BAIL PICKLIST Table of Contents Introductory Statements........................................2 No Contact or No Go Complainant or Co-Accused..................4 Reporting, Fingerprinting, and Attendance at Court.............7 Residence, Curfew, E.M.P., and Carry Permission................8 No Go Specific Address, and Red Zone..........................11 No Go and No Contact with Minors..............................12 Criminal Harassment...........................................13 Contact with Future Partners..................................14 No Contact with People Identified by Supervisor...............14 Drugs and Alcohol............................................. 14 Counselling, Treatment, Rogers Order, Releases................15 Technology.................................................... 18 Trafficking and Drug Production...............................20 Firearms and Weapons..........................................21 Tools, Disguises and Colours..................................23 Commercial Crimes............................................. 24 Vehicles...................................................... 24 Detention and Remand Orders...................................26 1
Transcript
BAIL PICKLIST
Table of Contents
Introductory Statements...................................................................................................2No Contact or No Go Complainant or Co-Accused..........................................................4Reporting, Fingerprinting, and Attendance at Court.........................................................7Residence, Curfew, E.M.P., and Carry Permission..........................................................8No Go Specific Address, and Red Zone........................................................................11No Go and No Contact with Minors................................................................................12Criminal Harassment......................................................................................................13Contact with Future Partners.........................................................................................14No Contact with People Identified by Supervisor...........................................................14Drugs and Alcohol..........................................................................................................14Counselling, Treatment, Rogers Order, Releases.........................................................15Technology.....................................................................................................................18Trafficking and Drug Production.....................................................................................20Firearms and Weapons..................................................................................................21Tools, Disguises and Colours........................................................................................23Commercial Crimes........................................................................................................24Vehicles..........................................................................................................................24Detention and Remand Orders......................................................................................26
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Introductory Statements
PUBLICATION BAN
Accused: Mandatory
Crown: Discretionary
Pursuant to section 517(1) of the Criminal Code, the evidence taken, the information given or the representations made and the reasons given must not be published in any document, or broadcast or transmitted in any way before such time as the accused is discharged following a preliminary inquiry or the accused’s trial is ended.1
Sex Offences U-18s. 486.4(2) 2
Crown: Mandatory
Pursuant to s. 486.4(2) any information that could identify ________ in these proceedings must not be published in any document or broadcast or transmitted in any way.
RELEASE ORDER34
I order that you be released5
a. upon giving an undertaking without conditions.
b. upon giving an undertaking with the following conditions:
c. upon entering into a recognizance in the amount of $______ without a deposit, and with the following conditions:
d. upon entering into a recognizance, in the amount of $______ without a deposit, but with a surety in the amount of $______, and with the following conditions:
e. upon entering into a recognizance in the amount of $_____ with a deposit in the amount of $_______, and with the following conditions:
f. upon entering into a recognizance in the amount of $_____, with a deposit in the amount of $________,
1 Section 517(1) provides that a justice may ban publication, except that the justice must ban publication on the application of the accused. If it is a sexual offence the parties should be asked whether there are any application pursuant to section 486 for non-publication of the identity of the complainant.2 This is the most common form of publication ban but there are others that are contained in the Ancillary Orders Picklist.3 Section 11(e) of the Charter guarantees the right not to be denied bail without just cause, as well as the right to bail that is reasonable in terms of the amount of any monetary security, and in terms of the other conditions imposed. The purpose of bail is to ensure the presence of the accused in court, to protect the public interest by ensuring the accused will not interfere illegally in the progress of the proceedings; and to protect the public by preventing the accused from committing further criminal acts and ensuring the safety and security of every victim of the offence.4 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).5 Section 515(1) and (2) of the Criminal Code set the terms of release in an ascending order. An undertaking without conditions must be imposed unless the prosecutor shows cause why a more restrictive form of release or detention is justified. R v Pearson, 1992 CanLII 52 (SCC); s 515
and with a surety in the amount of $______, and with the following conditions6:
NAMED SURETIES7
Pursuant to section 515(2.1) I order that the following person(s) be named as sureties: ________.8
RETURN DATE Your next appearance will be on ______ at ______ am/pm in courtroom ______ (by video).
