CONDITIONAL SENTENCE PICKLISTTable of Contents
Compulsory Terms2Compulsory No Contact and No Go
Complainant2Compulsory Reporting5Residence, House Arrest, E.M.P.,
Carry Permission5No Go Specific Address and Red Zone8No Go and No
Contact with Minors9Contact with Future Partners10No Contact with
Persons Identified by Supervisor10Criminal Harassment11Drugs and
Alcohol11Counselling, Treatment, Rogers Order, and
Releases12Community Work15Restitution15Apology and Restorative
Justice15Support Dependents16Technology16Trafficking and Drug
Production18Firearms and Weapons19Tools, Disguises and
Colours21Commercial Crime22Vehicles23
Compulsory Terms
Term of the order[endnoteRef:1] [1: With respect to reading out
the conditions to the offender in open court, practices vary. The
most common practice, and the one we strongly endorse is reading
out the number and the complete wording of the condition in court.
Problems can arise when this does not happen, the clerk might type
verbatim what is said, which in the end might not be enforceable.
However, more importantly, if there is a discrepancy between the
actual order and what the judge said in the court, the latter will
likely prevail. We were unable to find any Canadian cases directly
on point, but confirmed that in the U.S., the judge must orally
give the conditions of probation, Buhler v. Pescor, 63 F Supp 632
(DC Mo 1945), and when there is a discrepancy between conditions
given orally and conditions given in writing, the oral statements
control (except in situations in which the conditions in question
are standard conditions). United States v. Delago, 397 F Supp 708
(SD NY 1974).]
You must comply with the conditions of a conditional sentence
order[endnoteRef:2] for a term of ___.[endnoteRef:3] The conditions
of the order are: [2: Pursuant to section 742.3(2)(f) can impose
any reasonable conditions s/he considers desirable for securing the
good conduct of the offender and for preventing a repetition by the
offender of the same offence or the commission of other offences.
In R. v. Proulx, 2000 SCC 5, the court observed that conditional
sentence orders should normally contain punitive conditions that
are restrictive of the offender’s liberty. Conditions such as
house arrest or strict curfews should be the norm, not the
exception.] [3: The maximum term of a conditional sentence order is
2 years less one day: s. 742.1. ]
COMPULSORY CONDITIONS[endnoteRef:4] [4: The compulsory
conditions of the conditional sentence order are set out in s.
742.3. The compulsory no contact and no go conditions came into
force on September 19, 2014.]
3001
You must keep the peace and be of good behaviour.
You must appear before the court when required to do so by the
court.
You must notify the court or your conditional sentence
supervisor ( __ days) in advance of any change of name or address
and promptly notify the court or supervisor of any change in
employment or occupation.[endnoteRef:5] [5: This condition is less
strict than the commonly used reside condition, which requires
permission before changing addresses. In some cases, this condition
will suffice. The challenge sometimes faced by Community
Corrections is that the offender will leave a message on the
weekend that they have moved, the message will often not include
the new address or telephone number and they lose track of their
client. Under 18 U.S.C. § 3563(b)(17) in the U.S, 10 days-notice is
required.]
You must remain in British Columbia unless you have prior
written permission from the Court or your conditional sentence
supervisor to leave the province. (You must carry the written
permission when you are outside the province).
Compulsory No Contact and No Go Complainant
COMPULSORY NO CONTACT
3002
You must have no contact or communication, directly or
indirectly, with __________ (except with a further order of this
court)[endnoteRef:6]. [6: The drafters recommend using this wording
to try and preserve the court’s jurisdiction to amend this
compulsory term in the future if there is a likelihood that changes
will need to be made.]
The exceptions are as follows: [endnoteRef:7] [7: Pursuant to s.
742.1(2)(a.1)(ii) of the Criminal Code, reasons must be given when
permitting contact. It is important to remember that contact is the
exception not the rule.]
a. through (email; text; telephone; a named third party) for the
sole purpose of ________.
b. for the sole purpose of picking up and dropping off your
children for parenting or contact time.[endnoteRef:8] [8: Judges
can specify in the order how and where pick-ups and drop-offs will
occur to ensure safety.]
c. in accordance with a Family Court Order made by a judge who
has reviewed this order.[endnoteRef:9] You must forthwith file a
copy of this order in any family proceeding in which you are a
party or become a party. (You must give notice of any Family Court
application for parenting or contact time with your children, with
a copy of this order attached, to the Director of Child
Protection).[endnoteRef:10] [9: It is important that the judge
making the family court order reviews the criminal order. Without
this requirement, the parties could obtain a consent order or file
a separation agreement permitting contact without the family court
being aware of the criminal order.] [10: Criminal court is
sometimes the better place to deal with exceptions because the
Crown is present and is able to describe the alleged circumstances
and provide input with respect to issues surrounding risk to the
victim and/or children.]
d. during one attendance, in the company of a peace officer for
the purpose of retrieving your personal belongings.
e. through or in the immediate presence of ________ (but only
after he or she has been informed by your conditional sentence
supervisor officer of this order and your history as described in
your criminal record).[endnoteRef:11] [11: If a named person is not
available, a judge might consider permitting contact in the
presence of an unnamed third party, informed of the circumstances,
for specific purposes.]
f. you may have contact and communication with ________ but you
must immediately leave (his or her) presence upon their request (or
the request of a peace officer)[endnoteRef:12]. If this happens you
must have no further contact, or communication with ________
without further order of this court.[endnoteRef:13] [12: For a
myriad of reasons, our committee which included Crown, defence
counsel and police were not supportive of this exception. The
police indicated that they were reluctant to be involved in the
monitoring of this section and that is why (at the request of a
peace officer) is optional. Questions arose about how the
discretion might be exercised.] [13: In the context of domestic
violence, an order providing that an offender must leave the
presence of the victim at the victim’s request may provide a degree
of safety that is more illusory than real. This condition can be
problematic due to the undue pressure on the complainant and the
vulnerability to retribution if s/he does not comply with the
demands of the offender. In some regions the Crown policy prohibits
Crown from recommending this term. A judge should use caution in
permitting exceptions to no contact orders. Given the compulsory
nature of this condition, the drafters of this picklist decided
that the discretion to allow the person to return to the presence
of the victim should be determined by the courts.]
g. you may have contact with ________ but must never be in (his
or her ) presence if you have any alcohol, intoxicating substance
or drugs in your body[endnoteRef:14] or in your immediate
possession, except in accordance with a medical prescription.
(continued) [14: The phrase “drugs in your body” is a phrase found
in use in other jurisdictions. We considered other phrases like
under the influence, intoxicated, no consumption within x hours and
determined this would be easiest for the accused to understand and
police to enforce. Conditions which attempt to limit the
probationer's use of alcohol are usually hopelessly imprecise
(e.g., "refrain from the excessive use of alcohol") and/or quite
unrealistic (e.g., "not to be over .08% blood-alcohol at any time".
Very few persons who need control upon their use of alcohol will be
able to stop drinking at any moderate point once they start
drinking at all.)]
h. through or in the immediate presence of a lawyer who has
reviewed this order.
i. through or in the immediate presence of one or more of the
following professionals, after he or she has reviewed this
order:counsellor, family justice counsellor,or mediator.
j. in a public place (in the presence of ____ / where other
adults are present).
k. during scheduled court appearances or case conferences but
only with a sheriff present.[endnoteRef:15] [15: This term is
important if there is any possibility of family court litigation.
]
(OPTIONAL) NO SOCIAL MEDIA
3003
You must not publish or publicly make available any information
respecting ________ via the internet or social media including
Facebook, Twitter, My Space, Instagram, text messaging and email,
or any other like service.
(OPTIONAL) NON-ASSOCIATION
3004
You must have no contact or communication directly or indirectly
with (co-accused or gang) (except:)[endnoteRef:16] [16: If one is
prohibiting a person not to associate with a certain group or
category of people it is important to ensure that the condition is
not impermissibly vague or overbroad. In R. v. Kirton, 2007 MBCA
38, a probation term prohibiting the accused from associating or
communicating directly or indirectly with any person known to him
to be a member or associate of a gang including the Hells Angels
was found to be vague and uncertain to be enforceable and therefore
unreasonable. In R. v. Shoker, 2006 SCC 44, the Court observed that
a judge could order an offender not to associate with his drinking
buddies to ensure better compliance with an abstention clause and
thereby facilitate the offender’s rehabilitation and protect
society.]
a. during scheduled court appearance;
b. through or in the immediate presence of a lawyer who has
reviewed this order.
compulsory NO Go
3005
You must not go to (or be within ____ metres of)[endnoteRef:17]
(any residence, school or workplace of ______), (a specific address
)[endnoteRef:18] (except with a further order of this
court)[endnoteRef:19]. [17: Metres was chosen because blocks can be
vague and in some rural areas blocks do not exist.] [18: Unless the
complainant’s address is known to the accused it will rarely be
appropriate to put the specific address in the order. The more
generic wording also provides flexibility in the event the
complainant moves or changes jobs.] [19: The drafters recommend
using this wording to try and preserve the court’s jurisdiction to
amend this compulsory term in the future if there is a likelihood
that changes will need to be made.]
