In its first ever decision to reference Instagram, Snapchat and Tinder, Canada's top court decided on Thursday to uphold a law that allows judges to retroactively ban convicted sex offenders from using the internet.
This means anyone who was convicted of a sexual crime before 2012, when the former Conservative government brought in an amendment to the Safe Streets and Communities Act that allows the courts to prohibit convicted sex offenders from using the internet for an indefinite period of time, can be banned from the internet — even though that consequence didn't exist when they committed the crime.
In the ruling, which pits the new dangers posed to children by the internet against the longstanding principle afforded by Canada's constitution that criminals should only be sentenced according to laws in effect at the time of their crime, the former comes out on top.
Writing for the majority, Justice Andromache Karakatsanis explained that the decision was made because "Parliament enacted the (Internet ban) 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."
She said new online services, like Tinder, Snapchat, Instagram, Facebook and Twitter have given sexual offenders "unprecedented access to potential victims and avenues to facilitate sexual offending."
The case in question involved a man who pleaded guilty to incest and creating child pornography with his preschool-aged daughter between 2008 and 2011. Convicted in 2013, the 38-year-old man, whose name hasn't been disclosed in order to protect the identity of the child, was sentenced to nine years in prison minus time served in pretrial custody.
The sentencing judge also banned the man from using a computer to contact children, but decided he couldn't impose the wider internet ban retrospectively.
The BC Court of Appeal then ruled that the new banning provisions could be applied retrospectively because they weren't punishments but measures to protect the public — when a measure is deemed to be "protective" and not "punitive," the constitutional protection doesn't apply.
On this point, the Supreme Court disagreed. "A prohibition... on having any contact with persons under the age of 16 could potentially curtail the types of employment an offender can pursue, and an offender's ability to interact with people (including adults in the company of children) in public and private spaces," the ruling said, adding that access to the internet is "tantamount to severing that person from an increasingly indispensable component of everyday life."
Even though it deemed it to be a "punishment", the court still chose to uphold the retroactive internet ban. However, it declined to impose a retroactive ban on contacting children, ruling that there wasn't enough evidence to justify it.
The BC Civil Liberties Association, which acted as an intervener in the case, is pleased with the decision.
While the ruling will only directly affect sex offenders convicted before 2012 and sentenced afterwards, more broadly, this means that the courts "have to think a little bit differently about whether they can impose a particular consequence of crime retroactively because we have a new direction from the court that says not only do you have to think about whether something is punitive or protective, you have to think about its impact on the liberty and security of the offender," said Laura Track of the BCCLA.
"I think the court was looking to be sensitive to [the reality of new risks posed to children by the internet], but they've also gone a long way to clarify the test and the questions a court has to ask when considering whether something is punishment," she said.
The Canadian Civil Liberties Association stressed that there should be an extremely high bar for concluding that violating the protections against retrospective punishment is justified, but called the 7-2 Supreme Court decision a "strong," "tightly written" one that likely won't open "the floodgates to significantly greater judicial tolerance towards retrospective punishment."
Another broader implication of the decision is the court's acknowledgement of the importance of access to the internet, CCLA's Laura Berger noted.
"That's something I think we're going to be taking from this decision, and we could see quoted and referenced in the future," she said.
Follow Tamara Khandaker on Twitter: @anima_tk
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