyond a reasonable doubt that the sexual offences occurred when the opportunity existed. That turned on the credibility of the complainant and of the appellant. Whether the fresh evidence would have enhanced the appellant’s credibility or undermined the complainant’s credibility is purely speculative. There was already considerable testimony about the relevant dates, and the fresh evidence would not have added anything definitive.

(iv) Conclusion on the Fresh Evidence Application

[52] The fresh evidence consequently does not meet either the cogency or the due diligence criteria for admission on appeal. I would not admit the fresh evidence or order a new trial based on it.

(3) Issue 3: Can ss. 161(1)(a) and (b) of the Criminal Code be used to impose retrospective orders for offences committed before 1993?

(a) The imposition of the s. 161 orders

[53] In his sentencing submissions, the trial Crown sought prohibitory orders under s. 161 of the Criminal Code. The trial Crown asserted that the orders should be made for life since the appellant had been convicted of recurrent sexual offences against a child. The appellant opposed the imposition of any such order as unwarranted on the basis that no offences had been committed by him in the long period since 1993. Neither counsel raised an issue with respect to s. 11(i) of the Charter. That issue is the basis of this ground of appeal.

[54] The trial judge accepted the Crown’s position, and imposed lifetime bans under ss. 161(1)(a) and (b). She made no mention of ss. 161(1)(c) or (d). In brief reasons on the point, the trial judge supported the orders by reference to the appellant’s prolonged abuse of a vulnerable child.

(b) The parties’ positions on Appeal

[55] The appellant, with support from the intervener, the Criminal Lawyers’ Association, challenges the constitutionality of making s. 161 orders for offences that occurred before the relevant provisions came into force. He argues that the retroactive application of ss. (a) and (b) contravenes s. 11(i) of the Charter and cannot be justified under s. 1.

[56] The Crown concedes that the retroactive application of ss. 161(1)(a) and (b) amounts to an infringement of s. 11(i) of the Charter. However, the Crown asserts that the provisions can be saved under s. 1 of the Charter.

[57] While the Charter issue was raised for the first time on appeal, the parties agree that it is appropriate for this court to address it. In order to meet its onus under s. 1, the Crown filed fresh evidence on the appeal.

(c) The legislative and jurisprudential history of ss. 161(1)

[58] Prior to 1993, a person who had been convicted of any of a number of sexual offences against children would be automatically guilty of the offence of vagrancy if they were found near a school, park, or other area where children could be. The vagrancy provision, ss. 179(1)(b), was struck down under s. 7 of the Charter as overly broad in the case of R. v. Heywood (1992), 97 C.C.C. (3d) 502 (BCCA), and subsequently confirmed by the Supreme Court of Canada, R. v. Heywood, [1994] 3 S.C.R. 761. In order to fill the legislative gap and to give judges the power to impose restrictive orders protecting children from convicted sexual predators, in 1993, Parliament very quickly enacted ss. 161(1) of the Criminal Code, which read as follows when enacted:

161. (1) – Order of prohibition

Where an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 736, of an offence under section 151, 152, 155 or 159, subsection 160(2) or (3) or section 170, 171, 271, 272 or 273, in respect of a person who is under the age of fourteen 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 fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; or

(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 fourteen years.

[59] Of significance for this analysis, Parliament did not make the provision apply retroactively to offences committed before it came into force in 1993. As a result, in a number of cases after 1993 where an order was sought under ss. 161(1) for an offence that had been committed before 1993, courts declined to apply the provision. In R. v. Hudson, [1997] O.J. No. 5151 (C.A.), for example, McMurtry C.J.O. stated, at para. 1, that “the s. 161 order was illegal as s. 161 cannot operate retroactively.” See also R. v. Jewell; R. v. Gramlick (1995), 100 C.C.C. (3d) 270 (Ont. C.A.), at p. 17; R. v. Stuckless, [1997] O.J. No. 6367 (Gen. Div.), at para. 117-120 (per Watt J. as he then was), rev’d on other grounds, R. v. Stuckless (1998), 41 O.R. (3d) 103 (Ont. C.A.); R. v. M.E., 2012 ONSC 1078, at para. 77; and R. v. Boudreau, 2012 ONCJ 322, at para. 67.