The exceptions are as follows:
a. one attendance, in the company of a peace officer for the
purpose of retrieving your personal belongings.
b. for the sole purpose of picking-up and dropping off your
children for parenting or contact time.(You must remain inside your
vehicle when picking up or dropping off your
children).[endnoteRef:20] [20: Judge can specify where the pick-up
or drop-off will occur. For example: You must not enter the
residence of ________ (unless you are expressly invited and then
only for the sole purpose of picking up or dropping of your child).
The child shall be picked up or dropped off at the (front
entrance/curbside) of the residence. You shall not leave until the
child is safely inside the residence.]
c. in accordance with a Family Court Order made by a judge who
has reviewed this order. You must forthwith file a copy of this
order in any family proceeding in which you are a party or become a
party. (You must give notice of any Family Court application for
parenting or contact time, with a copy of this order attached, to
the Director of Child Protection).
d. for the purpose of ___ on ___between the hours of ____.
e. in the immediate presence of ________, for the purpose of
________ on ________ between the hours of _______.
f. you may attend but you must immediately leave the place upon
the request of ________, and if that happens you must not re-attend
without further order of this Court. [endnoteRef:21] [21: This
condition can be problematic due to the undue pressure on the
complainant and the vulnerability to retribution if s/he does not
comply with the demands of the accused. In some regions, the Crown
policy prohibits Crown from recommending this term.]
g. while in a moving motor vehicle on your way to some other
place (for the sole purpose of ________).
Exception to Compulsory Written Consent
Pursuant to s. 742(3) (1.1)(a) of the Criminal Code, after
reviewing the written consent of ________, the Court is not
imposing the mandatory conditions referred to in s. 742 (1.1).
Exception To Compulsory Exceptional Circumstances
Pursuant to s. 742(3) (1.1)(b) of the Criminal Code, because of
the following exceptional circumstances: ________ the Court is not
imposing the mandatory conditions referred to in s. 742 (1.1).
Compulsory Reporting
REPORT [endnoteRef:22] [22: Pursuant to section 742.3(c) unlike
probation and bail, reporting is mandatory in a conditional
sentence order.]
3101
You must report in person to the conditional sentence supervisor
at _______ by 3:00 PM today (date and time), and after that, you
must report as directed by the conditional sentence
supervisor.[endnoteRef:23] [23: “Immediate” reporting is difficult
in practice, because the order cannot be prepared immediately.
Community Corrections recommends that offenders be required to
report by 3:00 PM in order to ensure there is sufficient time to
conduct the intake interview before the end of the workday]
REPORT IMMEDIATELY
3102
You must report immediately in person to the conditional
sentence supervisor at _________ and after that, you must report as
directed by the conditional sentence supervisor.
REPORT BY PHONE
3103
You must report by telephone[endnoteRef:24] to the conditional
sentence supervisor office at (address and telephone number) by
3:00 PM today (date and time). If the office is closed, you must
try again the next business day and continue calling until you have
spoken to a conditional sentence supervisor and received further
direction to report. After that, you must report as directed by
your conditional sentence supervisor. [24: Requiring offenders to
report by telephone poses significant challenges in monitoring the
offender. Sometimes they call outside work hours and do not leave
forwarding numbers or do not return messages. Breaches are often
difficult to prove.]
REPORT AFTER RELEASE
3104
You must report in person to the conditional sentence supervisor
at ________ within (two business days)[endnoteRef:25] after your
release from custody, unless you have obtained, prior to your
release, written permission from the conditional sentence
supervisor to report elsewhere or within a different time frame.
After that, you must report as directed by your conditional
sentence supervisor. [25: Two business days should be sufficient
time for an offender to get from the institution to the Community
Corrections office. Black’s Law Dictionary defines a business day
as follows: A business day is considered every
official working day of the week. Another common term
is working day. Typically, these are the days between and
including Monday to Friday and do not include public holidays and
weekends.]
REPORT AFTER ARREST[endnoteRef:26] [26: The U.S. equivalent goes
a step further, under 18 U.S.C. § 3563(b)(18), the offender must
report any questioning by police. This the term is usually reserved
for high risk offenders or recidivists.]
3105
If at any time prior to the expiration of this order, you are
arrested, detained or have served a sentence for another offence,
you must report to your conditional sentence supervisor within two
business days of your release from custody.
Residence, House Arrest, E.M.P., Carry Permission
RESIDE[endnoteRef:27] [27: A reside term does not require the
offender to spend every night at the residence. If that is the
intention a curfew condition should be included.]
No change without consent
3201
When first reporting to the conditional sentence supervisor, you
must inform him or her of your residential address[endnoteRef:28]
and phone number. You must not change your residence or phone
number without written permission from your conditional sentence
supervisor.[endnoteRef:29] [28: Some Community Corrections offices
will require daily reporting if the offender is unable to provide
an address.] [29: The requirement that permission to change the
residential address be sought in advance is stricter than the
compulsory condition, which only requires notice. Requiring
permission to change addresses assists conditional sentence
supervisors to supervise offenders, but can be challenging for
transient individuals.]
RESIDE
Approved
3203
You must reside at a residence approved in advance by your
conditional sentence supervisor. You must provide your phone number
to your supervisor, and you must not change your residence or your
phone number without written permission from your conditional
sentence supervisor.[endnoteRef:30] [30: When imposed, Community
Corrections must assess the offender’s residence within 48 hours
and consider notifying people who share common living areas with
the offender. For example, if the offender lives in an apartment
building with a pool or courtyard, other residents may be notified
by showing them a photo of the offender and advising them of the
protective conditions. New residents will be notified as they move
in. “Approved residence” conditions may be appropriate for sex
offenders or high risk violent offenders. A judge might consider
imposing a curfew condition, to ensure that the offender is in the
approved residence every night and not living elsewhere.]
RESIDE
Specific address
3204
You must reside at ________, (with ______). You must provide
your supervisor with your phone number, and you must not change
your residence or your phone number without written permission from
your conditional sentence supervisor.
OBEY RULES OF THE HOME
3205
You must obey all of the rules of your residence, so long as
they do not conflict with the terms of this order or the directions
of your supervisor. If there is a conflict, you must tell your
conditional sentence supervisor about the conflict
immediately.[endnoteRef:31] [31: The "obey rules" condition results
in the delegation of responsibility for supervising the order to
someone other than a conditional sentence supervisor, and as a
result raises the possibility of treatment facilities telling
offenders to comply with rules that are inconsistent with the
conditions of the order. Some courts have considered the term too
vague and unenforceable. R. v. L.(M.J.), 1990 CarswellAlta 543
(CA); R. v. F.(P.D.), [1987] O.J. No. 1800 (CJ). However, in R. v.
E.A. 2015 BCCA 463 the Court held that a condition requiring a
young person to follow house rules was not an impermissible
delegation of a judicial function, and was not impermissibly vague.
In the context of a treatment facility the term was found to be
appropriate. R. v. Thompson 2003 BCCA 183]
SURRENDER TRAVEL DOCS
3207
You must surrender all travel documents, including any passport,
Nexus card, travel visa or enhanced driver’s licence[endnoteRef:32]
to a peace officer at (police station) by (time and date), and
thereafter you must not obtain any further travel documents. [32:
When an offender surrenders an enhanced driver’s licence, he or she
can obtain a regular driver’s licence.]
SURRENDER TRAVEL DOCS
ACCOMPANYING PEACE OFFICER
3208
By (date and time) (immediately), you must attend (police
station) with a copy of this order, you must present the order to a
peace officer there, and you must accompany a peace officer to the
location of all travel documents in your possession, including any
passport, Nexus card, travel visa or enhanced driver’s licence. You
must surrender all such items to the peace officer. You must not
obtain any further travel documents.
