



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Hooyer, 2016 ONCA 44

DATE: 20160119

DOCKET: C59492

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Raymond Hooyer

Appellant

Damien Frost and Rebecca Young, for the appellant

Robert Gattrell, for the respondent

Heard: December 7, 2015

On appeal from the convictions entered on theft and fraud
    on July 10, 2014 by Justice Kevin A. Sherwood of the Ontario Court of Justice
    at Simcoe, Ontario, and on appeal from the sentences imposed on October 14,
    2014.

Doherty J.A.:


I



[1]

After a trial by judge alone, the appellant was convicted of one count
    of fraud contrary to s. 380 and one count of theft contrary to s. 331 of the
Criminal
    Code
.  On the theft charge, the trial judge imposed a sentence of two
    years less a day and made a restitution order in favour of the estate of Paul
    Carroll in the amount of $378,552.67.  On the fraud charge, the trial judge sentenced
    the appellant to six months concurrent and made a restitution order in favour
    of Veterans Affairs Canada in the amount of $2,224.89.  The trial judge also
    made an order under s. 380.2(1) prohibiting the appellant from ever seeking,
    obtaining or continuing any employment or becoming a volunteer in any capacity
    that would involve authority over the real property, money or valuable security
    of another person.

[2]

The appellant appealed conviction and sentence.  At the conclusion of oral
    argument, the court advised counsel that the conviction appeal was dismissed
    and that the court would not vary the jail term imposed.  The court reserved on
    two other aspects of the sentence appeal.


II



[3]

Mr. Paul Carroll entered a long-term care facility in February 2004.  He
    had dementia and his condition worsened as time passed.  Mr. Carrolls wife had
    a power of attorney over his property.  She took care of him after he entered
    the long-term care facility.

[4]

The appellant had known the Carrolls since he was a boy.  As they grew
    older, he visited them regularly and assisted in some of their daily living
    needs.  He was named as the substitute power of attorney for Mr. Carroll.  The
    appellant was also named as the residual beneficiary in both Mr. and Mrs. Carrolls
    wills.

[5]

Mrs. Carroll died in September 2004 and the appellant assumed control
    over Mr. Carrolls property under the power of attorney.  He retained control
    until July 2011.  During those seven years, the appellant moved into the
    Carrolls home and treated it as if it was his own; dissipated all of Mr.
    Carrolls assets; and spent almost the entirety of the income earned by Mr.
    Carrolls assets during that time period.  According to the Agreed Statement of
    Facts, the appellant diverted $378,552.67 to his own use and benefit.  The
    appellant paid no attention to Mr. Carrolls care.  He did not see Mr.
    Carroll for several years before his death.  The appellant repeatedly failed to
    pay Mr. Carrolls monthly bills at the long-term care facility.  The
    appellants habitual non-payment caused the facility to downgrade Mr. Carrolls
    accommodation.  Mr. Carroll died in 2013.


III



[6]

On the fraud charge, the Crown alleged that the appellant submitted six
    invoices from the long-term care facility where Mr. Carroll resided to the
    insurer for Veterans Affairs Canada.  Mr. Carroll, as a veteran, was entitled
    to have part of the monthly payments owed to the long-term care facility paid
    for by Veterans Affairs Canada.  The Crown alleged that the appellant submitted
    the invoices to Veterans Affairs Canada; making a claim for reimbursement under
    the Veterans Independence Program.  On three occasions, the insurer mailed
    reimbursement cheques to the appellant.  He deposited those cheques into
    Mr. Carrolls bank account and, taking advantage of his control over that
    account, used the money as he saw fit for his own personal benefit.  None of
    the money was paid to the long-term care facility.  The appellant received
    $2,224.89 from Veterans Affairs.

[7]

Nothing more need be said about the fraud charge.  The appellant
    virtually admitted the offence in the agreed Statement of Facts and in his
    cross-examination.  The arguments raised on the conviction appeal go to the
    trial judges conviction on the theft charge.  Nothing argued on the appeal
    puts the validity of the fraud conviction in doubt.


IV



[8]

On the theft charge, the Crown alleged that the appellant had misused
    his power of attorney over Mr. Carrolls property.  The Crown contended that
    the appellant had misappropriated Mr. Carrolls assets to his own purposes and
    left Mr. Carroll so destitute that  despite his substantial assets and income
    stream  he had to rely on charity for things as basic as clothing and other
    personal items.

