This week’s top three summaries: R v Zeng, 2024 ONCA 386: #rolled up instruction, R v AB, 2024 ONCA 446: #subjective mens rea, and R v Howitt, 2024 SKCA 51: 161 #tailoring.
R v Zeng, 2024 ONCA 386
[May 15, 2024] Party Liability Jury Instructions and Crown Theory [Reasons by I.V.B. Nordheimer J.A. with P. Lauwers and C.W. Hourigan JJ.A. concurring]
AUTHOR’S NOTE: In cases involving party liability and co-accused, “rolled-up” instructions can create significant confusion and potentially lead to unjust outcomes. The Court in this case emphasizes the importance of providing clear, separate instructions for each accused to avoid this pitfall. Here’s an in-depth look at why rolled-up instructions are problematic and the Court’s guidance on proper jury instruction:
Key Points from the Case:
- Separate Instructions for Each Accused:
- Clarity and Specificity: Each accused should receive distinct and individualized instructions. This ensures that the jury can assess the evidence and legal principles relevant to each defendant independently, without conflating the actions or culpability of one accused with another.
- Avoiding Confusion: When instructions are combined or “rolled up,” there is a significant risk of jurors becoming confused about who did what, the specific roles each accused played, and the different legal standards applicable to each party. This confusion can compromise the jury’s ability to deliver a fair and accurate verdict.
- Handling Lesser Included Offences:
- Repetition is Necessary: Proper instruction requires revisiting the evidence when explaining lesser included offences like second-degree murder and manslaughter. While this repetition might seem redundant, it is crucial for ensuring that the jury understands how to apply the law to the facts for each potential verdict.
- Step-by-Step Guidance: The judge should methodically guide the jury through the legal requirements and factual considerations for each possible conviction, clearly distinguishing between the different charges and the evidence that supports each.
- Risks of Mixing Instructions:
- Complex Legal Principles: Party liability involves complex concepts such as aiding, abetting, and joint participation in crimes. When these are mixed with instructions on lesser included offences, the jury may struggle to understand how these principles apply to the specific actions of each accused.
- Compromise Verdicts: Confusing instructions increase the risk of compromise verdicts—decisions made by jurors who might settle on a middle ground that isn’t fully supported by the evidence, just to resolve their uncertainties about how to apply the law correctly.
Best Practices for Jury Instructions:
- Individualized Instructions:
- Judges should provide separate, clear instructions for each accused, outlining the specific charges and evidence applicable to each one. This separation helps jurors focus on the individual actions and culpability of each defendant.
- The instructions should delineate the legal concepts relevant to each accused, such as the requirements for establishing party liability or the criteria for lesser included offences.
- Detailed Explanation of Legal Concepts:
- Instructions should thoroughly explain complex legal principles like party liability, ensuring that jurors understand the different ways in which an accused can be found guilty based on their participation in the crime.
- For lesser included offences, the judge should clearly articulate how the jury should assess the evidence to determine whether the elements of these lesser charges are met.
- Repetition with Purpose:
- While repeating evidence during instructions on lesser included offences might seem repetitive, it is essential for clarity. The judge should carefully repeat relevant evidence to help jurors understand how it pertains to each charge.
- The repetition should be structured to reinforce the connection between the evidence and the specific legal standards for each offence, helping jurors to apply the law accurately.
Conclusion:
This case highlights the pitfalls of rolled-up instructions and the necessity for clear, separate, and precise directions for each accused. By ensuring that instructions are individualized and thoroughly explained, judges can help juries navigate complex cases involving multiple accused and multiple charges. Properly crafted instructions reduce the risk of confusion and ensure that verdicts are based on a clear understanding of the law and the evidence presented.
Two Routes to Liability for the Appellant
[10] The trial judge identified two routes by which the appellant might be convicted. The first related to first degree murder with manslaughter as an included offence. The second related to second degree murder based on his participation in a scheme to kidnap Wang that resulted in his death, taking into account party liability under s. 21(2) of the Criminal Code.
[11] One of the overriding problems with the jury instructions is that the two routes that the trial judge chose to leave with the jury were not kept separate and apart in her instructions. Rather, the instructions tended to blend or confuse the two routes. The result was that the jury was likely left in a state of confusion as to the analytical steps they needed to take to arrive at a proper verdict through either route.
The First Route – First Degree Murder
[12] There was no evidence that the appellant was a principal in the murder plan. The trial judge instructed the jury that in order for them to find the appellant guilty of first degree murder, they would have to find him to be an aider. The trial judge also instructed the jury that, on that route to first degree murder, the only guilty findings available were either first degree murder or manslaughter.
[13] However, it is entirely unclear how a conviction on manslaughter could arise on the theory that was presented, and the evidence upon which that theory was based. If the intent of the individuals involved was to murder Wang, it was a planned and deliberate murder. The masked men waited in the van for many hours until Wang left 113. He was then shot by one of the masked men, while the others dealt with Chen who was, by that time, being held in the van.