HOUSE ARREST[endnoteRef:33] [33: In R. v. Proulx 2000 SCC 5, the
court observed at paragraph 36 that “conditional sentences should
generally include punitive conditions that are restrictive of the
offender’s liberty. Conditions such as house arrest or strict
curfews should be the norm, not the exception…There must be a
reason for failing to impose punitive conditions when a conditional
sentence order is made”. ]
3209
For the duration of this order (first ___ months of this order),
you must remain inside your residence, (or within 10 m of the front
door of your residence) (or on the lot of your
residence)[endnoteRef:34], under house arrest (24 hours per day)
(between the hours of ______PM and ______AM), each day (every
Friday and Saturday). [34: Conditions specifying a distance from
the front door or permitting presence anywhere on a large lot, may
make the order difficult to enforce.]
You must present yourself immediately at the door to your
residence or answer the phone[endnoteRef:35] when any peace officer
or conditional sentence supervisor attends at your residence or
calls to check your compliance with the house arrest condition of
this order. (continued) [35: Some judges include a requirement that
the accused maintain/obtain a landline and not use a call
forwarding service. However, landlines are becoming quite rare and
some cannot afford or have sufficient credit to obtain one. Even if
the accused has a cell phone the police find this term helpful. If
the accused is not answering the door, they can call the cell
phone, and tell the accused to come to the door (if s/he is at
home). ]
You may be away from your residence during the house arrest
hours with the written permission of your conditional sentence
supervisor. Such permission is to be given only for compelling
reasons. You must carry the written permission when you are outside
your residence during the house arrest hours. [endnoteRef:36] You
may also be away from your residence during the house arrest hours:
[36: Conditional sentence supervisors will normally consider
employment, education, religion, shopping, appointments etc. to be
compelling reasons. They do not have to be specifically listed in
this condition of the order.]
a. While in the course of your employment, or when travelling
directly to, or returning directly from, your place of employment.
If requested, you must provide a conditional sentence supervisor
with details of your employment, including location and hours of
work.[endnoteRef:37] [37: This exception is usually not required
because the conditionals sentence supervisor will grant exceptions
for work but many offenders prefer that it is specifically set out
in the order.]
b. In the event of a medical emergency and then only while at a
health care facility, or when traveling directly to, or returning
directly from the facility.[endnoteRef:38] If requested, you must
provide your conditional sentence supervisor with written
confirmation that you went to the facility, signed by a
representative of the health care facility to which you
went.[endnoteRef:39] [38: The term "health care facility" has been
adopted because not all communities have "emergency wards".] [39:
See R. v. Bourque, 2013 BCCA 447 at paras 32-34; R. v. Amhaz, 2013
BCCA 348 at para 24 where the offenders were required to provide
this type of information]
c. In the immediate presence of __________.
d. In the presence of a person approved in writing by your
conditional sentence supervisor. You must carry the written
permission with you when you are away from your residence during
the house arrest hours.
REPORT OCCUPANTS
3210
When you first report to your conditional sentence supervisor,
you must tell the supervisor the names of all permanent and
temporary occupants of your residence and immediately tell him or
her of any change.
NO VISITORS
3211
You must have no visitors at your residence during your house
arrest, except with the written permission of your conditional
sentence supervisor.[endnoteRef:40] You must keep a copy of the
permission at your residence. [40: When the offender shares her
residence with other people, consider permitting exceptions for the
other people, or consider omitting this condition entirely.]
CHANGES IN EMPLOYMENT RELATIONSHIP STATUS
3212
You must provide your conditional sentence supervisor with the
particulars of your employment or relationship status. You must
inform your conditional sentence supervisor within two business
days of any change in your employment or relationship
status.[endnoteRef:41] [41: This term is more robust than the
compulsory term requiring the offender to report changes to
employment. Loss of employment or the dissolution of a marriage are
high risk factors for recidivism.]
ELECTRONIC MONITORING (TSR Required)
3213
The house arrest condition of this order will be monitored
electronically. You must comply with all rules of the electronic
monitoring program.[endnoteRef:42] [42: The electronic supervision
condition must not be imposed unless a Technical Suitability Report
has been prepared in advance. Community Corrections will confirm
that both the offender and the residence are suitable for
electronic supervision. If there are other residents, their
informed consent will be obtained. In order to give effect to an
electronic supervision condition, Community Corrections requests
that the curfew, reside, and not change residence without
permission conditions also be included in the order. Although the
central monitoring agency will advise community corrections of any
breaches, and Community Corrections will try to advise the
complainant as soon as possible, if the breach occurs after-hours
or on the weekend, they will not be able to do so until the
beginning of the next working day. The monitoring has GPS
capabilities which can enhance the ability of police to locate the
person quickly if the bracelet has not been removed, and Community
Corrections has the ability to monitor the accused’s location
during scheduled absences.]
CARRY COPY
3214
You must carry a copy of this order and any written permission
from your conditional sentence supervisor with you at all times
when you are outside your residence. If a peace officer stops you
for any reason, you must immediately provide the peace officer with
a copy of this order and written permission without being requested
to do so (upon the request of a peace officer).[endnoteRef:43] [43:
A similar condition was imposed in cases like R. v. Caza, 2005 BCCA
318 (CanLII); R. v. Caron, 2013 BCCA 475 ; and R. v. Sidhu, 2015
ABCA 308. The benefits include providing the offender with a quick
reference to the terms of his or her conditional sentence order,
reminding the offender what s/he has committed to doing, and
providing peace officers with information about the terms of the
order and any permission granted thereby limiting the need for
lengthy interactions. Community Corrections make wallet-sized
copies of orders for most of their clients.]
No Go Specific Address and Red Zone
NO GO SPECIFIC ADDRESS
3301
You must not go to (or be within ____ metres of) ________,
(except:)
a. while on a highway in a moving motor vehicle on your way to
some other place (for the purpose of travelling to and from
_______.)
RED ZONE
Options:
1. Boundaries
a. defined area,
b. defined point
2. Banishment
3302
1a. Boundaries: defined area
You must not be in the area of _____________, BC bounded by
_____________ on the East, _____________ on the West, _____________
on the North and _____________ on the South.
1b. Boundaries: defined point
You must not be (north/south/east/west) of (City).
2. Banishment:[endnoteRef:44] You must not be within a ____
kilometre radius of _________, BC. [44: In R. v. Etifier, 2009 BCCA
292, the Court canvassed the principles to apply when considering
banishment orders. This condition should be used sparingly. It is
rarely appropriate for the court to foist one community’s problem
onto another. Banishment can sometimes remove the accused from his
only support network, creating bigger problems then it was intended
to solve.]
The exceptions are as follows:
a. with the written permission of the conditional sentence
supervisor in which case you must carry the written permission with
you when you are in the (prohibited area/community).
b. to attend scheduled court appearances, or appointments with
the police, your conditional sentence supervisor,
lawyer or doctor. You must provide your bail supervisor with
advance notice of your attendance within the prohibited area.
c. while in a moving motor vehicle on your way to some other
place (for the sole purpose of travelling to and from _____).
d. one attendance, in the company of a peace officer for the
purpose of retrieving your personal belongings.
e. in the immediate presence of _______.
No Go and No Contact with Minors
NO GO PARKS OR SCHOOLS
Reasons to be transcribed for Community Corrections
3303
You must not go to any public park, public swimming area, or
community centre where persons under the age of ___ years are
present or can reasonably be expected to be present, or a daycare
centre, school ground, playground, (except:)[endnoteRef:45] [45:
This condition is patterned on section 161 of the Criminal
Code.]
a. with the written permission of your conditional sentence
supervisor. You must carry the permission with you when you are in
the prohibited area.
b. in the immediate presence of __________.
c. in the immediate presence of another adult, and only after he
or she has been informed by your conditional sentence supervisor of
your history as described in your criminal record, Pre-Sentence
Report, if any, and these Reasons for Judgment.
NO CONTACT MINORS[endnoteRef:46] [46: When imposed, Community
Corrections must assess the offender’s residence within 48 hours
and consider notifying people who share common living areas with
the offender. For example, if the offender lives in an apartment
building with a pool or courtyard, other residents may be notified
by showing them a photo of the offender and advising them of the
protective conditions. New residents will be notified as they move
in. “Approved residence” conditions may be appropriate for sex
offenders or high risk violent offenders. A judge might consider
imposing a curfew condition, to ensure that the offender is in the
approved residence every night and not living elsewhere.]
3304
You must have no contact or communication directly or indirectly
with, nor be alone in the presence of, any person you know to be or
who reasonably appears to be under the age of____ years.