[9]

The Agreed Statement of Facts and supporting documents demonstrated that
    the appellant exercised full control over Mr. Carrolls assets under the
    authority of the power of attorney.  By the time the appellant surrendered the
    power of attorney, Mr. Carroll had $18 in his bank account, owed about $16,000
    to the long-term care facility, and $13,000 in back taxes on his home.  The
    appellant used Mr. Carrolls assets and Mr. Carrolls income for a variety of personal
    uses.  He purchased a vehicle valued at $37,000, lent a friend $15,635 to
    purchase another vehicle, and made cash withdrawals totalling thousands of
    dollars to pay his day-to-day living expenses.  The appellant also lived rent
    and expense free in Mr. Carrolls home throughout the time that he had the
    power of attorney.

[10]

The
    appellant testified.  He indicated that he understood from a conversation he
    had with Mrs. Carroll, sometime shortly before her death in September 2004,
    that should he assume the power of attorney over Mr. Carrolls property after
    Mrs. Carrolls death, he would be entitled to use the money as if it was
    mine.  The appellant relied on that statement as authority to do as he wished
    with Mr. Carrolls property.

[11]

At
    trial, the defence argued that:

·

the terms of the power of attorney gave the appellant the power
    to use the money for his own purposes; and

·

even if under the power of attorney the appellant was not
    authorized to use the money for his own purposes, he honestly believed that he
    was entitled to do so, thereby negating the
mens rea
component of the
    offence of theft.

[12]

The
    trial judge examined the terms of the power of attorney in some detail.  As he
    pointed out, the power of attorney incorporated provisions from the
Substitute
    Decisions Act, 1992
, S.O. 1992, c. 30.  Those provisions put the appellant
    in a fiduciary relationship with Mr. Carroll and require him to exercise the
    powers given to him under the power of attorney for Mr. Carrolls benefit.  The
    Agreed Statement of Facts and the appellants own admissions in his
    cross-examination established beyond peradventure that he failed in his fiduciary
    duties to Mr. Carroll.

[13]

On
    appeal, counsel for the appellant accepted that the funds had been used in
    violation of the terms of the power of attorney.  He focussed on the
mens
    rea
requirement.  He argued that the Crown could only establish the
    required
mens rea
by demonstrating beyond a reasonable doubt that the
    appellant knew he was not entitled to use Mr. Carrolls property for his own
    purposes and without regard to Mr. Carrolls needs.  Counsel argued that the appellants
    evidence that Mrs. Carroll told him that he could use the money as if it was mine
    provided a basis for a reasonable doubt on the
mens rea
issue. 
    Counsel submitted that the trial judge did not come to grips with this issue,
    but instead convicted the appellant on the basis that he ought to have known
    that he had a duty to manage Mr. Carrolls assets in Mr. Carrolls best
    interest.

[14]

I
    reject this argument for two reasons.  First, I do not read the appellants
    evidence as an assertion that he believed he could do whatever he wanted with
    Mr. Carrolls assets.  As I read his evidence, particularly his
    cross-examination, he acknowledged that he understood from his conversation
    with Mrs. Carroll that he could use the money as if it were his own, but that
    he was also obligated to take care of Mr. Carrolls needs.  By his own
    admission, the appellant knowingly failed to take care of those needs.  Second,
    even if the appellants testimony provided a basis for doubt on the
mens
    rea
issue, the trial judge rejected the appellants evidence, leaving
    nothing in the evidence to support the appellants contention that he believed
    he could use the money without regard to Mr. Carrolls best interests.

[15]

Looking
    first at the substance of the appellants evidence, he testified in-chief that
    Mrs. Carroll told him that under the power of attorney he could use Mr. Carrolls
    property as if it was mine.  In cross-examination, however, the appellant
    conceded that he knew that the property belonged to Mr. Carroll and that the money
    was not mine to give.  The appellant also acknowledged in cross-examination that
    when Mrs. Carroll told him he could use the assets as if they were his own,
    there was also a discussion about using them to take care of Mr. Carroll.  The appellant
    conceded that he had faltered in meeting his obligation to look after Mr.
    Carrolls needs.

[16]

The
    cross-examination demonstrates that the appellant knew that apart from the use
    he could make of Mr. Carrolls assets for his personal purposes, he was obliged
    to use those assets to look after Mr. Carrolls needs.  The appellant agreed in
    cross-examination that he failed in that obligation.  Even on the appellants
    evidence, the Crown established the necessary
mens rea
.

