KRJ: A New Way to Understand “Punishment” and the Crown’s Justificatory Burden

The Court’s decision in KRJ this summer provides a new test for “punishment” under s 11(i) of the Charter. While the Supreme Court of Canada’s new test better reflects the goals of the guarantee, overall the case may have a problematic impact because of its treatment of s 1, which rests on an unclear standard and gives Parliament too much leeway in creating retrospective punishment.

Facts and History

R v KRJ, 2016 SCC 31, came to the Court from an amendment to the types of probation orders that sentencing judges could give to those convicted of sexual offences against people under the age of 16. Prior to the amendments, s 161 of the Criminal Code, RSC 1985 c C-46 (“The Code”) allowed courts to order more specific prohibitions and restrictions regarding where offenders could go, where they could work, and their use of the internet to communicate with people younger than 16. The 2012 amendments broadened this section vastly by allowing, under subsection (c), a judge to restrict or prohibit any contact, through communication by any means, of a convicted individual with a person under 16. And, under subsection (d), that a judge may restrict or prohibit the offender from using the internet or other digital network, unless the offender does so in accordance with conditions set out by the SCC.

Like most probation orders, s 161 orders are discretionary, and can be applied where the sentencing judge finds it appropriate (in whole, in part, or not at all). Judges can also provide stipulations such as requiring supervision. The SCC’s decision though, deals with the most severe types of orders as the sort of benchmark of the Charter infringement’s potential.

The offender in this case, KRJ, plead guilty in 2013 to a number of sexual offences against his very young daughter between 2008 and 2011. At the British Columbia Provincial Court, the sentencing judge found that the s 161 probation orders at his disposal constituted punishment and therefore could not be imposed under s 11(i) of the Charter. The majority at the BC Court of Appeal found that these potential orders did not constitute punishment and imposed the conditions.

“Punishment” and the Protection of s 11(i) 

The claim at the SCC was that KRJ’s s 11(i) Charter right was unjustifiably infringed when the Appeal Court made s 161 orders against him. S 11(i) gives an offender the benefit of the “lesser punishment” in a circumstance where the punishment has varied after the offence was committed but before sentencing. The section has been interpreted through its jurisprudence to protect against retrospective punishment so that society theoretically has notice of what the law is, as fairness and the rule of law require. Because KRJ’s offences took place prior to the amendments, his claim was against the retrospective operation of the amendments.

The Rodgers test and a shifted notion of “punishment”

KJR shifts the law’s understanding of protection under s 11(i) by reconsidering the test from R v Rodgers, 2006 SCC 15, for what constitutes “punishment.” The new test addresses the Court of Appeal’s misconception that a sanction that exists for the primary purpose of protecting the public necessarily falls outside of the ambit of punishment. The SCC explained that public protection is actually the fundamental principle of sentencing and that the drafting of s 718 suggests that punishment should or will always exist for that purpose, at least in part.

The SCC was also tasked with determining what role the impact of the offender should play in the punishment analysis. The SCC found this fact to be of vital importance to the test because of the liberal and purposive approach that we give to other Charter rights, which in the criminal context aims to achieve the principles of fairness and the rule of law. The impact on the offender also helps to actually understand what “lesser punishment” is.

Following KRJ, then, the test for punishment is:

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.

These changes reflect a more reasoned approach to s 11(i), making its protection more robust. As the SCC pointed out, much of our criminal law aims at the protection of society, even if it has another purpose as well, such as punishing the offender. It’s not possible to parse out one purpose behind a sanction in many cases. Additionally, this distinction, if it could be drawn in most cases, should matter little. It would be completely contrary to the jurisprudence and Charter provisions aimed at ensuring fairness in the justice system to allow judges to retrospectively impose sanctions that  seek to punish offenders so long as they can be said to be predominately aimed at protecting society. The SCC rightfully restricted Parliament from the possibility of creating sentencing provisions that are coloured to circumvent Charter guarantees.

Is section 161 punishment?

In KRJ, the SCC does not find it difficult to include s 161 ordrs within the definition of punishment. The impact of the amendments are significant and long-lasting because they create stigma, and potentially influence an offender’s available types of employment and their ability to interact with children and even adults in the company of children. Additionally, the SCC noted that being barred from the internet is a serious restriction on someone’s ability to perform their everyday life.