The exceptions are as follows:
a. if they are your children (names);
b. if you have the written permission of your conditional
sentence supervisor in which case you must carry the
permission.[endnoteRef:47] [47: When judges delegate the function
of approving the third party to Community Corrections, they are not
authorized to do any background checks on the party being proposed.
Without background checks, most officers are reluctant to approve
third parties. But see R. v. S.(N.P.), 2014 BCPC 199 where the
court held that Community Corrections could not refuse to accept
the delegation.]
c. in the immediate presence of _______, (and only after he or
she has been informed by your conditional sentence supervisor of
this order, and your history as described in your criminal record,
Pre-Sentence Report, if any, and these Reasons for Judgment. A copy
of these Reasons for Judgment must be transcribed and provided to
the conditional sentence supervisor);[endnoteRef:48] [48: The BCCA
approved an alternative wording in R. v. R.R.M., 2009 BCCA 578
(CanLII): You must not be in the company of any person under the
age of 18 years, unless you are supervised by an adult who was
previously approved in writing by your conditional sentence
supervisor. See also R. v. Power, 2010 BCCA 21 (CanLII). We prefer
‘immediate presence’ because ‘supervised’ can mean from afar or
another room.]
d. with the consent of the child’s parent or guardian, but only
after the parent or guardian has reviewed this order;
e. in the course of legitimate employment, but only in the
immediate presence of an adult who has reviewed this order, or when
contact is necessary and incidental to the employment;
f. through or in the immediate presence of a lawyer who has
reviewed this order
g. during scheduled court appearances but only with a sheriff
present;
ACTIVITIES WITH CHILDREN
3305
You must not engage in activities, volunteer work or employment
that could bring you in contact with persons under the age of ___
years without the written permission of your conditional sentence
supervisor and when so engaged, you must carry this
permission.[endnoteRef:49] [49: The conditional sentence supervisor
may not accept the delegation of this responsibility.]
ELTON HUBBS
(Children)
Transcribe reasons for Community Corrections
3306
You must not date, or enter into a marriage or common-law
relationship[endnoteRef:50] with anyone who has the care or access
to children under the age of ___ years[endnoteRef:51] until you
have identified to your conditional sentence supervisor the person
with whom you propose to enter into such a relationship and your
conditional sentence supervisor has informed that person of your
history as described in your criminal record, Pre-Sentence Report,
if any, and these Reasons for Judgment. [50: Thought was given to a
broader type of relationship, like a romantic relationship, but at
the court in United States v. Reeves, 591 F.3d 77 (2d Cir. 2010),
it would be too difficult to define.] [51: A judge might consider
adjusting the age, based on the circumstances of the case.]
Contact with Future Partners
ELTON HUBBS[endnoteRef:52] [52: The wording of this condition is
based on the decision in R. v. Hubbs, 1993 CanLII 1642 (BCCA).]
(Adults)
Transcribe reasons for Community Corrections
3307
You must not date, or enter into a marriage or common-law
relationship with any person, until you have identified to your
conditional sentence supervisor the person with whom you propose to
enter into such a relationship, and your conditional sentence
supervisor has informed that person of your history as described in
your criminal record, Pre-Sentence Report, if any, and these
Reasons for Judgment.
No Contact with Persons Identified by Supervisor
NO CONTACT WITH PERSON IDENTIFIED[endnoteRef:53] [53: The ban on
associating with persons with criminal records has been criticized
on the grounds that some offenders may have family members who have
criminal records or may live in a neighborhood where most of the
residents have criminal records. The term in the picklist should be
used sparingly. It was used in R. v. Bourque, 2013 BCCA 447. ]
3308
You must not associate or have a relationship with anyone named
by your conditional sentence supervisor if your supervisor has
reasonably determined the relationship or association to be a risk
to yourself or others or to be detrimental to your programming,
counselling, re-integration into the community or a risk to the
protection of society.
Criminal Harassment
PROVIDE CELL NUMBER AND VEHICLE INFORMATION
3309
You must provide the conditional sentence supervisor with the
carrier information and phone number of any mobile device or tablet
that you possess, and the make, model, colour and licence plate
numbers of any vehicle that you drive.[endnoteRef:54] [54: This
term might be considered in cases of criminal harassment.]
NO SOCIAL MEDIA[endnoteRef:55] [55: An additional term to
consider: You must provide your bail supervisor with your Facebook,
Twitter, Instagram, or other public media account and not change,
or add accounts without notifying your bail supervisor.]
3003
You must not publish or publicly make available any information
respecting ________ via the internet or social media including
Facebook, Twitter, My Space, Instagram, text messaging and email,
or any other like service.
CHANGES IN EMPLOYMENT RELATIONSHIP STATUS
3212
You must provide your conditional sentence supervisor with the
particulars of your employment or relationship status. You must
inform your conditional sentence supervisor within two business
days of any change in your employment or relationship
status.[endnoteRef:56] [56: This term is more robust than the
compulsory term requiring the offender to report changes to
employment. Loss of employment or the dissolution of a marriage are
high risk factors for recidivism.]
Drugs and Alcohol
NO ALCOHOL OR DRUGS
3401
You must not possess or consume alcohol, drugs or any other
intoxicating substance,[endnoteRef:57] except in accordance with a
medical prescription.[endnoteRef:58] [57: “Intoxicated” has been
said to mean drunk to “such a marked degree that the person is a
danger to himself or others or is causing a disturbance.” R. v.
Wallace 1998 CanLII 6701 (BC SC).] [58: Note the consideration of
abstinence clauses in R. v. Omeasoo 2013 ABPC 328 at paras 41-44.
There does not have to be alcohol involved in the predicate offence
before a court can impose an abstinence clause. The court only
needs to be satisfied that the conditions is necessary for the
defined purpose of a a probation order, namely protecting society
and facilitating the offender’s successful reintegration into the
community. Also see R. v. Patrick, 2016 BCCA 232. It is often
important to prohibit the use of both alcohol and drugs. Alcohol
use can trigger a recovering drug addict’s return to drug use.
Additionally, substance-dependent defendants may substitute alcohol
for their drug of choice.]
NO ALCOHOL
Residence Exception
3402
You not must possess or consume alcohol or any other
intoxicating substance, except while inside your residence, or
while transporting it sealed directly to your residence.
You must not be found in any public place in an intoxicated
condition.[endnoteRef:59] [59: This wording was used in R. v.
Forrest (1992) CanLII 1552 (BCCA).]
NO GO LIQUOR OUTLETS
3403
You must not enter any liquor store, beer and wine store, bar,
pub, lounge, night club, beer garden or any other business from
which minors are prohibited at any time by the terms of a liquor
licence.[endnoteRef:60] [60: This wording was recommended in R. v.
Joy 2011 BCCA 189 at para 14.]
NO GO LIQUOR OUTLETS
Alternate wording
3404
You must not enter any liquor store, beer and wine store, bar,
pub, lounge, nightclub, or beer garden (or any other place where
the primary commodity sold is liquor).[endnoteRef:61] [61: The
language in italics was rejected by the Court of Appeal in R. v.
Joy 2011 BCCA 189. It is included here because some judges still
prefer it.]
NO ALCOHOL OR DRUGS IN RESIDENCE
3405
You must not reside at any place where any other resident has
illegal drugs or alcohol in his or her possession, or permit any of
these items to be brought inside your residence.[endnoteRef:62]
[62: This condition may unnecessarily restrict an offender’s
ability to find suitable housing.]
DRUG PARAPHERNALIA
3406
You must not possess drug paraphernalia including but not
limited to pipes, rolling papers and syringes.[endnoteRef:63] [63:
Caution is urged with this term. The imposition of this condition
may result in the person sharing things like needles and pipes,
thus creating the spread of infectious disease, unless there is a
safe injection site available.]
Counselling, Treatment, Rogers Order, and Releases
COUNSELLING
Delegated to Conditional Sentence Supervisor[endnoteRef:64] [64:
Community Corrections officers are trained to determine which
criminogenic factors need to be addressed and in what priority.
Risk factors can change and conditional sentence supervisors need
to be able to adjust priorities. They prefer that judges do not
specify the type of counselling required. Even though the
conditions reads ‘not limited to’ many of their clients do not read
it the same way and resist their efforts to get them into more
productive forms of counselling. Other times, a judge might decide
to specifically limit the type of counselling. When doing so,
judges need to make sure they get it right. Some experts opine that
anger management programs are not effective for people convicted of
domestic violence. Community Corrections has developed programs
specific for persons convicted of domestic violence which are
different than anger management.]
