K.R.J. Appellant v. Her Majesty The Queen, 2016 SCC 31

SUPREME COURT OF CANADA Citation: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906 Appeal heard: December 2, 2015 Judgment rendered: July 21, 2016 Docket: 36200 Between: K.R.J. Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Attorney General of Ontario, Association des avocats de la défense de Montréal, David Asper Centre for Constitutional Rights, Criminal Lawyers’ Association (Ontario) and British Columbia Civil Liberties Association Interveners Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment: (paras. 1 to 116) Reasons Dissenting in Part: (paras. 117 to 130) Reasons Dissenting in Part: (paras. 131 to 162) Karakatsanis J. (McLachlin C.J. and Cromwell, Moldaver, Wagner, Gascon and Côté JJ. concurring) Abella J. Brown J. R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906 K.R.J. Appellant v.

Her Majesty The Queen Respondent and Attorney General of Canada, Attorney General of Ontario, Association des avocats de la défense de Montréal, David Asper Centre for Constitutional Rights, Criminal Lawyers’ Association (Ontario) and British Columbia Civil Liberties Association Interveners Indexed as: R. v. K.R.J. 2016 SCC 31 File No.: 36200. 2015: December 2; 2016: July 21.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for british columbia Constitutional law — Charter of Rights — Benefit of lesser punishment — Sentencing — Accused pleaded guilty to incest and making child pornography — Retrospective application of amendments to Criminal Code expanding scope of community supervision measures sentencing judge can impose on sexual offenders — Offences committed prior to amendments but accused sentenced after — Whether new prohibition measures contained in Criminal Code constitute punishment such that their retrospective operation limits right protected by s. 11(

i) of Charter — If so, whether limit is justified — Reformulation of s. 11(

i) test for punishment — Canadian Charter of Rights and Freedoms, ss. 1 , 11(i) — Criminal Code, R.S.C. 1985, c. C-46, s. 161(1) (c), (d).

Section 11(

i) of the Charter provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to “the benefit of the lesser punishment”. When offenders are convicted of certain sexual offences against a person under the age of 16 years, s. 161(1) of the Criminal Code gives sentencing judges the discretion to prohibit them from engaging in a variety of everyday conduct upon their release into the community, subject to any conditions or exemptions the judge considers appropriate.

In 2012, Parliament expanded the scope of s. 161(1) , empowering sentencing judges to prohibit sexual offenders from having any contact with a person under 16 years of age ( s. 161(1) (c)) or from using the Internet or other digital network ( s. 161(1) (d)). In doing so, Parliament intended to give sentencing judges the discretion to impose the expanded prohibition measures on all offenders, even those who offended before the amendments came into force. In March 2013, the accused pleaded guilty to incest and the creation of child pornography. The offences were committed between 2008 and 2011.

By virtue of the convictions and the age of the victim, the sentencing judge was required to consider whether to impose a prohibition under s. 161(1) . The question arose as to whether

the 2012 amendments could operate retrospectively such that they could be imposed on the accused. The sentencing judge concluded that an order under the new s. 161(1)(

c) and (

d) constitutes punishment within the meaning of s. 11(

i) of the Charter , such that the provisions cannot be applied retrospectively. He therefore imposed a prohibition order under s. 161, but limited the prohibited activities to those described in the version of s. 161(1) that existed when the accused committed the offences. On the Crown appeal, the majority of the Court of Appeal concluded that the 2012 amendments were enacted to protect the public, rather than to punish offenders, and therefore, they do not qualify as punishment within the meaning of s. 11 ( i ). The majority allowed the appeal and imposed the conditions in s. 161(1) (

c) and (

d) retrospectively on the accused. Held (Abella and Brown JJ. dissenting in part): The appeal should be allowed in part. The amendments to s. 161(1) (

c) and (

d) of the Criminal Code qualify as punishment such that their retrospective operation limits the right protected by s. 11(

i) of the Charter . Under s. 1 of the Charter , while the retrospective operation of the no contact provision in s. 161(1)(

c) is not a reasonable limit on the s. 11(

i) right, the retrospective operation of the Internet prohibition in s. 161(1) (

d) is a reasonable limit. Accordingly, the appeal should be allowed with respect to s. 161(1) (c), but dismissed with respect to s. 161(1) (d). Per McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.:

Section 11(

i) of the Charter constitutionally enshrines the fundamental notion that criminal laws should generally not operate retrospectively. This constitutional aversion for retrospective criminal laws is primarily motivated by the desire to protect the fairness of criminal proceedings and safeguard the rule of law. Rules pertaining to criminal punishment should be clear and certain. To attract the protection of s. 11 ( i ), the new prohibition measures must qualify as “punishment”. In R. v.

Rodgers , 2006 SCC 15 , [2006] 1 S.C.R. 554, this Court developed a two-part test for determining whether a consequence amounts to punishment under s. 11 ( i ): (1) the measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence; and (2) it must be imposed in furtherance of the purpose and principles of sentencing. This test requires two clarifications.

First, while not all measures imposed to protect the public constitute punishment, public protection is at the core of the purpose and principles of sentencing and is therefore an insufficient litmus test for defining punishment. Thus, sanctions intended to advance public safety do not constitute a broad exception to the protection s. 11 (

i) affords and may qualify as punishment. Second, the s. 11 (

i) test for punishment must embody a clearer, more meaningful consideration of the impact a sanction can have on an offender. Doing so enhances fairness and predictability in punishment and is consistent with this Court’s jurisprudence. Accordingly, the s. 11 (

i) test for punishment should be restated as follows: a measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender’s liberty or security interests.

To satisfy the third branch of this test, a consequence of conviction must significantly constrain a person’s ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public. Applying this reformulated test, the 2012 amendments to s. 161(1) constitute punishment. The prohibitions found in these amendments 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. Accordingly, the retrospective operation of these provisions limits the s. 11 (

i) right as it deprives the accused of the benefit of the less restrictive community supervision measures captured in the previous version of s. 161 — that is, the lesser punishment. To be justified under s. 1 of the Charter , a law that limits a constitutional right must do so in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society. The legislative history, judicial

interpretation, and design of s. 161 all confirm that the overarching goal of the

section is to protect children from sexual violence perpetrated by recidivists. It follows naturally that the objective of the retrospective operation of the 2012 amendments — the infringing measure — is to better protect children from the risks posed by offenders like the accused who committed their offences before, but were sentenced after, the amendments came into force. This latter objective anchors the s. 1 analysis and is of sufficient importance to warrant further scrutiny.

There is clearly a rational connection between this objective and retrospectively giving sentencing judges the discretionary power to limit those offenders who pose a continuing risk to children in contacting children in person or online, and in engaging with online child pornography (the means chosen). Reason and logic suffice to establish that Parliament proceeded rationally in opting to give s. 161(1) (

c) and (

d) retrospective effect. Further, given the discretionary and tailored nature of s. 161 and the fact that a purely prospective application of the amendments would have compromised Parliament’s full objective, the retrospective operation of s. 161(1) (

c) and (

d) impairs the s. 11 (

i) rights as little as reasonably possible. Finally, the deleterious and salutary effects of the law must be assessed. This final stage of the proportionality inquiry is important because it allows courts to transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society in direct and explicit terms. Although this examination entails difficult value judgments, it is preferable to make these judgments explicit, as doing so enhances the transparency and intelligibility of the ultimate decision.