[60] In 2005, the section was amended. [^1] These amendments included the addition of ss. 161(1.1), which made s. 161 orders available for listed historical sexual offences. By making s. 161 apply to listed historical sexual offences, Parliament expressed its intention to apply the section retrospectively and to thereby rebut the presumption against retrospectivity: R. v. K.R.J., 2014 BCCA 382, 316 C.C.C. (3d) 540, at paras. 68-69, aff’d in part, R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 18. The presumption against retrospective application therefore applied to convictions before November 2005, [^2] but not after. As a result, the presumption does not apply to the appellant’s convictions in 2014.

(d) R. v. K.R.J.

(i) Overview

[61] The leading case on the constitutionality of the retroactive applicability of s. 161(1) is R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, where the Supreme Court of Canada addressed the issue but in respect of ss. 161(1)(c) and (d). Since K.R.J. committed his offences before the 2012 amendments (2008-2011), the question brought before the Supreme Court was whether these subsections could be used retroactively to sentence him. The Supreme Court concluded that both ss. 161(1)(c) and (d) infringed upon an appellant’s s. 11(i) Charter right. While ss. (d) could be saved by s. 1 of the Charter, ss. (c) could not. As a result, only ss. (d) could be applied retroactively to form part of the appellant’s sentence.

(ii) Section 11(i) of the Charter

[63] Section 11(i) of the Charter states that:

Any person charged with an offence has the right

(i) If found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[64] Karakatsanis J., writing for the majority, noted at para. 22 that:

Along with s. 11(g) – which protects an accused’s right “not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence” – s. 11(i) constitutionally enshrine[d] the fundamental notion that criminal laws should generally not operate retrospectively.

[65] This is because retroactive laws can threaten the rule of law by “undercutting the integrity of the laws currently in effect”, cause unfairness to accused persons who are entitled to the certainty of the law, and undermine public confidence in the administration of justice: at paras. 24-25.

(iii) Whether ss. 161(1)(c) and/or (d) infringe s. 11(i) of the Charter

[66] Karakatsanis J. then turned to whether ss. (c) and (d) amounted to a “punishment” under s. 11(i). She concluded, at paras. 50-57, that they did for three main reasons: (1) orders arising from the 2012 amendments are a “consequence of conviction” forming “part of the arsenal of sanctions to which an accused may be liable”; (2) ss. 161(1)(c) and (d) orders are imposed to further sentencing goals, such as the protection of children “by separating offenders from society, assisting in rehabilitation, and deterring sexual violence”; and (3) both ss. 161(1)(c) and (d) can have a significant impact on the liberty and security of the offender.

[67] The Crown in this appeal concedes that ss. 161(1)(a) and (b) equally meet the criteria set out by Karakatsanis J., and consequently amount to punishments.

[68] As a result, the retroactive application of ss. 161(1)(a) and (b) contravenes s. 11(i) of the Charter.

(iv) Whether ss. 161(1)(c) and/or (d) can be saved by s. 1 of the Charter

[69] Section 1 of the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

[70] Based on the test from R. v. Oakes, [1986] 1 S.C.R. 103, Karakatsanis J. determined that while ss. (d) could be saved by s. 1, ss. (c) could not.

[71] In her analysis, Karakatsanis J. first addressed whether the retroactive application of the 2012 amendments had a sufficiently important objective and then tested that objective in relation to the Oakes test: (1) whether there was a rational connection between the objective of the legislation and the means adopted to achieve it; (2) whether the means adopted were minimally impairing of the infringed right; and (3) whether there was proportionality between the deleterious and salutary effects of the law, “balanc[ing] the interests of society with those of individuals and groups”: see Oakes, at p. 139.

