Law360 Canada (July 8, 2026, 8:26 AM EDT) --

John L. Hill

Sex offender prohibition orders can continue long after an offender re-enters the community. Section 161 of the Criminal Code allows for variance of the terms of such orders. Does the variance of terms allow a change in duration? That question was raised in a recent British Columbia Court of Appeal decision, R. v. S.C.W., 2026 BCCA 180.

In November 2012, W. was arrested and charged with sexual interference (Criminal Code, s.151) and making child pornography (s.163.1(2)). The provincial court found that “Mr. W ‘minimized his behaviour,’ ‘deflected blame,’ and portrayed the victim as the ‘instigator.’” A psychological assessment found he lacked insight and compassion. The sentencing judge concluded he was “untreated and unchanged.”

W. received a penitentiary sentence of seven years’ imprisonment and a 20‑year sex offender prohibition order under s. 161, beginning upon release. The order barred him from being in places where children under 16 are present, employment or volunteering involving authority over minors, contact or communication with minors, and using the internet to contact minors or access pornography. His counsel did not oppose the order at sentencing.

W. was released on parole in August 2021 with conditions designed to avoid contact with children. Later in 2021, he suffered a motor vehicle accident, resulting in chronic pain and mobility issues. He became eligible for long‑term disability and was advised that swimming would help rehabilitation.

While incarcerated, W. sought permission for his partner to act as a supervisor so he could live with her and their young daughter, and for the relaxation of internet restrictions. The provincial court judge rejected the supervision request but allowed limited internet access. On appeal, the court found some errors but ultimately upheld the refusal because the request was premature and lacked specifics. The court also corrected the internet condition to remove the requirement for a non‑existent “police‑approved program.”

He then made a second application to vary the prohibition order in 2024 (R. v. S.C.W., 2024 BCPC 116). W. argued that circumstances had changed since sentencing. He had completed prison programming and was in full compliance with parole. A new diagnosis of Asperger’s syndrome explained past behaviour and medical advice that swimming was necessary for rehabilitation.

He asked to reduce the order from 20 years to five years and to delete or significantly relax restrictions on attending public places and contacting minors.

The provincial court judge questioned but assumed he had jurisdiction to reduce duration. He found the request “excessive, premature and unwarranted” given risk assessments stating W.’s risk must be “managed, likely for life.” The judge accepted some changed circumstances but concluded the order remained necessary. He then narrowed the restrictions to females under 16, finding that W. posed a risk only to adolescent girls.

W. appealed to the British Columbia Court of Appeal and argued the judge misapplied principles in assessing duration, focused too heavily on risk management and misstated the order’s end date. He also maintained the judge had imposed an unfit order, and that fresh evidence should be admitted showing his risk is now negligible.

The Crown’s position was that duration cannot be varied under s. 161(3), but even if it can, the judge made no error. The judge reasonably found W. still posed a risk to adolescent girls and that the fresh evidence lacked due diligence, reliability and materiality.

The Court of Appeal dismissed the appeal, concluding that the provincial court judge had correctly exercised his discretion in refusing to reduce the duration of the appellant’s 20-year prohibition order under s. 161 of the Criminal Code. Although the court clarified that judges do have jurisdiction to reduce the duration of a s. 161 order, it found no reviewable error in the judge’s decision not to do so.

The principal legal issue was whether s. 161(3), which authorizes a court to “vary the conditions prescribed in the order,” also permits the court to shorten the order’s duration.

The court rejected the Crown’s narrow interpretation. Applying the modern principle of statutory interpretation from Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, the court held that the provision must be interpreted in light of its text, context and purpose rather than its wording alone.

The court emphasized that s. 161 orders are intended to protect children and are fundamentally risk-centred. Citing the decision in R. v. K.R.J., 2016 SCC 31, the court noted that prohibition orders perform an “overarching protective function,” must be tailored to the offender’s individual risk, and are justified only where there is evidence that the offender poses a continuing risk to children.

Because an offender’s risk profile may change significantly over the many years a prohibition order remains in force, Parliament’s inclusion of a variation mechanism recognized that courts should be able to revisit the order when circumstances materially change.