While the minimal impairment test has come to dominate much of the s. 1 discourse in Canada, this final step permits courts to address the essence of the proportionality enquiry at the heart of s. 1. The deleterious effects flowing from the retrospective operation of s. 161(1)(

c) are substantial. The new s. 161(1)(

c) goes much further and prohibits any contact — including communicating by any means — with a person who is under the age of 16 years in a public or private space. By impacting people like the accused with a punishment of which they had no notice, the retrospective operation of s. 161(1) (

c) undermines fairness in criminal proceedings and compromises the rule of law. Unfortunately, sexual offences against children have persisted for centuries. The Crown has failed to lead much, if any, evidence to establish the degree of enhanced protection s. 161(1) (

c) provides in comparison to the previous version of the prohibition. The benefits society stands to gain are marginal and speculative. The Crown has provided no temporal justification for the retrospective limitation, yet, at its root, s. 11 (

i) is about the timing of changes to penal laws. The retrospective operation of s. 161(1) (

c) therefore cannot be justified under s. 1. As a result, s. 161(1) (

c) should apply only prospectively — that is, only to offenders who committed their offences after the 2012 amendments came into force.

The deleterious effects resulting from the retrospective operation of s. 161(1)(

d) are also significant. A complete ban on using the Internet or other digital network is more intrusive than the previous ban on using a computer system for the purpose of communicating with young people. As with the retrospective operation of s. 161(1) (c), the imposition of punishment without notice translates into broader societal harms, including compromising the fairness of criminal proceedings and challenging the rule of law. However, s. 161(1)(

d) is directed at grave, emerging harms precipitated by a rapidly evolving social and technological context. This evolving context has changed both the degree and nature of the risk of sexual violence facing young persons. As a result, the previous iteration of s. 161 became insufficient to respond to the modern risks children face. By closing this legislative gap and mitigating these new risks, the benefits of the retrospective operation of s. 161(1)(

d) are significant and fairly concrete. The previous prohibition was insufficient to address the evolving risks. On balance, Parliament was justified in giving s. 161(1)(

d) retrospective effect in the unique context within which it was legislating. The harms at stake are particularly powerful. The statutory regime is highly tailored and discretionary. An Internet prohibition, while invasive, is not among the most onerous punishments, such as increased incarceration. The benefits of the law outweigh its deleterious effects. In

summary, the 2012 amendments to s. 161(1)(

c) and (

d) qualify as punishment based on both the objective and impact of the prohibitions. The retrospective imposition of these prohibitions therefore limits the right protected by s. 11(

i) of the Charter . While the retrospective operation of the no contact provision in s. 161(1)(

c) is not a reasonable limit on the s. 11 (

i) right, the retrospective operation of the Internet prohibition in s. 161(1)(

d) is a reasonable limit. Per Abella J. (dissenting in part): The Charter breach of s. 161(1)(

d) cannot be justified. The wording of s. 11 (

i) is unequivocal. The absolutist language used by the drafters of the Charter in s. 11 must colour the s. 1 analysis by demanding the most stringent of justifications. The Crown has the highest possible evidentiary burden, namely, to demonstrate through compelling evidence that the previous provisions so significantly undermined the government’s objectives, that the retrospective application of the greater punishment was justified. The Crown’s evidentiary record here was insufficient to justify the retrospective application of the impugned provisions.

Far from offering compelling evidence, the Crown offered no evidence in the context of s. 161(1)(d), to show that the former provisions so significantly undermined its objectives, that the retroactive application of greater restrictions was justified. If all that is needed to justify a breach of s. 11 (

i) is the suggestion of a possible reduction in recidivism rates, whether based on changes in technology or otherwise, the state could, in theory, justify the retrospective application of more stringent punishments so routinely that s. 11(

i) is written out of the Charter . In this case, there was no evidence about how the retrospective application of s. 161(1)(

d) was expected to, or would, reduce recidivism rates any more than those under the former restrictions. As a result, while there is agreement with the majority that both s. 161(1) (

c) and (

d) of the Criminal Code violate s. 11(

i) of the Charter and that s. 161(1)(

c) cannot be justified under s. 1, neither can s. 161(1)(

d) be justified. Per Brown J. (dissenting in part): There is agreement with the majority that the conditions which a sentencing judge may impose under s. 161(1) (

c) and (

d) of the Criminal Code constitute punishment within the meaning of s. 11(

i) of the Charter and that their retrospective application infringes s. 11( i ) . There is also agreement that the Crown has met its burden of justifying the infringement of s. 11 (

i) in respect of the conditions relating to Internet use contained in s. 161(1) (d). However, the Crown has also done so in respect of the conditions imposable under s. 161(1) (

c) relating to contact with children. The retrospective application of both conditions should therefore be upheld under s. 1 of the Charter . The harm addressed by s. 11(

i) is not the punishment itself, but rather the means by which it is imposed. This means-based quality of the s. 11 (

i) protection affects the analysis to be applied under s. 1, since the Oakes analysis considers the proportionality between a legislative objective and the Charter -infringing effects resulting from its pursuit, not the choice of means that, by itself, constitutes a Charter infringement. The Oakes test is not, and should not be treated as, a technical inquiry. The majority’s rigid and acontextual application of Oakes causes it to lose sight of the broader context and overall goals sought by Parliament.

It holds Parliament to an exacting standard of proof, thereby denying Parliament the room necessary to perform its legislative policy-development role when addressing a chronic social problem. And it also insists on direct evidence of anticipated benefits which, given that chronic nature of the harm, is likely impossible to obtain. A broad examination of Parliament’s purpose is necessary in order to anchor a useful proportionality analysis because of the unique means-based quality of s. 11( i )’s protection.

The measure that gave rise to the Charter infringement, and which should anchor the proportionality analysis, comprises the amendments to s. 161 as a whole. And, as to that measure, the majority’s characterization of the objective should be accepted: the objective is to enhance the protection s. 161 affords to children against the risk of harm posed by sexual offenders.

The retrospective application of these amendments is rationally connected to that protective purpose, since the risk an offender poses to reoffend sexually against children is not affected by whether the offence occurred before or after the measure’s enactment. And, given Parliament’s objective of enhancing the protections that s. 161 affords to children, there are no less-impairing alternate measure that would allow for s. 161(1) ’s protections to be realized in respect of an offender who committed his or her offence before the amendments came into force and who poses a risk to reoffend.

The final stage of the proportionality analysis is tied to the practical impacts and benefits of the law, but what is ultimately being weighed is much more abstract and philosophical: the detriment to Charter -protected rights against the public benefit sought. Insisting upon too strict an evidentiary burden must be carefully avoided. However, the majority does precisely that by demanding empiricism where none can exist.