REMAND IF BAIL REQUIRES PERFECTION
If you are unable to perfect your bail before your next court appearance, you will be required to appear by video at _______ am/pm on your next appearance.
WEAPONS PROHIBTION NOT REQUIRED9
I am satisfied that a weapons prohibition pursuant to section 515(4.1) is not necessary for the interest of the safety of the accused, or the safety and security of the complainant of the offence, or of any other person for the following reasons: _______________________.
CONSIDERATION OF VICTIMS’ SAFETY
Pursuant to section 515(13), I have considered the safety and security of every ‘victim’ of the offence when making this order.10
6 Pursuant to section 515(2)(e) , a surety and deposit can only be ordered at the same time where the accused is not ordinarily a resident of the province or lives within a 200 km radius of where s/he is being held. However, in R v Cherkawi, 2010 ABQB 99, the court without hearing argument found the provision unconstitutional and imposed both a surety and deposit for a person who did not meet the residency requirements. Section 515(2)(e) is permissive in nature. In accordance with the ladder principle, this paragraph need not be automatically invoked merely because of the accused’s residence. See: R v Thompson (1972), 7 CCC (2d) 70 (BCSC); R v Horvat (1972), 9 CCC (2d) 1 (BCSC). The prosecutor must still satisfy the court that a surety and/or cash deposit is necessary.7 The classes of people who should not act as a surety include: an accomplice; someone who is already acting as surety for someone else;( R v Kevork, [1984] OJ No 929); anyone who has been indemnified or offered consideration to be a surety; anyone whose pledged property is outside the province; R v Martin (No 2), [1980] OJ No 2568 (CA); R v Fleming, 2007 BCCA 219 ; the accused’s lawyer; complainant of the offence, especially if there is a condition of non-contact; a minor; a person in custody or on bail awaiting trial. R v Shrupka, [1977] 5 WWR 233 (PC). If property pledged is jointly owned, both owners should be named as sureties.8 A justice does not have to name a specific person to act as surety, but if s/he does, the releasing justice will likely not inquire further into the suitability of the surety and simply release the person with the surety named.9 Section 515(4.1) of the Criminal Code requires the justice, in the case of an accused who is charged with certain enumerated drug offences, violent offences, criminal harassment, firearms offences or offences against the Security of Information Act, to make a weapons prohibition, unless the justice considers that the condition is not required in the interests of safety.10 Section 515(13) requires a justice to state on the record of proceedings that s/he has considered the safety and security of every victim of the offence.
KPBGB11 1001 You must keep the peace and be of good behaviour.
NO-CONTACT12 1002 You must have no-contact or communication, directly or indirectly, with ________.
The exceptions are as follows:
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.13
c. in accordance with a Family Court Order made by a judge who has reviewed this order.14 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).15
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 bail supervisor of this order and your history as described in your criminal record).16
f. you may have contact and communication with ________ but must immediately leave (his or her) presence upon their request (or the request of a peace officer)17. If this happens you must have (continued) no further contact, or communication with ________
11 Unlike section 810 peace bonds, probation and conditional sentence orders this in not a compulsory term. Judges disagree on whether this term is appropriate in a bail order. R v SK, [1998] SJ No 863 (PC)12 Section 515(4.2) of the Criminal Code requires the justice, in the case of an accused who is charged with terrorism, criminal harassment, intimidation of a justice participant, violent offences, or offences against the Security of Information Act to consider whether it is desirable in the interests of the safety and security of any person, particularly the complainant of the offence or justice system participant, to make a non-communication order.13 Judges can specify in the order how and where pick-ups and drop-offs will occur to ensure safety.14 It is important that the judge making the family court order review 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.15 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. It can sometimes takes weeks or months for the parties to get into family court.16 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.17 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.
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 body19 or in your immediate possession, except in accordance with a medical prescription.
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.20
NO SOCIAL MEDIA
1003 You must not publish or publicly make available any information respecting ____________ via the internet or social media including Facebook, Twitter, Myspace, Instagram, or any other like service.
NON-ASSOCIATION
1004 You must have no contact or communication directly or indirectly with (co-accused or gang) (except21:)
a. during scheduled court appearances; or
b. through or in the immediate presence of lawyer who has reviewed this order.