[17]

Counsel
    for the appellant argued that the appellant did no more in his
    cross-examination than acknowledge a moral as opposed to a legal responsibility
    to look after Mr. Carrolls needs.  He contended that the appellants evidence
    did not support a finding that the appellant knowingly breached the terms of
    the power of attorney.  I do not accept this interpretation of the evidence. 
    However, I will examine the trial judges reasons on the assumption that counsels
    interpretation of the appellants evidence is correct and that it was capable
    of leaving the trial judge with a doubt on the
mens rea
issue.

[18]

The
    trial judge clearly appreciated that the defence rested, in part, on a denial
    of the necessary
mens rea
.  In summarizing that position, he said:

The accuseds evidence was that he was not taking compensation,
    rather he was simply using the funds as his own which he felt he was entitled
    to do based on his discussion with Flora Carroll some three months or so before
    her death.

[19]

After
    analyzing the nature of the duties imposed on the appellant by the power of
    attorney, the trial judge turned to a consideration of the appellants
    evidence.  He observed that aspects of the appellants evidence were
    inconsistent with the facts as had been agreed upon in the Agreed Statement of
    Facts.  The trial judge then said:

At the very best the position taken by Mr. Hooyer is reckless. 
    He freely dealt with a considerable amount of assets of somebody who entrusted
    him to manage those assets for their benefit and he did so without checking in
    any way about his legal abilities, his responsibilities or the nature of the
    authority that had been entrusted to him.

I find that he at least was wilfully blind to the realities
    of the situation.  The circumstances were such that he ought clearly to have
    known that he had a duty to manage and preserve the assets that had been
    entrusted to him particularly for the care of Mr. Carroll.
[Emphasis added.]

[20]

Counsel
    for the appellant contends that these passages demonstrate the trial judges error
    in law.  He correctly points out that the
mens rea
for theft cannot be
    established based on what an accused ought to have known:
R. v. Briscoe
,
    2010 SCC 13, [2010] 1 S.C.R. 411
,
at para. 20.

[21]

The
    trial judges reasons do not, however, stop at the passages quoted above.  In
    those passages, the trial judge indicates that even on the appellants version
    of events, he was reckless and wilfully blind in proceeding as he did in
    respect of Mr. Carrolls assets.  In the very next passage, the trial judge
    made it clear that he did not believe the appellants testimony:

When I weigh the inconsistencies in his evidence, his
    evasiveness, his selective and convenient memory and when I consider his
    evidence with a view to common sense, it is unrealistic and I do not accept his
    evidence.  His explanations are simply incredible and self-serving.  His
    justification is grounded in a conversation that he relates to have had with
    someone who is long since dead.

[22]

The
    trial judges finding with respect to the appellants state of mind appears in
    the following passage:

He acknowledged specifically that in his testimony that
    this was Paul Carrolls money, Paul Carrolls assets and real property. He knew
    that but he converted it, used it, and disposed of it for his personal use.
Despite continuing to withdraw on average hundreds of dollars per week from
    Paul Carrolls bank account from what he acknowledged to be Paul Carrolls
    money, he consistently ignored or refused to pay legitimate and necessary
    expenses for the grantors basic living expenses including his residence,
    nursing care, clothing and personal aids such as a walker and wheelchair or to
    preserve his assets such as his home on which the accused allowed a
    considerable amount of back taxes to accrue.  [Emphasis added.]

[23]

The
    trial judges rejection of the appellants evidence and his finding that the
    appellant knew that the assets belonged to Mr. Carroll when he converted them
    to his own use established the requisite
mens rea
for theft.

[24]

The
    conviction appeal is dismissed.


V



the sentence appeal

[25]

The
    appellant took three objections to the sentence imposed.  First, he submitted
    that the length of the sentence (two years less a day) was demonstrably unfit
    having regard to the appellants antecedents, the positive presentence report,
    and the appellants poor health.  Second, he argued that the sentencing judge
    erred in making a restitution order in favour of Mr. Carrolls estate. 
    Finally, counsel submitted that the trial judge erred in making an order under
    s. 380.2(1) prohibiting the appellant from taking any position involving
    authority over real property, money, or valuable security belonging to someone
    else.  Counsel contended that as the commission of the fraud predated the
    enactment of s. 380.2(1), the prohibition created by that section could not be
    imposed on the appellant.

