



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brar, 2016 ONCA 724

DATE: 20161005

DOCKET: C61285

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Majinder Singh Brar

Applicant/Appellant

Anna Cooper and Erin Dann, for the appellant

Lisa Henderson, for the respondent

Heard: July 8, 2016

On appeal from the sentence imposed on June 26, 2015 by
    Justice Jane A. Milanetti of the Superior Court of Justice, sitting without a
    jury.

Rouleau J.A.:

[1]

On May 20, 2015, Mr. Brar was convicted of sexual assault,
    prostitution of a person less than 18 years of age, two counts of failure to
    comply with a recognizance and three counts of child luring. Mr. Brar was
    sentenced to six years aggregate less 39 months of pre-trial custody. In
    addition to other corollary orders, prohibition orders were imposed under ss.
    161(1)(b), (c) and (d) of the
Criminal Code
.

[2]

Mr. Brar is 35 years old, married and has no children. He pleaded
    guilty, expressed remorse and took full responsibility for the offences. He had
    no prior criminal record.

[3]

On his sentence appeal, Mr. Brar argued that the sentencing judge
    erred in failing to grant enhanced credit for pre-sentence custody. He also challenged
    both the fitness of the ss. 161(1)(c) and (d) orders and the constitutionality
    of the retrospective operation of those subsections as they came into force
    after the offences were committed but before the sentence was imposed
.


[4]

At the time of oral argument in this appeal, the issue of the
    retrospective operation of ss. 161(1)(c) and (d) was under reserve before the
    Supreme Court of Canada. Submissions were made on the fitness of the s. 161
    orders and the panel agreed to reserve judgment on this ground of appeal
pending release of the Supreme Courts decision.
The remainder of the sentence appeal was dismissed.

[5]

The Supreme Court released its
    decision on July 21, 2016:
R. v. K.R.J.
, 2016 SCC 31, [2016] S.C.J. No. 31. The parties have provided the court
    with written submissions as to the impact
K.R.J.
has on the sentence and the panel is now prepared to
    issue judgment on the s. 161 issue.

A.

Position of the Parties Following the
R.
v
. K.R.J.
Decision

[6]

In
K.R.J.
, the majority of the Supreme Court, per Karakatsanis
    J., held that the retrospective operation of ss. 161(1)(c) and (d) constitutes
    a violation of an offenders right to the benefit of the lesser punishment
    under s. 11(
i
) of the
Canadian
    Charter of Rights and Freedoms
. It further
    held that while the retrospective operation of the no contact prohibition in s.
    161(1)(c) is
not
a reasonable limit under s. 1 of the
Charter
, the retrospective operation of the Internet
    prohibition in s. 161(1)(d)
does
constitute a reasonable limit and is saved by s. 1.

[7]

In their submissions made subsequent to the Supreme Courts ruling in
K.R.J.
,
    the parties jointly submitted that the condition in the order imposed under the
    current version of s. 161(1)(c) should be struck and an order under the former version
    of that subsection be made in its place.

[8]

When the appellant committed the offences, s. 161(1)(c) of the
Criminal
    Code
read as follows:

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: []

(c) using a computer system within the meaning of subsection
    342.1(2) for the purpose of communicating with a person under the age of 16
    years.

[9]

The parties relied on their earlier oral and written submissions as well
    as the
K.R.J.
decision with respect to the appropriateness of the s.
    161(1)(d) order. That issue, therefore, remains in dispute. Section 161(1)(d)
    provides that a sentencing judge can prohibit an offender from:

(d) using the Internet or other digital network, unless the
    offender does so in accordance with conditions set by the court.

B.

Fitness of the Internet Prohibition Order

[10]

The
    sentencing judges order under s. 161(1)(d) consisted of a 20-year prohibition
    on Internet use except when the appellant is at employment and prohibited the
    appellant from owning and/or using any mobile device with Internet
    capabilities.

(1)

Position of the parties

[11]

The
    appellant argues that the s. 161(1)(d) order was demonstrably unfit and
    therefore justifies this courts intervention pursuant to s. 687 of the
Criminal
    Code
:
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at p. 565. First,
    he submits that s. 161(1)(d) does not permit a court to impose a
    prohibition on
owning
a mobile device with Internet
    capabilities. Further, he maintains that the prohibition on Internet use is
    overbroad and not adequately tailored to his circumstances.

