COURT OF APPEAL FOR ONTARIO · Page: 3 place all seized items, unread, in a package and seal the package until further order of the court. [6] The search warrant was executed on August

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Schulz, 2018 ONCA 598 DATE: 20180629

DOCKET: C62305

Watt, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Martin Schulz

Appellant

Martin Schulz, acting in person

Grace Choi, for the respondent

Heard: February 20, 2018

On appeal from the conviction entered by Justice Gisele M. Miller of the Superior Court of Justice on March 23, 2016, and from the sentence imposed on May 31, 2016.

Brown J.A.:

I. OVERVIEW

[1] The appellant, Martin Schulz, a lawyer, was convicted of one count of

possession of child pornography contrary to s. 163.1(4) of the Criminal Code. The

trial judge sentenced him to 45 days imprisonment, to be served intermittently,

three years’ probation, and a 10-year prohibition order under s. 161(1)(d). Terms

Page: 2 of the probation and prohibition orders limited the appellant’s ability to access the

Internet and email.

[2] The appellant appeals his conviction. He also seeks leave to appeal the

terms of the probation and prohibition orders that limit his access to the Internet.

[3] For the reasons set forth below, I would dismiss the appellant’s appeal from

conviction. I would grant him leave to appeal the Internet-related terms of the

probation and prohibition orders but would dismiss the appeal.

II. THE CONVICTION APPEAL

A. The trial application to exclude from evidence seized materials

[4] Based on information obtained from Bell Canada about subscriber

information associated with a particular IP address, the police obtained a warrant

to search the appellant’s residence for electronic devices and documents that

might contain evidence of the offences of possession of child pornography and

making available child pornography.

[5] As the appellant is a lawyer, the warrant contained special provisions to

protect solicitor-client privilege. They included the appointment of a referee to

ensure that the search and review of seized documents were conducted in ways

that would protect solicitor-client privilege. The warrant also required the police to

Page: 3 place all seized items, unread, in a package and seal the package until further

order of the court.

[6] The search warrant was executed on August 16, 2012.

[7] On February 11, 2013 the Crown obtained an order, unopposed by the

appellant, from Hourigan J., as he then was, specifying the method by which a

designated examiner could copy and review the contents of the seized devices for

offensive materials (the “Examination Order”). The order required the examiner,

before filing a report of his review with the court and making available copies of the

seized devices, and working with the referee (if necessary), to ensure no privileged

information was released to the Crown or police.

[8] The appellant, who was represented by counsel at trial, applied to exclude

all evidence found on the seized devices on the ground the search had been

conducted in a manner that infringed his rights under s. 8 of the Canadian Charter

of Rights and Freedoms. The appellant challenged the validity of the seizure,

detention, and examination of the seized devices on numerous grounds: (i) the

police obtained the appellant’s IP subscriber information without a warrant; (ii) no

report was made under s. 489.1(1)(b)(ii) of the Criminal Code until one month after

the execution of the search warrant; (iii) no request was made under s. 490(2) to

detain the seized devices for more than 90 days; (iv) the police failed to seal all

seized devices, leaving unsealed six devices (though they concluded these

Page: 4 contained no relevant information); (v) the examiner failed to conduct his

examination of the devices in strict compliance with the Examination Order; (vi) the

police failed to return to the appellant seized devices that did not contain any

offensive materials; (vii) the police failed to take detailed notes of their examination

of the seized devices; and (viii) a police officer improperly took screen shots of

directory structures from the examiner’s copies when preparing to testify at an

anticipated discovery hearing.

[9] On the application before the trial judge, the appellant’s counsel

acknowledged that if obtaining the IP subscriber information without prior judicial

authorization was the only Charter breach, the decision of the Supreme Court in

R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, pointed to the admission of the

evidence. However, he submitted there were multiple s. 8 breaches, the

cumulative effect of which required the exclusion of the evidence pursuant to s.

24(2) of the Charter.

[10] In comprehensive reasons, the trial judge addressed each of the appellant’s

allegations regarding a breach of his s. 8 Charter rights. She found that:

(i) the failures of the police to file a report pursuant to s. 489.1(1)(b)(ii)

for one month and to apply under s. 490(2) for an extension of time

beyond 90 days to detain the seized items infringed the appellant’s s.

