Criminal Law Notebook

Terms and Conditions of Probation

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General Principles

The terms of probation are to be interpreted in light of the language of the term and the policies that it serves.[1]

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.[2] The Order does not need to specifically state that it applies outside of Canada.[3]

  1. ↑ 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
  2. ↑ Stanny, supra at para 18 - prohibition against contacting any HSBC institutions applies outside of Canada
    Greco, supra, at paras 30 to 31
  3. ↑ Stanny, supra, at para 3

Compulsory Terms

Compulsory terms of probation are listed at s. 732.1 (2):

732.1
...

Compulsory conditions of probation order

(2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;
(a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
(i) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or
(ii) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
(b) appear before the court when required to do so by the court; and
(c) 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.
Consent

(2.1) For the purposes of subparagraph (2)(a.1)(i), the consent is valid only if it is given in writing or in the manner specified in the order.

Reasons

(2.2) If the court makes the decision described in subparagraph (2)(a.1)(ii), it shall state the reasons for the decision in the record.
...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7, s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.

– CCC

Those terms consist of:

  • keep the peace and be of good behaviour;
  • abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
    • the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or
    • the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
  • 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

Optional terms of probation are listed at s. 732.1 (3):

732.1
...

Optional conditions of probation order

(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

(a) report to a probation officer
(i) within two working days, or such longer period as the court directs, after the making of the probation order, and
(ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;
(b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
(c) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(d) abstain from owning, possessing or carrying a weapon;
(e) provide for the support or care of dependants;
(f) perform up to 240 hours of community service over a period not exceeding eighteen months;
(g) if the offender agrees, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province;
(g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;
(g.2) where the lieutenant governor in council of the province in which the probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and
(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.
Optional conditions — organization

(3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:

(a) make restitution to a person for any loss or damage that they suffered as a result of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and procedures;
(e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;
(f) provide, in the manner specified by the court, the following information to the public, namely,
(i) the offence of which the organization was convicted,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking — including any policies, standards and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.

...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7, s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.


– CCC

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".[1]

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.[2] Further, the court has no jurisdiction to delay the imposition of optional conditions until after the completion of the custodial portion of the sentence.[3]

"optional conditions"

The phrase "optional conditions" are defined in s. 732.1:

732.1
...

Definitions

732.1 (1) In this section and section 732.2,
...
"optional conditions" means the conditions referred to in subsection (3) or (3.1). (conditions facultatives)
...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7,s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.


– CCC

  1. ↑ R v Coombs, 2004 ABQB 621 (CanLII), 369 A.R. 215, per Veit J, at para 35 (Q.B.)
  2. ↑ R v PAH, 1999 BCCA 194 (CanLII), per Ryan JA (3:0)
  3. ↑ PAH, ibid., at paras 10 to 12

Purpose of Conditions

The primary goal of these conditions is rehabilitation and reintegration.[1] It should also have the objective of protecting society.[2] Punishment is not a dominant purpose.[3]

These goals concern the future behaviour of the offender and are not shaped by the seriousness of the offence or degree of culpability.[4] Accordingly, the optional condition must have a nexus to the circumstances of the offence or offender's history.[5]

  1. ↑ R v Kootenay, 2000 ABCA 289 (CanLII), (2000), 271 A.R. 156, per curiam (3:0) at paras 13-14
  2. ↑ R v Coombs, (2004), 369 A.R. 215, 2004 ABQB 621 (CanLII), per Veit J, at para 35 (Q.B.)
  3. ↑ R v Taylor, 1997 CanLII 9813 (SK CA), (1997), 122 CCC (3d) 376, per Bayda CJ at p. 394
  4. ↑ Kootenay, supra
    Taylor, supra at p. 394
  5. ↑ Kootenay, supra at para 14

Reasonableness of Conditions

The conditions do not necessarily require a connection between the offence and the offender's past history.[1]

Usually there should be a connection "between the offender, the protection of the community and [the offender's] reintegration into the community."[2] To put it another way, there should be a connection between the "probation condition that is imposed and the situation of the offender".[3]

The offender's inability to comply with the condition does not make it unreasonable.[4] However, setting offenders up for future breaches should be of concern.[5]

  1. ↑ R v Kootenay, 2000 ABCA 289 (CanLII), per curiam (3:0), at para 14
  2. ↑ R v Shoker, 2006 SCC 44 (CanLII), [2006] 2 SCR 399, per Charron J (7:0)
  3. ↑ 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.")
  4. ↑ 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
  5. ↑ Coombs, supra at para 39
    R v PAG, [2000] 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, [1992] Y.J. No. 96 (Sup. Ct.)(*no CanLII links)
    R v Okeymow, 2012 ABQB 257 (CanLII), per Michalyshyn J

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.[1]

  1. ↑ R v Wisniewski, 2002 MBCA 93 (CanLII), per Steel JA (3:0) at para 28

Curfew

A curfew may be imposed for the purpose of "fostering the acute rehabilitation in the protection of the public".[1] there must, however, be a nexus between the curfew and the purpose. It cannot simply be for the purpose of imposing a punishment.[2]

  1. ↑ R v Badyal, 2011 BCCA 211 (CanLII), per Chiasson JA (3:0)
  2. ↑ Badyal, ibid.