The court further reasoned that every condition contained in a s. 161 order is discretionary. Consequently, a judge who can remove every condition could effectively terminate the order altogether. In practical terms, there is no meaningful distinction between varying all of the order’s conditions and shortening the order itself.

Accordingly, the court held that s. 161(3) authorizes a court to vary both the conditions and the duration of a prohibition order where changed circumstances justify doing so.

The court held that a decision on a s. 161(3) variation application is a sentence appeal. Appellate intervention is therefore limited to cases involving an error in principle that affected the outcome or a demonstrably unfit order, in light of R. v. Friesen, 2020 SCC 9, and the earlier decision in the appellant’s own litigation.

The appellant argued that the provincial court judge improperly failed to consider how the sentencing judge had originally arrived at the 20-year duration.

Although the Court of Appeal acknowledged that one remark suggested the judge believed he lacked sufficient information about the original sentence, the reasons as a whole demonstrated that he understood the proper inquiry. A variation application is not an opportunity to reconsider whether the original order was fit; rather, the judge must presume the original order was correct and determine only whether changed circumstances make variation desirable.

Even if the judge’s isolated comment reflected a misunderstanding of the record, it did not affect his reasoning because he properly focused on whether W.’s rehabilitation had sufficiently reduced his risk to justify shortening the order.

W.’s counsel also argued that the judge focused exclusively on public protection while ignoring the continuing restrictions imposed on his liberty.

The Court of Appeal rejected this submission. It held that while a court must consider the impact of a prohibition order on an offender’s liberty, rehabilitation and reintegration, the central inquiry under s. 161(3) remains to be determined whether changed circumstances have reduced the offender’s risk sufficiently that the existing restrictions are no longer reasonably necessary.

The court reiterated that s. 161 orders should impose no more restrictive conditions than necessary to manage the offender’s risk. However, reduced hardship alone cannot justify relaxing an order unless the offender’s risk has also materially diminished.

The judge had not ignored W.’s employment difficulties or other burdens imposed by the order. Rather, he concluded that those burdens remained justified because the order continued to serve as the only effective external control available after W. completed parole.

The provincial court judge mistakenly believed the prohibition order began when W.’s parole ended rather than when parole commenced. The Court of Appeal accepted that this was an error but found it harmless. The judge clearly understood that the appellant had only recently completed parole and that the s. 161 order had become the only remaining mechanism available to manage his risk in the community. The mistaken commencement date therefore had no impact on the ultimate decision.

Although W. relied on other cases in which lower-risk offenders received shorter or narrower prohibition orders, the Court of Appeal cautioned that such comparisons are of limited value because every s. 161 order depends on the offender’s individual risk factors and the potential consequences of reoffending.

While W. had been assessed as presenting a generally low risk, the provincial court judge also found that he continued to display limited insight into his sexual offending and still required external controls to manage that risk.

The judge had already relaxed several conditions while maintaining restrictions designed to prevent contact with girls under 16. Given the seriousness and prolonged nature of W.’s offences against his 11-year-old stepdaughter, together with the continuing evidence that some level of risk management remained necessary, the Court of Appeal concluded that refusing to reduce the order from 20 years to five years was neither disproportionate nor demonstrably unfit.

W. sought to introduce updated psychological assessments prepared after the provincial court decision.

The Court of Appeal dismissed the application. Fresh evidence is admissible on a sentence appeal only where it satisfies the criteria set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 and reaffirmed in R. v. Sipos, 2014 SCC 47 and R. v. Bradbury, 2014 BCCA 378.

Because the court found no reviewable error in the provincial court judge’s decision, the new psychological reports were not material to the outcome of the appeal. Instead, any evidence showing that W.’s risk profile has continued to improve should be presented through a new application under s. 161(3), where the trial court can make fresh findings of fact based on current evidence.

In closing, the court observed that future applications are more likely to succeed when they seek narrowly tailored modifications supported by detailed evidence demonstrating both reduced risk and the safety of the specific activity or circumstance for which relief is requested.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM 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.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.