8 rights;

Page: 5

(ii) the failure of the police to seal six seized devices, as required by the

search warrant, rendered their subsequent search unauthorized by

the warrant and therefore a breach of s. 8;

(iii) the method and scope of review employed by the examiner was

reasonable, did not breach the Examination Order “in any way”, and

did not violate the appellant’s s. 8 rights;

(iv) the failure of the police to return seized devices that did not contain

offensive materials was a “clear and deliberate violation” of the

Examination Order;

(v) the failure of a police officer to take notes of his search of the unsealed

seized devices amounted to a violation of s. 8 of the Charter, but the

paucity of notes in respect of his review of devices described in the

examiner’s report did not violate s. 8; and

(vi) the officer’s taking screen shots of the directory structure from the

examiner’s copies did not constitute a search because the material

already had been made available to the police pursuant to a court

order and the officer simply made a copy of the material in order to

present evidence in the proceedings.

[11] The trial judge conducted an analysis under s. 24(2) of the Charter in which

she considered the breaches of s. 8 on an individual basis and then cumulatively.

Page: 6 Applying the principles in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, to each

of the breaches, the trial judge excluded from evidence only: (i) the six unsealed

items for which no extension to detain was obtained under s. 490(2); and (ii) the

devices on which no offensive materials were found. The trial judge noted, at para.

206 of her reasons for her ruling on the Charter motion, that “[t]he result of an

individual s. 24(2) analysis of each of the s. 8 breaches would result in the

exclusion of evidence of little value to the prosecution of these offences.”

[12] In considering the cumulative effect of the s. 8 breaches, the trial judge

concluded that none of the breaches resulted from bad faith conduct, save for the

failure to return devices on which no offensive material was found. While

acknowledging that there were “clearly serious failures” in the conduct of the

police, she stated: “I do not find that there was an overall pattern of conduct on the

part of police which would impact public confidence in the administration of justice”:

at para. 208. The trial judge recognized the appellant had a high expectation of

privacy in respect of all of the seized items. However, there was a strong societal

interest in the adjudication of the case on the merits. Taking into account all of the

factors, the trial judge found that “to exclude all of the evidence obtained in the

execution of the search warrant would bring the administration of justice into

disrepute”: para. 212.

Page: 7

B. The grounds of appeal

[13] In his factum, the appellant identified the following grounds of appeal from

his conviction:

(i) the trial judge erred in finding that the examiner’s searches complied

with the Examination Order and did not violate s. 8 of the Charter;

(ii) the trial judge erred in finding that the failure of the police to keep

detailed notes in respect of devices described in the examiner’s report

did not violate s. 8 of the Charter;

(iii) the trial judge erred in concluding the officer’s taking of screen shots

of examiner’s copies did not constitute a search; and

(iv) the trial judge erred in her s. 24(2) analysis by placing undue weight

on the nature of the charges against the appellant, viewing the

conduct of the police in a more favourable light than warranted, and

not finding that the cumulative effect of the s. 8 violations warranted

the exclusion of the evidence.

[14] In respect of the last ground of appeal, the appellant seeks leave to file fresh

evidence.

Page: 8 C. Analysis

The trial judge’s s. 8 findings

[15] In his factum, the appellant did not make specific submissions in respect of

his first three grounds of appeal. In oral argument, the appellant repeated his

position that the examiner did not comply with the Examination Order.

[16] I am not persuaded by this submission. The trial judge’s interpretation of the

Examination Order was a practical and reasonable one. Her assessment that the

examiner’s conduct fell within the scope of the Examination Order was reasonable

and well-grounded in the evidence.

[17] As to his other s. 8 grounds of appeal, the appellant has not identified any

error in law or misapprehension of the evidence by the trial judge. Accordingly, I

would not interfere with her findings.

The trial judge’s s. 24(2) findings

[18] The appellant’s main submission on his conviction appeal is that the trial

judge erred in her assessment of the seriousness of the s. 8 infringements that she

found. The appellant submits the overall misconduct of the police was more

serious than the trial judge found.

[19] In support of that submission, the appellant moved for leave to file fresh

evidence on the appeal.