Community Service

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.

Alcohol Abstention

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.[1]

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".[2] Certain addicts are almost certainly incapable of abstaining completely and such conditions may be contrary to their rehabilitation.[3]

  1. ↑ 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
  2. ↑ R v Okeymow, 2012 ABQB 257 (CanLII), per Michalyshyn J, at paras 14 to 15
  3. ↑ 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"

Sexual Behaviour Assessment

Certain jurisdictions have services through the local hospital that include sexual behaviour assessment. This typically includes phallometric testing.[1] 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.[2]

  1. ↑ http://en.wikipedia.org/wiki/Penile_plethysmograph
    http://www.csc-scc.gc.ca/text/pblct/forum/e141/141b_e.pdf
  2. ↑ See R v Challes, 2008 CanLII 13360 (ONSC), per MacLeod J- pre-sentence assessment
    R v Gibbons, 2009 NUCJ 30 (CanLII), per Johnson J

Mandatory Searches

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. [1]

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".[2]

  1. ↑ R v Demchuk (R.M.) 2003 MBCA 152 (CanLII), per Twaddle JA
  2. ↑ R v Shoker, 2006 SCC 44 (CanLII), [2006] 2 SCR 399, per Charron J (7:0) upholding 2004 BCCA 643 (CanLII), per Levine JA (2:1)

Mandatory Medications

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.[1]

  1. ↑ R v Stuckless, 1998 CanLII 7143 (ON CA), per Abella JA (3:0) at para 76

Charitable Donations

A requirement of giving a charitable donation as a term of probation is a punitive provision and so is not valid.[1]

  1. ↑ R v Choi (J.W.), 2013 MBCA 75 (CanLII), per MacInnes JA (5:0) at para 67 - context of conditional discharge, also considers contrary unreported case R v Rivais

Geographical Restrictions

A probation order may include a banishment provision. [1]

Conditions that imposes geographical restrictions on the offender creates a “strong element of deprivation with the attendant curtailment of the freedom of mobility"[2]

Such conditions may result in "harsh" treatment and so can amount to punishment to be deducted from a custodial sentence.[3]

The use of "banishment" provisions should not be encouraged.[4]

  1. ↑ R v Malboeuf, 1982 CanLII 2540 (SK CA), (1982), 68 CCC (2d) 544, [1982] 4 W.W.R. 573, 16 Sask. R. 77 (Sask. C.A.), per Bayda CJ (3:0)
  2. ↑ R v WBT, 1997 CanLII 9813 (SK CA), (1997), 15 C.R. (5th) 48 (SKCA), per Bayda CJ (3:0)
  3. ↑ R v Griffith, 1998 CanLII 5490 (BC CA), per Goldie JA (3:0)
  4. ↑ 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".[1]

  1. ↑ R v Kohuch, 2011 ONCJ 620 (CanLII), per Greene J at para 48
    see also Fraud Prohibition Orders

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.[1]

  1. ↑ R v Joy, 2011 BCCA 189 (CanLII), per Huddart JA (3:0)

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".[1]

  1. ↑ R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J (7:2) at para 54 in context of punishment effect of s. 161(1)(d)

Bodily Substances Conditions

732.1
...
Notice — samples at regular intervals
(7) The notice referred to in paragraph (3)(c.2) must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.

Designations and specifications

(8) For the purposes of paragraphs (3)(c.1) and (c.2) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

(a) designate the persons or classes of persons that may take samples of bodily substances;
(b) designate the places or classes of places at which the samples are to be taken;
(c) specify the manner in which the samples are to be taken;
(d) specify the manner in which the samples are to be analyzed;
(e) specify the manner in which the samples are to be stored, handled and destroyed;
(f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;
(g) designate the persons or classes of persons that may destroy the samples; and
(h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.
Further designations

(9) For the purpose of paragraph (3)(c.1) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.

Restriction

(10) Samples of bodily substances referred to in paragraphs (3)(c.1) and (c.2) may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (8).

Destruction of samples

(11) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a probation order to be destroyed within the periods prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 733.1.

Regulations

(12) The Governor in Council may make regulations

(a) prescribing bodily substances for the purposes of paragraphs (3)(c.1) and (c.2);
(b) respecting the designations and specifications referred to in subsections (8) and (9);
(c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (11); and
(d) respecting any other matters relating to the samples of bodily substances.

1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7, s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.


– CCC

Prohibition on use of bodily substance

732.11 (1) No person shall use a bodily substance provided under a probation order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.

Prohibition on use or disclosure of result

(2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a probation order.

Exception

(3) The results of the analysis of a bodily substance provided under a probation order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 733.1 or, if the results are made anonymous, for statistical or other research purposes.

Offence

(4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.
2011, c. 7, s. 4.


– CCC

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
  • Treatment/Counselling
  • 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[1]
  • not to use or possess any hard driving "wiping" software [2]

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.[3]

  1. ↑ e.g. in R v Ingvaldson, 2012 BCPC 437 (CanLII), per Kitchen J
  2. ↑ e.g. JDM, 2014 ONCJ 29 (CanLII), per Reinhardt J
  3. ↑ see US v Quinzon - case on the constitutionality of the monitoring

See Also

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