Given the complex social context in which Parliament develops policy, it will sometimes be difficult, if not impossible, for the state to provide reliable and direct evidence of the benefits its measure will achieve. The majority errs by overstating the deleterious effects of s. 161(1)(c)’s retrospective operation while understating its salutary effects. Section 161(1)(

c) prohibits only unsupervised contact with children, and is subject to any other exemptions that the sentencing judge sees fit to impose. The majority’s

interpretation of the restriction on liberty worked by s. 161(1)(

c) is over-expansive and is at odds with the well-established principle that the criminal law’s prohibitions on conduct should be construed strictly. Further, the majority’s insistence on a compelling temporal justification for the retrospective operation of s. 161(1) (

c) when assessing the deleterious impact of its retrospective operation on the rule of law is inappropriate. The majority is, in substance questioning whether Parliament’s objective in enacting a retrospective increase in punishment was truly pressing and substantial. Temporal considerations are not relevant

when assessing the deleterious effect of a retrospective punishment on the rule of law because all retrospective changes to the lawderogate from the rule of law, irrespective of Parliament’s reasons for enacting them. As to the salutary effects, the risk posed to children by offenders like the accused simply cannot be mitigated by the originalversion of s. 161(1). The evidence before Parliament showed that a majority of sexual offences against children were committed byfamily members or acquaintances.

The previous version of s. 161(1) could not be used to restrict an offender’s ability to interact withchildren in private, even if that is where the offender poses the greatest risk to reoffend sexually against children. The salutary effects ofs. 161(1)(c)’s retrospective operation seem manifest. All the reasons identified by the majority in support of the conclusion that the limit imposed on the s. 11(

i) right by theretrospective application of s. 161(1)(

d) is justified are equally applicable to the retrospective application of s. 161(1)(c). The conditionin s. 161(1)(

c) is also highly tailored and discretionary, since it is imposed only where the sentencing judge deems it necessary, and alsosince it is subject to such exemptions as the sentencing judge sees fit to allow. If the retrospective operation of s. 161(1)(

d) is aproportional and justified limit on an offender’s s. 11(

i) right, the retrospective operation of s. 161(1)(

c) must be as well. Balancing the salutary and deleterious effects of a Charter-infringing law is not an objective calculation because it requiresthe court to weigh incommensurables — in this case, to weigh the deleterious impact on the sexual offender and the rule of law againstthe possible benefit of protecting children from sexual offenders. However, despite the impossibility of weighing incommensurablesobjectively, a reviewing court must nevertheless come to a reasoned conclusion.

The salutary effects pursued in this case are worth thecost in rights limitation: the harms sought to be addressed are grave, persistent, and worthy of Parliament’s efforts in the criminal lawrealm. The provisions are sufficiently tailored so that no offender’s s. 11(

i) rights will be unduly limited. Neither of the impugnedprovisions works a drastic increase in the punishment imposed. On balance, the potential salutary effect of the retrospective operation ofs. 161(1)(

c) and (

d) of better protecting children from all sexual offenders who pose a risk to reoffend sexually against them, regardlessof when the offender committed a designated offence, outweighs the modest impact on fairness and the rule of law. Cases Cited By Karakatsanis J. Discussed: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; referred to: R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R.272; R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541; Black-Clawson International Ltd. v. PapierwerkeWaldhof-Aschaffenburg A.G., [1975] A.C. 591; R. v. Kelly, (SCC), [1992] 2 S.C.R. 170; R. v.

Murrins, 2002 NSCA 12,201 N.S.R. (2d) 288; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81; R. v. Cross, 2006 NSCA 30, 138 C.R.R.(2d) 163; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Canada (Attorney General) v. Whaling, 2014 SCC20, [2014] 1 S.C.R. 392; Cunningham v. Canada, (SCC), [1993] 2 S.C.R. 143; R. v. Heywood (1992), (BC CA), 20 B.C.A.C. 166, aff’d (SCC), [1994] 3 S.C.R. 761; R. v. A. (R.K.), 2006 ABCA 82, 208 C.C.C. (3d) 74;R. v.

Perron, 2009 ONCA 498, 244 C.C.C. (3d) 369; R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106; R. v. Levin, 2015 ONCJ 290; R.v. Schledermann, 2014 ONSC 674; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Carter v. Canada (Attorney General), 2015 SCC 5,[2015] 1 S.C.R. 331; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; TorontoStar Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Budreo(2000), (ON CA), 46 O.R. (3d) 481; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC),[1995] 3 S.C.R. 199; Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Dagenais v. CanadianBroadcasting Corp., (SCC), [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229. By Abella J. (dissenting in part) Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; Liang v. Canada (Attorney General), 2014BCCA 190, 311 C.C.C. (3d) 159. By Brown J. (dissenting in part) R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697;RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Alberta v. Hutterian Brethren ofWilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2,[2000] 1 S.C.R. 44; M. v. H., (SCC), [1999] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (AttorneyGeneral), 2015 SCC 1, [2015] 1 S.C.R. 3; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; R. v. Butler, (SCC), [1992] 1 S.C.R. 452; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1S.C.R. 877; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v.

Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527; R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3S.C.R. 187; New Jersey v. T.L.O., 469 U.S. 325 (1985). Statutes and Regulations Cited Act to amend the Criminal Code and the Young Offenders Act, S.C. 1993, c. 45, s. 1. Canadian Charter of Rights and Freedoms, ss. 1, 11. Constitution Act, 1982, s. 52(1). Criminal Code, R.S.C. 1985, c. C-46, ss. 161, 258(1)(d.1), 718 et seq., 718.1, 718.2, 810, 810.1, 810.2. Safe Streets and Communities Act, S.C. 2012, c. 1, s. 16(1).

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No. 2495 (QL), 2014 CarswellBC 2955 (WL Can.), setting aside in part a sentencing decision. Appeal allowed in part, Abella and Brown JJ. dissenting in part. Eric Purtzki and Garth Barriere , for the appellant. Lesley A. Ruzicka , for the respondent.

Richard Kramer and Marc Ribeiro , for the intervener the Attorney General of Canada. Stacey D. Young and Jennifer A. Crawford , for the intervener the Attorney General of Ontario. Nicholas St-Jacques and Lida Sara Nouraie , for the intervener Association des avocats de la défense de Montréal. John Norris and Cheryl Milne , for the intervener the David Asper Centre for Constitutional Rights. Matthew R. Gourlay , for the intervener the Criminal Lawyers’ Association (Ontario). Emily MacKinnon and Michael A. Feder , for the intervener the British Columbia Civil Liberties Association.

The judgment of McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. was delivered by Karakatsanis J. — I. Introduction [ 1 ] People’s conduct and the legal consequences that flow from it should be judged on the basis of the law in force at the time. This is a basic tenet of our legal system. [ 2 ] In recognition of this principle, s. 11(

i) of the Canadian Charter of Rights and Freedoms provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to “the benefit of the lesser punishment”. Like the other legal rights enshrined in s. 11 of the Charter , s. 11(

i) is fundamentally important to our justice system because it protects the fairness of criminal proceedings and safeguards the rule of law. [ 3 ] When offenders are convicted of certain sexual offences against a person under the age of 16 years, s. 161(1) of the Criminal Code , R.S.C. 1985, c. C-46, gives sentencing judges the discretion to prohibit them from engaging in a variety of everyday conduct upon their release into the community, subject to any conditions or exemptions the judge considers appropriate.

In 2012, Parliament expanded the scope of s. 161(1) , empowering sentencing judges to prohibit sexual offenders from having any contact with a person under 16 years of age ( s. 161(1) (c)) or from using the Internet or other digital network ( s. 161(1) (d)). [ 4 ] In doing so, Parliament intended to give sentencing judges the discretion to impose the expanded prohibition measures on all offenders, even those who offended before the amendments came into force.

