Terms and Conditions of Probation
- 1 General Principles
- 2 Compulsory Terms
- 3 Optional Terms
- 4 Reasonableness of Conditions
- 5 Specific Types of Conditions
- 5.1 Mandatory Residence
- 5.2 Curfew
- 5.3 Community Service
- 5.4 Alcohol Abstention
- 5.5 Counselling Without Consent
- 5.6 Treatment
- 5.7 Sexual Behaviour Assessment
- 5.8 Mandatory Searches
- 5.9 Mandatory Medications
- 5.10 Charitable Donations
- 5.11 Geographical Restrictions
- 5.12 Restrictions on Business Dealings
- 5.13 Restrictions on Personal Relationships
- 5.14 Restrictions on Internet Access
- 5.15 Bodily Substances Conditions
- 6 Example Conditions Based on Offences
- 7 See Also
The terms of probation are to be interpreted in light of the language of the term and the policies that it serves.
- Territorial Reach
A term of probation will apply to the offender in any jurisdiction. Conditions restricting activities do not lack effect simply because the prohibited conduct occurred outside of Canada. The Order does not need to specifically state that it applies outside of Canada.
R v Stanny, 2008 ABQB 746 (CanLII), per Bielby J, at para 18
R v Greco, 2001 CanLII 8608 (ON CA), per Moldaver JA (3:0), at paras 30 to 31
Stanny, supra, at para 18 - prohibition against contacting any HSBC institutions applies outside of Canada
Greco, supra, at paras 30 to 31
Stanny, supra, at para 3
Compulsory terms of probation are listed at s. 732.1 (2):
Those terms consist of:
- keep the peace and be of good behaviour;
- appear before the court when required to do so by the court; and
- notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
Optional terms of probation are listed at s. 732.1 (3):
In order to impose optional terms, it must be established that the conditions are reasonable desirable for "protecting society and facilitating the offender's successful reintegration into the community".
- Reviewing Optional Conditions
There is nothing in s. 732.1 that permits a court on its own accord to vary the conditions of probation while the accused is subject to the order. Further, the court has no jurisdiction to delay the imposition of optional conditions until after the completion of the custodial portion of the sentence.
- "optional conditions"
The phrase "optional conditions" are defined in s. 732.1:
Purpose of Conditions
These goals concern the future behaviour of the offender and are not shaped by the seriousness of the offence or degree of culpability. Accordingly, the optional condition must have a nexus to the circumstances of the offence or offender's history.
Conditions that would be prohibited would be those that were primarily imposed as a punishment.
- R v Kootenay, 2000 ABCA 289 (CanLII), (2000), 271 A.R. 156, per curiam (3:0), at paras 13 to 14
- R v Coombs, (2004), 369 A.R. 215, 2004 ABQB 621 (CanLII), per Veit J, at para 35 (Q.B.)
- R v Taylor, 1997 CanLII 9813 (SK CA), (1997), 122 CCC (3d) 376, per Bayda CJ, at p. 394
Taylor, supra, at p. 394
- Kootenay, supra, at para 14
R v Duguay, 2019 BCCA 53 (CanLII), per Fitch JA, at para 61
R v Shoker,  2 SCR 399, 2006 SCC 44 (CanLII), per Charron J, at paras 10, 13
Duguay, supra, at para 63
Shoker, supra, at paras 14 and 21
Duguay, supra, at para 63
R v Timmins, 2005 BCCA 354 (CanLII), at para 9
Reasonableness of Conditions
The conditions do not necessarily require a connection between the offence and the offender's past history.
Usually there should be a connection "between the offender, the protection of the community and [the offender's] reintegration into the community." To put it another way, there should be a connection between the "probation condition that is imposed and the situation of the offender".
- Power to Delegate
The Court may delegate certain aspects of their decision-making powers to probation services when making a probation order. The delegation must engage "only the administration of a probation order". The court may not delegate anything that amounts to a "judicial function".
- R v Kootenay, 2000 ABCA 289 (CanLII), per curiam (3:0), at para 14
- R v Shoker, 2006 SCC 44 (CanLII),  2 SCR 399, per Charron J (7:0)
R v Hardenstine, 2008 BCCA 474 (CanLII), per Groberman JA (3:0), at para 10 ("The question, in each case, then, is whether there is an adequate nexus between the probation condition that is imposed and the situation of the offender.")
R v Coombs, 2004 ABQB 621 (CanLII), per Veit J, at para 39
R v Vena, 2005 ABQB 948 (CanLII), per Wachowich CJ at 9
Coombs, supra, at para 39
R v PAG,  O.J. No. 5837 (Ct. J.)(*no CanLII links)
R v Forrest, 1992 CanLII 1552 (BC CA), (1992), 20 BCAC 293 (C.A.), per Hinds JA (3:0)
R v McLeod,  Y.J. No. 96 (Sup. Ct.)(*no CanLII links)
R v Okeymow, 2012 ABQB 257 (CanLII), per Michalyshyn J
- R v Duguay, 2019 BCCA 53 (CanLII), per Fitch JA, at paras 82 to 83
- Duguay, supra, at paras 83 to 84
Specific Types of Conditions
The Court has wide discretion to make optional terms of probation. "judicial creativity" in crafting terms is encouraged "as long as it complies with the sentencing menu of options" available in the Code.