[12]

According
    to the appellant, banning a young adult from using the Internet and from owning
    Internet capable devices for 20 years is tantamount to banning an individual
    from meaningful participation in modern life. The Internet is the dominant
    medium through which events are planned, services are accessed and directions
    are found. The appellant argues that such a blanket prohibition will rarely be
    warranted and that orders pursuant to this provision must be carefully tailored
    to the individuals particular circumstances and to the nature of the impugned
    conduct.

[13]

In
    response, the Crown maintains that the prohibition is appropriate in the
    circumstances and consistent with the public protection purpose of s. 161 as
    expressed in
R. v. DAngelo
, [2002] O.J. No. 4312 (C.A.), at paras.
    19-20. Should the conditions imposed later prove to be unnecessary or
    inappropriate due to a change in circumstances, the court, on application by
    the offender or the prosecutor, has the authority under s. 161(3) to vary the
    conditions prescribed in the order.

[14]

In
    the Crowns submission, the restrictions are appropriate at the present time
    and are required given the severity of the offences for which the appellant was
    convicted. Should the appellants circumstances change, he is at liberty to
    seek to vary the order.

[15]

The
    Crown further submits that the sentencing judges decision is entitled to
    deference. The sentencing judge noted the concern that the order should not be
    unduly limiting [to] ones employment opportunities and recognized that the
    sentence imposed would present a significant lifestyle limitation, particularly
    to a young person. Taking all of the factors into account, she nonetheless
    concluded that the limitation was warranted given the nature of the offences.

(2)

Discussion

(a)

Sentencing principles

[16]

It
    is well established that, in cases of sexual crimes involving children, the principles
    of denunciation, deterrence and public safety must take precedence over other
    recognized objectives of sentencing, including rehabilitation:
R. v.
    Woodward
, 2011 ONCA 610, [2011] 107 O.R. (3d) 81, at para. 39; also see
Criminal Code
, s. 718.01. The necessary primary focus on denunciation,
    deterrence and public safety in such cases does not, however, mean that those
    objectives trump all other sentencing concerns: see
R. v. Branton
,
    2013 NLCA 61,341 Nfld. & P.E.I.R. 329, at paras. 24-25. The court must,
    nevertheless, remain cognizant of the need to avoid an order under s. 161(1)(d)
    that might unduly prevent a first time offender from making serious
    rehabilitative efforts in light of his particular circumstances: see
R. c. Perron
,
    2015 QCCA 601, 122 W.C.B. (2d) 421, at para. 36.

(b)

The Supreme Courts analysis in
R. v. K.R.J.

[17]

In
K.R.J.,
the majority of the Supreme Court confirmed that orders made
    under s. 161 have a predominantly protective purpose, that is, to shield
    children from sexual violence (at para. 44). In its analysis of s. 161(1)(d),
    the court addressed the need for such a provision. Section 161(1)(d) was
    enacted in 2012 to close a legislative gap created by rapid social and
    technological changes. Those changes have created a space for harmful behaviour
    not captured by the former iteration of s. 161, which allowed sentencing judges
    to prohibit offenders only from using computer systems to contact children
    directly. The new harmful behaviours now captured by s. 161(1)(d) include
    accessing and distributing child pornography and contacting other adults for
    the purposes of planning and facilitating criminal behaviour (
K.R.J.
,
    at para. 107). With the broadened powers under s. 161(1)(d), the court is better
    able to monitor offenders use of the Internet thereby limiting their
    opportunities to offend and preventing such behaviour (
K.R.J.
, at
    para. 108).

[18]

The
    Supreme Court emphasized that these orders are discretionary and flexible, as
    s. 161 was designed to empower courts to craft tailored orders to address the
    nature and degree of risk that a sexual offender poses to children once
    released into the community (at para. 47). Because these orders can have a
    significant impact on the liberty and security of offenders and can attract a
    considerable degree of stigma, they will be justified where the court is
    satisfied that the specific terms of the order are a reasonable attempt to
    minimize the risk the offender poses to children (
K.R.J.
, at paras. 48,
    54). The terms of such orders must, therefore, carefully respond to an
    offenders specific circumstances (at para. 48).