In other words, Parliament intended the 2012 amendments to operate retrospectively. [ 5 ] The issue in this appeal is whether the retrospective operation of the 2012 amendments to s. 161(1) (

c) and (

d) of the Criminal Code is constitutional. This issue engages two subsidiary questions. First, do the prohibition measures contained in s. 161(1) (

c) and (

d) constitute “punishment” such that their retrospective operation limits s. 11(

i) of the Charter ? Second, if so, is the limit a reasonable one as can be demonstrably justified under s. 1 of the Charter ? The application of these expanded prohibition measures to offenders who committed their offences after the amendments came into force is not at issue. [ 6 ] I conclude that the 2012 amendments to s. 161(1)(

c) and (

d) qualify as punishment based on both the objective and impact of the prohibitions. The retrospective imposition of these prohibitions therefore limits s. 11(

i) of the Charter . [ 7 ] Turning to s. 1 of the Charter , I reach opposite conclusions with respect to s. 161(1)(

c) and (d): while the retrospective operation of the no contact provision in s. 161(1)(

c) is not a reasonable limit on the s. 11(

i) right, the retrospective operation of the Internet prohibition in s. 161(1) (

d) is a reasonable limit. My conclusion with respect to s. 161(1) (

d) is chiefly due to the fact that Parliament enacted the provision within a rapidly evolving social and technological context, which changed both the degree and nature of the risk of sexual violence facing young persons. Accordingly, I would allow the appeal in part. II. Facts and Legislative History [ 8 ] On March 6, 2013, the appellant pleaded guilty to incest and the creation of child pornography. The offences were committed between 2008 and 2011, and involved the appellant’s preschool-aged daughter. [ 9 ] When the appellant committed the offences, s. 161(1) of the Criminal Code read as follows: 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 (

a) 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; (

b) 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; or (

c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years. [ 10 ] After the appellant committed the offences, but before he was sentenced, s. 161(1) was amended by the Safe Streets and Communities Act , S.C. 2012, c. 1, s. 16(1), which came into force on August 9, 2012. Section 161(1) (

a) and (

b) remained

unchanged. But the Act modified s. 161(1)(

c) to include prohibiting all contact with young persons, no matter the means, and introduceda new Internet prohibition through s. 161(1)(d). These amendments had the effect of expanding the scope of the community supervisionmeasures a sentencing judge can impose on sexual offenders. Section 161(1)(

c) and (

d) now provide that a sentencing judge can prohibitan offender from: (

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offenderdoes so under the supervision of a person whom the court considers appropriate; or (

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. [11] After the 2012 amendments came into force, the appellant was sentenced to nine years’ imprisonment. By virtue ofthe appellant’s convictions and the age of the victim, the sentencing judge was required to consider whether to impose a prohibitionorder under s. 161(1). The question arose as to whether the 2012 amendments could operate retrospectively such that they could beimposed on the appellant. III. Decisions Below A. British Columbia Provincial Court — Klinger Prov. Ct.

J. [12] The sentencing judge found that an order under s. 161 would be appropriate because “there is a serious risk to thesafety of children under the age of 16 after [the appellant] is released”. However, on the basis of the test for punishment set out by thisCourt in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 63, he concluded that an order under the new s. 161(1)(

c) and (d)constitutes punishment within the meaning of s. 11(

i) of the Charter, such that the provisions cannot be applied retrospectively. Since noformal constitutional challenge was brought and the sentencing judge merely used s. 11(

i) as a tool of statutory

interpretation, noconsideration was given to s. 1 of the Charter. [13] In the result, the sentencing judge imposed a prohibition order under s. 161 for a period of seven years, but limitedthe prohibited activities to those described in the version of s. 161(1) that existed when the appellant committed the offences. B. British Columbia Court of Appeal — 2014 BCCA 382, 316 C.C.C. (3d) 540 [14] On the Crown appeal, the appellant filed a formal constitutional challenge to the retrospective operation of the 2012amendments. The Court of Appeal split over whether a violation of s. 11(

i) had been established. Writing for the majority, NewburyJ.A. concluded that the 2012 amendments were enacted to protect the public, rather than to punish offenders; therefore, they do notqualify as punishment within the meaning of s. 11(i). Newbury J.A. allowed the appeal and imposed the conditions in s. 161(1)(

c) and(

d) retrospectively on the appellant for a period of seven years. [15] Groberman J.A., dissenting in part, concluded that the retrospective application of the 2012 amendments infringes s.11(i). Applying Rodgers, Groberman J.A. concluded that s. 161 orders are consequences of conviction, imposed in furtherance of thepurpose and principles of sentencing, and thus qualify as “punishment”. [16] Because the majority found that s. 11(

i) was not engaged, the parties and the Court of Appeal did not address s. 1 ofthe Charter. IV. Issues [17] This case raises two constitutional questions:

(1) Does the retrospective operation of s. 161(

c) and (

d) of the Criminal Code limit s. 11(

i) of the Charter?

(2) If so, is the limitation a reasonable one prescribed by law as can be demonstrably justified in a free and democratic societyunder s. 1 of the Charter? V. Analysis [18] As a preliminary matter, I observe that although there is a presumption against the retrospective application oflegislation that affects substantive rights (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10), the parties do not dispute theCourt of Appeal’s finding that the presumption has been rebutted in this case because Parliament intended the 2012 amendments tooperate retrospectively.

I agree. [19] This appeal thus turns on whether such retrospective application complies with constitutional standards. A. Do the 2012 Amendments Constitute Punishment Such That Their Retrospective Operation Limits

Section 11(

i) of the Charter?

(1) The Purpose of

Section 11(

i) of the Charter and the Interests It Protects [20]

Section 11 of the Charter protects the legal rights of accused persons when they are charged with an offence.

Section 11 encompasses “crucial fundamental rights” (R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541, per Wilson J., atp. 558), including the right to be tried within a reasonable time (s. 11(b)); the right to be presumed innocent (s. 11(d)); and the rightagainst double jeopardy or punishment (s. 11(h)). [21]

Section 11(

i) is another such right: 11. Any person charged with an offence has the right

. . . (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time ofsentencing, to the benefit of the lesser punishment. [22] Along with s. 11(g) — which protects an accused’s right “not to be found guilty on account of any act or omissionunless, at the time of the act or omission, it constituted an offence” — s. 11(

i) constitutionally enshrines the fundamental notion thatcriminal laws should generally not operate retrospectively. [23] This constitutional aversion to retrospective criminal laws is in part motivated by the desire to safeguard the rule oflaw. As Lord Diplock put it, “acceptance of the rule of law as a constitutional principle requires that a citizen, before committinghimself to any course of action, should be able to know in advance what are the legal consequences that will flow from it” (Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., [1975] A.C. 591 (H.L.), at p. 638).

One author expressed therule of law implications of retrospective laws in these terms: According to the ideal of the rule of law, the law must be such that those subject to it can reliably be guided by it, either to avoidviolating it or to build the legal consequences of having violated it into their thinking about what future actions may be open to them. People must be able to find out what the law is and to factor it into their practical deliberations.

The law must avoid taking people bysurprise, ambushing them, putting them into conflict with its requirements in such a way as to defeat their expectations and frustrate theirplans. (J. Gardner, “Introduction”, in H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (2nd ed. 2008), xiii, atp. xxxvi) [24] Retrospective laws threaten the rule of law in another way, by undercutting the integrity of laws currently in effect,“since it puts them under the threat of retrospective change” (L. L.

