R. v. BEVAN, 2024 BCCA 414, DECEMBER 19, 2024.
FACTS: The accused was convicted of the offence of sexual interference. He was sentenced to a period of incarceration. In addition, a section 161(1)(c) Criminal Code prohibition was imposed, prohibiting him from:
Having any contact or communications, directly or indirectly, or being in the presence of any person under the age of 16.
[Court of Appel’s emphasis]
The accused appealed from sentence, arguing that the underlined words were invalid, because they did not comply with the wording of section 161(1)(c). That section states as follows:
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) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; The issue raised in this appeal is a narrow one: whether s. 161(1)(c) of the Criminal Code, which authorizes orders prohibiting an offender from having “any contact” with a person under the age of 16 without appropriate supervision, permits such orders to include a prohibition from “being in the presence of” an underage person. (1)
The British Columbia Court of Appeal indicated that “[t]he issue raised in this appeal is a narrow one: whether s. 161(1)(c) of the Criminal Code, which authorizes orders prohibiting an offender from having ‘any contact’ with a person under the age of 16 without appropriate supervision, permits such orders to include a prohibition from ‘being in the presence of’ an underage person” (at paragraph 1).
HELD: The appeal was allowed and the wording of the order was varied to read as follows:
Having any contact or communications, directly or indirectly, with any person under the age of 16.
[Court of Appeals’ emphasis]
The Court of Appeal held that though the wording was invalid, it would “not go so far as to say that sentencing judges cannot include the word ‘presence’ in whatever conditions or exemptions they consider appropriate” (at paragraphs 16 and 17):
Applying the modern rule of statutory interpretation, I would interpret s. 161(1)(c) to authorize only orders prohibiting offenders from having any unsupervised contact or communication with a person under 16. This is consistent with the protective purpose of s. 161 in the context of the sentencing regime in the Criminal Code. Contrary to the Crown’s submission, without an express prohibition from being in the presence of underage children in a non-public setting, the significant risk of an offender breaching a s. 161(1)(c) order does not support a conclusion that this is the type of conduct contemplated by the “no contact” language in this provision.
That said, I would not go so far as to say that sentencing judges cannot include the word “presence” in whatever conditions or exemptions they consider appropriate. Judges have considerable latitude under s. 161 to craft prohibition orders tailored to address the nature and degree of risk posed by the offender in question and to provide clarity so that the offender may know what is or is not prohibited. For example, neither party in this case suggested that the use of the word “presence” in exceptions (ii), (iii) or the bracketed portion of (iv) of this s. 161 order was inappropriate, and I agree.