(i)

The term of imprisonment

[26]

The
    prison sentence of two years less a day imposed by the trial judge was fit. 
    This was an egregious breach of trust committed against a very vulnerable
    victim over several years.  The trial judges reasons reveal a full
    appreciation of the mitigating factors.  He obviously gave those factors
    considerable weight, otherwise a much longer sentence could have been imposed: 
    see
R. v. Kaziuk
,
2012 ONCJ 34,
varied on
    appeal,
2013 ONCA 217
.

(ii)

The restitution order

[27]

The
    trial judge made two restitution orders:  one in favour of Mr. Carrolls estate
    and the other in favour of Veterans Affairs Canada.  The latter, in the amount
    of $2,224.89, has been paid and is not challenged on appeal.  The restitution
    order in favour of the Carroll estate is challenged.

[28]

At
    trial, defence counsel argued against the making of a restitution order in
    favour of the estate on a narrow basis.  The defence argued that a restitution
    order was inappropriate because it would ultimately benefit the appellant, the
    residual beneficiary under the will. Counsel submitted that the proceeds from
    the sale of certain assets forfeited by the appellant to the estate would be sufficient
    to fulfill the bequests in the will to the other named beneficiaries, meaning
    that any other assets in the estate, including the proceeds from a restitution
    order, would go to the appellant.

[29]

The
    trial judge declined to speculate as to who might ultimately benefit from a
    restitution order made in favour of the estate.  As the defence did not
    challenge the quantum of the proposed order, the trial judge made the
    restitution order in the amount requested by the Crown.

[30]

On
    appeal, very little was said about the restitution order.  I understand counsel
    for the appellant to renew the argument made at trial and to submit that a
    restitution order coupled with the period of imprisonment of two years less a
    day renders the sentence unduly harsh.  As at trial, the quantum of the order
    is not challenged.

[31]

I
    agree with the trial judge that the appellants status as the residual
    beneficiary under the will should not preclude the making of a restitution
    order in favour of the estate.  Those responsible for administering the estate will
    determine what steps, if any, should be taken to enforce the restitution order through
    the civil process:  see s. 741(1) of the
Criminal Code
.  The identity of
    the ultimate beneficiary of any proceeds from that enforcement process will no
    doubt factor significantly into that determination.

[32]

The
    argument that a jail sentence of two years less a day is so long as to render
    the restitution order either futile or unduly punitive has no merit.

[33]

I
    would not interfere with the restitution order made by the trial judge in
    favour of Mr. Carrolls estate.

(iii)

The s. 380.2(1) order

[34]

Section
    380.2(1) reads in part:

Where an offender is convicted  of an offence referred to in
    subsection 380(1) [fraud] the court that sentences  the offender, in addition
    to any other punishment that may be imposed for that offence  may make,
    subject to the conditions or exemptions that the court directs, an order
    prohibiting the offender from seeking, obtaining or continuing any employment or
    becoming or being a volunteer in any capacity, that involves having authority
    over the real property, money or valuable security of another person.

[35]

Section
    380.2(2) provides that the order under s. 380.2(1) may be for any period that
    the court considers appropriate.  The order is discretionary and the
    sentencing judge may impose conditions or exemptions.

[36]

At
    trial, the Crown sought, and the defence did not oppose, a lifetime prohibition
    order under s. 380.2(1). The trial judge made the order in the very broad terms
    of the section without any exemptions or qualifications.  Under the terms of
    the prohibition order, the appellant cannot be employed in any job in which he
    may be required to take money, or its equivalent, from a customer on behalf of
    the appellants employer.

[37]

On
    appeal, counsel initially raised s. 11(i) of the
Charter
.  That
    section declares that if the punishment for a crime is varied between the time
    of the commission of the crime and the time of sentencing, an accused is
    entitled to the lesser punishment.  In his factum, counsel submitted that an
    order under s. 380.2(1) was part of the appellants punishment for the fraud
    conviction.  The section came into force in November 2011 (S.C. 2011, c. 6, s.
    4) several months after the fraud on Veterans Affairs was committed.  Counsel
    maintained that the introduction of s. 380.2(1) had increased the punishment
    for fraud by adding a new sanction that had previously been unavailable.  He
    argued that under s. 11(i) of the
Charter
he was entitled to be
    sentenced under the penalty provision as it stood when he committed the offence. 
    Section 380.2(1) was not part of that provision.