Page: 9 [20] In an affidavit in support of that motion, the appellant deposed that

notwithstanding that the trial judge had ordered on February 19, 2016 that seized

materials which did not contain offensive materials be returned to the appellant

pursuant to s. 20 of the Examination Order, as of September 25, 2017 the police

had not returned those materials to him. The appellant contends that this evidence

is relevant to the issue of the seriousness of police misconduct regarding their

treatment of the seized materials.

[21] The respondent opposes the motion, primarily on the ground that the

appellant has not met the cogency requirement for the admission of fresh evidence

on the appeal: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at paras. 202-

203 & 205, leave to appeal refused, [2016] S.C.C.A. No. 513. The respondent

submits that the continued detention of the items in issue resulted from an

arrangement between counsel, which was disclosed to the trial judge at the May

31, 2016 sentencing hearing.

[22] I accept the respondent’s submission. The transcript of the sentencing

hearing discloses such an arrangement. Given that arrangement, the appellant’s

proposed fresh evidence has no bearing on the issue of the police’s handling of

the seized materials. I would dismiss the appellant’s motion for leave to introduce

fresh evidence.

Page: 10 [23] In considering the appellant’s main submissions regarding the trial judge’s

s. 24(2) findings, one must recall that deference is the standard of review applied

to the three-pronged assessment conducted by a judge under s. 24(2) of the

Charter. “Where a trial judge has considered the proper factors and has not made

any unreasonable finding, his or her determination is owed considerable deference

on appellate review. But where the relevant factors have been overlooked or

disregarded, a fresh Grant analysis is both necessary and appropriate”: R. v. Cole,

2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82 (citations omitted). See also Grant,

at para. 86.

[24] As I understand the appellant’s submissions, he contends that the trial judge:

(i) failed to attach sufficient severity to the s. 8 violations she found the police had

committed, especially in view of the appellant’s claim of solicitor-client privilege

over many of the seized materials; and (ii) placed undue weight on her findings

that the police did not act in bad faith.

[25] I am not persuaded by the appellant’s submissions. The trial judge

considered the proper factors: she conducted an individual Grant assessment of

each s. 8 violation and then applied the Grant factors collectively to the

infringements. She gave detailed reasons for her findings.

[26] As her reasons disclose, the trial judge was alive to the fact that some of the

seized devices contained materials over which solicitor-client privilege was

Page: 11 asserted. She noted that: (i) the failure to seal six items involved devices over

which no privilege was claimed; (ii) the failure to take notes involved those same

devices; and (iii) no search of the seized items occurred during the period prior to

the filing of the s. 489.1(1) report or before the Examination Order was made.

There is no suggestion in the record that the police seizure of the devices or the

subsequent review and report by the Examiner resulted in the disclosure of any

privileged information to the police or the Crown. As well, the appellant

acknowledges that the Crown did not seek to adduce any privileged information.

[27] The s. 24(2) findings made by the trial judge found ample support in the

evidence. None were unreasonable.

[28] Consequently, I see no basis for interfering with her conclusion to admit

certain of the seized materials into evidence. I would dismiss the appellant’s appeal

from conviction.

III. THE SENTENCE APPEAL

A. The issue stated

[29] As noted, the appellant was sentenced to 45 days’ imprisonment, to be

served intermittently on weekends, and three years’ probation. Although the

parties disagreed about the length of probation, they agreed on the terms of

probation, including the term limiting the appellant’s use of devices to access the

Internet or email, which he now challenges on appeal.

Page: 12 [30] The Crown also sought a 10-year prohibition order under s. 161(1)(a)-(d) of

the Criminal Code. Orders made under s. 161(1)(a)-(c) can limit where an offender

may go, whom he may contact, and the type of employment he may undertake.

Section 161(1)(d) authorizes the court sentencing a person convicted of the

possession of child pornography to make an order prohibiting the offender from

“using the Internet or other digital network, unless the offender does so in

accordance with conditions set by the court.” The Crown sought an order under s.

161(1)(d) containing similar limitations on Internet and email access as found in

the probation order.

[31] Defence counsel opposed the imposition of any s. 161 order. He argued one

was not necessary given the evidence showing the appellant presented a low risk

of recidivism, together with the serious probation terms imposed. However, in the

event the court imposed a s. 161 order, defence counsel submitted the terms

concerning computer use should be the same as those in the probation order.