[14] The jury’s task was to decide if the appellant was engaged in aiding the plan to kill Wang. If he was, then a conviction for first degree murder would follow. However, if the jury was not satisfied that the appellant was aiding the murder plan, then he ought to have been acquitted of the charge of first degree murder. There is simply no realistic view of the evidence that would have allowed the jury to conclude that the appellant, in some fashion, aided the others in a plan to harm Wang that did not involve the requisite intent to kill.
[15] In her instructions on this route, the trial judge did not differentiate between first degree murder and manslaughter in terms of the evidence that would support a conviction on the one or the other. Rather, she referred consistently to murder “or the lesser included offence of manslaughter”. The trial judge did instruct the jury that they could not convict the appellant of either offence unless they were satisfied that there was a plan to harm Wang. What was missing was a review of the evidence that would have supported a conviction for manslaughter but not first degree murder.
[16] The trial judge instructed the jury that, if they were not satisfied beyond a reasonable doubt that the appellant participated in the shooting of Wang as an aider, they should find him not guilty of first degree murder. Instead of then dealing with the other option she had left under this route of aiding, namely manslaughter, the trial judge switched liability routes and instructed the jury that they should “go on to consider whether the Crown has proven that either of them are guilty as parties to the offences of second degree murder or manslaughter by virtue of their involvement in a joint criminal enterprise”. In other words, without fully dealing with the role of the appellant as an aider, the trial judge moved into the s. 21(2) party liability issue.
The Second Route – Second Degree Murder
[17] The trial judge instructed the jury that they could find the appellant guilty of second-degree murder through a different party route, that is, the application of s. 21(2) of the Criminal Code, based on a common intention. On this route, the theory was that the participants, including the appellant, had intended to kidnap Wang but, in the course of that effort, one of the masked gunmen had killed him. The trial judge suggested that such a result was a probable consequence of carrying out the kidnapping thus giving rise to the prospect of a conviction for second-degree murder.
[18] This instruction gives rise to several problems.
[19] First, and most importantly, neither the prosecution nor the defence had asked the trial judge to put this route of liability to the jury. Indeed, neither Crown counsel nor any of the defence counsel had addressed that possible route in their closing submissions.
[20] Second, there was an incoherency in the instructions. I quoted earlier the trial judge’s instruction when she abruptly switched routes, telling the jury that they should “go on to consider whether the Crown has proven that either of them are guilty as parties to the offences of second degree murder or manslaughter by virtue of their involvement in a joint criminal enterprise”.
[21] The trial judge’s reference to “either of them” goes back to the fact that the appellant was tried together with Xue and Feng. Feng was acquitted by the trial judge of all of the charges on the directed verdict application. She found that a properly instructed jury could not convict Feng of any offence. Xue remained in the trial to the end. As was the case with the appellant, Xue faced both the murder charge and also a charge of kidnapping – not kidnapping of Wang but kidnapping of Chen. Notably, while Xue still faced both charges by the end of the trial, the appellant was acquitted of the kidnapping charge, on the directed verdict application. These contrasting results left the jury instructions even more complicated.
[22] Third, the trial judge’s sequence of jury instructions was confusing. Her next step was to deal with the route of common intention under s. 21(2) of the Criminal Code , which she referred to as a “joint criminal enterprise”. She began by making it clear to the jury that the only two possible convictions under this route were either second-degree murder or manslaughter.
[23] The trial judge instructed the jury that the first requirement under this route was for them to be satisfied beyond a reasonable doubt that the appellant, along with Gong and the masked men in the van, “agreed that they would commit a criminal offence involving violence and to help each other to do so”. The trial judge told the jury that the predicate offence could be a kidnapping of Wang. She instructed the jury that the second requirement was “proof that one or more of the persons who were part of the original agreement to commit a kidnapping, committed murder or manslaughter in carrying out the original agreement”. The trial judge added that the prosecution must prove beyond a reasonable doubt the third requirement, that each accused “actually knew that one of the participants in [the] original agreement to [commit] kidnapping would probably harm Mr. Wang in carrying out their original agreement”.
[26] The trial judge did, at this point, instruct the jury on the requirements for the offence of manslaughter. In particular, the trial judge instructed the jury that the prosecution could prove that the appellant knew “that it was likely that in carrying out the original agreement, a member of the group would commit a dangerous, unlawful act in relation to Mr. Wang.” She then told the jury that the unlawful act needed to put a person at the risk of bodily harm. The trial judge did not relate the evidence to any of these instructions at this point.
[27] The trial judge next told the jury how common intention might work by giving an example of a robbery where one of the two participants kills the store manager. She explained the difference in that example between murder and manslaughter. The trial judge then told the jury, in relation to the relevant evidence on this route: “The evidence for you to consider in relation to this basis of liability is largely the same as in relation to aiding.”
