Complete prohibition on internet use demonstrably unfit and unreasonable
The Ontario Court of Appeal has had the opportunity to consider the impact of the Supreme Court of Canada’s July 2016 decision in R v KRJ with its decision in R v Brar, 2016 ONCA 724 (no hyperlink available).
The Supreme Court in KRJ considered a Charter challenges to amendments made in 2012 to section 161 of the Criminal Code. Those amendments allowed a judge, as part of a sentence for various sexual offences involving children, to prohibit an accused from having unsupervised contact with a person under sixteen (section 161(1)(c)) and from “using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court” (section 161(1)(d)). The Charter challenge was not to those prohibitions themselves, but to their retrospective application to offenders who had committed an offence before those provisions were put into the Code. Section 11(i) of the Charter entitles a person to the benefit of the lesser punishment “if the punishment for the offence has been varied between the time of commission and the time of sentencing”, but all parties agreed that Parliament had intended these changes to apply retrospectively. Ultimately the Court did not allow section 161(1)(c) to be applied retrospectively, but concluded that the internet ban could be applied in that way.
The Supreme Court of Canada had little difficulty concluding that a ban on using the internet was, in fact, a punishment. The Crown had argued that the provision should be seen as similar to a requirement that an order for a DNA sample could be required of people convicted of sexual offences: a measure aimed at future crimes, rather than as a punishment for the crime which had occurred. The Court disagreed, finding that application of the section did amount to retrospective punishment, and therefore did violate section 11(i):
…depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life:
The Internet has become a hub for every kind of human activity, from education to recreation to commerce. It is no longer merely a window to the world. For a growing number of people, the Internet is their world — a place where one can do nearly everything one needs or wants to do. The Web provides virtual opportunities for people to shop, meet new people, converse with friends and family, transact business, network and find jobs, bank, read the newspaper, watch movies, and attend classes. [Emphasis in original; footnotes omitted.]
(B. A. Areheart and M. A. Stein, “Integrating the Internet” (2015), 83 Geo. Wash. L. Rev. 449, at p. 456)
For many Canadians, membership in online communities is an integral component of citizenship and personhood. In my view, retrospectively excluding offenders from these virtual communal spaces is a substantial consequence that implicates the fairness and rule of law concerns underlying the s. 11(i) right.
 In sum, the prohibitions found in the 2012 amendments to s. 161(1) constitute punishment for the purposes of s. 11(i) of the Charter. They are a consequence of conviction, imposed in furtherance of the purpose and principles of sentencing, and they can have a significant impact on the liberty and security of offenders. Clearly, the 2012 amendments constitute greater punishment than the previous prohibitions: under the new s. 161(1)(c), a judge can prohibit all contact with children, no matter the means (not just contact involving a computer system); and under the new s. 161(1)(d), a judge can prohibit an offender from using the Internet or other digital network for any purpose (not just for the purpose of contacting children). Accordingly, the retrospective operation of these provisions limits the s. 11(i) right as it deprives the appellant of the benefit of the less restrictive community supervision measures captured in the previous version of s. 161 — that is, the “lesser punishment”.
The bigger issue was whether that section 11(i) violation could be saved under section 1 of the Charter: the Court concluded that the ban on unsupervised contact could not be saved, but the ban on internet use could be.
In both cases, the objective of the measures was to protect children against the risk of harm posed by convicted sexual offenders, and the purpose of making those measure retrospective was to better protect children from the risks posed by offenders who committed their offences before, but were sentenced after, the amendments came into force. That objective was sufficiently important, and both the “no unsupervised contact” and “no internet usage” provisions were found to be rationally connected to achieving that goal and minimally impairing. The difference between the results in the two cases came at the final stage of the section 1 test, weighing the salutary deleterious effects of the retrospective application of the provision: as the Court observed “When it comes to s. 11(i), timing can be everything” (para 93).