[32] Defence counsel sought a two-year term for probation. The sentencing judge

disagreed, ordering probation for three years. However, the sentencing judge

otherwise imposed the terms of probation agreed upon by counsel.

[33] The sentencing judge did not make the orders under s. 161(1)(a)-(c)

requested by the Crown. However, she did impose a 10-year order under s.

161(1)(d).

Page: 13 [34] The probation and s. 161(1)(d) orders contain identical terms that limit the

appellant’s use of any device capable of accessing the Internet or email and

capable of storing data in a digital format. The terms state:

You shall be further limited to direct and indirect use of any device capable of accessing the Internet or email and capable of storing data in a digital format, including but not limited to computers, electronic media, digital or hard copy transport media or data, digital still or video cameras, camera phones, personal digital assistants, scanners as follows:

at your place of employment or as required for employment related purposes;

for the purpose of communicating with your legal counsel or, for the purposes of reviewing legal documents, or obtaining legal advice regarding ongoing legal and professional regulatory matters;

not to use a personal computer that does not have K9 protection software installed;

provide proof of installation of K9 protection on your personal computer(s) to your probation officer;

not engage directly or indirectly in the use of electronic media for the purpose of communicating with Internet websites commonly known as bulletin boards, whether interactive or static in nature; and

permit your probation officer, or a police officer requested by your probation officer to assist, access to your computer to ensure compliance with this Order, subject to reasonable precautions being taken to protect solicitor/client privilege respecting any client documents on those computers.

Page: 14 [35] The appellant seeks leave to appeal from these limitations contained in the

probation and s. 161(1)(d) orders (collectively, the “Internet Limiting Terms”). He

asks this court to vary them so that the prohibition on his access to the Internet

would forbid access only to: (i) any content that would be illegal under the Criminal

Code; and (ii) any bulletin board, service or website that facilitates access to or

makes available content that would be illegal under the Criminal Code.

[36] The appellant submits the Internet Limiting Terms are inconsistent with the

evidence that he was at the low end of any risk to reoffend and tantamount to

severing him from the Internet, which is an indisputable component of everyday

life.

[37] The respondent submits this court should not interfere with the Internet

Limiting Terms. The conditions of probation – including the limits on computer use

– were the product of a joint proposal by counsel. The s. 161(1)(d) order was

reasonable for the purpose of protecting the community and facilitating the

appellant’s reintegration into the community.

B. Analysis: The probation order

[38] The appellant seeks to vary the Internet Limiting Terms in his probation

order.

[39] The only dispute at sentencing concerning the probation order was whether

it should extend for two or three years; the sentencing judge imposed a three-year

Page: 15 probation order. The specific terms of the probation order were agreed upon by

Crown counsel and very experienced defence counsel. In those circumstances, I

see no basis upon which to interfere with the terms of the probation order.

C. Analysis: The s. 161(1)(d) order

The statutory framework and purpose

[40] Section 161 of the Criminal Code was enacted in 1993. Amendments

passed in 2012 added s. 161(1)(d). Section 161(1) reads:

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

Page: 16

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. [Emphasis added]

[41] The overarching protective function of s. 161 of the Criminal Code is to shield

children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at

para. 44. An order under s. 161 constitutes punishment and is not available as a

matter of course: there must be an evidentiary basis upon which to conclude that

the particular offender poses a risk to children; the specific terms of the order must

constitute a reasonable attempt to minimize the risk; and, the content of the order

must respond carefully to an offender’s specific circumstances: K.R.J., at paras.

48-49.

[42] This court, at para. 17 of R. v. Brar, 2016 ONCA 724, 134 O.R. (3d) 95,

summarized the Supreme Court’s analysis in K.R.J. about the purpose of s.

161(1)(d):

In its analysis of s. 161(1)(d), the court addressed the need for such a provision. Section 161(1)(d) was enacted in 2012 to close a legislative gap created by rapid social and technological changes. Those changes have created a space for harmful behaviour not captured by the former iteration of s. 161, which allowed sentencing judges to prohibit offenders only from using computer systems to contact children directly. The new harmful behaviours now captured by s. 161(1)(d) include accessing and

Page: 17

distributing child pornography and contacting other adults for the purposes of planning and facilitating criminal behaviour (K.R.J., at para. 107). With the broadened powers under s. 161(1)(d), the court is better able to monitor offenders’ use of the Internet thereby limiting their opportunities to offend and preventing such behaviour (K.R.J., at para. 108).