[28] That was not correct. Not only was it not factually correct, it also had the distinct potential to entirely confuse the jury. This is where the trial judge’s failure to keep the two routes to liability separate and distinct converge in confusion. The first route was based on the appellant aiding, that is, assisting a plan to kill Wang. The common intention route was based on an entirely different agreement – the kidnapping of Wang with the potential for some harm to come to him. On the second route, the appellant was not simply assisting others to carry out the agreement; he had to be part of the agreement to kidnap Wang. The evidence as it related to aiding did not assist the jury in deciding whether the appellant was part of this entirely separate and distinct agreement. Indeed, on one view of the facts, the two agreements could be seen as contradictory to each other. It is also not clear, on the record, when the agreement might have changed from an agreement to kidnap Chen to an agreement to kidnap Wang, or whether it is alleged that there were two separate agreements concerning each of them.
[30] The jury instructions in this case were going to be more complicated because of the presence of two accused who did not have the same routes to liability. It was imperative that the jury instructions keep the two accused, and the charges, separate to avoid confusion. It was also imperative that the instructions be kept separate with respect to the two routes of liability for the appellant. The instructions had to clearly delineate between the two accused and between the two routes; this would include a separate review of the evidence as it might relate to either accused and to either route. The jury instructions did not meet these imperatives.
[31] In saying that, I appreciate the desire to keep jury instructions clear and succinct to the degree possible. I also appreciate the desire not to be repetitious in jury instructions, especially as it relates to reviewing the evidence. In many cases, it is quite permissible to relate back to an earlier review of the evidence when addressing a subsequent issue. However, those desires do not permit the taking of shortcuts in the jury instructions or permit a lack of clarification as to what evidence relates to the different decisions that a jury must make. As Watt J.A. said in R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44: “Judicial relation of the evidence to the issues improves jurors’ understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case” (emphasis in original).
[32] In some cases, such as this one, given the different issues involved, some repetition of the evidence was going to be necessary in the interests of both clarity and focus.
[33] Two approaches needed to be taken to the jury instructions in this case. First, the two accused should have been dealt with separately. Their routes to liability were different and they were not both facing all of the same offences. Second, the two routes to liability for the appellant ought to have been the subject of separate instructions that clearly delineated the requirements for a verdict under each route and, most importantly, reviewed separately the evidence that related to those requirements.
[34] The jury instructions in this case would have confused the jury, especially in terms of what agreement was operable for the different routes and what evidence related to those routes. That confusion may well have led the jury into adopting a compromise verdict. Wang was brutally shot and killed for no apparent reason. The appellant had involvement in some of the events surrounding that killing (the degree of that involvement is a very live issue) and was also involved in the illegal activities that may have been the genesis for those events. Those realities may have led the jury to want to hold him accountable. The desire to compromise could have led to a verdict without the jury going through the necessary analytical process to determine if that accountability was proven on the evidence to the very high standard of proof beyond a reasonable doubt. [Emphasis by PJM]
[37] Read as a whole, the jury instructions were inadequate to properly equip the jury with the tools necessary to understand the evidence as it related to the elements of the offences that the prosecution needed to establish beyond a reasonable doubt. A new trial is required. Since the jury acquitted the appellant of first degree murder, the new trial is limited to the charge of second-degree murder….
Conclusion
[38] I would allow the appeal, set aside the conviction, and order a new trial on the charge of second-degree murder. As a consequence, I do not reach the sentence appeal.
R v A.B., 2024 ONCA 446
[June 5, 2024] Wilful Blindness and Recklessness in a Sexual Assault [Reasons by L. Favreau J.A., with K. van Rensburg and L.B. Roberts JJ.A. concurring]
AUTHOR’S NOTE: In criminal law, unlike civil torts, the prosecution must typically prove that the accused had a subjective mental state beyond a reasonable doubt. This includes demonstrating that the accused had actual knowledge or was willfully blind or reckless regarding their actions. The requirement for a subjective mental element is a crucial safeguard in criminal justice, ensuring that only those who have knowingly engaged in wrongful conduct are found guilty.
Key Differences in Standards:
- Subjective vs. Objective Standards:
- Subjective Standard: In criminal law, proving guilt often hinges on what the accused actually knew, believed, or intended at the time of the offence. This means focusing on the accused’s state of mind rather than what a reasonable person might have known or foreseen.
- Objective Standard: In civil law, particularly in cases of negligence, the focus is on what a reasonable person would have known or done under similar circumstances. This is an objective standard that does not require proof of the defendant’s actual state of mind.
- Principles of Wilful Blindness and Recklessness:
- Wilful Blindness: This occurs when an individual deliberately avoids acquiring knowledge of facts that would confirm their culpability. It implies a conscious effort to remain ignorant to evade legal responsibility.
- Recklessness: Involves the accused recognizing a substantial risk associated with their actions and choosing to proceed regardless of the potential consequences. It requires awareness and disregard of the risk.
Risks with Misapplication:
Former civil practitioners may inadvertently apply the objective standards they are accustomed to, leading to improper jury instructions. This can happen when judges, more familiar with civil concepts, use language that suggests a lower standard of proof, such as what the accused “ought to have known,” instead of focusing on what they actually knew or intended.