Fuller, The Morality of Law (rev. ed. 1969), at p. 39). [25] Relatedly, retrospective laws implicate fairness. “It is unfair to establish rules, invite people to rely on them, thenchange them in mid-stream, especially if the change results in negative consequences” (R. Sullivan, Sullivan on the Construction ofStatutes (6th ed. 2014), at p. 754). For example, an accused who declines to consider a plea and is prepared to take the risk of going totrial should not be subsequently ambushed by an increase in the minimum or maximum penalty for the offence.

A retrospective lawsuch as this could not only cause unfairness in specific cases, but could also undermine public confidence in the criminal justice system. Instead, fairness in criminal punishment requires rules that are clear and certain. As McLachlin J. wrote in R. v. Kelly, (SCC), [1992] 2 S.C.R. 170: It is a fundamental proposition of the criminal law that the law be certain and definitive. This is essential, given the fact that what is atstake is the potential deprivation of a person of his or her liberty and his or her subjection to the sanction and opprobrium of criminalconviction.

This principle has been enshrined in the common law for centuries, encapsulated in the maxim nullum crimen sine lege,nulla poena sine lege — there must be no crime or punishment except in accordance with law which is fixed and certain. [p. 203] [26] Clearly, the concerns with retrospective laws are particularly potent in proceedings that are criminal, quasi-criminal,or in which a “true penal consequence” is at stake — the context to which s. 11 applies (Wigglesworth, at p. 559). [27] In sum, s. 11(

i) is rooted in values fundamental to our legal system, including respect for the rule of law and ensuringfairness in criminal proceedings.

(2) The Framework for Defining Punishment in

Section 11(

i) of the Charter [28] In Rodgers, this Court developed a two-part test for determining whether a consequence amounts to “punishment”under s. 11(i): (1) the measure must be a consequence of a conviction that “forms part of the arsenal of sanctions to which an accusedmay be liable in respect of a particular offence”; and (2) it must be “imposed in furtherance of the purpose and principles of sentencing”(para. 63). [29] In the course of articulating this test, Charron J. observed that a “liberal and purposive approach” must be taken todefining punishment (para. 61), but also cautioned that “punishment” does not “encompas[s] every potential consequence of beingconvicted of a criminal offence” (para. 63).

For example, if a consequence advances a legitimate non-punitive state interest, such assolving future crimes, it will likely not constitute punishment, even if it indirectly furthers a sentencing objective like deterrence(Rodgers, at para. 64). Applying this test, Charron J. concluded that post-conviction DNA databank orders do not constitute punishmentbecause they are imposed to assist in the investigation of future crimes, not in furtherance of the purpose and principles of sentencing. The fact that a DNA profile may deter offenders is merely a “residual benefit” (para. 64, quoting R. v.

Murrins, 2002 NSCA 12, 201N.S.R. (2d) 288 (C.A.), at para. 102). [30] While the first branch of the s. 11(

i) test for punishment (consequence of conviction) has proven to be relativelystraightforward, the second branch (imposed in furtherance of the purpose and principles of sentencing) has given rise to two keyambiguities. First, do laws that are primarily aimed at protecting the public necessarily fail to satisfy the second branch of the Rodgerstest? Second, what role does the impact a sanction can have on an offender play in the analysis? I address each question in turn. (

a) Do Laws Primarily Aimed at Public Protection Necessarily Fail to Satisfy the Second Branch of the Rodgers Test?

[31] In this case, the Court of Appeal interpreted Rodgers as indicating that sanctions principally aimed at publicprotection necessarily fall outside the ambit of punishment. The Crown echoes this position before this Court. As I will explain, thisposition overreaches: while not all measures imposed to protect the public constitute punishment, public protection is at the core of thepurpose and principles of sentencing.

Public protection is therefore an insufficient litmus test for defining punishment. [32] The purpose and principles of sentencing have been the subject of extensive jurisprudence and are reflected, at leastin part, in ss. 718 et seq. of the Criminal Code: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1; see also R. v. Ipeelee,2012 SCC 13, [2012] 1 S.C.R. 433, at para.

Section 718 provides that the “fundamental purpose of sentencing is to protect society”and to contribute “to respect for the law and the maintenance of a just, peaceful and safe society”. This overarching purpose isaccomplished by “imposing just sanctions” (s. 718) that reflect one or more of the traditional sentencing objectives: denunciation,deterrence, separation of offenders from society, rehabilitation, reparation, and promoting a sense of responsibility in offenders.

Sections718.1 and 718.2 go on to list a number of sentencing principles, including the fundamental principle of proportionality, that guidesentencing judges in crafting a fit sentence. [33] It is clear from the plain language of s. 718 that public protection is part of the very essence of the purpose andprinciples governing the sentencing process, a point emphasized by this Court in R. v. Lyons, (SCC), [1987] 2 S.C.R.309, per La Forest J., at p. 329: “. . . the fundamental purpose of the criminal law generally, and of sentencing in particular, [is] theprotection of society”.

It is therefore difficult to distinguish between sanctions intended to protect the public and sanctions intended topunish offenders. Doherty J.A. highlighted this difficulty in the recent case of R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81. Although his comments were made in the context of defining the common law presumption against retrospectivity, they are appositehere: The distinction between sanctions intended to protect the public and those intended to punish offenders is difficult to make in the contextof sentencing for criminal offences.

Many criminal sanctions are designed to both protect the public and punish the accused. In fact,some sanctions protect the public by punishing the accused. The objectives of public protection and punishment often cannotrealistically be separated and treated as individual and competing purposes in the sentencing context. [para. 42] For these reasons, sanctions intended to advance public safety do not constitute a broad exception to the protection s. 11(

i) affords andmay qualify as punishment. [34] To be clear, while measures imposed at sentencing for the purpose of protecting the public may constitutepunishment under s. 11(i), a public-protection purpose is not, on its own, determinative. To satisfy the second branch of the Rodgerstest, a consequence of conviction must be imposed in furtherance of the purpose and principles of sentencing. As discussed, the purposeof sentencing is to “protect society” or advance “respect for the law and the maintenance of a just, peaceful and safe society” (s. 718 ofthe Criminal Code) by fulfilling one or more of the traditional sentencing objectives (s. 718(

a) through (f)) in accordance with theprinciples of sentencing reflected in ss. 718.1 and 718.2. (

b) What Role Does the Impact of a Sanction Play in the Analysis? [35] Citing R. v. Cross, 2006 NSCA 30, 138 C.R.R. (2d) 163, at paras. 45-46, the Crown submits that the impact of asanction on an offender is only relevant if it is out of proportion to the sanction’s legislative purpose. That is, “if the impact of thesanction aligns with its legislative purpose and is not of such magnitude that it reveals, instead, a punitive intent, it is not ‘punishment’”(Cross, at para. 45). [36] As I shall explain, I conclude that the impact of a sanction has broader significance. While a sanction’s impact wasto some extent implicit in the Rodgers analysis, in my view, the s. 11(

i) test for punishment must embody a clearer, more meaningfulconsideration of the impact a sanction can have on an offender. This is important for a variety of reasons. [37] First, it accords with “the liberal and purposive approach” that must be taken in interpreting Charter rights, includings. 11(i) (Rodgers, at para. 61).