18 In the context of domestic violence, an order providing that an accused 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 accused. 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.19 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.)20This term is important if there is any possibility of family court litigation.21 If one is prohibiting a person from associating 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.
NO GO 1005 You must not go to (or be within ____ metres of) 22 (any residence, school or workplace of ________), (a specific address).23
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).24
c. in accordance with a Family Court Order made by a judge who has reviewed this order. 25 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).26
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 (or the permission of a peace officer). 27
g. while in a moving motor vehicle on your way to some other place (for the sole purpose of ________ ).
22 Metres was chosen because blocks can be vague and in some rural areas blocks do not exist.23 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.24Judge 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.25 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.26 The Ministry of Children and Families may or may not be involved. Notice of any pending applications, will ensure they are aware of the situation.27 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.
Bail Picklist May 1, 2017 6
Reporting, Fingerprinting, and Attendance at Court
REPORT28 1101 You must report in person to the bail supervisor at _________ by 3:00 PM today (date and time), and after that, you must report as directed by the bail supervisor.29
REPORT IMMEDIATELY
1102 You must report immediately in person to the bail supervisor at _________ and after that, you must report as directed by the bail supervisor.
REPORT BY PHONE
1103 You must report by telephone30 to a bail supervisor at (Address and Telephone) 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 bail supervisor and received further direction to report. After that, you must report as directed by the bail supervisor.
REPORTING IF BAIL REQUIRES PERFECTION31
1104 You must report in person to the bail supervisor at _________ (within two business days) after your release from custody, unless you have obtained prior to your release, written permission from your bail supervisor to report elsewhere or within a different time frame. After that, you must report as directed by the bail supervisor.
REPORT AFTER ARREST32
1105 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 the bail supervisor within two business days of your release from custody.
FINGERPRINTING 1106 For the purposes of the Identification of Criminals Act33,
28 It is not always necessary for the accused to report to a bail supervisor. Reporting can be difficult for people who must rely on public transportation. It can also be difficult for people who work, especially in locations some distance from the Community Corrections office. A reporting condition will usually be appropriate where the accused is a flight risk, requires monitoring by Community Corrections, or will be participating in programs. Where the accused has strong roots in the community, is not a flight risk, does not require monitoring, or need the supports and resources available through Community Corrections, a requirement for reporting may be unnecessary. R v Schab, 2016 YKTC 6929 “Immediate” reporting is difficult in practice, because the order cannot be prepared immediately. Community Corrections recommends that accused persons be required to report by 3:00 PM in order to ensure there is sufficient time to conduct the intake interview.30 Requiring accused persons to report by telephone poses significant challenges in monitoring the accused. Sometimes they call outside work hours and do not leave forwarding numbers or do not return messages. Breaches are often difficult to prove.31 Sometimes it takes several days before an accused is able to perfect bail. This could mean moving the accused to a Correctional facility several miles away from where the accused is required to report. Two business days should be sufficient time for an accused 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.32 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 recidivist.33 Pursuant to the Identification of Criminals Act, a person who is in lawful custody, or charged with or convicted of an indictable offence, can be fingerprinted and photographed by police. The prosecution should confirm that the accused has not
you must attend at the _________ police station on _________ to have fingerprints and photographs taken.
PERSONAL ATTENDANCE34
1107 You must personally attend each court appearance unless you are excused by this court.
Residence, Curfew, E.M.P., and Carry Permission
RESIDE
No change without consent35
1201 When first reporting to the bail supervisor, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your bail supervisor.36
RESIDE
No change without notice
1202 When first reporting to the bail supervisor, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without first notifying your bail supervisor.37
RESIDE AS APPROVED
1203 You must reside at a residence approved in advance by your bail supervisor. You must provide your phone number to your bail supervisor, and you must not change your residence or your phone number without written permission from your bail supervisor.38
RESIDE
Address or surety
1204 You must reside at _________ (or with name of party / with your surety) and you must not change your residence or your phone number without written permission from your bail supervisor.
attended for fingerprinting before this condition is imposed.34 Although rare, this condition can be appropriate if the accused has a history of failing to appear or losing contact with counsel.35 A reside term does not require the accused to spend every night at the residence. If that is the intention a curfew condition should be included.36 Requiring permission to change addresses assists bail supervisors to supervise accused persons, but can be challenging for transient individuals. In some Community Correction offices failure or even an inability to provide a residential address can result in daily reporting requirements.37 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.38 When imposed, Community Corrections must assess the accused’s residence within 48 hours and consider notifying people who share common living areas with the accused. For example, if the accused lives in an apartment building with a pool or courtyard, other residents may be notified by showing them a photo of the accused and advising them of the protective conditions. New residents will be notified as they move in. “Approved residence” conditions may be appropriate for sex offences or high risk violent offences are alleged. A judge might consider imposing a curfew condition, to ensure that the accused is in the approved residence every night and not living elsewhere.
