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

Author:Izadi, Melody

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...

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