The purposes of s. 11(i), which are centred on the rule of law and fairness in criminal proceedings, arecompromised if the right is incapable of protecting offenders from the retrospective imposition of sanctions that have a significant impacton their liberty or security — regardless of the sanction’s objective.

As the interveners the David Asper Centre for ConstitutionalRights, the Criminal Lawyers’ Association (Ontario), the British Columbia Civil Liberties Association, and the Association des avocatsde la défense de Montréal all submit, fairness and predictability in punishment are enhanced when there is a pragmatic consideration ofthe impact of an impugned sanction. [38] A “liberal and purposive approach” to punishment is appropriate because s. 11(

i) is engaged only within a narrowsphere. As mentioned, in Wigglesworth, this Court held that s. 11 of the Charter applies only to proceedings that are criminal or quasi-criminal, or, regardless of the nature of the proceeding, if a “true penal consequence” such as imprisonment is at stake (p. 559). TheCourt in Wigglesworth gave s. 11 a narrow ambit so that “[t]he content of [the s. 11] rights [does not] suffer from a lack of predictabilityor a lack of clarity because of a universal application of the section” (p. 558).

Although the “true penal consequence” test sets anindisputably high bar, it was developed to determine whether a person is nonetheless “charged with an offence” even if he or she is thesubject of proceedings outside the criminal context. Within the criminal law context, the concerns motivating a narrow construction of“penal consequences” or “punishment” largely fall away. [39] Second, a consideration of the impact of a sanction is consistent with this Court’s jurisprudence.

Since the earlydays of the Charter, this Court has always looked to both purposes and effects when considering the constitutionality of laws: see R. v.Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 331. And in the recent decision of Canada (Attorney General)v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, this Court adopted “a functional rather than a formalistic perspective” (para. 52),observing that, “[i]t is the retrospective frustration of an expectation of liberty that constitutes punishment” (para. 60). The Court wenton to conclude that the elimination of accelerated parole review violated s. 11(

h) as it had a sufficiently significant impact on “anoffender’s settled expectation of liberty” (para. 60). In doing so, the Court focused on the impact the retrospective law had on theoffender, rather than the purpose animating the law: see H. Stewart, “Punitive in Effect: Reflections on Canada v. Whaling” (2015), 71

S.C.L.R. (2d) 263, at p. 269. Although Whaling was concerned with the definition of punishment in the context of s. 11(

h) of theCharter, harmony between s. 11(

i) and (

h) is desirable as fairness in punishment underlies both provisions. [40] Third, an approach that accounts for a sanction’s impact will assist in identifying the “lesser punishment” to whichan accused is entitled. The punishment with the less severe impact on the liberty or security of an offender will be deemed to be the“lesser punishment” for the purposes of s. 11(i).

A definition of punishment that focuses heavily on the objective of the sanctionobscures this inquiry. [41] Thus, I would restate the test for punishment as follows in order to carve out a clearer and more meaningful role forthe consideration of the impact of a sanction: a measure constitutes punishment if (1) it is a consequence of conviction that forms part ofthe arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance ofthe purpose and principles of sentencing, or (3) it has a significant impact on an offender’s liberty or security interests.[1] [42] As this Court wrote in Cunningham v.

Canada, (SCC), [1993] 2 S.C.R. 143: “The Charter does notprotect against insignificant or ‘trivial’ limitations of rights . . . . The [state action] must be significant enough to warrant constitutionalprotection” (p. 151). That is why, if a consequence of conviction is not imposed in furtherance of the purpose and principles ofsentencing, it must have a significant impact on an offender’s constitutionally protected liberty or security interests before it will qualifyas punishment for the purposes of s. 11(i).

To satisfy this requirement, a consequence of conviction must significantly constrain aperson’s ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public. Again, Doherty J.A.’s comments in Hooyer are helpful: “. . . a prohibition that significantly limits the lawful activities in which anaccused can engage, where an accused can go, or with whom an accused can communicate or associate, would sufficiently impair theliberty and security of the accused to warrant characterizing the prohibition as punishment” (para. 45). [43] Having reformulated the s. 11(

i) test for punishment, I now turn to the sanctions at issue in this appeal. I firstdiscuss s. 161 of the Criminal Code in more detail before applying the test for punishment to the 2012 amendments.

(3) History and Operation of

Section 161 of the Criminal Code [44] The legislative history, judicial

interpretation, and design of s. 161 all confirm that the

section has an overarchingprotective function: to shield children from sexual violence. [45]

Section 161 was enacted in 1993 in response to the decision in R. v. Heywood (1992), (BC CA),20 B.C.A.C. 166, in which the British Columbia Court of Appeal struck down under s. 7 of the Charter the offence of loitering: see AnAct to amend the Criminal Code and the Young Offenders Act, S.C. 1993, c. 45, s. 1. After 1993, s. 161 continued to evolve and, in2012, the impugned amendments were introduced through the Safe Streets and Communities Act. The protective function of s. 161generally, and the 2012 amendments specifically, was repeatedly emphasized throughout the legislative debates.

For example, at theBill’s third reading, the Minister of Justice stated that the proposed amendments are “an important step forward in the protection of children in this country” (House of Commons Debates, vol. 145, No. 144, 3rd Sess., 40th Parl., March 11, 2011, at p. 8967). [46] The jurisprudence interpreting and applying s. 161 confirms the provision’s protective purpose: see, e.g., R. v.Heywood, (SCC), [1994] 3 S.C.R. 761, at p. 803; R. v.

A. (R.K.), 2006 ABCA 82, 208 C.C.C. (3d) 74, at para. 20; R. v.Perron, 2009 ONCA 498, 244 C.C.C. (3d) 369, at para. 13. [47] As well, the design of s. 161 is consistent with its purpose of protecting children from sexual violence.

Section 161orders are discretionary and “subject to the conditions or exemptions that the court directs” (s. 161(1)). They can therefore be carefullytailored to the circumstances of a particular offender. The discretionary and flexible nature of s. 161 demonstrates that it was designed toempower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released intothe community.

Failure to comply with the order can lead to a term of imprisonment of up to four years (s. 161(4)). [48] Further, I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiarybasis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of theorder are a reasonable attempt to minimize the risk: see A. (R.K.), at para. 32; see also R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106,at paras. 32-34. These orders are not available as a matter of course.

In addition, the content of the order must carefully respond to anoffender’s specific circumstances.[2]

(4) Application of the Test for Punishment to the 2012 Amendments to

Section 161 of the Criminal Code [49] Applying the reformulated test, I conclude that the 2012 amendments constitute punishment. [50] First, the 2012 amendments form part of the arsenal of sanctions to which an accused may be liable in respect of aparticular offence. Section 161(1) directs sentencing judges to consider whether to exercise their discretion to impose the communitysupervision measures once an offender is convicted of an enumerated sexual offence involving a person under the age of

Section 161orders are therefore a consequence of conviction, a fact that the Crown does not dispute. [51] Second, the sanctions contained in the 2012 amendments are imposed in furtherance of the purpose and principles ofsentencing and can have a significant impact on an offender’s Charter-protected interests — although, to be clear, both are not requiredto satisfy the test. [52] As to the objective, the 2012 amendments are intended to protect children by separating offenders from society,assisting in rehabilitation, and deterring sexual violence, sentencing goals that all find expression in s. 718 of the Criminal Code.