Case Illustration and Issues:
In the case at hand, this misapplication of standards led to an erroneous jury instruction. The judge directed the jury to consider whether the accused “ought to have” known about certain facts, a standard more appropriate to civil negligence than to criminal liability. This lowered the burden of proof from the required standard of beyond a reasonable doubt to something closer to a balance of probabilities.
Consequences of Misapplication:
- Unfair Convictions: Applying an objective standard in criminal cases risks convicting individuals who may not have had the requisite subjective awareness or intent. This undermines the fairness of the criminal justice process.
- Erosion of Legal Protections: The high threshold of proof in criminal cases serves to protect individuals from being unjustly deprived of their liberty. Lowering this threshold through improper jury instructions compromises these protections.
Defence Counsel’s Role:
- Vigilance and Objections:
- Defence counsel must be vigilant in ensuring that jury instructions reflect the correct legal standards. If a judge’s instructions veer towards objective standards, counsel should promptly object and seek clarifications or corrections.
- Educating Judges and Juries:
- In cases where the presiding judge or jurors may lack familiarity with criminal law principles, it is crucial for defence lawyers to clearly articulate the differences between subjective and objective standards. This includes emphasizing the necessity of proving the accused’s actual state of mind.
- Providing Clear Guidance:
- Defence lawyers should provide clear arguments and submissions to ensure that the jury understands the importance of subjective mental elements in criminal law. This includes highlighting any instances of wilful blindness or recklessness in a way that aligns with the requirement for proof beyond a reasonable doubt.
Conclusion:
The requirement to prove a subjective mental element in criminal law is fundamental to ensuring just and accurate outcomes. Defence counsel must be particularly alert to prevent the importation of civil law standards into criminal proceedings, as this can lower the standard of proof and lead to unjust convictions. Proper jury instructions that focus on what the accused actually knew or intended are essential to maintaining the integrity of the criminal justice system.
A. INTRODUCTION
[1] The appellant was charged with five counts of sexual assault and one count of choking to overcome resistance. A jury found him guilty on one of the counts of sexual assault.
[3] The appellant submits that the trial judge made three errors in his charge to the jury: 1) his instruction on prior inconsistent statements and false testimony was insufficient, 2) he failed to provide an instruction to the jury limiting reliance on demeanour evidence, and 3) he erred in his instruction on wilful blindness.
[4] While I do not accept the first two grounds of appeal, I agree with the appellant that the trial judge erred in his instruction on the mens rea requirement for sexual assault, specifically in his description of recklessness and wilful blindness. I would therefore allow the appeal and order a new trial.
(3) Evidence on the first count of sexual assault
[10] The first sexual assault allegedly occurred at the house of the appellant’s parents three or four days after the complainant’s surgery.
[11] The complainant’s evidence was that she was in bed recovering from the surgery. The appellant finished work around 3:00 p.m. and returned home around 3:30 p.m. The appellant was upset about something. He got into bed with the complainant. He removed his underwear. He moved the complainant’s underwear aside and started having vaginal intercourse with her. She was in pain and told him to get off her and to stop, but he did not. He ejaculated, got off her and went to take a shower. They did not talk about the incident afterward.
[12] The appellant’s evidence was that he and the complainant had sexual intercourse on that day. However, he testified that the complainant did not ask him to stop and did not express any pain or discomfort. He also testified that the appellant did not tell him she could not have sexual intercourse after the surgery. He said that he and the complainant had previously talked about having “gentle” and “cautious” sexual intercourse and that the complainant had agreed.
Issue 3: The trial judge erred in his instruction on recklessness and wilful blindness
[32] The appellant argues that the trial judge erred in his instruction to the jury on wilful blindness because his instruction suggested that the jury should assess the appellant’s conduct from the perspective of what a reasonable person in the appellant’s position ought to have understood rather than from the perspective of what the appellant actually understood. I agree with this submission and would add that the instruction on recklessness suffers from the same defect. Moreover, this was not an innocuous error. The instruction on the knowledge element of sexual assault could have led the jury to convict the appellant if they were satisfied that the appellant should have known that the complainant was not consenting as seen from the perspective of a reasonable person rather than as seen from his subjective perspective.
[33] The mens rea element of sexual assault requires the Crown to prove beyond a reasonable doubt that an accused knew that the complainant did not consent to the sexual activity. This knowledge element can be proven through actual knowledge, recklessness or wilful blindness: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 23.
[34] Recklessness and wilful blindness are two distinct concepts: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 20, 22; R. v. Morrison, 2019 SCC 15, [2019] 2 SCR 3, at para. 100. The doctrine of wilful blindness “imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”: Briscoe, at para. 21 (emphasis in original); see also Morrison, at para. 98. Recklessness is “the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance”: Sansregret v. The Queen, [1985] 1 S.C.R. 570, para. 16.
[35] While recklessness and wilful blindness are distinct concepts, neither looks at the accused’s knowledge from an objective perspective; that is, from the negligence standard of what a reasonable person ought to have known. Rather, recklessness and wilful blindness both require an inquiry into what the accused subjectively knew or understood at the time of the sexual activity: Briscoe, at para. 20; Sansregret, at para. 16.
