The Court’s Power to Make Ancillary Orders

When a judge has to impose a sentence, the Criminal Code offers him several ancillary orders that can be added to a more traditional sentence such as imprisonment. These orders include the possibility of making a long-term offender declaration and making ancillary orders. What rules are these orders subject to?

“While the order must first and foremost serve the overriding purpose of protecting children from sexual violence, it must not unduly hamper the appellant’s rehabilitation efforts, whether in the context of a study project or even a possible return to the labor market. ^[1].” [translated]

R. c. Rodrigue, 2021 QCCA 456

The facts

In the present case, the accused was convicted of various child pornography charges, including possession of nearly 100,000 prohibited images and 300 videos. At sentencing, the trial judge imposed three years of imprisonment. He also declared him a long-term offender and therefore ordered that he be supervised for a period of five years after serving his sentence. Eventually, he was banned from using the Internet until the end of his life.

The judgment

The accused appealed to the Quebec Court of Appeal for three reasons: (1) that the judge did not give adequate reasons for his decision to declare him a long-term offender, (2) that the judge should not have declared the accused a long-term offender based solely on expert reports produced by the prosecution and (3) that the perpetual Internet order was too severe.

Regarding the sufficiency of the reasons, the Quebec Court of Appeal reiterates that in order to intervene, the deficiencies in the reasons must be so great that they prevent a valid examination on appeal. In the present case, although the trial judge spoke quickly, the Court of Appeal considers that the reasons are sufficient to understand that it relied on the expert reports produced by the public prosecutor to render her decision.

Regarding the second ground of appeal, the accused claims that the trial judge felt bound by the expert psychiatrist’s suggestion regarding the length of the order. However, the Court of Appeal considers that the trial judge considered the testimony of the accused before deciding on the length of the order. Indeed, she even offered his lawyer to give her observations. He was the one who did not provide a second opinion or an argument based on his testimony. In these circumstances, the decision to identify the long-term offender is not vitiated by any palpable error.

Regarding the order perpetually banning the accused from using the internet, the prosecution concedes that a complete and lifelong ban is too severe. Considering that the trial judge erred in considering that she was obliged to make this order, the Court of Appeal then agreed to intervene by reducing its duration to 20 years and its scope to illegitimate purposes, access social networks and leisure. In support of its decision, the Court of Appeal emphasizes that despite the important objective underlying the order, namely to protect children, the efforts to rehabilitate the accused in him must not be unduly hampered by preventing Internet use for school and work purposes.

The Court of Appeal therefore allowed the appeal to modify the Internet prohibition order.