July 20, 2016
For immediate release
Ottawa – Tomorrow, Thursday July 21, 2016, the Supreme Court of Canada will issue its decision in KRJ v. Her Majesty the Queen. At issue in this case is whether an absolute ban on using the Internet, imposed as a consequence of a crime, constitutes “punishment” for the purposes of criminal sentencing law. The BCCLA is an intervenor in the case.
Section 11(i) of the Canadian Charter of Rights and Freedoms protects against the imposition of a retrospective punishment – a punishment that was not in force when the offender committed his or her offence. If the punishment for an offence is changed after the offence is committed but before sentencing, the lesser punishment will be applied. This is critical to the rule of law. In general, individuals accused of crimes must be tried and punished according to the laws that existed at the time of their offence.
At the time the accused committed the offences at issue in this case (one count of incest and one count of making child pornography), the Criminal Code allowed a sentencing judge to impose a condition prohibiting the offender from using a computer to communicate with a person under the age of 16. In 2012, as part of the government’s overhaul of criminal sentencing laws, the Safe Streets and Communities Act added a provision allowing the sentencing judge to make an order completely prohibiting the offender from using the Internet for any purpose, and for any length of time. This is a significantly more severe consequence than what existed at the time the accused committed the offences.
The question before the Court in this case is whether these provisions constitute “punishment” and thus engage s. 11(i) of the Charter. A majority of the BC Court of Appeal held that the provisions are not intended to punish offenders, but are meant instead to protect the public, and therefore s. 11(i) does not apply. Measures imposed as a consequence of crime that are meant to protect the public, such as a requirement to provide a DNA sample or registration on the sex offender registry, are not considered to be “punishment”; for those kinds of consequences, the protections afforded by s. 11(i) do not apply.
The BCCLA intervened in this case to advocate moving away from a categorical approach to what is “punitive” versus “protective”. We emphasized that provisions can be both: they can offer protection to the public while also constituting punishment of the accused. We argued that when a law meets the formal requirements of validly enacted criminal law, the protections of s. 11(i) should apply.
The BCCLA is represented by Michael Feder and Emily MacKinnon of McCarthy Tetrault LLP.
What: Supreme Court of Canada to rule in K.R.J. v. Her Majesty the Queen.
When: Thursday, July 21, 2016 at 6:45 am PT/ 9:45 am ET.
Who: BCCLA representatives available for comment