The Section 1 Analysis

While the SCC provided a really useful, broad, and encapsulating definition of punishment, I was disappointed by their inability to follow through on their promise to s 11(i) when it came to the s 1 analysis. Given that s 161 measures constitute punishment, the burden shifted to the Crown to establish whether they could be saved as reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This justificatory burden, as Charter jurisprudence tells us, is a stringent one.

Sufficiently Important Purpose

The purpose of the legislation and its retrospective operation was relatively uncontroversial, seeing as it aims at protecting children from sexual violence.

Proportionality

Much of the proportionality portion of the test was also quite clear for the SCC. However, at this final stage of the s 1 proportionality analysis, a court is tasked with measuring the salutary impacts and deleterious effects of the law. I understand the SCC as describing this stage here as one that aims at balancing the purpose of the amendment and the impact that the law has on “Canada’s free and democratic society.” By describing it in this way, the SCC directs the burden on the Crown to prove that the measures are so effective that they overcome the negative impacts that it has on the offender’s rights.

Deleterious Effects and Salutary Benefits

The SCC found that the operation of s 161 on KJR had substantial and serious deleterious effects. The deleterious effects flowed first from the retrospectivity application of s 161, which creates a serious impact on fairness in the justice system, affecting society at large. Second, deleterious effects came from s 161’s impairment on the liberty of an individual who may be restricted from carrying out otherwise lawful activities of their day-to-day life.

The majority rejected the Crown’s evidence on the high recidivism rates of sexual offenders in support of s 161, holding that the “benefits society stands to gain are marginal and speculative.” The majority expressed the view that the deleterious effects under s 161(c) (restrictions on communications between a convicted individual and those under the age of 16) are “particularly acute because… Parliament does not appear to have been responding to an emerging threat, or an evolving social context” as these types of offences have always afflicted society. On the other hand, the SCC found that the salutary effects of s 161(d) (restrictions on a convicted individual’s internet use) tipped the scale in favour of the law’s justification under section 1. The SCC reasoned that because Parliament drafted the law to keep up with changes in technological circumstances that could not have been addressed in a prior 2002 amendment to the law, its deleterious effects were outweighed by its salutary effects.

This temporal distinction seems to me to be frivolous. The Crown provided the SCC with evidence of high recidivism rates for sexual offenders, regardless of whether the internet played a role in the offence or not. However, the majority found that the Crown was unable to establish that the amendment’s retrospective application to KJR and other offenders like him provided a degree of enhanced protection over the previous provision.

But the majority’s logic is flawed. On one hand, the majority rejected the Crown’s evidence on recidivism rates in respect of s 161(c). On the other hand, on the basis of no additional evidence, the majority accepted that a change in circumstances—the advent of easily-accessible, and wide-spread internet technology—allowed for a change in the method of the offense in question, therefore justifying s 161(d).

It seems to me that Parliament had intended both provisions to fill gaps and provide sentencing judges to have a wider array of sanctions to mold and use as needed. The SCC accepted that both are aimed at reducing recidivism. Given the SCC did not accept the recidivism evidence to justify the amendment to s 161(c), it is difficult to understand how that same evidence was found meaningful in the amendment to s 161(d), even given the changing technological context.

I also find it strange that Parliament refers the these shifting contexts in technology as something that minimizes the deleterious impacts of the provisions. The section aims at assuring society will have notice of what the law is, and what the penal sanctions of a crime are. There are very little situations where this vital guarantee should be ousted for the reason that Parliament failed to legislate in a timely matter. Regardless of the seriousness of the purpose aimed at, the deleterious effects are the same—they weaken the goal of fairness and the rule of law in the criminal justice system.

In my view, Justice Abella’s approach to the s 1 analysis of s 161 is more compelling. For her, the burden on the Crown to justify an infringement of s 11(i) is high, and therefore the Crown must adduce “compelling evidence” to prove how “significantly undermined” the objective of the legislation is to require retrospective application.

Conclusion

S 11(i) is not one of those rights under s 11 that we talk about every day, but it nonetheless works to guarantee something of vital importance to the operation of a criminal justice system that can call itself “just” in any sense of the word. KRJ’s expansion on what constitutes “punishment” gives full effect to this section, bringing reality and the Charter’s purpose into accord with its guarantees. However, the real challenge will be how courts assess the Crown’s justificatory burden when it comes to s 11(i) in the future.