[36] Accordingly, to find that the appellant was wilfully blind with respect to the complainant’s consent, the jury would have to be satisfied beyond a reasonable doubt that the appellant suspected that he was engaging in sexual activity with the complainant without her consent, and that he deliberately chose not to make inquiries despite those suspicions. It would not be sufficient for the jury to find that the appellant ought to have been suspicious and made inquiries. To find that the appellant was reckless, the jury would have to be satisfied beyond a reasonable doubt that the appellant was aware that he may be engaging in sexual activity without the complainant’s consent, but that he nevertheless persisted. It would not be sufficient for the jury to find that he ought to have been aware that the complainant was not consenting. In some circumstances, the difference between actual suspicion or awareness and what a reasonable person ought to suspect or know may be a fine one, but it is nevertheless an important distinction for the purpose of establishing the mens rea element of sexual assault.
[37] In his jury instruction, the trial judge described the mens rea requirement for sexual assault as follows:
….However, [the appellant’s] knowledge that she did not consent is also proven if you are satisfied beyond a reasonable doubt that there was a risk she was not consenting, but he went ahead anyway, not caring whether she consented or not. Alternatively, [the appellant’s] knowledge that she did not consent is proven if you are satisfied beyond a reasonable doubt that given the circumstances he should have inquired about her willingness to engage in sexual activity but did not ask, what is sometimes referred to as, “willful blindness…..”.
[38] The recklessness and wilful blindness instructions the trial judge gave are different from the National Judicial Institute Model Jury and Watt’s Model Jury instructions. In this respect, it is helpful to set them out together.
[39] For recklessness:
National Judicial Institute Model Jury instruction: “To prove that [the appellant] was aware of [the complainant’s] lack of consent, the Crown must prove … that [the appellant] knew there was a risk that [the complainant] did not consent to the sexual activity in question and [the appellant] proceeded in the face of that risk”.
Watt’s instruction: “To prove this essential element, that [the appellant] knew that [the complainant] did not consent to the sexual touching by [the appellant], Crown counsel must prove beyond a reasonable doubt … that [the appellant] knew (was aware) that there was a risk that [the complainant] did not consent (was not consenting) to the sexual touching by [the appellant], but [the appellant] went ahead anyway despite knowing (being aware) of the risk”.
Trial judge’s instruction: “[The appellant’s] knowledge that she did not consent is also proven if you are satisfied beyond a reasonable doubt that there was a risk she was not consenting, but he went ahead anyway, not caring whether she consented or not. [Emphasis added.]
[41] The wilful blindness instruction contains a similar error:
National Judicial Institute Model Jury instruction: “To prove that [the appellant] was aware of [the complainant’s] lack of consent, the Crown must prove … that [the appellant] was aware of indications that [the complainant] did not consent to the sexual activity in question, but deliberately chose to ignore them because [the appellant] did not want to know the truth. [Emphasis added.]
Watt’s instruction: “To prove this essential element, that [the appellant] knew that [the complainant] did not consent to the sexual touching by [the appellant], Crown counsel must prove beyond a reasonable doubt … that [the appellant] knew (was aware) of indications that [the complainant] did not consent (was not consenting) to the sexual touching by [the appellant], but deliberately chose (decided) to ignore those indications because [the appellant] did not want to know the truth.”
Trial judge’s instruction: “[The appellant’s] knowledge that she did not consent is proven if you are satisfied beyond a reasonable doubt that given the circumstances he should have inquired about her willingness to engage in sexual activity but did not ask, what is sometimes referred to as, ‘willful blindness’”. [Emphasis added.]
[43] Accordingly, the trial judge made legal errors in his instructions to the jury regarding recklessness and wilful blindness.
D. DISPOSITION
[51] For these reasons, I would allow the appeal and order a new trial. Released: June 5, 2024 “K.M.v.R.”
R v Howitt, 2024 SKCA 51
[May 13, 2024] Section 161 of the Criminal Code: Properly limiting Internet Access no More than Necessary [Reasons by Kalmakoff J.A. with Barrington-Foote and Drennan JJ.A. concurring]
AUTHOR’S NOTE: In the realm of criminal sentencing, particularly for offences involving child victims, courts often impose conditions aimed at protecting children from future harm. Section 161 of the Criminal Code of Canada allows for conditions to be placed on offenders to limit their contact with children and restrict certain activities, including internet use. However, like sentences of imprisonment, these conditions must be carefully tailored to balance public safety with the offender’s rights and ability to reintegrate into society.
Key Considerations for Section 161 Conditions:
- Minimally Intrusive Measures:
- Necessity and Proportionality: Any conditions imposed under s.161 must be no more restrictive than necessary to achieve their intended purpose—protecting the safety of children. This principle ensures that conditions are proportionate to the risk posed by the offender and do not unduly infringe on their rights.
