Order of Prohibition Pursuant to Section 161 of the Criminal Code of Canada
Pursuant to Section 161 of the Criminal Code of Canada, when a court imposes a sentence on a person for certain designated offences committed in respect of a person who is under the age of 16 years, the sentencing court may make an order 1) restricting the ability of the offender to attend at public places and other locations where persons under the age of 16 years are present or can reasonably be expected to be present, 2) prohibiting the offender from working, or becoming or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, 3) prohibiting the offender from having contact or communication with a person who is under the age of 16 years unless under the supervision of a person designated by the court, and 4) prohibiting the offender from using the internet or other digital network.
The court may make the order of prohibition subject to the conditions or exemptions that the court considers appropriate.
It does not appear that a court may make an order of prohibition against an offender who is granted an absolute discharge.
The order of prohibition may be for life or for any other duration that the court considers desirable. An order of prohibition that is not for life begins to run on the date on which the order is made or the date on which the offender is released from jail for the offence, including release on parole, mandatory supervision or statutory release, whichever is later.
Although the offence for which the offender is being sentenced need not have been committed in the prescribed circumstances of S. 161 for an order of prohibition to be made, a strong argument can be made, based on a decision of the Court of Appeal for Ontario in which I represented the Appellant, that a S. 161 order should not be made by the court unless there is some evidence from which it can reasonably be inferred that the offender poses a risk to young children in the prescribed circumstances of S. 161.
An order of prohibition may be varied upon application of the offender or the Crown.
It is a criminal offence to fail to comply with an order of prohibition.
Section 161 reads as follows:
S. 161. (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from
- attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
- seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
- having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
- using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
Current designated offences to which Section 161 applies are set out in subsection (1.1) (a) and are as follows:
- Section 151 sexual interference
- Section 152 invitation to sexual touching
- Section 155 incest
- Section 159 anal intercourse
- Section 160(2) compelling the commission of bestiality
- Section 160(3) bestiality in presence of or by a child
- Section 163.1 child pornography
- Section 170 parent or guardian procuring sexual activity
- Section 171 householder permitting sexual activity
- Section 171.1 making sexually explicit material available to a child
- Section 172.1 luring a child for a sexual purpose
- Section 172.2 agreement or arrangement – sexual offence against child
- Section 173(2) exposure of genitals to a person under the age of 16 years
- Section 212(1) stupefying or overpowering for the purpose of sexual intercourse
- Section 212(2) living on the avails of prostitution of a person under the age of 18 years
- Section 212(2.1) living on the avails of prostitution of a person under the age of 18 years and counselling or using threats or coercion against that person for purposes of profit
- Section 212(4) obtaining, or communicating for the purposes of obtaining, the sexual services of a person under the age of 18 years
- Section 271 sexual assault
- Section 272 sexual assault with a weapon, threats to a third party or causing bodily harm
- Section 273 aggravated sexual assault
- Section 280 abduction of person under 16
- Section 281 abduction of person under 14
Historic designated offences committed prior to January 4, 1983, to which Section 161 applies are set out in subsection (1.1) (b) and are as follows:
- Section 144 rape
- Section 145 attempt to commit rape
- Section 149 indecent assault on female
- Section 156 indecent assault on male
- Section 245 common assault
- Subsection 246(1) assault with intent
Additional historic designated offences committed prior to January 1, 1988, to which Section 161 applies are set out in subsection (1.1) (c) and are as follows:
- Section 146(1) sexual intercourse with a female under 14
- Section 153 sexual intercourse with step-daughter
- Section 155 buggery or bestiality
- Section 157 gross indecency
- Section 166 parent or guardian procuring defilement
- Section 167 householder permitting defilement