[72] Karakatsanis J. identified the objective of the retrospective application of s. 161, informed by the legislative history, the judicial interpretation, and design of s. 161, all of which confirmed that the overarching goal was the protection of children from sexual violence perpetrated by recidivist offenders. Accordingly, the objective of applying the 2012 amendments retroactively was to better protect children from the risks posed by offenders, like the appellant, who committed their offences before, but were sentenced after, the provisions came into force.

[73] Karakatsanis J. acknowledged that the protection of children from recidivist sexual predators is clearly a critically important objective. She therefore went on to test that objective against the Oakes proportionality factors, and easily concluded that there was a rational connection between the provisions and the objective of the law, and that the law was minimally impairing of an accused’s s. 11(i) Charter right. The question ultimately came down to whether the salutary effects of the retrospective application of the law outweighed the deleterious effects on an accused.

[74] It is important to remember that when discussing ss. 161(1)(c) and (d), because Karakatsanis J. was dealing with offences that occurred after 2005, ss. (a) and (b) were not being applied retroactively and the issue currently before this court was not raised. In that context, the Supreme Court was considering the new subsections as potential additional restrictions that could be imposed retroactively.

[75] Subsection 161(1)(c), if imposed as part of a sentence, would prohibit a sexual offender from having any contact with a person under 16 years old. Karakatsanis J. recognized this as a “substantial intrusion” on the liberty and security of an offender. She found that the retroactive application of ss. 161(1)(c) would have a significant deleterious effect on the offender, and lead to broader societal harms by punishing people without prior notice, “undermin[ing] fairness in criminal proceedings and compromise[ing] the rule of law”, all of which are “core tenets of our justice system”: at para. 82.

[76] The Crown sought to justify the retroactive application of ss. 161(1)(c) on the basis that more children would be protected from recidivist offenders, and led evidence of the rates of recidivism among sexual offenders against children. However, the Crown’s evidence did not demonstrate how the added prohibition in ss. 161(1)(c) would actually enhance the protection provided by orders under ss. (a) and (b). As Karakatsanis J. wrote, at para. 89, “[i]t was therefore unclear what effect the retrospective operation of ss. 161(1)(c) would have on the recidivism rates identified by the Crown.”

[77] Most important to the Supreme Court was the fact that there was no temporal justification for the enactment of ss. (c). When ss. 161(1)(c) was enacted, Parliament was not responding to an emerging threat or to an evolving social context: at para. 83. In terms of sexual offences resulting from physical proximity, nothing had changed in 2012 with respect to the nature or degree of risk faced by children since the last time ss. 161(1) was amended. Karakatsanis J. found, at para. 83, that:

The dearth of a compelling temporal justification for imposing s. 161(1)(c) retrospectively enhances the damage the provision does to fairness and the rule of law, and thus undermines public confidence in the criminal justice system.

[78] As an example, Karakatsanis J. pointed to the Crown’s record, which suggested that many sexual assaults against children are perpetrated by family members or acquaintances, and responded, at para. 92, that “surely this reality did not just recently come to Parliament’s attention.” Karakatsanis J. concluded that the Crown had not presented a “temporal justification” for the retrospective limitation on an offender’s rights and liberties.

[79] At para. 93, Karakatsanis J. set out the rationale for rejecting the retrospective operation of ss. (c) on the basis that its deleterious effects outweighed the beneficial ones, even in the context of the need to protect children:

Temporal considerations are relevant in this context because, at its root, s. 11(i) is about the timing of changes to penal laws. In this case, it is not Parliament’s decision to increase punishment for sexual offenders that has, by itself, triggered Charter scrutiny – rather, it is Parliament’s decision to reach back in time to impose these enhanced prohibitions on offenders who had no notice of them that offends s. 11(i). Thus, temporal factors that may help explain Parliament’s rationale for circumventing a basic tenet of our criminal law are relevant to the s. 11(i) inquiry. When it comes to s. 11(i), timing can be everything. [Emphasis in original.]