1205 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 bail supervisor. (continued) If there is a conflict, you must tell your bail supervisor about the conflict immediately.39
NOT LEAVE BC 1206 You must not leave British Columbia unless you have the written permission of the bail supervisor, and you must carry the permission when you are outside the province.
SURRENDER TRAVEL DOCUMENTS
1207 You must surrender all travel documents, including any passport, Nexus card, travel visa or enhanced driver’s licence40 to a peace officer at (police station) by (time and date), and thereafter you must not obtain any further travel documents.
SURRENDER TRAVEL DOCS
ACCOMPANYING POLICE OFFICER
1208 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 or locations 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.
CURFEW41 1209 You must obey a curfew by being inside your residence, (or within 10 m of the front door of your residence) (or on the lot of your residence)42, between the hours of ______PM and ______AM, each day (every Friday and Saturday).
You must present yourself immediately at the door to your residence or answer the phone43 when any peace officer or bail supervisor attends at your residence or calls to check your compliance with the curfew condition of this order.
You may be away from your residence during the curfew hours with the written permission of your bail supervisor. Such permission is to be given only for compelling reasons.
You must carry the written permission when you are
39 The "obey rules" condition results in the delegation of responsibility for supervising the order to someone other than your bail supervisor, and as a result raises the possibility of treatment facilities telling accused persons 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 appropriate in R. v. Thompson, 2003 BCCA 183 . 40 When an accused surrenders an enhanced driver’s licence, he or she can obtain a regular driver’s licence.41 A curfew may be imposed even when the offence occurred in daylight hours since it may be necessary to prevent flight, or protect the community. R v. Patko, 2005 BCCA 183 . 42 Conditions specifying a distance from the front door, or permitting presence anywhere on a large lot, may make the order difficult to enforce.43 Determine whether the accused will be living at a residence with a landline. 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 also be away from your residence during the curfew hours:
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 your bail supervisor with details of your employment, including location and hours of work.45
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 facility46. If requested, you must provide your bail supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.47
c. in the immediate presence of ________.
d. in the immediate presence of a person approved in writing by your bail supervisor. You must carry the written permission with you when you are away from your residence during the curfew hours.
e. in the immediate presence of your surety.
REPORT OCCUPANTS
1210 When you first report to your bail supervisor, you must tell your supervisor the names of all permanent and temporary occupants of your residence and immediately tell him or her of any change.
NO VISITORS 1211 You must have no visitors at your residence during your curfew, except with the written permission of your bail supervisor.48 You must keep a copy of the permission at your residence.
CHANGES IN EMPLOYMENT / RELATIONSHIP STATUS
1212 You must provide your bail supervisor with the particulars of your employment or relationship status. You must inform your bail supervisor within two business days of any change in your employment or relationship status.49
44 Bail 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 bail order.45This exception is usually not required because the bail supervisor will grant exceptions for work but many accused persons prefer that it is specifically set out in the order.46 The term "health care facility" is used because not all communities have "emergency wards".47 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.48 When the accused shares her residence with other people, consider permitting exceptions for the other people, or consider omitting this condition entirely.49 Loss of employment or the dissolution of a marriage are high risk factors.
1213 The curfew condition of this order will be monitored electronically. You must comply with all rules of the electronic monitoring program.50
CARRY COPY 1214 You must carry a copy of this order and any written permission from your bail 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 any written permission without being requested to do so (upon the request of the peace officer).51
No Go Specific Address, and Red Zone
NO GO SPECIFIC ADDRESS
1301 You must not go to (or be within ____ metres of) (address), (except:)
a. while on a highway in a moving motor vehicle on your way to some other place (for the sole purpose of travelling to and from _______.)
