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The Supreme Court of Canada released an opinion Thursday that finds that a new law allowing an Internet ban for a convicted child predator can be applied retroactively and still comply with the Canadian Constitution.
In the British Columbia case of R. v. K.R.J., the defendant pleaded guilty to incest and child pornography concerning his young daughter. Between the time of offending and sentencing, Parliament amended the Criminal Code in 2012 by adding two additional punishments that could be imposed on the defendant.
The first new punishment allows a judge to order certain child sex offenders not to have any contact with persons under 16; the second is a ban on Internet use.
Section 11 of the Canadian Charter of Rights and Freedoms gives a defendant the constitutional right when the punishment has changed between the crime and the sentencing to the “benefit of the lesser punishment.”
Broadly, the right is based on the unfairness to a person committing a crime of increasing the punishment after the fact. Arguably, the person may not have offended if he or she had known of the potential application of the stiffer penalty.
The Supreme Court held that for section 11 protections to apply, the sanction in question must be a true “punishment” that has a “significant impact on an offender’s constitutionally protected liberty or securityinterests.” The opinion holds that the amendments constitute true punishment. The contact sanction could impact an offender in employment and in all “public and private spaces” where children could be, even those with accompanying adults. In addition, Internet restriction significantly removes a person from a “component of everyday life.”
The new punishments are greater than those previously available, so normally section 11 would require the benefit of the lesser punishment. Charter rights, however, may be limited under section 1 by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Supreme Court after an extensive analysis holds that the punishment of no contact with any child anywhere should not be retroactive, noting that Parliament can increase punishment to try to deter reoffending, but that no compelling reason to make it retroactive exists.
On the other hand, the opinion finds that the Internet ban can be applied retroactively as an exception to the Charter right because of the new and rapid rise of online crime against vulnerable children.