[80] Karakatsanis J. then turned to ss. 161(1)(d), and found that, similar to ss.161(1)(c), there are significant deleterious effects associated with the retrospective application of a complete ban on Internet use, especially in comparison to the previous prohibition in former s. 161(c), which was on Internet communication with children. This constituted a significant deprivation of an offender’s liberty, given the ubiquitous presence of the Internet in our everyday personal, social and economic life. As with ss. 161(1)(c), the imposition of such a punishment without prior notice compromised the fairness of the criminal proceedings and challenged the rule of law, going to the core of the purpose of s. 11(i).

[81] However, unlike for ss. (c), Karakatsanis J. found, at para. 101, that the record presented by the Crown demonstrated a temporal justification for the need to apply ss. 161(1)(d) retrospectively, because:

[Subsection] 161(1)(d) is directed at grave, emerging harms precipitated by a rapidly evolving social and technological context. This evolving context has changed both the degree and nature of the risk of sexual violence facing young persons. As a result, the previous iteration of s. 161 became insufficient to respond to the modern risks children face. By closing this legislative gap and mitigating these new risks, the benefits of the retrospective operation of s. 161(1)(d) are significant and fairly concrete. [Emphasis in original.]

[82] Karakatsanis J. focused on evidence of the proliferation of social media and its use by sexual predators to communicate with children and to publish photographs, creating “[n]ew and qualitatively different opportunities to harm young people”: at para. 107.

[83] By specifically addressing the acceleration of advances in Internet technology and consequent behaviours, Karakatsanis J. concluded, at para. 110, that Parliament was filling a “legislative gap” that both enhanced the salutary effects of the section and also mitigated its deleterious effects:

From the perspective of public confidence in the criminal justice system, the retrospective operation of a law that was enacted to respond to a swiftly changing social context and emerging threats seems less unfair and less inconsistent with the rule of law than the retrospective operation of a law that was not enacted for a compelling temporal reason.

[84] Following this analysis, Karakatsanis J. held that Parliament had a compelling temporal justification for giving ss. 161(1)(d) retrospective effect.

[85] Karakatsanis J. subsequently weighed the deleterious effects of retrospectivity against other factors that tipped in favour of finding that the provision was saved by s. 1: the harms at stake (i.e. sexual offending against young people) are powerful; the statutory regime for imposing s. 161 orders is highly tailored and discretionary; an Internet prohibition, while invasive, is not among the most onerous of punishments; and new risks from the rapidly evolving Internet technology make the salutary effects of ss. 161(1)(d) more concrete and mitigate the adverse impact of the law on fairness.

(e) Application of the K.R.J. principles

[86] As mentioned above, the Crown in this case agrees that ss. 161(1)(a) and (b) constitute a punishment and contravene s. 11(i) of the Charter. The sole question for this court is whether the Crown has met its burden that the Charter infringement is justified under s. 1, applying the analysis undertaken by Karakatsanis J. in K.R.J.

[87] Turning to s. 1 and the Oakes factors, the retroactive application of ss. (a) and (b) is rationally connected to the purpose of the section, i.e. to protect children from recidivist sexual offenders, and minimally impairs the rights of offenders. The latter conclusion on minimal impairment has two bases, as in K.R.J., at para. 76: (1) the orders allowed under s. 161 are discretionary and tailored to the offender, and (2) a prospective-only application of the provisions would compromise the full objective of Parliament to protect children from recidivist offenders. In that regard, I note that the offences perpetrated by such offenders can go undetected for many years, as occurred with the appellant in this case.

[88] The crux of the appeal therefore turns, as it did in K.R.J., on the proportionality analysis.

[89] First, I would not give effect to the Crown’s argument that the deleterious effects of retroactively applying ss. (a) and (b) are mitigated by the fact that when the appellant committed the offences in question, the vagrancy law (ss. 179(1)(b)) was in effect and gave him notice, at least of the restrictions related to ss. (a), i.e. attending at places where children could be, such as parks, school playgrounds and swimming pools. That law was declared unconstitutional. An unconstitutional law is invalid. No cases were cited in support of the proposition that an invalid law can provide an accused with notice of a potential sentence to be handed down after its declaration of invalidity. In addition, the vagrancy law did not prohibit the conduct covered in ss. (b) regarding employment and volunteer activities that involve children.