[43] Given the discretionary nature of an order made under s. 161(1), an

appellate court should not interfere absent an error in principle or the imposition of

a prohibition that is demonstrably unfit and unreasonable in the circumstances: R.

v. W.Q. (2006), 210 C.C.C. (3d) 398 (Ont. C.A.), at para. 25; and Brar, at para. 26.

The jurisprudence

[44] The appellant submits the Internet Limiting Terms imposed by the

sentencing judge are unreasonable in that they exceed the scope of the s.

161(1)(d) order imposed by this court in Brar. That order restrained the offender

from using the Internet for 20 years to access: (i) any content that violated the law;

and (ii) any social media sites, social networks, Internet discussion forums or chat

rooms (or making a profile on any such service). In fashioning that order, this court

drew upon the decision of the Quebec Court of Appeal in R. v. Perron, 2015 QCCA

601.

[45] In Perron, the Quebec Court of Appeal considered the reasonableness of a

s. 161(1)(d) order in the context of convictions for sexual interference, invitation to

sexual touching, and luring. Offences concerning child pornography were not

Page: 18 involved. The s. 161(1)(d) order imposed by the sentencing court prohibited use of

the Internet for five years except under the supervision of an adult who was aware

of the offences committed: at para. 35. On appeal, the Crown submitted that

instead of a total prohibition on internet use, the Court of Appeal should substitute

a s. 161(1)(d) order that prohibited contact by means of the Internet with persons

under the age of 18 years. The Court of Appeal agreed, and it modified the s.

161(1)(d) order to prohibit, for five years, use of the Internet to access illegal

content, communicate with persons under the age of 18 years other than

immediate family members, or access social media, such as Facebook.

[46] In Brar, this court set aside as demonstrably unfit and unreasonable a s.

161(1)(d) order that consisted of a 20-year prohibition on Internet use except when

“at employment” and on the ownership or use of “any mobile device with Internet

capabilities.” In its place, this court substituted a 20-year prohibition order along

the lines of that imposed in Perron.

[47] Mr. Brar pleaded guilty to counts of sexual assault, prostitution of a person

less than 18 years of age, and child luring. In substituting a less restrictive s.

161(1)(d) order, this court focused on several factors: (i) the initial order’s

restriction on the ownership of Internet capable devices fell outside the permitted

ambit of a s. 161(1)(d) order; (ii) the order imposed would be particularly onerous

on Mr. Brar’s ability to secure employment given that it limited access to his place

Page: 19 of employment, as well as in light of his occupational history as a computer science

specialist and IT technician; (iii) modern life requires some form of access to the

Internet for innocent purposes; and (iv) Mr. Brar did not pose many of the risks s.

161(1)(d) was designed to prevent, such as the possession or distribution of child

pornography.

[48] Since Brar, s. 161(1)(d) has been considered by other appellate courts.

[49] In R. v. Miller, 2017 NLCA 22, 354 C.C.C. (3d) 58, the accused entered a

guilty plea to a charge of possessing child pornography. The sentence imposed

included a s. 161(1)(d) order that prohibited Mr. Miller from using a computer to

communicate with persons under the age of 16 years. The Newfoundland and

Labrador Court of Appeal dismissed an appeal from that order. It held that in

assessing whether an offender poses a risk to children for the purposes of

justifying an order under s. 161, a sentencing judge is entitled to consider not only

the results of relevant risk assessment tests, but also the facts and circumstances

of a particular offence and/or offender: at paras. 21 and 27-28. The court

concluded that the large volume of images, their violent content, the tender ages

of the children depicted, and the period of time over which Mr. Miller had viewed

the images demonstrated that he posed a risk to children, justifying making the s.

161(1)(d) order: at paras. 31-35.

Page: 20 [50] Finally, in R. v. Athey, 2017 BCCA 350, the offender pleaded guilty to

possession of child pornography, the making of child pornography, and sexual

interference. The police had seized from the offender’s devices child pornography

consisting of approximately 2,300 still images and 27 videos. As part of the

sentence, the sentencing court imposed a 20-year prohibition order under s.