The “no unsupervised contact” provision was aimed at the fact that many sexual assaults against children come from family members or acquaintances. However, “this reality did not just recently come to Parliament’s attention” (para 92) and so there needed to be an explanation as to why retrospective laws were required when there had been no fundamental change in the situation. However, that same consideration explained why the Court was willing to countenance retrospectivity when it came to the internet usage provision:
 The rate of technological change over the past decade has fundamentally altered the social context in which sexual crimes can occur. Social media websites (like Facebook and Twitter), dating applications (like Tinder), and photo-sharing services (like Instagram and Snapchat) were all founded after 2002, the last time prior to the 2012 amendments that substantial revisions to s. 161(1) were made. These new online services have given young people — who are often early adopters of new technologies — unprecedented access to digital communities. At the same time, sexual offenders have been given unprecedented access to potential victims and avenues to facilitate sexual offending.
 The legislative record before this Court speaks to this rapid evolution and shows that, in enacting s. 161(1)(d) and giving it retrospective effect, Parliament was attempting to keep pace with technological changes that have substantially altered the degree and nature of the risks facing children. For example, at the second reading of the Bill, the Parliamentary Secretary to the Minister of Justice said, “An increasing number of child sex offenders also use the Internet and other new technologies to facilitate the grooming of victims or to commit other child sex offences” (p. 6787). At a Committee debate, the Acting General Counsel, Criminal Law Policy Section, Department of Justice testified:
… what Bill C-54 recognizes is that offenders use the Internet computer systems for all sorts of reasons. Yes, they use it to communicate directly with a young person, and we catch that already, but they use it also to offend, in their offending pattern, whether it’s to access child pornography, for example… So the idea with Bill C-54 is to require a court to turn its mind to this each time it is sentencing a person who is convicted of one of these child sex offences and to consider whether in that instance, with the offender before them, given the nature of the offending pattern and the conduct before the court, there should be a restriction on that individual’s access to the Internet or other technology that would otherwise facilitate his or her reoffending.
(Standing Committee on Justice and Human Rights, Evidence, No. 50, 3rd Sess., 40th Parl., February 28, 2011, at p. 4)
… the record demonstrates that the Internet is increasingly being used to sexually offend against young people and that sex offenders who target children are more likely to reoffend. This is not simply about changing technology or general risks associated with recidivism, broad factors that can relate to many offences. Rather, the nature and degree of the risks facing some of the most vulnerable members of our society have changed drastically since 2002, the last time s. 161(1) was substantially amended. Technology and the proliferation of social media cyber communities have increased the degree of risk facing young persons. This has created new triggers, and new avenues for offenders to pursue in committing further offences. The previous prohibition was insufficient to address these evolving risks. But the enhanced prohibition in s. 161(1)(d) can restrict the viability of these routes.
It was in that legislative context that the Ontario Court of Appeal came to consider an appeal of an order which had been made under section 161(1)(d). The accused in Brar had been convicted, among other things, of sexual assault, child luring, and prostitution of a person under the age of 18. He had been sentenced to six years imprisonment, and the judge also imposed a 20 year ban on the accused’s use of the internet except when the appellant was “at employment” and prohibited the accused from owning and/or using “any mobile device with Internet capabilities”. The Ontario Court of Appeal concluded that some sort of order under section 161(1)(d) was appropriate, but that this particular one had been too expansive: a breach would be almost inevitable.
The accused certainly should be prevented from communicating with youths online through chat groups, given that this was how in part he had committed offences: that, however, could be managed through a “no communication” order. Actually banning him from using the internet except while “at employment”, the Court of Appeal noted, might effectively exclude the accused from looking for work in his field as a computer scientist and IT technician. In addition, such jobs frequently require a person to access the internet while not “at work”, which would put the accused in breach. Further, they noted “at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions.” (para 24). A blanket ban was not required, they held: instead that accused was to be banned from accessing unlawful content, from having a personal profile on Facebook, Twitter, or similar social media, and from directly or indirectly accessing such social media sites.