1. In R. v. K.R.J. (2016 SCC 31), what were the effects of the criminal code s. 161(1)(d) as amended in 2012.

2. Which Charter did s.161 violate?

3. Why is the charter right relevant to the facts of R. v. K.R.J. (2016 SCC 31)?

4. Why did the majority decide that s.161(1)(d) refers to criminal punishment (thus engaging the Charter right)? Give two reasons from the majority judgment.

5.According to the majority:

a) Is s.161(1)(d) justified under s.1 of the Charter? Yes or no?

b) Does s.161(1) (d) pass step 1 of the Oakes test? Yes or no?

c) Does s.161(1) (d) pass step 4 of the Oakes test? Yes or no? Give one reason why or why not.

SUPREME COURT OF CANADA BETWEEN: K.R.J. Appellant and Her Majesty The Queen Respondent Section 11(i) of the Charter provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to "the benefit of the lesser punishment". When offenders are convicted of sexual offences against a person under the age of 16 years, s. 161(1) of the Criminal Code gives sentencing judges the discretion to prohibit them from engaging in a variety of everyday conduct upon their release into the community . . . In 2012, Parliament expanded the scope of s. 161(1), empowering sentencing judges to prohibit sexual offenders . . from using the Internet or other digital network (s. 161(1)(d)). In doing so, Parliament intended to give sentencing judges the discretion to impose the expanded prohibition measures on all offenders, even those who offended before the amendments came into force. In March 2013, the accused pleaded guilty to incest and the creation of child pornography. The offences were committed between 2008 and 2011. . . The question arose as to whether the 2012 amendments could operate retrospectively such that they could be imposed on the accused. Held (Abella and Brown JJ. dissenting) . . . The amendments to s. 161(1)(d) of the Criminal Code qualify as punishment such that their retrospective operation limits the right protected by s. 11(i) of the Charter. Under s. 1 of the Charter . . . the retrospective operation of the Internet prohibition in s. 161(1)(d) is a reasonable limit. Per McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Cote JJ.: Section 11(i) of the Charter constitutionally enshrines the fundamental notion that criminal laws should generally not operate retrospectively. This . . . aversion for retrospective criminal laws is primarily motivated by the desire to protectthe fairness of criminal proceedings and safeguard the rule of law. Rules pertaining to criminal punishment should be clear and certain. To attract the protection of s. 11(), the new prohibition measures must qualify as "punishment". . . The s. 11(i) test for punishment should be restated as follows: a measure constitutes punishment if (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. To satisfy the third branch of this test, a consequence of conviction must significantly constrain a person's ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public. Applying this reformulated test, the 2012 amendments to s. 161(1) constitute punishment. . . Clearly, the 2012 amendments constitute greater punishment than the previous prohibitions. Accordingly, the retrospective operation of these provisions limits the s. 11(i) right as it deprives the accused of the benefit of the less restrictive community supervision measures captured in the previous version of s. 161 - that is, the lesser punishment. To be justified under s. 1 of the Charter, a law that limits a constitutional right must do so in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society. The legislative history, judicial interpretation, and design of s. 161 all confirm that the overarching goal of the section is to protect children from sexual violence perpetrated by recidivists. It follows naturally that the objective of the retrospective operation of the 2012 amendments - the infringing measure - is to better protect children from the risksposed by offenders like the accused who committed their offences before, but were sentenced after, the amendments came into force. This latter objective anchors the s. 1 analysis and is of sufficient importance to warrant further scrutiny. There is clearly a rational connection between this objective and retrospectively giving. . .judges the discretionary power to limit . . . offenders . . . in contacting children . . . online, and in engaging with online child pornography (the means chosen). Reason and logic suffice to establish that Parliament proceeded rationally in opting to give s. 161(1)(d) retrospective effect. Further, given the discretionary and tailored nature of s. 161 and that a purely prospective application of the amendments would have compromised Parliament's full objective, the retrospective operation of s. 161(1)(d) impairs the s. 11(i) rights as little as reasonably possible. Finally, the deleterious and salutary effects of the law must be assessed. . .The deleterious effects resulting from the retrospective operation of s. 161(1)(d) are . . . . significant. A complete ban on using the Internet or other digital network is more intrusive than the previous ban on using a computer system for the purpose of communicating with young people. . . However, s. 161(1)(d) is directed at grave, emerging harms precipitated by a rapidly evolving social and technological context. This evolving context has changed both the degree and nature of the risk of sexual violence facing young persons. As a result, the previous iteration of s. 161 became insufficient to respond to the modern risks children face. By closing this legislative gap and mitigating these new risks, the benefits of the retrospective operation of s. 161(1)(d) are significant and fairly concrete. The previous prohibition was insufficient to address the evolving risks. . . An Internet prohibition, while invasive, is not among the most onerous punishments, such as increased incarceration. The benefits of the law outweigh its deleterious effects