Supreme Court delivers mixed ruling on retroactive punishments

Supreme Court delivers mixed ruling on retroactive punishments


The Supreme Court of Canada has upheld a retroactive internet ban on some sexual offenders.

One of the principles of Canada’s legal system is that offenders who are convicted of a crime must be sentenced according to the laws that were in place when their offence actually occurred. A recent case involving a B.C. man who was convicted of child pornography has put that principle to the test and resulted in a somewhat mixed ruling from the Supreme Court of Canada, according to the Vancouver Sun. The country’s top court upheld the retroactive application of a law that banned convicted child sex offenders from using the internet, while also refusing to retroactively apply a law that banned all contact with children under 16 by those same offenders.

Retroactively applying the law

Changing the law after an offence has been committed and then applying that new law to the offender is something that is usually considered unconstitutional. As the Globe and Mail points out, the Charter of Rights and Freedoms states that when the law is changed between the time an offence is committed and the time when the offender is actually sentenced then that offender is entitled to receive “the lesser punishment.”

That ban on retroactively changing the law and increasing the punishment for offenders is why part of a 2012 law that banned those convicted of sexual crimes against children from contacting anyone under 16 could not be applied retroactively. The case involved a B.C. man whose offence occurred prior to the law being passed, but who was sentenced after 2012, when the law took effect. The court ruled that although there may be a public-safety interest in banning the man from contacting anybody under 16, such a ban would have amounted to an unconstitutional retroactive punishment.

Internet ban upheld

Interestingly, however, the Supreme Court did uphold another part of the same law that banned the man from using the internet, despite the fact that the ban only became law after he had committed the offences for which he was convicted. The court ruled that given the fast-changing nature of social media and technological access to children, that applying the ban on internet usage retroactively was reasonable.

That decision has been met with some criticism. The top court’s Justice Rosalie Abella dissented from the majority decision, for example, by arguing that the Charter’s ban on retroactive punishments is absolute. She also argued that reducing recidivism, which the majority of the court used as a justification for the ban, was such a broad argument that it could essentially be used to justify any retroactive punishment.

Criminal defence

Sexual crimes, including internet luring and child pornography, are some of the most complex and contentious criminal cases to defend against. Anybody who has been charged with these very serious crimes needs to contact a criminal defence lawyer immediately. An experienced lawyer can help accused individuals understand their rights and help them uphold their reputations during what can often be a very difficult experience.