RED ZONE52
1. Boundaries
a. Defined area
b. Defined point
2. Banishment
1302 1.a. 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.
1.b. Boundaries Defined Point
You must not be (north/south/east/west) of (City).
2. Banishment53
50 The electronic monitoring condition must not be imposed unless a Technical Suitability Report has been prepared in advance. Community Corrections will confirm that both the accused and the residence are suitable for electronic monitoring. If there are other residents, their informed consent will be obtained. In order to give effect to an electronic monitoring condition, Community Corrections requests that the curfew, reside, and not change residence without permission conditions also be included in the order. Judges should proceed with caution when protection concerns exist. 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.51 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 accused with a quick reference to the terms of his or her bail, reminding the accused 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.52 We considered including a condition with an attached map but Justin is not currently equipped to print out maps. Physically attaching a map would mean that it would not be acessible to police on the street.53 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.
You must not be within a ____ kilometre radius of _________, BC, without further approval of the court.
The exceptions are as follows:
a. with the written permission of the bail supervisor in which case you must carry the permission with you when you are in the (continued) (prohibited area/community).
b. to attend scheduled court appearances, or appointments with the police, your bail 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 SCHOOLS54
1303 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, or playground, (except:55)
a. with the written permission of your bail supervisor. You must carry a copy of the written permission when you are in the prohibited area.
b. in the immediate presence of another adult, and only after he or she has been informed by your bail supervisor of this order, your charges and your history as described by your criminal record.
c. in the immediate presence of your surety.
d. in the immediate presence of ________.
NO CONTACT MINORS56
1304 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).
54 Where there is a risk of harm, such conditions can be appropriate. R v Budreo, 2000 Canlii 5628 (ONCA)55 This condition is patterned on section 161 of the Criminal Code.56 When imposed, Community Corrections must assess the accused’s residence within 48 hours and consider notifying people who share common living areas with the accused. For example, if the accused lives in an apartment building with a pool or courtyard, other residents may be notified by showing them a photo of the accused and advising them of the protective conditions. New residents will be notified as they move in. “Approved residence” conditions may be appropriate for sex offences or high risk violent offences. A judge might consider imposing a curfew condition, to ensure that the accused is in the approved residence every night and not living elsewhere. Where there is a risk of harm, such conditions can be appropriate. R v Budreo, 2000 Canlii 5628 (ONCA)
b. if you have the written permission of your bail supervisor. You must carry the written permission with you.57 (continued)
c. in the immediate presence of _______, (and only after he or she has been informed by your bail supervisor of your charges, this order and your history, if any, as described in your criminal record).58
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
1305 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 bail supervisor and when so engaged you must carry this permission.59
ELTON HUBBS
Relationships with children
1306 You must not date, or enter into a marriage or common-law relationship60 with any person who has children, or has the care or access to children under the age of __ years61 until you have identified to your bail supervisor the person with whom you propose to enter into such a relationship and your bail supervisor has informed that person of your charges, this order and your history, if any, as described in your criminal record.
Criminal Harassment
PROVIDE CELL NUMBER AND VEHICLE INFORMATION
1309 You must provide the bail 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.62
NO SOCIAL 1003 You must not publish or publicly make available any 57 When judges delegate the function of approving the third party to Community Corrections, Corrections 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 the delegation by the court.58 In a CSO case, the BCCA approved an alternative wording in R. v. R.R.M ., 2009 BCCA 578: 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. 59 The bail supervisor might be reluctant to exercise the delegation of this responsibility.60 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.61 A judge might consider adjusting the age, based on the circumstances of the case.62 This term might be considered in cases of criminal harassment.
MEDIA63 information respecting ____________ via the internet or social media including Facebook, Twitter, Myspace, Instagram, or any other like service.
CHANGES IN EMPLOYMENT / RELATIONSHIP STATUS
1212 You must provide your bail supervisor with the particulars of your employment or relationship status. You must inform your bail supervisor within two business days of any change in your employment or relationship status.64
Contact with Future Partners
ELTON HUBBS65
Relationships with adults
1307 You must not date, or enter into a marriage or common-law relationship with any person, until you have identified to your bail supervisor the person with whom you propose to live, and your bail supervisor has informed that person of your charges, this order and your history, if any, as described in your criminal record.
