The Supreme Court of Canada in Ottawa on June 8, 2016.Blair Gable
The Supreme Court of Canada has upheld a law that punishes child sex offenders retroactively, despite a longstanding principle, enshrined in the Constitution, against changing the rules on convicted criminals.
The court ruled that judges have the power to ban child sex offenders from using the Internet, even when they committed their crimes before the law took effect in 2012. The ruling affects "many hundreds" of sex offenders across Canada, the court said, citing statistics from prosecutors.
Michael Feder, who represented the British Columbia Civil Liberties Association, which intervened in the case, said that to his knowledge it is the first case in which the Supreme Court has upheld the constitutionality of a retrospective punishment.
The 1982 Charter of Rights and Freedoms says that convicted criminals are entitled to "the lesser punishment" if the law has changed between the time they commit a crime and the time they are sentenced for it. But a majority of the court said that, given the fast-changing nature of social media, the dangers to children have increased, and the Conservative government of Stephen Harper imposed a reasonable limit on rights in trying to keep pace by applying the punishment retroactively. The judges mentioned Facebook, Twitter, Tinder, Instagram and Snapchat.
"These new online services have given young people – who are often early adopters of new technologies – unprecedented access to digital communities," Justice Andromache Karakatsanis wrote in an 8-1 ruling. "At the same time, sexual offenders have been given unprecedented access to potential victims and avenues to facilitate sexual offending."
However, also by an 8-1 count, a majority refused to allow a second punishment – a ban on all contact with children under 16 – to be applied retroactively. While it could be argued that protecting even one child is worth the damage to the principle against retroactive justice, the majority said, "such an approach ascribes almost no value to the right" not to suffer retroactive punishment.
Justice Rosalie Abella dissented on the Internet ban, saying the Charter's protection against retroactive punishment is unequivocal, and the prosecution's justification for it – reducing recidivism – could be used so routinely that in theory the protection could be written out of the Charter.
Dissenting from the other side, Justice Russell Brown supported both retroactive measures, and said Parliament needs room to legislate in complex policy areas such as the protection of children.
The case involved a B.C. man known by his initials, K.R.J., who had been found guilty of incest and child pornography for raping his three-year-old daughter and videotaping the act, offences committed between 2008 and 2011. A judge sentenced him to nine years in jail, but refused to apply the post-sentence ban on contact with children and on using the Internet, saying retroactive punishment violates the Charter. Prosecutors appealed, and a majority of the B.C. Court of Appeal ruled that the new law was meant not as punishment but as protection for society. It imposed an Internet ban and ban on contact with children for seven years after K.R.J.'s prison term ends.
Mr. Feder said the Supreme Court's ruling in support of retrospective punishment is important "because philosophers have warned against it for hundreds of years, and it's important because it strikes at the heart of our criminal justice system's fairness."
He said that he does not expect the ruling to open the door to widespread use of retroactive punishments, however, because the ruling involved exceptional circumstances – rapid social change involving severe child sexual abuse.
Sean Fine