Inaddition, the discretionary and flexible process through which s. 161 orders are imposed aligns with the principles of sentencingarticulated in ss. 718.1 and 718.2. As noted above, the fact that such orders are imposed to protect children, on its own, is notdeterminative.

[53] These prohibitions are to be distinguished from DNA orders, which have been found not to constitute punishmentunder s. 11(i): see Rodgers, at para. 65. As discussed, the objective of DNA orders is primarily to facilitate the investigation of futurecrimes, rather than to achieve deterrence, denunciation, separation, or rehabilitation in connection with a past offence: see Rodgers, atpara. 64. [54] Turning to the impact of the amendments, both s. 161(1)(

c) and (

d) can have a significant impact on the liberty andsecurity of offenders — potentially for the rest of their lives. This Court has recognized that living in the community under restrictionscan attract a considerable degree of stigma (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 105). Further, a prohibition under s.161(1)(

c) on having any contact with persons under the age of 16 could potentially curtail the types of employment an offender canpursue, and an offender’s ability to interact with people (including adults in the company of children) in public and private spaces. Anddepriving an offender under s. 161(1)(

d) of access to the Internet is tantamount to severing that person from an increasinglyindispensable 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 awindow to the world. For a growing number of people, the Internet is their world — a place where one can do nearly everything oneneeds 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; footnotesomitted.] (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 ruleof law concerns underlying the s. 11(

i) right. [55] The significant impact the 2012 amendments can have on the liberty and security of offenders is another way inwhich these sanctions are distinguishable from DNA orders.

I agree with Doherty J.A. that “a sentencing provision requiring an accusedto provide a DNA sample upon conviction . . . does not meaningfully impair the accused’s liberty or security of the person and would notbe regarded as punishment” (Hooyer, at para. 45). [56] I also note that the text of s. 161(1) (“in addition to any other punishment” or “en plus de toute autre peine”), whilecertainly not determinative, is nonetheless informative.

As Groberman J.A. observed in dissent at the Court of Appeal, “Parliament itselfappears to have considered that the sanctions set out in s. 161(1) come within the ordinary meaning of the word ‘punishment’” (para. 78)or “peine”.[3] [57] 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 canhave a significant impact on the liberty and security of offenders.

Clearly, the 2012 amendments constitute greater punishment than theprevious prohibitions: under the new s. 161(1)(c), a judge can prohibit all contact with children, no matter the means (not just contactinvolving a computer system); and under the new s. 161(1)(d), a judge can prohibit an offender from using the Internet or other digitalnetwork for any purpose (not just for the purpose of contacting children). Accordingly, the retrospective operation of these provisionslimits the s. 11(

i) right as it deprives the appellant of the benefit of the less restrictive community supervision measures captured in theprevious version of s. 161 — that is, the “lesser punishment”. B. Is the Limitation of

Section 11(

i) Justified Under

Section 1 of the Charter? [58]

Section 1 of the Charter provides as follows: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. To establish that the limitation on the appellant’s s. 11(

i) right is reasonable and demonstrably justified, the government must show thatthe 2012 amendments have a sufficiently important objective “and that the means chosen are proportional to that object[ive]” (Carter v.Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 94).

A law is proportionate if (1) there is a rational connectionbetween the means adopted and the objective; (2) it is minimally impairing in that there are no alternative means that may achieve thesame objective with a lesser degree of rights limitation; and (3) there is proportionality between the deleterious and salutary effects of thelaw (R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Carter, at para. 94).

The proportionality inquiry is a normative andcontextual one, which requires courts to examine the broader picture by “balanc[ing] the interests of society with those of individuals andgroups” (Oakes, at p. 139). [59] Unfortunately, s. 1 was not dealt with in the courts below. This means we do not have the benefit of a full record,including expert testimony. But the parties urged us to consider s. 1 on the record before us.

This Court therefore deals with this issue,on consent, as a court of first instance. [60] The Crown adduced fresh evidence attached to two affidavits, consisting of statistics and social science articlesrelating to the issue of the recidivism of sexual offenders. The appellant did not oppose the admission of this evidence and I am satisfiedit would be appropriate to receive it.

Accordingly, in assessing whether the Crown has discharged its justificatory burden, I will considerthe Crown’s fresh evidence as “supplemented by common sense and inferential reasoning”, in addition to the jurisprudence andlegislative debates proffered by the parties (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 78).

(1) Do the 2012 Amendments Have a Sufficiently Important Objective?

[61] A law that limits a constitutional right must do so in pursuit of a sufficiently important objective that is consistentwith the values of a free and democratic society. This examination is a threshold requirement that is undertaken without considering thescope of the right infringement, the means employed, or the relationship between the positive and negative effects of the law. [62] The appellant correctly submits that the relevant objective is that of the infringing measure: see Toronto StarNewspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 20.

Here, the infringing measure is the retrospective operationof the impugned law. However, the more general purpose behind the enactment of the 2012 amendments informs the specific rationalefor applying the amendments retrospectively. [63] The appellant argues that the objective of the retrospective operation of the 2012 amendments is to increase thepunishment imposed on offenders who committed their offences prior to 2012 so as to more effectively further the purpose and principlesof sentencing.

In my view, this articulation of the law’s purpose is not sufficiently precise and is essentially a description of the meansthe legislature has chosen to achieve its purpose: see Carter, at para. 76; see also R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, atpara. 28. [64] As discussed above, the legislative history, judicial

interpretation, and design of s. 161 all confirm that theoverarching goal of the

section is to protect children from sexual violence perpetrated by recidivists. And there is ample evidence in thelegislative record surrounding the enactment of the new s. 161(1)(

c) and (

d) to show that enhancing child protection motivated theimpugned amendments as well. To highlight but one example, at the debate accompanying the second reading of the Bill, theParliamentary Secretary to the Minister of Justice said the amendments “see[k] to prevent . . . child sex offenders from having theopportunity to facilitate their offending.

Finding access to a child or the opportunity to be alone with a child is a key for many child sexoffenders” (House of Commons Debates, vol. 145, No. 110, 3rd Sess., 40th Parl., December 3, 2010, at p. 6787). [65] Accordingly, the overarching objective of the prospective operation of the 2012 amendments is to enhance theprotection s. 161 affords to children against the risk of harm posed by convicted sexual offenders.

It follows naturally that the objectiveof the retrospective operation of these amendments — the infringing measure — is to better protect children from the risks posed byoffenders like the appellant who committed their offences before, but were sentenced after, the amendments came into force. This latterobjective anchors the s. 1 analysis. [66] Obviously, this objective is sufficiently important to warrant further scrutiny. As Laskin J.A. wrote in R. v. Budreo(2000), (ON CA), 46 O.R. (3d) 481 (C.A.), “Children are among the most vulnerable groups in our society.

Thesexual abuse of young children is a serious societal problem, a statement that needs no elaboration” (para. 37). Providing enhancedprotection to children from becoming victims of sexual offences is vital in a free and democratic society.

(2) Are the Means Adopted Proportional to the Law’s Objective? [67] In assessing the proportionality of a law, a degree of deference is required. As this Court recently wrote in Carter: At this stage of the analysis, the courts must accord the legislature a measure of deference. Proportionality does not require perfection:Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para.

