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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SENTENCING-SECTION 161 PROHIBITIONS

R. v. R.J.H., 2021 BCCA 54, FEBRUARY 9, 2021.

FACTS: The appellant pleaded guilty to possessing and making available or distributing child pornography, and was sentenced to a period of 30 months of imprisonment. The sentencing judge also imposed a section 161 prohibition for a period of 25 years. The accused appealed from sentence, seeking to have the length of the prohibition order reduced.

HELD: The appeal was allowed. The British Columbia Court of Appeal amended the section 161 order “to permit contact with customers or co-workers in a permitted employment context, as long as the employer provides supervision by an employee, or by such other means as approved by the court” and reduced “the duration of the orders under s. 161(1)(a) to (c) to a period of 15 years”.

The Court of Appeal indicated that section 161 orders “should be carefully tailored to the circumstances of the offender and the nature and risk that offender poses to children upon release into the community” (at paragraph 18).  The Court of Appeal also indicated that the duration of such an order should “take into account the length of the sentence, the age of the offender upon release into the community, and the prospects for rehabilitation” (at paragraphs 19 to 21):

The evidentiary basis will naturally include everything that is considered for the overall sentence. However, given the protective function of s. 161 prohibitions, the focus should be on the offender’s specific risk and what is reasonably required to minimize that risk in the offender’s particular circumstances. As the court in A.(R.K.) held, it is not necessary for the offender to have a record of related convictions or to have committed the offence in one of the proscribed circumstances set out in s. 161(1). In my view, the scope and duration of the prohibition is informed primarily by the nature and extent of the risk, with emphasis on the risk factors particular to the offender and the pool of potential victims. The duration should also take into account the length of the sentence, the age of the offender upon release into the community, and the prospects for rehabilitation.

Finally, it is important to take into account the principles expressed in Friesen when considering s. 161 orders. While Friesen did not address these orders, the court’s message that sentences “fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children” is important. Although the guidance provided in Friesen was focused on sentencing principles for the offence of sexual interference, the court made it clear that the principles are relevant to sentencing for other sexual offences against children, including child pornography offences: see Friesen at para. 44 and footnote 2.

Moreover, as this court held in Williams, the analytic approach in Friesen that focuses on the protection of children from sexual exploitation should inform the s. 161 analysis established in K.R.J., and reliance on precedents that pre-date Friesen may be of limited assistance to sentencing judges and appellate courts. I note as well that an emphasis on the protection of children from wrongful exploitation and harm takes on increased importance the higher the risk of re-offence and the younger the victim: see Friesen at paras. 123, 134–135.