Successful appeal of sex assault sentence parses locations described in s. 161(a) of Code

Law360 Canada (September 19, 2024, 2:11 PM EDT) --

John L. Hill

Some say the rising cost of tickets makes it impossible to enjoy a night at the movies. Lack of finances may be a bar to cinema attendance, but what about a court order restricting one from entering the building?

A Kelowna man who was charged with a sexual offence challenged such an order and will, once again, be able to attend movie theatres once he completes his jail sentence after he successfully appealed a part of his sentence (R. v. Veringa, 2024 BCCA 295).

John William Veringa had pleaded guilty to one count of sexual interference and was sentenced to a 22-month jail sentence in May 2023, to be followed by a two-year probation order. In addition, a 10-year prohibition order, the sentencing judge supposedly under s. 161 (1) of the Criminal Code, barring him from going to “any public park, public swimming area, day-care centre, school ground, playground, community centre or theatre where persons under the age of 16 years are known by you to be present or can reasonably be expected to be present.” The word “theatre” does not appear in s. 161(1)(a) of the Code.

Prohibitions are routinely imposed for public safety protection where, as here, the victim of the person charged with a sexual offence was under 16, even in situations where the convicted person, like Veringa, had no prior criminal

record. In this case, Veringa’s victim, referred to as K.M. in the judgment, was 10 years old when Veringa committed the offences. His offences involved three separate incidents over a six-month period.  

Veringa’a appeal challenged only that part of the prohibition order restricting his attendance at theatres. His argument was that the judge had no jurisdiction to prohibit his attendance at movie theatres. Such a location is not included under s. 161(a) of the Criminal Code. The Crown had not sought his exclusion from movie theatres during sentencing, and it’s unclear why the judge added that stipulation.

Section 161 provides that where a person is convicted, a prohibition to protect persons under 16 may be imposed, specifying that the person is not to attend specified locations where minors are likely to be present. In the judgment accepting Veringa’s position, B.C. Court of Appeal Justice Margot Fleming acknowledged that “theatres are a location where persons under 16 can reasonably be expected to be present and vulnerable to sexual exploitation, including voyeurism.” However, she ruled that s. 161 of the Criminal Code does not give a sentencing judge the jurisdiction to prohibit his attendance at locations not listed in the section, such as theatres.

Justice Fleming traces the legislative history of s. 161 and prior jurisprudence where the word “theatre” has been included in prohibition orders. She noted the Ontario case of R. v. Perron, 2009 ONCA 498. The Ontario Court of Appeal accepted that the locations enumerated in s. 161(1)(a) of the Code provided “the full list of locations.” She also inferred from the judgment in R. v. K.R.J., 2016 SCC 31, and the judgment of Justice Karakatsanis that s. 162 should be designed to formulate a prohibition order to prevent the repetition of child abuse corresponding to the circumstances that led to an offender’s conviction.

In Veringa’s case, the Crown had not sought his exclusion from movie theatres during sentencing, and it’s unclear why the sentencing judge added that stipulation.

Justice Fleming applied the principle of statutory interpretation that an Act must be read in its entire context to blend with the objective of the Act and Parliament’s intention (Rizzo v. Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27). Applying this test to determine if Parliament intended to allow the addition of locations not specified in the legislation, the B.C. appeal court agreed with counsel for Veringa that they do not.

The rationale for the decision can be summed up when the judgment states: “When analyzed in context, I accept the s. 161 preamble should generally be interpreted as intended to limit not enlarge the prohibitions provided in [s. 161] (a) through (d) … If parliament had wanted a court to have the power to expand restrictions on liberty that are expressed under s. 161(a), it would have taken the same approach as it did in 810.1 [commonly referred to as the peace bond section] and granted the express authority to do so.”

As a result, Veringa will still be prohibited from attending public parks, public swimming areas, day-care centres, school grounds, playgrounds and community centres for 10 years. He will be allowed to attend theatres if he can afford to purchase a ticket.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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