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SENTENCING - Prohibition orders - Non-contact orders

Tuesday, February 23, 2021 @ 6:16 AM  

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Appeal by the offender, SCW, from a sentencing judge’s refusal to vary a prohibition order issued pursuant to s. 161 of the Criminal Code. The appellant pleaded guilty to sexual interference and making child pornography in connection with the abuse of his stepdaughter, age 10, between 2011 and 2012. The sentencing judge described the offences as loathsome and noted that the victim was suicidal in the aftermath. In 2016, the appellant was sentenced to seven years’ imprisonment and a 20-year prohibition pursuant to s. 161 was issued. Prior to sentencing, the appellant entered a new domestic relationship with AK and fathered a child. In 2019, the Court of Appeal upheld the custodial portion of the sentence. The appellant separately applied to vary the s. 161 order. The sentencing judge refused to vary the order to appoint AK as the appellant’s supervisor to enable contact with their child despite the Crown’s consent. The judge otherwise varied the s. 161(1)(d) prohibition on Internet use to permit such use on a work device on the condition pornography was not accessed. SCW appealed. The Crown took the position the court lacked jurisdiction to review the sentencing judge’s order and otherwise opposed the merits of the appeal.

HELD: Appeal allowed in part. The court had jurisdiction to hear the appeal. Jurisdiction was not dependent on whether the appellant’s application was expressly contemplated by a term of the order itself or as a variation of a fully defined term of that order. Both types of applications would involve the making of an order under s. 161, which was expressly defined as a “sentence” for appeal purposes. In refusing the appellant’s request to appoint AK as a supervisor pursuant to s. 161(1)(c), the sentencing judge erred in principle by focusing on the impossible conflict faced by AK as the appellant’s domestic partner and mother of the child he sought contact with. However, the error was of no consequence for two reasons. Firstly, the application was premature in the sense that there was insufficient information regarding the appellant’s terms of release on probation into the community or the details of proposed contact with his child. Secondly, other relevant evidence regarding the offender’s risk of sexual reoffending, his lack of remorse, his lack of counselling and the absence of a specific plan for contact with the child justified refusal of the proposed variation. The dismissal of that aspect of the appeal was without prejudice to the offender’s ability to reapply at the appropriate time with sufficient evidence to address the concerns raised at first instance. The Internet prohibition was overly broad and demonstrably unfit, as it contemplated an RCMP approved-program that did not exist, and restricted Internet use unless to a device used for employment. The prohibition was varied to prohibit communication with a person under age 16 while the pornography condition remained extant.

R. v. S.C.W., [2020] B.C.J. No. 2145, British Columbia Court of Appeal, M.V. Newbury, P.M. Willcock and G.B. Butler JJ.A., December 29, 2020. Digest No. TLD-February222021003