[90] As a result, the deleterious effects of ss. (a) and (b) are similar to those described by the Supreme Court in respect of ss. (c) and (d). The retroactive application of the provisions compromises fairness in criminal proceedings and the rule of law. In other words, they undermine the core purpose of s. 11(i) of the Charter.

[91] The salutary effect of ss. (a) and (b) is the protection of children from recidivist sexual predators by limiting the opportunities for such offenders to have physical access to children both in public places and in private employment and volunteer settings. The common-sense proposition that limiting the opportunity to have contact with children will limit the opportunity to offend is supported by the evidence of Dr. Ramshaw, which was filed by the Crown on appeal. The salutary effect is clearly significant.

[92] The fact that as recently as 2018, there were 41 convictions in the Ontario Court of Justice for pre-1993 sexual offences, in 13 of which s. 161 orders were made, and 24 such convictions in the Superior Court (with no available information on the number of s. 161 orders), demonstrates that even 28 years later, there is still a purpose for the retroactive application of the law. [^3]

[93] From the legislative record provided by the Crown, there is no explanation for why Parliament did not make these provisions retroactive when it enacted s. 161 in 1993, after the vagrancy law was struck down. One could speculate that it was an oversight, given that all offences committed before 1993 and the offenders who committed them would not be subject to this important law enacted with urgency. However, if it was an oversight, it was not addressed by Parliament until 2003 and was only corrected with the enactment of the revisions to s. 161 in 2005.

[94] The Supreme Court’s direction from K.R.J. is that for the salutary effects of the retrospective application of a sentencing law that contravenes s. 11(i) to outweigh its deleterious effects, there must be a temporal justification for its enactment at the time it was made retroactive, and Parliament must be filling a legislative gap created by a development in society or in the application of the law as it existed, which Parliament could not have anticipated before that time.

[95] Although not necessary to decide, for the purpose of the analysis, I would suggest that had Parliament made s. 161 retroactive on enactment in 1993, it would have been filling a legislative gap that it could not have anticipated, that was created when the vagrancy law was struck down, and that would have constituted the required temporal justification for making the law apply retrospectively.

[96] However, Parliament allowed 12 years to go by before addressing the situation, during which time, as discussed above, a number of courts that were asked to apply the section retroactively refused to do so. Further, the record provided by the Crown on this appeal that includes the Hansard references to the introduction, discussion and ultimate approval of the revisions in 2005, does not disclose any temporal justification for making the provisions retroactive at that time. Adopting Karakatsanis J.’s comment in K.R.J., the fact that sexual predators of children have a high rate of recidivism is not new information. Addressing that very issue was the purpose of the former vagrancy provision and of s. 161.

[97] I have to conclude that the retroactive application of ss. 161(1)(a) and (b), enacted in 2005, cannot meet the temporal justification criterion because it did not fill a legislative gap at that time that Parliament could not have anticipated in 1993. Without the temporal justification, the salutary effects of retroactive application to pre-1993 offences and offenders, although very important, cannot outweigh the deleterious effects on those offenders, including the appellant. As a result, the retrospective application of ss. 161(1)(a) and (b) to offences committed before their enactment in 1993, is not saved by s. 1 of the Charter.

[98] I would therefore allow the sentence appeal and set aside the lifetime prohibition orders made under ss. 161(1)(a) and (b).

F. Conclusion

[99] I would dismiss the conviction appeal and the application to admit the fresh evidence, allow the sentence appeal and set aside the s. 161 orders.

Released: June 2, 2021 “K.F.” “K. Feldman J.A.” “I agree. M. Tulloch J.A.” “I agree. C.W. Hourigan J.A.”

[^1]: Bill C-2, An Act to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st sess., 38th Parl., 2005 (assented to 20 July 2005). [^2]: Section 161(1.1) came into force on November 1, 2005. [^3]: This information was provided by the Crown. Presumably s. 161 orders were made retroactively without any challenge under s. 11(i).