[38]

Crown
    counsel in his factum argued that the appellant could not advance the
Charter
claim as he had failed to comply with the constitutional notice requirement in
    s. 109 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43: see
R.
    v. McCann
, 2015 ONCA 451, at paras. 3-7.

[39]

In
    his reply factum, counsel for the appellant abandoned the
Charter
argument,
    presumably because he had not given the necessary notice.  Instead he advanced a
    submission based on principles of statutory interpretation.  He argued that the
    prohibition created by s. 380.2(1) constituted punishment and under the
    prevailing rules of statutory interpretation should be read as applying
    prospectively only, absent a clear indication that Parliament intended the
    section to be applied retrospectively.  Counsel contended that no such
    intention could be gleaned either from the language of the section or from any
    other source used to identify parliamentary intention.

[40]

Crown
    counsel acknowledged that a provision which imposes a true punishment attracts
    the statutory presumption against retrospectivity. He submitted, however, that
    the presumption did not apply to s. 380.2(1) because the section was not
    intended to punish the offender but was intended to protect the public by excluding
    convicted fraudsters from jobs or positions they could use to commit further
    frauds.  Crown counsel submitted that a provision intended primarily for public
    protection does not attract the presumption against retrospectivity even if it
    incidentally imposes a penalty on the individual who is subject to the
    provision: see
Brosseau v. Alberta Securities Commission
, [1989] 1
    S.C.R. 301, at pp. 320-321;
Thow v. British Columbia Securities Commission
,
    2009 BCCA 46, at paras. 44-49.  Crown counsel further submits that if the
    purpose of s. 380.2(1) is the protection of the public from those who have
    engaged in fraudulent conduct in the past, that purpose is served by reading s.
    380.2(1) as applicable to all frauds regardless of whether they were committed
    before or after the enactment of s. 380.2(1).

[41]

The
    distinction the Crown urges between a prohibition that is intended to protect
    the public and only incidentally penalizes the target of the prohibition, and a
    prohibition that is part of the punishment imposed on the offender is reflected
    in the jurisprudence describing the application of the presumption against
    retrospectivity: R. Sullivan,
On the Construction of Statutes
, 6th ed.
(Markham, LexisNexis, 2014), at
    pp. 784-793.  The distinction is also implied in the constitutional protection
    created by s. 11(i) of the
Charter
.  That protection extends only to
    variations for the punishment of the offence and not to other orders which
    are not punitive in nature: see
R. v. Rodgers
, 2006 SCC 15, [2006] 1
    S.C.R. 554
,
at paras. 59-62.

[42]

The
    distinction between sanctions intended to protect the public and those intended
    to punish offenders is difficult to make in the context of sentencing for
    criminal offences.  Many criminal sanctions are designed to both protect the
    public and punish the accused.  In fact, some sanctions protect the public by
    punishing the accused.  The objectives of public protection and punishment often
    cannot realistically be separated and treated as individual and competing
    purposes in the sentencing context.  The reality is that most sentencing
    sanctions do both and will attract the presumption against retrospectivity. 
    This reality is reflected in the oft described general rule that accused are
    entitled to be sentenced according to the law as it stood when the offence was
    committed: see
R. v. Johnson
, [2003] 2 S.C.R. 357, at para. 41;
R.
    v. Wiles
,
2005 SCC 84,
[2005] 3 S.C.R. 895, at
    para. 3;
R. v. Clarke
,
2013 ONCA 7
, 115 O.R.
    (3d) 75, at para. 13.
[1]


[43]

In
    my view, a sanction imposed by the criminal law as a consequence of a
    conviction and as part of the sentencing process will generally, although not
    inevitably, be regarded as punishment for the purposes of applying the
    presumption against retrospectivity even if that sanction also serves to
    protect the public: see
R. v. J.(K.R.)
, 2014 BCCA 382,
316 C.C.C. (3d) 540,
per Groberman J.A., for the court on
    this issue, at paras. 62-65; on appeal to the SCC.  If a prohibition that is imposed
    as part of a criminal sentencing process meaningfully restricts the liberty or
    security interest of an accused, the object of the prohibition is sufficiently
    punitive to attract the presumption against retrospectivity, even if it also serves
    to protect the public.

[44]

The
    approach I favour distinguishes between sentencing sanctions which, while
    serving legitimate criminal law purposes, have no meaningful impact on an
    accuseds liberty or security of the person, and those sanctions which, while
    aimed at public protection concerns, also punish an accused by significantly
    infringing on his liberty or security of the person.

