Law Times

Law Times • June 1, 2015 Page 9 www.lawtimesnews.com are internet bans punishment? Supreme Court to consider the issue as questions linger By Shannon Kari Law Times T he Supreme Court of Canada is again going to revisit the issue of what types of orders or sanc- tions imposed in addition to any time in custody can be classified as punishment. The top court granted leave this spring from a B.C. Court of Appeal decision in R. v. K.R.J. that found a Criminal Code sec- tion related to offences against children providing for orders that include a potential lifetime ban on Internet use isn't punishment. The B.C. court concluded that ex- panded restrictions introduced in 2012 as part of the federal govern- ment's Safe Streets and Commu- nities Act were an effort to protect the public and weren't punitive. In the nine years since the Su- preme Court found that a DNA order for certain types of offend- ers wasn't punishment under s. 11 of the Charter of Rights and Free- doms, there have continued to be differing rulings from the lower courts over other types of orders and sanctions. Driving restrictions, changes to the parole eligibility process, and the mandatory victim sur- charges have all been part of the judicial debate about what counts as punishment. Michael Spratt, a defence law- yer in Ottawa, says it's important to look at the "functional" impact of any order or restriction on an offender. "Punishment is a broad- er term than penal consequences," says Spratt, a partner at Abergel Goldstein & Partners LLP. The decision by the Supreme Court to grant leave in the B.C. case may offer some clarity on what it said in 2006 in R. v. Rod- gers as part of its ruling on DNA orders. Justice Louise Charron, writ- ing for the court, compared DNA orders to fingerprints in that they deal with identifica- tion and aren't punitive. "In its ordinary sense, 'punishment' re- fers to the arsenal of sanctions to which an accused may be liable upon conviction for a particular offence," wrote Charron. "This does not mean, how- ever, that 'punishment' under ss. 11 (h) and 11 (i) [of the Charter] necessarily encompasses every potential consequence of be- ing convicted of a criminal of- fence," she added. It was beyond the scope of the facts in Rodgers, however, to decide what other types of orders might be pun- ishment, said Charron. The B.C. case the Supreme Court will hear deals with an appeal filed by K.R.J., a man sen- tenced to nine years in prison after convictions for incest and making child pornography. The B.C. Court of Appeal was unanimous in upholding the sen- tence but it split 2-1 on whether amendments to s. 161 of the Criminal Code complied with the Charter. The amendments, which came into effect after K.R.J. had committed his offences, permit a judge to prohibit an individual convicted of certain offences from having any contact with someone under 16 without supervision or using the Internet or any digital network. If the restrictions are punishment, there's a presump- tion against applying them retro- spectively, the court agreed. Justice Mary Newbury found the government had enacted the amendments to protect the pub- lic. "Although they impose con- sequences that may be felt to be unpleasant, they are not punitive in effect," wrote Newbury. In dissent, Justice Harvey Groberman found the provisions were punitive. "The restrictions are, in contemporary society, rela- tively onerous ones. They will af- fect the offender's ability to fully re-integrate into society and may seriously limit employment pros- pects," wrote Groberman. Eric Purtzki, who represent- ed K.R.J. on the appeal, says that if the court imposes a restriction as part of the principles of sen- tencing, it should be classified as punishment. "Protection of society is a principle of sentenc- ing," says Purtzki. Given that the Internet is "an indispensable tool of everyday life, we say this is punishment," he adds. In Ontario, the most recent de- bate over sanctions imposed at the time of sentencing has to do with the mandatory victim surcharges brought in by the federal govern- ment in 2013. The Increasing Offenders' Accountability for Victims Act requires judges to impose the victim surcharge on offenders. When Parliament was debating the measures, then-justice min- ister Rob Nicholson described the surcharges as "an additional penalty" imposed on offenders during sentencing. "This sends the right message to criminals. They must pay for the harm that they caused their victims," added Nicholson. Ontario Court Justice David Paciocco, however, ruled in July 2014 that the mandatory sur- charges breached the provisions against cruel and unusual pun- ishment in the Charter. His findings came in the sentencing of Shaun Michael, a 26-year-old offender with a his- tory of addiction issues who faced $900 in financial penalties for a series of relatively minor criminal offences. Michael was homeless and living on $250 in monthly so- cial assistance payments. Dallas Mack, a senior Crown attorney in Ottawa, argued that the surcharge is about "account- ability" and not a fine nor part of the "arsenal of sanctions" a judge could impose. Paciocco disagreed. "However it is styled, it functions in sub- stance like a fine," he wrote. "The victim surcharge there- fore qualifies in my view as pun- ishment," he added. Some other provincial court judges disagreed with Pa- ciocco's conclusions and ruled the surcharge wasn't necessar- ily punishment. Justice Fergus O'Donnell described the sur- charge as more like a "user-fee" for offenders rather than pun- ishment in R. v. Novielli. The judge also suggested there was more chance of the Toronto Ma- ple Leafs winning the Stanley Cup than an indigent offender going to jail for failing to pay the surcharge. The Crown abandoned its ap- peal of Paciocco's ruling after the first Superior Court judgment on the victim surcharge. In that case, Justice Bruce Glass overturned a lower court decision in Cobourg, Ont., and found that the surcharges are valid and not punishment in a case with four low-income defendants. "I do not read a surcharge to be a fine," wrote Glass in R v. Tinker. "It is not in the form of a penal- ty. It f lows from a conviction for a crime, but it is not a sanction in its own right. Rather, it is quite sim- ply what the Crown has described it to be, which is a sum of money established to be a consequence of breaking the law." Glass found that the provi- sions were reasonable because judges could extend the time for payment. "If a person does not choose to set aside money or pay in installments when given very reasonable time to pay, the in- dividual becomes the author of their own misfortune when they come to the end of the period to pay the surcharge," wrote Glass. The defendants have sought leave to appeal Glass' decision. Spratt believes the ruling in Tinker illustrates a misunder- standing about the impact of the surcharges on indigent de- fendants and those with mental- health and addiction issues. "It is the height of ivory tower logic" to suggest they're not sig- nificant sanctions, he says. 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