- Balancing Rights and Safety: Courts must weigh the need to protect the public, especially children, against the rights of the offender to live a functional life. Overly broad restrictions can hamper an offender’s ability to reintegrate and function in society.
- Modern Necessities and Internet Access:
- Essential Nature of the Internet: In today’s world, internet access is integral to many everyday activities, from applying for jobs to accessing healthcare and staying informed. Restricting internet use broadly can severely limit an individual’s ability to live independently and participate in modern life.
- Targeted Restrictions: Restrictions on internet use should be specific and only extend to activities that directly relate to the safety of children. For instance, prohibiting access to social media platforms where children might be targeted is more appropriate than a blanket ban on all internet use.
Court of Appeal Decision:
In the case at hand, the Court of Appeal examined the restrictions imposed on the offender’s internet use under s.161 and concluded that they were too broad. The court recognized the necessity of modern internet access and the need for conditions to be narrowly tailored to avoid unnecessary interference with the offender’s ability to live a normal life post-conviction.
Ruling Highlights:
- Narrowing the Scope of Restrictions:
- The Court of Appeal limited the internet access restrictions to those areas directly impacting the safety of children. This decision acknowledges that while protecting children is paramount, it should not come at the expense of completely disconnecting an individual from essential societal functions.
- Practical and Specific Conditions:
- The court suggested that restrictions should focus on prohibiting activities like accessing websites or platforms that are likely to involve interactions with children or using the internet to facilitate contact with minors. This approach ensures that the conditions are relevant and effective without being overly burdensome.
- Guidance for Future Cases:
- This decision sets a precedent for imposing conditions that respect both the need for public safety and the offender’s right to a minimally intrusive life. It encourages a careful, evidence-based approach to determining what restrictions are truly necessary.
Practical Implications for Sentencing:
- Tailoring Conditions:
- When imposing conditions under s.161, judges should ensure they are specifically tailored to the nature of the offence and the individual circumstances of the offender. Blanket restrictions are likely to be seen as excessive unless clearly justified by the facts of the case.
- Review and Adjustment:
- Conditions should be reviewed periodically to ensure they remain necessary and proportionate. As circumstances change, especially as offenders rehabilitate and reintegrate, conditions should be adjusted to reflect their current risk level and needs.
- Legal and Practical Support:
- Offenders should be provided with clear guidance on what is permitted and prohibited under their conditions. Legal support to challenge overly broad or vague conditions can be crucial to maintaining their rights and ability to live independently.
Conclusion:
The Court of Appeal’s decision underscores the need for s.161 conditions to be carefully crafted and proportionate. By focusing on specific, necessary restrictions, courts can better protect children while also respecting the rights and future prospects of offenders. This balanced approach is essential for fostering both public safety and fair, humane treatment within the criminal justice system.
I. INTRODUCTION
[1] After a judge-alone trial, Trevor Howitt was convicted of sexual interference, contrary to s. 151 of the Criminal Code. The trial judge sentenced Mr. Howitt to a 39-month term of imprisonment and made ancillary orders, including an order under s. 161 that imposed various restrictions on him for a period of three years following his release from custody (R v Howitt (20 January 2023) Saskatoon, CRM-SA-00026-2022 (Sask KB)).
[2] Mr. Howitt appeals against only the s. 161 order. He contends that it should be set aside because the trial judge erred by finding that he posed a sufficient risk to children to justify the imposition of such an order. Alternatively, Mr. Howitt submits that, if an order under s. 161 was warranted, the trial judge erred by imposing conditions that went beyond what was reasonable to minimize the risk.
[3] I would allow Mr. Howitt’s appeal, in part. Although an order under s. 161 was appropriate in the circumstances, the trial judge imposed conditions that were demonstrably unfit. I would vary Mr. Howitt’s sentence by setting aside the order made by the trial judge and replacing it with an order that imposes different conditions. My reasons follow.
[14] Then, the trial judge turned his attention to s. 161. He noted that orders under that section are discretionary and “are not restricted to cases of child luring or child pornography”. He went on to say:
I appreciate Mr. Howitt is currently attempting to receive treatment for his addictions to pornography and sex, and is hopeful that he will in addition to measures already taken avail himself and be permitted to take programming at the federal institution where he will be incarcerated.
In looking at the potential restrictions under Section 161 of the Criminal Code I find that some of these prohibitions may, in fact, assist Mr. Howitt in his journey to healing by making it clear that he is not permitted to undertake certain activities once released from custody for a period of time.
[15] The trial judge then imposed the following restrictions on Mr. Howitt for a period of three years following his release from custody, pursuant to s. 161:
IT IS HEREBY ORDERED THAT the said Trevor Dean Howitt is prohibited from:
(a) Attending a public park or a swimming area where persons under the age of 16 years of age are present or can reasonably be expected to be present, or at a daycare centre, schoolyard, playground or community centre;
(i) except in the physical presence of a sober, responsible adult who is aware of this order;
(ii) not being within 2 kilometres of the residence, place of employment or place of education of [the complainant] as may be known to Mr. Howitt;
(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 a person under the age of l6 years;
(c) Having any contact, including communication by any means, with a person who is under the age of 16;
(i) except:
(A) with the consent of the parent/guardian of the child who is aware of this order and only in the physical presence of a sober, responsible adult who is aware of this order.
