In R. v. K.R.J. (“K.R.J.”) the Supreme Court acknowledged what is intuitive but was not explicit in section 11(i) Canadian Charter of Rights and Freedoms (“Charter”) jurisprudence: determining if something is punishment requires consideration of the impact it has on an offender. The critical question in K.R.J. was whether a section 161 Criminal Code (“Code”) prohibition order constituted punishment within the meaning of section 11(i) of the Charter. Section 161(1) orders restrict the liberty interest of convicted sexual offenders who pose an ongoing risk of committing a sexual offence against a child. These orders restrict the ability of offenders to attend places where children are present, or have unsupervised contact with children, in person or through electronic means. The provisions are intended to protect children from abuse by repeat offenders. In K.R.J. the Supreme Court of Canada found the consequences of a sanction on the offender need to be considered in order to give a purposive interpretation to the Charter protection when determining whether a sanction amounts to punishment. In other words, it is not just the reason why a sanction is imposed that matters, its impact is also important. Both purpose and effect must be considered. This modified the previous test. In carving out “a clearer and more meaningful role for the consideration of the impact of a sanction” the court continued the trend towards greater acknowledgement of the consequences on an offender. The reformulation of the test invites further litigation and has the potential to affect all manner of ancillary orders. For example, while orders for forfeiture or fine in lieu of forfeiture for proceeds of crime are not likely to be affected, forfeiture of offence-related property may now qualify as punishment.
Young, Stacey D..
"The Refined Approach to Punishment in Section 11 of the Charter."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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