3501
You must attend, participate in and successfully complete any
intake, assessment, counselling or program[endnoteRef:65] as
directed by the conditional sentence supervisor. [65: Unlike a
probation order, under s. 742.3(2)(e) of the Criminal Code the
offender's consent is not required before he or she may be ordered
to actively participate in a treatment program as a term of a
conditional sentence. As the Supreme Court in R. v. Proulx, 2000
SCC 5 observed, “in practice, however, this difference is not very
significant, since it is unlikely that an offender faced with the
choice between imprisonment and a suspended sentence with treatment
as a condition of probation would refuse to consent to
treatment.”]
Without limiting the general nature of this condition, the
intakes, assessments, counselling or programs may relate to:
a. anger management,
b. alcohol or drug abuse,
c. spousal abuse prevention,
d. mental health,
e. sexual offence prevention, or
f. gambling addiction[endnoteRef:66]. [66: If the root cause of
the offending behaviour is a gambiling addiction, consideration
might be given to a condition similar to that used by U.S. courts
in 18 U.S.C. § 3563(b)(22): You must not engage in any form of
gambling (including, but not limited to, lotteries, on-line
wagering, sports betting) and you must not enter any casino or
other establishment where gambling is the primary purpose (e.g.,
horse race tracks, off-track betting establishments).]
RESIDENTIAL TREATMENT
3502
You must attend, participate in and successfully complete any
intake, assessment, counselling, program, treatment or residential
treatment program as directed by your conditional sentence
supervisor.[endnoteRef:67] [67: Currently in British Columbia there
are no treatment programs that have been approved by the Lieutenant
Governor in Council.]
FORENSIC SERVICES
3503
You must attend at the direction of your conditional sentence
supervisor for a psychiatric intake, assessment, counselling or
treatment program through Forensic Psychiatric
Services.[endnoteRef:68] [68: Naming Forensic Psychiatric Services
in the order will usually speed the process of having the offender
accepted for assessment or treatment.]
PRIVATE PROGRAMS AND TREATMENT FACILITIES[endnoteRef:69] [69:
Consent should be obtained when the treatment facility is a private
facility.]
3504
Having consented, you must attend participate in and
successfully complete _______ program as directed by your
conditional sentence supervisor.
You must comply with all the rules of the program so long as the
rules do not conflict with this order or the directions of your
conditional sentence supervisor. (continued) If they do conflict,
you must advise your conditional sentence supervisor as soon as
possible.[endnoteRef:70] [70: If an offender asks to be ordered to
attend a private treatment facility or Recovery House which is not
on Community Corrections approved list, consider including a
condition reminding the offender that he or she must ultimately
follow the directions of the conditional sentence supervisor where
the directions conflict with the facility or house. ]
When the program ends, you must immediately provide proof of
your completion of the program to your supervisor.
RELEASE TO PRIVATE FACILITY
3505
1. You are to be released to a (a representative of facility/
home/ named third party).
2. You must report to a conditional sentence supervisor by
telephone at (address and telephone of Community Corrections Office
at originating location) within the first business day of your
admission to the (facility/ home), and thereafter report as
directed by your conditional sentence supervisor.
3. If (a representative of the facility/ home) is unable to
attend, escort, and admit you on the date of your eligible release,
you are to be released and report forthwith to a conditional
sentence supervisor at ________, and thereafter as directed
(daily), until such time as (facility/ home) is able to admit you
or the court changes this order.[endnoteRef:71] [71: This condition
is recommended to address situations where the facility is
scheduled to pick up the offender from jail but fails to show.
Judges may want to consider requiring the facility to be present at
the time of sentencing and avoid this complication.]
4. You must reside at _____________ located at _____________ or
any other location associated with (that facility/ home), unless
you have the written permission of the conditional sentence
supervisor to reside elsewhere.
5. You must not leave the (facility/ home) unless you are in the
immediate presence of a staff member of the (facility/ home) or you
have the written permission of your conditional sentence
supervisor. Such permission is to be given only for compelling
reasons. You must also carry the written permission when you are
outside the (facility/ home). (continued)
6. You must abide by all rules of the (facility/ home), so long
as they do not conflict with the terms of this order. If there is a
conflict, you must tell your conditional sentence supervisor about
the conflict immediately.[endnoteRef:72] [72: The "obey rules"
condition results in the delegation of responsibility for
supervising the order to someone other than your conditional
sentence supervisor, and as a result raises the possibility of
treatment facilities telling offenders to comply with rules that
are inconsistent with the conditions of the conditional sentence
order. In the context of a treatment facility the term was
appropriate in R. v. Thompson 2003 BCCA 183.]
7. You must not possess or consume any alcohol or any other
intoxicating substance except in accordance with a medical
prescription.
8. You must attend, participate in and complete any programs to
which you are directed by the (facility).
9. If you are expelled from the (facility/ home) or voluntarily
remove yourself from the program without permission being obtained
in advance from your conditional sentence supervisor, you must
advise your conditional sentence supervisor forthwith. If the
office is closed, you must contact your conditional sentence
supervisor immediately when the office opens on the next business
day.
ROGERS ORDER[endnoteRef:73] [73: This term has evolved from a
term that was imposed in R. v. Rogers, 1990 CanLII 432 (BCCA).]
3507
Having consented you must do the following:
1. At the direction of your conditional sentence supervisor
report to Forensic Psychiatric Services or elsewhere for any
intake, assessment, counselling or treatment.
2. Attend all scheduled appointments with your doctor,
psychiatrist and counsellor.
3. Take all medications prescribed to you.[endnoteRef:74] [74:
Some judges use this term to deal with people on the methadone
program.]
4. Give your doctor, psychiatrist and counsellor a copy of this
order.
5. You must provide your conditional sentence supervisor with
the names, addresses, and phone numbers of your doctor,
psychiatrist, and counsellor. (continued)
6. Tell your doctor, psychiatrist, and counsellor that if you do
not follow any terms of this order, he or she is to inform your
conditional sentence supervisor. (continued)
If you decide not to follow these directions, you must
immediately report to your conditional sentence supervisor when his
or her office is open and tell your supervisor.
EXPULSION FROM PROGRAM
3506
If you are expelled from the ________ or voluntarily remove
yourself from the program without permission being obtained in
advance from your conditional sentence supervisor, you must advise
your conditional sentence supervisor forthwith. If the office is
closed, you must contact your conditional sentence supervisor
immediately when the office opens on the next business day.
RELEASE FOR COUNSELLING AND TREATMENT
3508
1. You must sign any waiver of confidentiality or release of
information forms as will enable your conditional sentence
supervisor, counsellors or treatment providers to monitor your
attendance, and completion of any intake, assessment, counselling,
or treatment programs, and to collaboratively discuss your
treatment needs.[endnoteRef:75] [75: The offender’s consent is not
required. See R. v. Bennett, 2005 ABCA 119, and R. v. Bourque, 2013
BCCA 447]
2. You must sign any release of information forms as will enable
your conditional sentence supervisor to monitor your attendance and
completion of any assessments, counselling or rehabilitative
programs as directed.
3. You must provide proof of your attendance and completion of
any assessments, counselling or treatment programs as directed by
your conditional sentence supervisor.
Community Work
COMMUNITY WORK [endnoteRef:76] [76: As a correctional strategy
community work provides a way for offenders to acquire job
readiness skills and job experience or broaden their network of
associates in a more productive direction. In addition to the
specific sentencing purpose to be served, the desired by-product of
community service is always to benefit the community.]
3509
You must complete ______ hours[endnoteRef:77] of community work
under the direction of your conditional sentence supervisor. Your
community work service must be completed by (date).[endnoteRef:78]
[77: Section 742.3(2)(d) of the Criminal Code provides that the
court may order an offender to perform up to 240 hours over a
period of eighteen months. In accordance with their policy, if more
than 50 hours is ordered, conditional sentence supervisors will
apply to the court for consideration in the reduction of hours.
Their experience is that more than 50 hours is counter-productive
to rehabilitation. Like donations in lieu of fines, donations in
lieu of community work service are likely impermissible.] [78: A
judge might consider imposing a deadline three months before the
end of the term of the conditional sentence order, to allow time to
deal with any breach of this condition.]
COMMUNITY WORK
Hours per Month
3510
You must complete ______ hours of community work under the
direction of your conditional sentence supervisor.
Your community work service must be performed at a rate of no
fewer than _______ hours per month.