(d) Using the Internet or other digital network, except for the purpose of obtaining, maintaining, and in the course of lawful employment, with the circumstances of employment being approved in advance in writing by the Court, your probation officer, your parole officer, a member of the RCMP or the person to whom you are reporting under the Sex Offender Information Registration Act, SC 2004, c 10. You must carry a copy of the written permission with you. In no event may you use the Internet to access any illegal content, communicate with persons under the age of 16, other than immediate family members, or access any social media. In no event may you use the Internet to directly or indirectly access any social media sites, social network, Internet discussion forum or chatroom or maintain a personal profile on any such service, for example, Facebook, Twitter, Tinder, Instagram or any equivalent or similar service.
III. ANALYSIS
[16] Orders under s. 161 of the Criminal Code are discretionary and form part of the sentence imposed on an offender. Accordingly, the principles that govern appellate review of s. 161 orders are the same as those that apply to sentences generally (R v R.J.H., 2021 BCCA 54 at para 13, 402 CCC (3d) 568 [R.J.H.]; R v M.C., 2020 ONCA 510 at para 41, 390 CCC (3d) 389 [M.C.]). The standard of review for sentence appeals is deferential in nature, as it permits appellate intervention only if the sentencing judge made an error in principle that had an impact on the sentence or if the sentence is demonstrably unfit (Friesen at para 26; R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089). In the context of orders under s. 161, errors in principle include legal errors, the failure to consider a relevant factor, taking into account an irrelevant factor, and the over or underemphasis of appropriate factors (Friesen at para 26; T.F. at para 105; R v E.H., 2024 ONCA 74 at para 27).
[17] The Crown concedes that the s. 161 order made against Mr. Howitt in this case is demonstrably unfit. In my view, that is a proper concession, as I am satisfied that the blanket prohibition on Mr. Howitt’s use of the internet for any non-employment-related purpose, set out in condition (d), is clearly unreasonable. Although s. 161 vests sentencing judges with discretion to prohibit offenders from using the internet entirely, or to permit them to do so only in a limited way, the reality is that access to the internet has become so integral to many aspects of everyday life that restrictions of that sort must always be carefully considered and appropriately tailored; a point made by Rouleau J.A. of the Ontario Court of Appeal in R v Brar, 2016 ONCA 724, 134 OR (3d) 95:
[24] In modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions. In many homes the telephone operates using the Internet, rather than traditional telephone wires. Simply placing a phone call from one such residence would put the appellant in breach of the s. 161(1)(d) order. Further, as Karakatsanis J. stated in K.R.J., at para. 54, “depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life”. Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on.
[18] The internet use prohibition term that the trial judge imposed against Mr. Howitt under s. 161 is not appropriately tailored; it is demonstrably unfit because it is too broad and insufficiently connected to the nature of any risk he poses to children. The same may be said, in my respectful opinion, of conditions (a) and (c) of the order, as their reach goes beyond that which is reasonably connected to the circumstances of Mr. Howitt’s offence and his risk factors.
[19] Having determined that the s. 161 order is demonstrably unfit, the door to appellate intervention in relation to it is open. That means this Court must perform a fresh analysis to determine whether an order under s. 161 is appropriate and, if so, how long it should be, and what conditions it should contain (Friesenat para 27).
[20] Section 161 permits a court, when sentencing an offender for certain enumerated offences, to impose a defined set of conditions where “there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk” (T.F. at para 106)….
[23] As a starting premise, I do not agree that an order under s. 161 can only be made where an offender poses a “serious risk” to children. While the Ontario Court of Appeal used the term “serious risk” in J.B., and the Manitoba Court of Appeal, citing J.B., also used that phrase in R v C.P.R., 2024 MBCA 22 at para 24 [C.P.R.], I do not view either of these decisions as having created a new standard for the level of risk that an offender must be found to pose to children before an order can be made under s. 161. In my respectful opinion, the use of the word “serious” as a qualifier for the level of risk necessary to justify an order under s. 161 runs contrary to not only the bulk of appellate level jurisprudence on that point but is also contrary to the standard identified by the Supreme Court of Canada in R v K.R.J., 2016 SCC 31, [2016] 1 SCR 906 [K.R.J.].
[24] Writing for the majority of the Supreme Court in K.R.J., Karakatsanis J. observed that “[t]he legislative history, judicial interpretation, and design of s. 161 all confirm that the section has an overarching protective function: to shield children from sexual violence” (at para 44). She went on to say that orders under s. 161 require an evidentiary basis, and that they should be “carefully tailored to the circumstances of the particular offender” and crafted so as to “address the nature and degree of risk that a sexual offender poses to children once released into the community” (at para 47). However, she did not say that the evidence needs to demonstrate that an offender poses a serious risk before an order under s. 161 can be made. Rather, she said this:
[48] … I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order 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 an offender’s specific circumstances.