161(1)(d). Unfortunately, neither the sentencing nor appeal reasons described the

precise scope of the order. The British Columbia Court of Appeal reduced the

duration of the prohibition order to 10 years and modified the order to permit the

offender “if his employment so requires it, to use the Internet or other digital

networks on digital equipment provided by the employer during his working hours

for purposes of his employer’s business”: at para. 51.

The present case

[51] At the time she sentenced the appellant, the sentencing judge did not have

the benefit of the Supreme Court’s decision in K.R.J. Nevertheless, her reasons,

when read as a whole, disclose that she considered the factors relevant to making

a s. 161(1)(d) prohibition order – that is, whether the order constitutes: (i) a

reasonable attempt to minimize the risk the offender poses to children; and (ii) a

careful response to the offender’s specific circumstances.

[52] Although Brar did not involve a conviction concerning child pornography, in

that case this court indicated, at para. 22, that the possession of child pornography

Page: 21 is one of the risks s. 161(1)(d) was enacted to prevent. Here, the appellant

possessed a significant amount of child pornography. In her reasons, the

sentencing judge observed that the appellant possessed some 101 images and

155 videos of child pornography. The material consisted of 45 unique images and

111 unique movies. As the sentencing judge stated, “[t]hose are 156 victimized

children.” The Psychological Assessment Report prepared by Dr. Sandra Jackson

noted that the files possessed by the appellant depicted pre-pubescent youth

engaged in various sexual acts with adult males and other youth and some of the

files involved very explicit images of child abuse.

[53] The possession of child pornography poses a grave risk to children. The

sentencing judge specifically noted the case law that characterizes the possession

of child pornography as an abhorrent crime that causes extreme harm: R. v.

Nisbet, 2011 ONCA 26, at para. 1; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45,

at para. 158 (concurring); and R. v. Lynch-Staunton, 2011 ONSC 218, at para. 49.

[54] The risk the appellant poses to children by possessing child pornography

arose from his use of devices that accessed the Internet. There was no evidence

the appellant had contacted or attempted to contact children. Given those

circumstances, the sentencing judge did not accede to the Crown’s request to

grant a prohibition order under s. 161(1)(a)-(c). Instead, she limited the order to

the means by which the appellant posed a risk to children – his use of the Internet.

Page: 22 [55] In fashioning the overall sentence, the sentencing judge also took into

account the results of Dr. Jackson’s risk assessment, which assessed him as a

low risk for sexual recidivism.

[56] The specific conditions the sentencing judge imposed in the s. 161(1)(d)

prohibition order, while strict, nonetheless carefully responded to the offender’s

specific circumstances. The conditions imposed by the sentencing judge permit

the use of devices capable of accessing the Internet or email not only at the

appellant’s place of employment, but also “as required for employment related

purposes.”

[57] Finally, one must recall that the dispute at trial regarding an order under s.

161(1)(d) concerned the need for such an order, not the scope of the order in the

event one was made. The Crown sought a 10-year order containing terms set out

in s. 161(1)(a)-(d). The Crown submitted the conditions to be attached to a s.

161(1)(d) order should mirror those in the probation order. Defence counsel

opposed the imposition of any s. 161(1) order. In the alternative, he took the

position that the only s. 161(1) condition that might be appropriate was s. 161(1)(d),

with conditions that mirrored those of the probation order. In the result, the

sentencing judge granted only an order under s. 161(1)(d), which limited the

appellant’s access to the Internet on the terms worked out by counsel.

Page: 23 [58] In those circumstances, I would not interfere with the sentencing judge’s s.

161(1)(d) order. The sentencing judge considered the relevant factors and crafted

an order that reasonably attempted to minimize the risk the appellant poses to

children and responded to his specific circumstances.

[59] Although I would grant the appellant leave to appeal from the Internet

Limiting Terms, I would dismiss his appeal.

IV. DISPOSITION

[60] For the reasons set out above, I would dismiss the appellant’s appeal from

conviction. I would grant him leave to appeal from the Internet Limiting Terms, but

I would dismiss his appeal.

Released: “DW” Jun 29 2018

“David Brown J.A.” “I agree. David Watt J.A.”

“I agree. Grant Huscroft J.A.”