(c)

Application to this appeal

[19]

In
    the present case, it is apparent that some form of s. 161(1)(d) order was
    appropriate. Mr. Brars conduct was predatory and egregious, particularly when
    viewed in combination with his breach of recognizance conditions. It warrants both
    a significant term of imprisonment for the purposes of denunciation and
    deterrence, as well as strict community supervision measures upon his release for
    the purpose of protecting the public. Still, this court must consider whether
    the prohibition imposed by the sentencing judge under s. 161(1)(d) is reasonably
    tailored to Mr. Brars specific circumstances.

[20]

In
    her reasons for imposing such a broad s. 161(1)(d) order, the sentencing judge
    acknowledged the hardship the order would cause to the appellant and also noted
    that it would impose a limit on his employment opportunities. She did not,
    however, seek to tailor the order to carefully respond to Mr. Brars specific
    circumstances, nor to relate the terms of the order to the type of risk Mr.
    Brar poses. In fairness to the sentencing judge, she did not have the benefit
    of the Supreme Courts decision in
K.R.J.

[21]

Mr.
    Brars offending conduct consisted of contacting teenaged children via social
    networks on the Internet for the purpose of luring them into having sexual relations
    with him in purported exchange for payment. A prohibition on any further
    contact with youth via the Internet, for any purpose, is captured by the
    prohibition order imposed under the former version of s. 161(1)(c). The parties
    agree that such an order should be put in place in substitution for the s.
    161(1)(c) order imposed by the sentencing judge that has been found to be
    unconstitutional in
K.R.J.

[22]

The
    record, however, does not indicate that Mr. Brar posed many of the risks that
    s. 161(1)(d) was enacted to prevent. There is no allegation that he possessed
    or distributed child pornography, nor that he communicated or collaborated with
    other adults online to facilitate or plan his offences.

[23]

The
    sentencing judges 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 employers premises. Moreover, given the
    appellants 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.

[24]

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 para. 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, banking, reading the news, watching
    movies, attending classes and so on.

[25]

While
    I acknowledge, as noted by the Crown, that the court has the power to vary a s.
    161 order on application of the offender or prosecutor, such a variation
    requires a change of circumstance and imposes a significant burden on the
    offender. Variation of prohibition orders under s. 161(3) is not a matter of
    course but requires a full hearing. The fact that s. 161 orders may later be
    varied does not justify imposing orders that create overbroad or unreasonable
    restrictions on an individuals liberty.

[26]

In
    the present case, I agree that because of the nature of the offences and Mr.
    Brars conduct, the imposition of a s. 161(1)(d) order is warranted to minimize
    the risk Mr. Brar poses to children. Imposing strict limits on Mr. Brars
    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. Brars
    rehabilitation efforts and so broad as to make a breach almost inevitable with
    the attendant criminal consequences under s. 161(4).

[27]

Further,
    I agree with the appellants submissions that the sentencing judge erred in
    imposing a prohibition on owning or using a smart phone, tablet or any mobile
    device 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.

[28]

As
    a result, I would substitute the sentencing judges s. 161(1)(d) order with an
    order which imposes restrictions on Mr. Brars use of the Internet tailored
    along the lines of the order imposed in
R. c. Perron.
Specifically,
    Mr. Brar will be prohibited from accessing any illegal content and from participating
    in any manner in any social network, online forums or chat rooms.

C.

Disposition

[29]

For
    these reasons, I would allow the sentence appeal in part and strike the
    prohibition order made by the sentencing judge under ss. 161(1)(c) and (d) and
    substitute the following:

1)

Pursuant to s. 161(1)(c) of the
Criminal Code
, for a period of
    20 years following his release from custody Mr. Brar will not use a computer
    system within the meaning of s. 342.1(2) for the purpose of communicating with
    a person under the age of 16 years, except for immediate family members.

2)

Pursuant to s. 161(1)(d) of the
Criminal Code
, for a period of
    20 years following his release from custody Mr. Brar will not use the Internet
    or any similar communication service to:

a)

access any content that violates the law;

b)

directly or indirectly access any social media sites, social network,
    Internet discussion forum or chat room, or maintain a personal profile on any
    such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or
    similar service).

Released: (GP) October 5, 2016

Paul Rouleau J.A.

I agree C.W.
    Hourigan J.A.

I agree G. Pardu
    J.A.