Section 732.1(3)(h) authorizes the court to delegate to probation services to determine what residences are suitable for the offender to reside at for the duration of the probation order.
A curfew may be imposed for the purpose of "fostering the acute rehabilitation in the protection of the public". there must, however, be a nexus between the curfew and the purpose. It cannot simply be for the purpose of imposing a punishment.
The judge may impose a requirement to complete up to 250 hours of community service under s.732.1(3)(f) and (h). It must be completed within 1 year.
Section 732.1(c)(i) permits the addition of a condition requiring the offender to abstain from the "consumption of alcohol or other intoxicating substances".
Where appropriate, conditions preventing the Tuesday from entering into any establishment with a liquor license to serve or sell alcohol is permissible.
Where the offender is an alcoholic, it does not follow that they are unable to abide by the conditions and are being "set up for failure". Certain addicts are almost certainly incapable of abstaining completely and such conditions may be contrary to their rehabilitation.
- R v Joy, 2011 BCCA 189 (CanLII), per Huddart JA (3:0) – Offender was convicted of domestic violence and had a long record of violence towards women
R v Okeymow, 2012 ABQB 257 (CanLII), per Michalyshyn J, at paras 14 to 15
R v Coombs, 2004 ABQB 621 (CanLII), (2004), 369 A.R. 215 (Q.B.), per Veit J
R v Omeasoo, 2013 ABPC 328 (CanLII), per Rosborough J, at para 37 - comparing it to telling a depressed person to "cheer up"
Counselling Without Consent
Terms of counselling, as opposed to treatment, does not require the consent of the accused.
It is not permissible to require an offender to take medication as treatment without their consent.
As a result of this prohibition, Parliament enacted s. 732.1(3)(g).
Sexual Behaviour Assessment
Certain jurisdictions have services through the local hospital that include sexual behaviour assessment. This typically includes phallometric testing. The assessment is intended to assist with risk assessment, determine whether there should be a s.161 order, and what treatment if any can be required.
The assessment will either be included as part of a probationary order or else as part of an order for a pre-sentence report prior to sentencing.
See R v Challes, 2008 CanLII 13360 (ONSC), per MacLeod J- pre-sentence assessment
R v Gibbons, 2009 NUCJ 30 (CanLII), per Johnson J
It is not possible to include conditions requiring the search of a third-party's residence or vehicle. The consent of the third party would be required. 
A court cannot order the offender as part of probation to submit to "a search and seizure of bodily substances". Moreover, the court cannot "predetermine that any positive reading would constitute a breach of probation".
In rare cases, chemical castration in sex offences can be put on as a condition of probation only as long as it is consented to by the accused.
A requirement of giving a charitable donation as a term of probation is a punitive provision and so is not valid.
A probation order may include a banishment provision. 
Conditions that imposes geographical restrictions on the offender creates a “strong element of deprivation with the attendant curtailment of the freedom of mobility"
Such conditions may result in "harsh" treatment and so can amount to punishment to be deducted from a custodial sentence.
The use of "banishment" provisions should not be encouraged.
- R v Malboeuf, 1982 CanLII 2540 (SK CA), (1982), 68 CCC (2d) 544,  4 W.W.R. 573, 16 Sask. R. 77 (Sask. C.A.), per Bayda CJ (3:0)
R v WBT, 1997 CanLII 9813 (SK CA), (1997), 15 C.R. (5th) 48 (SKCA), per Bayda CJ (3:0)
- R v Griffith, 1998 CanLII 5490 (BC CA), per Goldie JA (3:0)
- R v Kehijekonaham, 2008 SKCA 105 (CanLII), per Richards JA (3:0) - ("The case law concerning banishment reveals that it should very much be considered the exception rather than the rule.")
Restrictions on Business Dealings
A probation order may include the requirement that the offender abstain from "seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person" with exceptions such as "unless you have made full disclosure to the employer or volunteer supervisor of the reasons for judgment in this case".
Restrictions on Personal Relationships
Whatever appropriate, I just may order a restriction that the offender reports any relationships including the name and address of the individual to probation services as well fez consent to notify the individual of the criminal record.
Restrictions on Internet Access
Severing a person's access from the internet has been been considered "tantamount to severing that person from an increasingly indispensable component of everyday life" and is also an "integral component of citizenship and personhood".
Bodily Substances Conditions
Example Conditions Based on Offences
Online Sexual Offences Against Children
Conditions on probation orders that have accompanied internet child exploitation offences:
- No contact with persons under age of 18
- No alcohol or drugs (if alcohol had connection to alcohol)
- no use or access to computers
- not to possess or use a digital device or computer system that is capable of connecting with the internet except for the purpose of employment or an educational program.
- not possess or access child or adult pornography;
- not possess or access any images or videos of children who are, or appear to be, under the age of 18 years who are naked or who are portrayed in a sexual manner;
- Not own or possess computers or any similar electronic devices capable of accessing the internet except for a purpose necessary for registered academic studies or for the purposes of employment and in such circumstances as are approved beforehand in writing by the court or the supervisor
- provide computer service billing information to the authorities
- not to use or possess any hard driving "wiping" software 
In parts of the US there is a practice of requiring the sex offender to have computer monitoring software installed on their home computer for the purposes of having the probation officer supervise activities.