Do we need the Court of Appeal to Weigh in About the Importance of Internet Use in Modern Society?

criminal law

Why R. v. Brar [2016] ONCA 724 is a waste of court time, money and resources

Mr. Brar was a 35-year-old who was convicted of sexual assault, child luring and prostituting a person less than 18 years old and a breach of his bail conditions. He was first time offender. He was convicted of these offences because he used social networking sites to lure young persons into having sex with him in exchange for payment. He was sentenced to six years imprisonment for his crimes. In addition, a section 161(1)(d) order was imposed, pursuant to the Criminal Code of Canada, that restricted Mr. Brar from using the Internet for 20 years except when he is at work. Mr. Brar was also prohibited for 20 years from owning a cell phone that had “Internet capabilities.” Mr. Brar appealed his sentence to the Ontario Court of Appeal with respect to his 20 year Internet-use ban.

Mr. Brar argued that section 161(1)(d) does not allow the court  to rule on owning a mobile device and that the restrictions on Internet use were too broad and overbearing. The Crown argued that the prohibition was appropriate in the circumstances given the nature of the charges, and that Mr. Brar could apply at a later date to vary the terms of his Internet ban, if there was a change in his life that warranted a variance of the terms in the next 20 years. What?

It is almost impossible to imagine that the Crown believed that Mr. Brar could function and be a productive member of society upon his release from custody without the ability to check his email or look for job postings.

Unsurprisingly, The Court of Appeal agreed with Mr. Brar and set aside the 161(1)(d) order, found that the sentencing judge erred in using section 161(1)(d) to regulate ownership of mobile devices, and changed the terms of the order to restrict Mr. Brar from accessing websites with illegal content, from using or creating a profile on social media, and from participating in forums or chatrooms. The order is still to last for 20 years.

The Court of Appeal found that “increasingly, applying for employment requires access and use of the Internet and many positions require use and access of the Internet even when not at the employer’s premises,” and that people often use the Internet for “accessing services and finding directions.” Moreover, the Court found that people use the Internet for “shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on.”

So, what the Court is saying is that in order for Mr. Brar to find a job, keep a job, and function normally in society, he needs the Internet for innocent purposes.

It is almost impossible to imagine that the Crown believed that Mr. Brar could function and be a productive member of society upon his release from custody without the ability to check his email or look for job postings.

What’s incredibly puzzling is why the litigation of this matter was so strongly opposed by the Crown Attorney’s Office. Hours of work were spent by counsel preparing for this hearing, and surely hours were spent on this case by the honourable justices who heard the appeal and then had to prepare their written decision. These resources were spent on the contemplation and litigation of the use and importance of the Internet in modern day society, only to have the Court of Appeal come to the unanimous decision that the Internet has now become a basic tool of survival. So, 20 years without it would be an unduly harsh sentence on Mr. Brar. Did we really need three wise and experienced judges to make this finding? Yet, here we are. The Ontario Court of Appeal has made a finding that people use the Internet to do things like watch movies and shop, and the Internet is an integral part of the interconnectivity of our population.

It is unfortunate  that cases like these call into question the quality of decision-making in the adversarial process. Are we just fighting for the sake of fighting? Or should there be more of a premium placed on the ability to know when to put our swords down, and come to a reasonable and proportionate compromise that can balance the needs of the accused and society, in lieu of wasting tax payers’ money on litigation that produces obvious results. Perhaps litigating a 20-year, near-absolute Internet ban could have been re-jigged a little to reflect the impossible situation an individual would face in our society without the use of the Internet. But no, a much better idea must be to have some of the greatest legal minds of our time hear arguments on why Mr. Brar may need to use the Internet at some point in the next 20 years to do something better with his life. Maybe Googling “cost benefit analysis” would have helped.

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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