COMMUNITY WORK [endnoteRef:79] [79: Judges need to be careful in
using this condition. Having an offender do community service for a
specific organization could be perceived the same way as what
charity a charitable donation should be made to. See PPSC Policy on
Charitable Donations.]
For the Benefit
3511
Your community work service may be performed for the benefit of
_____________, with the permission of your conditional sentence
supervisor.
COMMUNITY WORK
Counselling
3512
Any hours spent receiving counselling under this order will be
credited towards your community work service hours.[endnoteRef:80]
[80: This condition should be used cautiously. Some counselors find
that it detracts from the seriousness of the counselling, as
offenders attend counselling merely to put in time.]
Restitution
RESTITUTION[endnoteRef:81] [81: Section 738 of the Criminal Code
provides for stand-alone restitution orders. An ability to pay
inquiry should be conducted before ordering restitution. The
ability to pay can include a future ability to pay. An inability to
pay is not an absolute bar to a stand-alone restitution order.
Section 739.1]
Monthly Amounts
3513
You must pay restitution in the amount of $___________ to the
Clerk of the Court for the benefit of _____________, payable in
monthly installments of $___________ each, payable on the
___________ day of each month starting on ___________, and
continuing until such time as the restitution is paid in full.
RESTITUTION
Due Date
3514
You must pay restitution in the amount of $___________ to the
Clerk of the Court for the benefit of _____________.
Your restitution must be paid in full by
_____________.[endnoteRef:82] [82: A judge might consider imposing
a deadline before the completion of the conditional sentence order,
to allow time to deal with any breach of this condition.]
Apology and Restorative Justice
APOLOGY
3515
You must apologize to _____________ in the manner directed by
your conditional sentence supervisor and to the satisfaction of
your conditional sentence supervisor by __________.[endnoteRef:83]
[83: An apology condition will require an exception to the
compulsory no contact condition. In R. v. Pine, [2002] O.J. No. 280
(ONCA), the court observed that a condition requiring an accused to
write an apology to the victim was inappropriate inasmuch as an
expression of remorse is fruitless when mandated.]
RESTORATIVE JUSTICE
3516
Subject to the consent of _____________, you must participate in
a restorative justice program at the direction of your conditional
sentence supervisor.
Support Dependents
SUPPORT DEPENDENTS
3517
a. You must provide adequate support for your dependents
(names); or [endnoteRef:84] [84: This condition is imposed
infrequently, but is provided for in section 742.3(c) of the
Criminal Code. In Regina v. Hawley (1973), 15 Cr. L.Q. 258, the
Ontario Court of Appeal decided that the appellant should be placed
on probation rather than in goal. The appellant's recent
employment, marriage and parenthood were important factors
influencing the court's decision. In these circumstances one of the
conditions of probation ordered by the court was that he provide
for the support of his wife and child.Such a condition may also be
appropriate in cases where the offence was committed upon the
offender's spouse and precipitated a family separation. In such
cases the probationer may agree to make certain payments or the
order can provide that the probationer is to: Provide for the
support of his family if so ordered by a court of competent
jurisdiction and as ordered by that court and to provide proof to
the satisfaction of the probation officer that such payments are
being made. The section is too general to be of any real value in
such cases but, short of an agreement on quantum by the
probationer, it is submitted that the determination of quantum
should not be attempted in the setting of a criminal court,
although it may sometimes be appropriate to specify an amount to be
paid for a short period of time, thus giving the spouse an
opportunity to initiate proceedings and obtain an order in family
court.If you are ordered by a court to make child support payments
or to make payments to support a person caring for a child, you
must make the payments and comply with the other terms of the
order. You must meet any legal obligation to support or make
payment toward the support of any person, including any dependent
child, the co-parent or caretaker of a dependent child, or a spouse
or former spouse. According to the US legislation the purpose of
this conditions is to ensure that the defendant complies with court
orders and avoids collateral consequences for not complying with
court orders such as lost driver’s license, garnishment of wages,
and loan ineligibility. The court cannot require the defendant to
pay his child support obligations at a rate different than that
established by the state court, because family relations are a
traditional area of state concern. United States v.
Lakatos, 241 F3d 690 (CA9 Cal 2001).]
b. You must pay _____, $______ on the ____ of each month for the
support of your dependents (names).
Technology
NO INTERNET[endnoteRef:85] [85: When imposing a term restricting
the offender’s access to the internet, a judge must balance the
goals of rehabilitation and reintegration into the community,
including the online community, and the goal of protecting the
community, which includes the online community. See the discussion
in Queen v. Smith et al, [2011] EWCA Crim 1772 (CA). As
Karakatsanis J. stated in R. v. K.R.J., 2016 SCC 31 at para. 54,
"depriving an offender under s. 161(1)(d) of access to the Internet
is tantamount to severing that person from an increasingly
indispensable component of everyday life". Internet is used for
such commonplace activities as shopping, corresponding with friends
and family, transacting business, finding employment, banking,
reading the news, watching movies, attending classes and so on. In
United States v. Peterson, 248 F3d 79 (CA2 NY 2001), the
court described it this way, “Although a defendant might use the
telephone to commit fraud, this would not justify a condition of
probation that includes an absolute bar on the use of telephones.
Nor would defendant's proclivity toward pornography justify a ban
on all books, magazines, and newspapers.” Also see R. v. Brar, 2016
ONCA 724]
3601
You must not own, possess or use any device capable of accessing
any computer network including the internet, except as permitted by
this order.
While (owning, possessing or using) any such device pursuant to
this order:
1. You must not delete your browsing history,
2. You must not access, directly or indirectly, any social media
sites, social networks, internet discussion forum or chat rooms, or
maintain a personal profile on any such service, including
Facebook, Twitter, Tinder, Instagram, LinkedIn or any similar
service.
3. You must not communicate or attempt to communicate with any
person you know to be or who reasonably appears or represents him
or herself to be under the age of _________ years through a social
networking website, instant messaging service, or chat room
program. [endnoteRef:86] [86: Wording similar to R. v Brar, 2016
ONCA 724]
4. Having consented, you must sign any release of information
forms as will enable your conditional sentence supervisor to
monitor your compliance with this term. Any information obtained by
the conditional sentence supervisor can be given to a peace
officer. [endnoteRef:87] [87: A somewhat similar condition was
imposed in R. v. Amhaz, 2013 BCCA 348. However, conditional
sentence supervisors have limited resources and expertise to review
internet usage logs.]
5. Having consented, you must provide the device and any
password used to lock the device to your conditional sentence
supervisor or peace officer, upon their request, in order for him
or her to monitor your compliance with this order. (continued)
You are permitted to (own, possess or use) any device capable of
accessing any computer network including the internet (if:)
a. You are at a public device located at _________
b. You are in the immediate presence of ________,
c. You are in the immediate presence of a person approved of in
writing by your conditional sentence supervisor. (Continued)
d. You have the written permission of your conditional sentence
supervisor.
e. You are accessing the internet for the sole purpose of paying
bills, banking, searching or applying for employment, searching for
books at a public library, or communicating with a government
agency.
f. You are required by an employer, other than yourself, to use
a computer or other device that is owned and controlled by the
employer. The device must be used in the course of your employment,
and with the permission of the employer, and only after the
employer has confirmed with your conditional sentence supervisor
that she or he has read a copy of this order.
g. It is required for purposes directly and immediately related
to your employment (not including self-employment)
NO INTERNET
UK wording[endnoteRef:88] [88: This is the wording adopted in
Queen v. Smith et al, [2011] EWCA Crim 1772 (CA).]
3602
You must not:
1. Use any device capable of accessing the internet unless:
a. it has the capacity to retain and display the history of the
internet use; and
b. you consent to inspection of the device by your conditional
sentence supervisor or a peace officer.
2. Delete the history of the internet use from the device.
3. Use the internet to contact or to attempt to contact any
(person/male/female) you know to be or who reasonably appears or
represents him or herself to be under the age of____ years, (except
members of your immediate family).
4. Possess any device capable of storing digital images, unless
you consent to inspection of the storage device by your conditional
sentence supervisor or a peace officer.
5. You must provide the device and any password used to lock the
device to your conditional sentence supervisor or a peace officer,
upon their request, in order for him or her to monitor your
compliance with this order.
NO ISP CONTRACT[endnoteRef:89] [89: When imposing a term
restricting the offender’s access to the internet, a judge must
balance the goals of rehabilitation and reintegration into the
community, including the online community, and the goal of
protecting the community, also including the online community. See
the discussion in Queen v. Smith et al, [2011] EWCA Crim 1772 (CA).