(Emphasis added)
[28] In my view, a proper reading of Karakatsanis J.’s comments in K.R.J. is that an order under s. 161 can only be made where there is an evidentiary basis for two conclusions: (i) the particular offender poses a risk to children; and (ii) the terms of the specific order are a reasonable attempt to minimize the risk. Simply put, the mere existence of any risk, no matter how trivial, is not enough. If that were the test, s. 161 orders could be imposed as a matter of course, which would be contrary to the direction in K.R.J. Further, the risk an offender poses to children must at least be sufficient to support the conclusion that it would be reasonable to impose conditions of the sort set out in s. 161 to attempt to minimize the risk. In other words, if the level of risk an offender presents to children is so low that the imposition of such conditions would be unreasonable, then an order under s. 161 should not be made. But it does not follow from this that the level of risk must be “serious” to justify the making of an order.
[30]…The evidentiary basis for an order under s. 161 may be found in the nature of the offence, the circumstances in which it was committed, a prior related record, some combination of those things, or any other relevant personal factors that are informative about the nature and extent of risk the offender presents (T.F. at paras 107–108; see also A.(R.K.) at paras 21–24; and R.J.H. at para 19).
[31] In my respectful view, the nature and circumstances of Mr. Howitt’s offence and the information set out in the pre-sentence report provide an evidentiary basis to conclude that he poses a risk to children. Mr. Howitt committed an offence that involved intrusive sexual contact against a 15-year-old child whom he had just met through a dating app. Although Mr. Howitt professed to having believed that the complainant was of age to consent to sexual activity, he took no positive steps to verify that belief, even though, as the trial judge found, there were many signs that should have prompted him to make inquiries. Mr. Howitt came into contact with the complainant only through the use of an online dating app which, among other things, can be used for initiating casual sexual relationships, and, as is apparent from the circumstances of this case, does not have a foolproof method of preventing children from using it. Mr. Howitt also believes that his past victimization had led to a sexual addiction and an addiction to pornography, and that those factors had played a role in the offence. While Mr. Howitt stated that he had made efforts to address those issues, he also acknowledged that he still had work to do. In addition to that, I take into account what the pre-sentence report said about Mr. Howitt’s risk to reoffend generally, and the risk that he will commit further sexual offences.
[33] In determining the appropriate length of the order and the scope of the conditions, I bear in mind the purpose of s. 161, which is protective in nature. I also consider the guidance from K.R.J. concerning the need to tailor the order to address the nature and degree of the specific risk Mr. Howitt poses to children once he is released in the community (at para 47). In that vein, the scope and duration of the order should be informed by such factors as the nature and extent of the risk, considered in light of the circumstances particular to Mr. Howitt, the pool of potential victims, the duration of the sentence, Mr. Howitt’s age upon release into the community, and his prospects for rehabilitation (R.J.H. at para 19). In other words, the duration of the order and the nature of its conditions must be connected to the circumstances of the offence and Mr. Howitt’s personal level of risk (see: M.C. at para 47).
[34] Having regard to the circumstances of the offence and the manner in which it was committed, Mr. Howitt’s age, the length of his sentence, his prospects for rehabilitation and the other evidence concerning his risk factors, I am satisfied that the appropriate length of the order is a period of two rather than three years. In this context I note, among other things, that the offence was committed in 2017, and that Mr. Howitt has demonstrated a willingness to participate in measures designed to address his risk factors. Further, bearing those same things in mind, I am not persuaded that conditions that prohibit him from attending places like parks, swimming areas and community centres, or conditions that prohibit him entirely from having contact with persons under 16 are appropriate, as they are not reasonably connected to the circumstances of his offence or his risk factors. On the other hand, conditions prohibiting him from attending within a certain distance of the complainant’s residence or place of employment, prohibiting him from holding employment or volunteering in situations that would put him in a position of trust or authority over a person under the age of 16, and prohibiting him from using the internet for certain specific purposes, are all reasonable measures, as there is a nexus between such conduct, the circumstances of his offence, and the identified risk factors.
[35] Accordingly, I would allow Mr. Howitt’s appeal and vary his sentence by setting aside the s. 161 order made by the trial judge. In its place, I would impose an order under s. 161 against Mr. Howitt, for a period of two years following his release from custody, with the terms set out below:
(a) he shall not be within 200 metres of the residence, place of employment or place of education of the complainant as may be known to him;
(b) he is prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years;
(c) he is prohibited from communicating with persons under the age of 16, other than in the course of and for the purpose of his employment or in the presence of their legal guardian; and
(d) he is prohibited from using the internet or any other digital network to do any of the following:
(i) communicating with anyone through any social media services, social networks, or discussion/chat forums;
(ii) accessing any dating app or dating website; and
(iii) accessing pornography
IV. CONCLUSION
[36] For the foregoing reasons, I would grant leave to appeal, and allow Mr. Howitt’s appeal to the extent set out in the preceding paragraph.