No Contact with People Identified by Supervisor
NO CONTACT WITH PERSONS IDENTIFIED66
1308 You must not associate or have a relationship with anyone named by your bail supervisor if your bail supervisor has reasonably determined the relationship or association to be a risk to you or others, or a risk to the protection of society.
Drugs and Alcohol
NO ALCOHOL OR DRUGS
1401 You must not possess or consume alcohol, drugs or any other intoxicating substance,67 except in accordance with a medical prescription.68
NO ALCOHOL 1402 You must not possess or consume alcohol or any other
63 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.64 Loss of employment or the dissolution of a marriage are high risk factors.65 The wording of this condition is based on a sentencing decision in R. v. Hubbs 1993 CanLII 1642 (BCCA). Because of the presumption of innocence the imposition of these conditions on bail will be rare.66The 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 67 “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).68 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.
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.69
NO GO LIQUOR OUTLETS
1403 You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence.70
NO GO LIQUOR OUTLETS
Alternate
1404 You must not enter any liquor store, beer and wine store, bar, pub, lounge, night club, or beer garden.(or any place where the primary commodity sold is liquor)71
NO ALCOHOL OR DRUGS IN RESIDENCE
1405 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 be brought inside your residence.72
DRUG PARAPHERNALIA
1406 You must not possess drug paraphernalia including but not limited to pipes, rolling papers and syringes.73
Counselling, Treatment, Rogers Order, Releases
COUNSELLING
Delegated to Bail supervisor74
1501 Having consented, you must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your bail supervisor.75
Without limiting the general nature of this condition, the
69 This wording was used in R. v. Forrest (1992) CanLII 1552 (BCCA) .70 This wording was recommended in R. v. Joy 2011 BCCA 189 at para 14. However, it does create some evidentiary issues for the prosecution if there is a breach.71 The language in italics was rejected by the Court of Appeal in R. v. Joy 2011 BCCA 18972 This condition may unnecessarily restrict an accused’s ability to find suitable housing.73 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.74 Efforts to reform the accused at the bail stage are not appropriate. Nonetheless, there will be times in which a medical/counselling intervention will help reduce the risk of offending behaviour on bail, such as treatment for substance abuse. An accused suffering from mental illness may also be considered a risk unless s/he is under the careful watch of a psychiatrist. In those circumstances, a condition to seek psychiatric counselling and treatment may be necessary.
In Keenan v Stalker (1979), 57 CCC (2d) 267 (QCA) the court observed that a condition requiring the accused to seek treatment for a venereal disease was permissible in that it was related to the prevention of further offences, as knowingly spreading a venereal disease was a criminal offence at the time. The accused was facing charges for being in a common bawdy house.
In The Law of Bail in Canada, 3rd Ed. Trotter J. opines at p 6-38 that coerced treatment in the context of bail may be justified. He states, “If it is not appropriate to require the accused (against his or her will) to comply with conditions requiring medical treatment, judges may find themselves in situations where the absence of this type of condition raises a serious apprehension that further offences may be committed by the accused. Consent can usually be obtained when the accused is provided with the two options”.75 Bail supervisors will accept the delegation of authority to determine counselling needs. Community Corrections recommends that counselling conditions be left as broad as possible, rather than specifically enumerating the different types of counselling.
intakes, assessments, counselling or programs may relate to:
a. alcohol or drug abuse,b. mental health.
RESIDENTIAL TREATMENT
1502 Having consented, you must attend, participate and successfully complete any intake, assessment, counselling, program, treatment or residential treatment program as directed by your bail supervisor.
FORENSIC SERVICES
1503 Having consented, you must attend at the direction of the bail supervisor for a psychiatric intake, assessment, counselling or treatment program through Forensic Psychiatric Services.76
PRIVATE PROGRAMS AND TREATMENT FACILITIES77
1504 Having consented, you must attend, participate and successfully complete ________ program as directed by your bail 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 bail supervisor. If they do conflict, you must advise your bail supervisor as soon as possible.78 You must immediately provide proof of your completion of the program to your bail supervisor.
