The BC Civil Liberties Association was an intervener at the Supreme Court of Canada 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. There is a publication ban and sealing order in the case.
The Canadian Charter of Rights and Freedoms, section 11(i), provides that 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 prohibiting the offender from using the Internet or other digital network. As a result of the amendments, a court can prohibit an offender from accessing the entire Internet for any purpose. 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.
The BCCLA is intervening in this case to advocate moving away from a categorical approach to what is “punitive” versus “protective”. We will emphasize that provisions can be both: they can offer protection to the public while also constituting punishment of the accused. We will argue 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.