As Karakatsanis J. stated in R. v. K.R.J., 2016 SCC 31 at para. 54,
"depriving an offender under s. 161(1)(d) of access to the Internet
is tantamount to severing that person from an increasingly
indispensable component of everyday life". Internet is used for
such commonplace activities as shopping, corresponding with friends
and family, transacting business, finding employment, banking,
reading the news, watching movies, attending classes and so on.
Unlike the U.S.the Code does not permit the installation of
computer monitoring software, nor does Community Corrections have
access the same. This is one area in need of a legislative overhaul
identifying what is permissible.Also see R. v. Brar, 2016 ONCA
724]
3603
You must not enter into any agreement or contract with any
internet service provider for any internet access or any form of
data plan, mobile or otherwise.
NO DATA STORAGE
3604
You must not possess any device capable of storing data as
defined in the Criminal Code, (unless):
a. You have the written permission of your conditional sentence
supervisor. (continued)
b. You are required by an employer, other than yourself, to use
a device capable of storing data that is owned and controlled by
the employer. The device must be used in the course of your
employment, and with the permission of the employer, after the
employer has confirmed with your conditional sentence supervisor
that she or he has read this order.
NO PORN[endnoteRef:90] [90: Prohibiting viewing sexually
explicit material might be necessary for sex offender treatment and
prevent recidivism. In the U.S., The Ninth Circuit has ruled that
banning a defendant from possessing "any pornographic, sexually
oriented or sexually stimulating materials"
is unconstitutionally vague. United States v. Antelope (2005),
395 F3d 1128.]
3605
You must not possess any pornographic material or access any
pornographic material by electronic means.
Trafficking and Drug Production
TRAFFICKING:
One Phone Exception
3606
You must not possess or use any mobile communication device,
except you may possess one cell phone with one phone number, which
can only be used for the purposes of contacting your conditional
sentence supervisor, lawyer, for lawful employment, or in an
emergency.
You must provide your conditional sentence supervisor with the
telephone number and service provider and not change either without
the written permission of the conditional sentence supervisor.
You must:
1. Sign any release of information forms as will enable your
conditional sentence supervisor to monitor your compliance with
this term. Any information obtained by the conditional sentence
supervisor can be given to a peace officer. [endnoteRef:91] [91: A
somewhat similar condition was imposed in R. v. Amhaz, 2013 BCCA
348. However, conditional sentence supervisors have limited
resources and expertise to review internet usage logs.]
2. Provide the device and any password used to lock the device
to your conditional sentence supervisor or peace officer, upon
their request, in order for him or her to monitor your compliance
with this order.
3. Provide your conditional sentence supervisor with a copy of
your monthly cell phone bill with details of all phone and text
message activity. A peace officer may obtain a copy of these
records from your conditional sentence supervisor.[endnoteRef:92]
[92: See R. v. Amhaz 2013 BCCA 348; R. v. Noble 2008 BCSC 216]
4. Retain a history of and not delete your call and text
usage.
NO CELL PHONES
3607
You must not possess or use a cell phone or any other device
capable of accessing any cellular or computer network including the
internet.[endnoteRef:93] [93: Like blanket prohibitions on internet
use, blanket prohibitions of cell phones should be imposed with
care. Additionally, allowing the offender to possess a cell phone
can make it much easier for Community Corrections to keep track of
him or her.]
PHONES AND VEHICLES
3608
You must not be in any motor vehicle in which there is a cell
phone except if the vehicle is public
transportation.[endnoteRef:94] [94: This term can have an adverse
impact on those who rely on others for transportation.]
GROW OP OR METH LAB
3609
a. You must not possess any marijuana seeds, metal halide
lights, light bulbs of more than 250 watts, sodium vapor lights,
ballasts, capacitors, light timers, or diesel generators.
b. You must not possess any equipment or ingredients used in the
production of methamphetamine including, but not limited to,
heating mantles, beakers, round bottom flasks, red phosphorous,
more than 3 grams of ephedrine or psuedoephedrine, reaction flasks
of a volume exceeding 500 ml, iodine crystals or tincture of
iodine, muriatic acid, ether, acetone, sodium thiosulfate,
hypophosphorous acid, lye, drain cleaners, or lithium.
DRUG PARA-PHERNALIA
3406
You must not possess drug paraphernalia including but not
limited to pipes, rolling papers and syringes.[endnoteRef:95] [95:
Caution is urged with this term. The imposition of this condition
may result in the person sharing things like needles and pipes,
thus creating the spread of infectious disease, unless there is a
safe injection site available.]
Firearms and Weapons
FIREARMS AND WEAPONS PROHIBITION[endnoteRef:96] [96: This
condition is substantially broader than a section 109 or 110 order,
but does expire at the end of the term of the conditional sentence
order. The committee felt that referring the accused to another
source like the Criminal Code to interpret the section was less
than ideal.]
Exception
3610
You must not possess, either personally or through another
person,[endnoteRef:97] any firearm, cross-bow, prohibited weapon,
restricted weapon, prohibited device, ammunition or explosive
substance, anything that resembles a weapon or
firearm,[endnoteRef:98] any weapon as defined in section 2 of the
Criminal Code, or any related authorizations, licences or
registration certificates.[endnoteRef:99] [97: Including possession
through another person avoids the problem created by an offender
giving guns to a friend to hold for him.] [98: Pellet guns, air
guns and starter pistols are frequently made to resemble firearms,
including handguns. Many can cause significant injuries. They may
be used to intimidate victims in different criminal activities.]
[99: An offender who retains a physical licence may be able to
purchase rifles or shotguns. The closure of the long gun registry
eliminated the requirement for vendors to register the sale of long
guns, which in turn removed the requirement to check the validity
of the licence presented.]
i. Except that you may possess a firearm or ammunition for
sustenance or employment purposes in accordance with the following
terms and conditions:
a. You are properly licenced,
b. You are sober, and
c. You possess the firearm and ammunition only when travelling
to, from or in the course of a legal hunt, or
d. You possess the firearm and ammunition only when travelling
to, from or in the course of your employment.
FIREARMS:
Not in Residence
3611
You must not reside in any residence in which any other person
keeps or stores any firearm, cross-bow, prohibited weapon,
restricted weapon, prohibited device, ammunition or explosive
substance.
SURRENDER FIREARMS[endnoteRef:100] [100: Section 115 of the
Criminal Code provides that everything in the offender’s possession
the possession of which is prohibited by an order is forfeited to
Her Majesty, unless the prohibition order states otherwise.]
3613
You must immediately[endnoteRef:101] (or by 3:00 PM today) go to
the _____________ police station and present a copy of this order
for the purpose of accompanying a peace officer to the place of all
firearms, crossbows, prohibited weapons, restricted weapons,
prohibited devices, ammunition or explosive substances and all
weapons, imitation weapons including imitation firearms possessed
by you or through another person, and to the location of any
related authorizations, licences or registration certificates, and
surrendering all such items to that peace officer. [endnoteRef:102]
[101: Immediate attendance at the police station reduces the risk
of the offender accessing the firearms. Requiring the offender to
make arrangements with the police eliminates the risk created when
an offender approaches a police station in possession of firearms.]
[102: Judges should remind the offender not to attend the police
station with any of these items until the accused has been directed
to do so by a peace officer.]
SURRENDER FIREARMS
Upon Release From Custody
3614
Immediately, upon your release from custody you must telephone
the________ police station and speak to a peace officer. You must
tell the officer about this order and make arrangements to
surrender all firearms, crossbows, prohibited weapons, restricted
weapons, prohibited devices, ammunition or explosive substances and
all weapons, imitation weapons including imitation firearms
possessed by you or through another person, and any related
authorizations, licences or registration certificates. You must
surrender all of these items in the manner directed by the peace
officer.
TRANSFER OF FIREARMS
3615
Within 90 days, you can transfer legal ownership in the
firearms, cross bows, restricted weapons, and ammunition to
individuals or businesses possessing the necessary licences,
authorizations and registration certificates and who are not
otherwise prohibited from possessing the items. If you do not
transfer legal ownership of the items within 90 days of the entry
of this order or the legal transferees of the items do not take
possession of the items within 90 days of the entry of this order,
the items are forfeited to Her Majesty.
KNIVES[endnoteRef:103] [103: If Knives are a concerned it can
sometimes be prudent to include this term because they do not
always easily fall within the definition of weapon.]