RELEASE INTO CARE OF PRIVATE FACILITY
1505 1. You will be released only to (a representative of the treatment facility or supportive recovery home/ or name of third party);
2. You must report by telephone to a bail supervisor at the bail supervisor’s office at (address and telephone number of the Community Corrections Office at originating location79) within the first business day of your admission to (the treatment facility/supportive recovery home), and thereafter report as directed by your bail supervisor;
3. You must reside at (name of treatment facility or supportive recovery home) located at (address) or any other location associated with that (facility/home), unless you are given written permission by your bail supervisor to reside elsewhere.
4. 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 bail supervisor. Such permission is to be given only for compelling reasons. You must also carry the written permission when you are outside the (facility
76 Forensic Services will not see a person on bail unless there is a term requiring him or her to attend.
Resources are limited and preference will be given to sentenced clients before clients on bail.77 Consent should be obtained when the treatment facility is a private facility.78 If an accused person 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 accused that he or she must ultimately follow the directions of the bail supervisor where the directions conflict with the facility or house.79 Community Corrections prefers that the first reporting be to the office where the accused permanently resides or where the sentencing occurs.
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/home).
5. You must abide by all rules of the (facility/home), as long as they do not conflict with the terms of this order. If there is a conflict, you must tell your bail supervisor about the conflict immediately. (continued)
6. You must not possess or consume any alcohol or any other intoxicating substance except in accordance with a medical prescription.
7. You must attend, participate in and complete any programs to which you are directed by the (facility/home).If you are expelled from the (facility /home) or voluntarily remove yourself from the program without permission being obtained in advance from your bail supervisor, you must advise your bail supervisor forthwith. If the office is closed, you must contact your bail supervisor immediately when the office opens on the next business day.
For the clerk The Warrant of Remand and Warrant of Committal:80 The accused will be transported as soon as practicable to a provincial corrections facility located nearest to the (treatment facility/supportive recovery home) for the purpose of release to a representative of the (facility/ home). The (treatment facility/supportive recovery home) must be notified upon the arrival of the accused at the corrections facility.
In the event bail has not been perfected by way of release to a representative of the (treatment facility/supportive recovery home) within two (or four81) business days, the accused will appear by video at the court location in which this order is made, or such other court within the region as may be available, on (date).Otherwise the next court appearance is scheduled for (date) for the purpose of __.
REPORT AFTER EXPULSION
1506 If you are expelled from the treatment centre/program or voluntarily remove yourself from the program without permission being obtained in advance from your bail supervisor, you must advise your bail supervisor forthwith. If the bail supervisor’s office is closed, you must contact your bail supervisor immediately when the office opens on the next business day.
ROGERS ORDER82
1507 Having consented, you must do the following:
1. At the direction of your bail supervisor report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment.
80 In cases of release on bail to a treatment facility Court Services Branch will be issuing both a Warrant of Committal and a Warrant Remanding a Prisoner. The Warrant of Committal will have specific wording authorizing the Detention facility to keep the prisoner until the condition that he or she only be released to a representative of the treatment facility has been met. The Warrant Remanding a Prisoner will contain language setting out that the accused has been granted bail and may be released into the care of a representative. The Warrant will also instruct Corrections to advise the Registry where the bail order was imposed that the prisoner has, when picked up, perfected his or her bail.81 Generally, four business days are required to transport the accused to Surrey from several locations in the province.82 This term has evolved from a term imposed in R. v. Rogers, 1990 CanLii 432 (BCCA)
2. Attend all scheduled appointments with your doctor, psychiatrist, and counsellor.
3. Take all medications prescribed to you.
4. Give your doctor, psychiatrist, and counsellor a copy of this order. (continued)
5. Provide your bail supervisor with the
6. names addresses, and phone numbers of your doctor psychiatrist and counsellor.
7. Tell your doctor, psychiatrist and counsellor that, if you do not follow any terms of this order, he or she is to inform your bail supervisor. (continued)
If you decide not to follow these directions, you must immediately report to your bail supervisor when his or her office is open and tell your bail supervisor.