Section 1 only requires that thelimits be “reasonable”. [para. 97] (

a) Rational Connection [68] At this first step of the proportionality inquiry, the government must demonstrate that the means used by the limitinglaw are rationally connected to the purpose the law was designed to achieve. “To establish a rational connection, the government needonly show that there is a causal connection between the infringement and the benefit sought ‘on the basis of reason or logic’” (Carter, atpara. 99, citing RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para. 153). [69] As the appellant concedes, there is clearly a rational connection between providing enhanced protection to childrenfrom the risks of sexual violence presented by offenders who committed their offences before the 2012 amendments came into force (theobjective) and retrospectively giving sentencing judges the discretionary power to limit those offenders who pose a continuing risk tochildren in contacting children in person or online, and in engaging with online child pornography (the means chosen).

Although theCrown’s fresh evidence, which I discuss below, assists in solidifying this causal link, at this stage, I am satisfied that reason and logicsuffice to establish that Parliament proceeded rationally in opting to give s. 161(1)(

c) and (

d) retrospective effect in order to better protectchildren from recidivism risks posed by offenders who committed their offences before the 2012 amendments came into force. (

b) Minimal Impairment [70] The question at this second stage is whether the 2012 amendments are minimally impairing, in the sense that “thelimit on the right is reasonably tailored to the objective” (Carter, at para. 102).

It is only when there are alternative, less harmful meansof achieving the government’s objective “in a real and substantial manner” that a law should fail the minimal impairment test (Alberta v.Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 55). [71] I am satisfied that the retrospective operation of the prohibitions contained in the 2012 amendments is minimallyimpairing of s. 11(i). [72] The amendments were enacted within the context of a highly discretionary provision that is tailored to its objective.

Prohibitions listed in s. 161(1) are to be imposed only when a judge is satisfied that the specific offender poses a continued risk tochildren upon his release into the community and that the specific terms of the order are a reasonable attempt to minimize the risk. Thelaw is therefore not “drafted in a way that unnecessarily catches [conduct] that has little or nothing to do with the prevention of harm tochildren” (Sharpe, at para. 95). In other words, the retrospective use of s. 161(1)(

c) and (

d) is available only when a judge is satisfiedthat the prohibitions will advance the enhanced child-protection goal of the amendments. No risk, no retrospective order.

[73] Further, s. 161(1) permits a sentencing judge to impose any conditions or exemptions that correspond to thecircumstances of a particular offender. Section 161(1)(

c) provides that offenders may have contact with persons under the age of 16 if“the offender does so under the supervision of a person whom the court considers appropriate”. Similarly, s. 161(1)(

d) permits offendersto use the Internet if “the offender does so in accordance with conditions set by the court”.

Finally, the prohibition order can be limitedin duration (s. 161(2)) and reviewed periodically to ensure it continues to correspond to an offender’s circumstances (s. 161(3)). [74] Despite the highly discretionary and tailored nature of s. 161, the appellant argues that the impugned amendmentsare not minimally impairing because the Crown has failed to demonstrate that a purely prospective application of the amendments wouldundermine its objective.[4] Although I will discuss the potential gaps in the evidentiary record more fully below when I weigh thedeleterious and salutary effects of the law, I would not give effect to this submission at the minimal impairment stage, for a few reasons. [75] It is widely accepted (and the record confirms) that a non-trivial percentage of sex offenders will reoffend.

If theamendments operated only prospectively, a sentencing judge would be unable to impose the prohibitions in s. 161(1)(

c) and (

d) onoffenders who committed their crimes before 2012 even if the judge were satisfied that the prohibitions were required to minimize therisk to a child that a sex offender will recidivate. I therefore accept that a purely prospective application of the amendments would haveprevented Parliament from fully realizing its objective of enhancing the protection s. 161 affords to children from offenders whocommitted their offences before the coming into force of the 2012 amendments.

Further, accepting the appellant’s argument would failto accord sufficient deference, at this stage of the analysis, to the government’s choice of legislative means. And questions pertaining tothe extent of the efficacy of the retrospective operation of the 2012 amendments are best left to the next step of the analysis: proportionality of effects. [76] In sum, given the discretionary and tailored nature of s. 161 and the fact that a purely prospective operation of theamendments would have compromised Parliament’s full objective, I conclude that the retrospective operation of s. 161(1)(

c) and (d)impairs the s. 11(

i) right as little as reasonably possible.[5] The more difficult issue is whether the benefits achieved from imposing the2012 amendments retrospectively outweigh the deleterious effects. (

c) Proportionality of Effects [77] At this final stage of the proportionality analysis, the Court must “weig[h] the impact of the law on protected rightsagainst the beneficial effect of the law in terms of the greater public good” (Carter, at para. 122).[6] This final stage is an important onebecause it performs a fundamentally distinct role. As a majority of this Court observed in Thomson Newspapers Co. v.

Canada (AttorneyGeneral), (SCC), [1998] 1 S.C.R. 877: The focus of the first and second steps of the proportionality analysis is not the relationship between the measures and the Charter rightin question, but rather the relationship between the ends of the legislation and the means employed. . . .

The third stage of theproportionality analysis provides an opportunity to assess, in light of the practical and contextual details which are elucidated in the firstand second stages, whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by thevalues underlying the Charter. [para. 125] [78] It is for this reason that Aharon Barak, former President of the Supreme Court of Israel, has described this final stepas “the very heart of proportionality” (“Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J. 369, at p. 380).

And inHutterian Brethren, Abella J. wrote: “. . . most of the heavy conceptual lifting and balancing ought to be done at the final step —proportionality. Proportionality is, after all, what s. 1 is about” (para. 149). [79] I agree.

While the minimal impairment test has come to dominate much of the s. 1 discourse in Canada, this finalstep permits courts to address the essence of the proportionality enquiry at the heart of s. 1.[7] It is only at this final stage that courts cantranscend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society “in directand explicit terms” (J. Cameron, “The Past, Present, and Future of Expressive Freedom Under the Charter” (1997), 35 Osgoode HallL.J. 1, at p. 66).

In other words, this final step allows courts to stand back to determine on a normative basis whether a rightsinfringement is justified in a free and democratic society. Although this examination entails difficult value judgments, it is preferable tomake these judgments explicit, as doing so enhances the transparency and intelligibility of the ultimate decision.

Further, as mentioned,proceeding to this final stage permits appropriate deference to Parliament’s choice of means, as well as its full legislative objective. [80] In this case, there are important differences between the effects of the two impugned amendments. I will thereforeconsider the two provisions separately. (

i) Balancing the Deleterious and Salutary Effects of the Retrospective Operation of Section 161(1)(

c) of the Criminal Code [81] The deleterious effects flowing from the retrospective operation of s. 161(1)(

c) are substantial. At the individuallevel, in depriving offenders of the benefit of the lesser punishment, s. 161(1)(

c) prevents the appellant and other offenders from freelyparticipating in society following their release into the community. Before the new s. 161(1)(

c) was introduced, outside the digitalrealm, judges could prohibit offenders only from attending public parks, public swimming pools, daycare centres, schoolgrounds,playgrounds, and community centres, or from seeking employment or volunteer opportunities involving children. The new s. 161(1)(c)potentially goes much further and prohibits “any contact — including communicating by any means — with a person who is under theage of 16 years” in a public or private space. For example, offenders

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