3616
You must not possess any knife, except for the immediate
preparation or eating of food, or for purposes directly and
immediately related to your employment.
Tools, Disguises and Colours
BREAK IN TOOLS
3617
You must not possess any tools or instruments capable of use for
criminal activity, including (pry bars, screwdrivers, bump keys,
bolt cutters, pliers, blow torches, grinders, night vision goggles,
slim jims, lock picks,) (except):
a. while on your property;
b. for the purposes of employment and then only when immediately
engaged in work or traveling directly to and from your place of
employment. You must provide your conditional sentence supervisor
with the particulars of your location and hours of employment if
requested to do so;
c. with the written permission of your conditional sentence
supervisor, in which case you must carry the permission with
you.
KEYS
3618
You must not possess any keys except for vehicles or premises of
which you are lawfully entitled to possession.
FACE MASK
3628
You must not use or possess anything intended to allow you to
mask or disguise your face, including a facemask or
balaclava.[endnoteRef:104] [104: See, for example, R. v. Bourque,
2013 BCCA 447 at para 42.]
ARSON:
No Incendiary Devices
3629
You must not possess any incendiary device, flammable product or
explosive substance. This prohibition includes, but is not limited
to, lighters, matches, jerry cans, fire accelerant and fireworks,
except with the written permission of the conditional sentence
supervisor. If you are granted permission, you must carry a copy of
the written permission when you possess any of these items outside
your residence.
GRAFITTI
Writing and Marking Tools[endnoteRef:105] [105: One might also
consider a no-go except while in moving motor vehicle or no
loitering at places that graffiti artists frequent like certain
neighbourhoods, bridges, or highway overpasses.]
3630
You must not possess any paint, dye, (acid[endnoteRef:106])
paint brushes, spray paint cans, or large marking pens outside your
residence, except with the written permission of the conditional
sentence supervisor. If you are granted permission, you must carry
a copy of the written permission [106: Acid can be used for
graffiti on glass.]
(continued)
when you are possess any of these items outside your
residence.
GANG COLOUR
3631
You must not wear, own, possess or display any clothing, jewelry
or any other property of any kind with the names, logos or
insignias of (name of gangs) including any of the above that
display support for (name of gangs). You must cover all tattoos
displaying the names, logos or insignias of (name of gangs) when
you are outside your residence, so that they are not visible.
Commercial Crime
CREDIT CARDS AND ID
3619
You must not possess any identification documents, including
credit cards, debit cards, cheques, negotiable instruments,
driver’s licences, birth certificates, social insurance cards,
mail, invoices, or bills other than ones in your own name, except
in the following circumstances: [endnoteRef:107] [107: Specify the
name, if the offender has used different names in the past.]
a. items in the name of ____; or members of your family.
b. for purposes immediately and directly related to your
employment.
ACCOUNT INFO
ELECTRONIC DATA
3620
You must not possess any account information, credit or debit
card data or any electronic storage medium, including any credit or
identification card with a data strip or security chip, that
contains personal information, with the exception of your own
account information or data, (except):
a. items in the name of _________; or
b. for purposes immediately and directly related to your
employment.
INFORM EMPLOYER
3621
Before seeking, obtaining, or continuing any employment, or
becoming a volunteer in any capacity, that involves having
authority over the real property, money or valuable security of
another person or corporation, you must inform the employer or the
organization about this conviction.[endnoteRef:108] [108: This
condition should be used sparingly, but may be necessary in cases
of theft from employer. See, for example, R. v. Burkart, 2006 BCCA
446 at para 23. It may form part of a separate prohibition order:
s. 380.2(1) of the Criminal Code. ]
NO WORKING IN PRIVATE RESIDENCE
3622
You must not work in any capacity that requires you to enter
another person’s private residence unless you have the written
permission of your conditional sentence supervisor. You must carry
the permission with you while engaged in such work.
NO PAWNING
3632
You must not sell anything to a pawnbroker, nor give anything to
a pawnbroker for money borrowed.
Vehicles
NOT TO BE IN DRIVER SEAT
3623
You must not occupy the driver’s seat of any motor vehicle. You
must provide a copy of this order to any peace officer who asks to
see your driver’s licence.
NO DRIVING EXCEPT FOR WORK
3624
You must not occupy the driver’s seat of any vehicle
(except:)
a. for the purposes of employment and then only when immediately
engaged in your employment or traveling directly to or from your
place of employment. If requested, you must provide your
conditional sentence supervisor with the particulars of your
employment including the hours and location.
b. in the event of a medical emergency and then only when
traveling directly to, or returning directly from a health care
facility.[endnoteRef:109] If requested, you must provide your
conditional sentence supervisor with written confirmation that you
went to the facility, signed by a representative of the health care
facility you went to.[endnoteRef:110] (Continued) [109: The term
"health facility" is used because not all communities have
"emergency wards".] [110: See R. v. Bourque, 2013 BCCA 447 at paras
32-34.]
You must immediately provide a copy of this order to any peace
officer who asks to see your driver’s licence.[endnoteRef:111]
[111: In R. v. Schroeder, 2010 ONSC 1654 a similar condition was
imposed.
]
ALCOHOL IGNITION INTERLOCK
3625
1. You must not operate any motor vehicle unless it is equipped
with an Alcohol Ignition Interlock device approved by the province
of BC.
2. You must provide the conditional sentence supervisor with
written proof of the installation of the device on any private
motor vehicle you use no later than _____________.
3. You must ensure that the device is in working order and you
must have it monitored, inspected and maintained in accordance with
the manufacturer’s recommendations.
4. Within three days after each inspection or maintenance of the
device, you must provide the conditional sentence supervisor with
any report or documentation produced after the inspection or
maintenance.
5. You are permitted to operate a motor vehicle that is not
equipped with an Alcohol Ignition Interlock device only for
purposes directly related to your employment and while in the
course of your employment.
6. You must provide the conditional sentence supervisor with
written proof of your employment and the make, model and licence
plate number of any vehicles directly related to your employment
that you will be operating.
7. You must provide a copy of this order to any peace officer
who asks to see your driver’s licence.
Not TO Be in Vehicle Without registered owner
3626
You must not enter any motor vehicle, other than public
transportation, unless you are the registered owner, or the
registered owner of the vehicle is present in the vehicle or you
have in your immediate possession the written permission of the
registered owner or your employer to be in the vehicle.
You must provide a copy of this order and written permission to
any peace officer who stops a vehicle that you are in.
No go Parking Lots
3627
You must not loiter in any parkade, parking lot, motor vehicle
dealership lot, or property where the primary business is the
repair of motor vehicles.
CONDITIONAL SENTENCE
The purpose of a conditional sentence order is explained in R.
v. Proulx, 2000 SCC 5 at para. 22-23:
The conditional sentence incorporates some elements of
non-custodial measures and some others of incarceration.
Because it is served in the community, it will generally be more
effective than incarceration at achieving the restorative
objectives of rehabilitation, reparations to the victim and
community, and the promotion of a sense of responsibility in the
offender. However, it is also a punitive sanction
capable of achieving the objectives of denunciation and
deterrence. It is this punitive aspect that distinguishes the
conditional sentence from probation…While a suspended sentence with
probation is primarily a rehabilitative sentencing tool, the
evidence suggests that Parliament intended a conditional sentence
to address both punitive and rehabilitative objectives.
And at paragraphs 36-37:
Accordingly, conditional sentences should generally include
punitive conditions that are restrictive of the offender’s
liberty. Conditions such as house arrest or strict curfews
should be the norm, not the exception…There must be a reason for
failing to impose punitive conditions when a conditional sentence
order is made. Sentencing judges should always be mindful of
the fact that conditional sentences are only to be imposed on
offenders who would otherwise have been sent to jail. If the
judge is of the opinion that punitive conditions are unnecessary,
then probation, rather than a conditional sentence, is most likely
the appropriate disposition.
There is no obligation to use this picklist. Instead, judges can
create their own conditions or use a different picklist. Judicial
creativity in sentencing is encouraged, including creativity in
conditional sentence conditions. However the power to impose
conditions cannot be construed as unlimited and absolute. The
conditions should be:
a) necessary;
b) clear and unambiguous;
c) properly delegated;
d) not in contravention of the provincial/federal legislation
including the Charter;
e) enforceable; and
f) for securing the good conduct of the offender and for
preventing a repetition by the offender of the same offence or the
commission of other offences.
Conditional Sentence Picklist: May 1, 2017
2
Conditional Sentence Picklist: May 1, 2017