[45]

Employing
    that distinction, a sentencing provision requiring an accused to provide a DNA
    sample upon conviction, or requiring an accused to register with a sex-offence
    registry upon conviction, does not meaningfully impair the accuseds liberty or
    security of the person and would not be regarded as punishment for the purposes
    of the application of the presumption against retrospectivity: see
R. v. Rodgers
,
    at paras. 63-65;
R. v. Cross
, 2006 NSCA 30,
241
    N.S.R. (2d) 349,
at para. 84;
R. v. Dyck
,
2008
    ONCA 309,
90 O.R. (3d) 409, at paras. 79-84.  However, a prohibition that
    significantly limits the lawful activities in which an accused can engage, where
    an accused can go, or with whom an accused can communicate or associate, would
    sufficiently impair the liberty and security of the accused to warrant
    characterizing the prohibition as punishment.  These prohibitions would trigger
    the presumption against retrospectivity: see
R. v. Farler
, 2013 NSCA
    13,
326 N.S.R. (2d) 255,
at paras.125-128;
R. v. J.(K.R.)
,
    at paras.
61-65
[2]
;
R. v. Wiles
, supra, at para. 3;
R. v. Primeau
,
    2015 QCCQ 2028, at paras.
38-40.

[46]

In
    examining the prohibition contemplated by s. 380.2(1) to determine whether it
    sufficiently impairs individual liberty and security of the person to be
    described as punishment, I consider the scope of the sanction as framed in the
    section and not as fashioned in a given case. In my view, the application of
    the presumption against retrospectivity either applies to s. 380.2(1) or it
    does not.  The application of the presumption cannot depend on the specific
    terms of the order made in a given case.  In any event, the order as made in
    the case is identical to the scope of the order contemplated by the section.

[47]

The
    s. 380.2(1) sanction imposed on the appellant excludes him indefinitely from
    participating in a wide variety of otherwise lawful activities
[3]
. 
    These include many forms of employment.  The prohibition could well
    significantly negatively affect the appellants ability to find and maintain
    employment and fully participate within his community.  Like the trial judge in
R. v. Primeau
,

at para. 40
, I would hold that a s.
    380.2(1) order imposes significant restrictions on the accuseds liberty and
    security of the person.  The presumption against retrospectivity applies in
    interpreting the temporal scope of that section.

[48]

Nothing
    in the language of s. 380.2(1) suggests a parliamentary intention to apply the
    sanction to frauds committed before the enactment of the section.  For example,
    there is no reference in s. 380.2(1) to offences that no longer existed when
    the section was enacted:  see
R. v. J.(K.R.)
, at paras. 66-69.  Nor is
    there a transitional provision that could support a retrospective application
    of the section. The court was not referred to anything in the legislative
    history of the provision that would rebut the presumption against retrospectivity.

[49]

I
    would apply the presumption and interpret the provision as applicable only to
    frauds committed after the enactment of the section.  The s. 380.2(1) order
    made by the trial judge must be struck.


VI



Conclusion

[50]

As
    indicated at the end of oral arguments, the conviction appeal is dismissed. 
    The sentence appeal is allowed only to the extent vacating the prohibition
    order made under s. 380.2(1).  Otherwise the sentence remains as imposed by the
    trial judge.

Released: DD  JAN 19 2016

Doherty J.A.

I agree S.E. Pepall
    J.A.

I agree M. Tulloch
    J.A.





[1]
Section 11(i) of the
Charter
of
    course provides a constitutional modification of this general rule. If the
    punishment is decreased between the time of the commission of the offence and
    sentencing, the accused is entitled to be sentenced under the more lenient
    provisions.



[2]
The majority in
R. v. J.(K.R.)
agreed with Groberman J.A., the dissenting judge that the restriction imposed
    by a s. 161 prohibition order was sufficient to attract the presumption against
    retrospectivity but expressly disagreed with Grobermans finding that the same
    restriction constituted punishment under s. 11(i) of the
Charter
: see
R. v. J.(K.R.)
, per Newbury J.A. at
    paras. 94-100.
R. v. J.(K.R.)
has
    been appealed to the Supreme Court of Canada. Judgment is reserved.



[3]
The length and terms of the prohibition can be varied on application by the
    Crown or the accused: see s. 380.2(3).