RELEASE FOR COUNSELLING AND TREATMENT
1508 a. Having consented, you must sign any waiver of confidentiality or release of information forms as will enable your bail supervisor, counsellors or treatment providers to monitor your attendance, and completion of any intake, assessment, counselling, or treatment program, and to collaboratively discuss your treatment needs.83
b. Having consented, you must sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessment, counselling or treatment program as directed by your bail supervisor.
c. Having consented, you must provide proof of your attendance and completion of any assessment, counselling or treatment program as directed by your bail supervisor.
Technology
NO INTERNET84 1601
You must not possess or use any device capable of accessing any computer network including the internet, except as permitted by this order.
While possessing or using any such device pursuant to
83 See R. v. Bourque, 2013 BCCA 447 . 84 When imposing a term restricting the accused’s access to the internet, a judge must balance the protection of the public and the accused’s ability to remain connected and productive in society. 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.” 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
2. 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, (continued) Tinder, Instagram, LinkedIn or any similar service.
3. 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. 85
4. having consented, sign any release of information forms as will enable your bail supervisor to monitor your compliance with this term. Any information obtained by the bail supervisor can be given to a peace officer. 86
5. having consented, provide the device and any password used to lock the device to your bail supervisor or peace officer, upon their request, in order for him or her to monitor your compliance with this order.
You are permitted to (possess/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 bail supervisor.
d. You have the written permission of your bail 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 bail 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.
NO INTERNET
UK wording87
1602
You must not:
1. Use any device capable of accessing the internet unless:
a. it has the capacity to retain and display the
85 Wording similar to R. v. Brar, 2016 ONCA 72486 A somewhat similar condition was imposed in R. v. Amhaz , 2013 BCCA 348 . However, bail supervisors have limited resources and expertise to review internet usage logs.87 This is the wording adopted in Queen v. Smith et al, [2011] EWCA Crim 1772 (CA)
b. you consent to inspection of the device by your bail 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 you know to be or who (continued) 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 bail supervisor or a peace officer.
5. Having consented, you must provide the device and any password used to lock the device to your bail supervisor or a peace officer, upon their request, in order for him or her to monitor your compliance with this order.
NO ISP CONTRACT
1603
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.
DATA STORAGE 1604
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 bail supervisor.
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, and the device must only be used in the course of your employment, and with the permission of the employer, after the employer has confirmed with your bail supervisor that she or he has received and read copy of this order.
PORNOGRAPHY88 1605
You must not possess any pornographic material and you must not access any pornographic material by electronic means.
Trafficking and Drug Production
TRAFFICKING:
One Phone Exception
1606 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 bail supervisor, lawyer, for lawful employment, or in an emergency.
You must provide your bail supervisor with the telephone number and service provider and not change it without the permission of the bail supervisor.
Having consented, you must:
1. Sign any release of information forms as will enable your bail supervisor to monitor your compliance with this term. Any information obtained by the bail
88 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.
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supervisor can be given to a peace officer. 89
2. Provide the device and any password used to lock the device to your bail supervisor or peace officer, (continued) upon their request, in order for him or her to monitor your compliance with this order.
3. Provide your bail 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 bail supervisor.90
4. You must retain a history of and not delete your call and text usage.
NO CELL PHONE 1607 You must not possess or use a cell phone or any other device capable of accessing any cellular or computer network including the internet.91
VEHICLES AND CELL PHONES
1608 You must not be in any motor vehicle in which there is a cell phone except if the vehicle is public transportation.92
GROW OP / METH LAB
1609 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 pseudoephedrine, 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 PARAPHERNALIA
1406 You must not possess drug paraphernalia including but not limited to pipes, rolling papers and syringes.93
Firearms and Weapons
FIREARMS AND WEAPONS PROHIBITION
Presumptive for certain offences94
1610
You must not possess, either personally or through another person95, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm96, any weapon as defined in (continued) section 2 of the Criminal Code, or any related
89 A somewhat similar condition was imposed in R. v. Amhaz , 2013 BCCA 348 . However, bail supervisors have limited resources and expertise to review internet usage logs.90 See R. v. Amhaz, 2013 BCCA 348 ; R. v. Noble , 2008 BCSC 216 91 Like blanket prohibitions on internet use, blanket prohibitions of cell phones should be imposed with care. Additionally, allowing the accused to possess a cell phone can make it much easier for Community Corrections to keep track of him or her.92 This term can have an adverse impact on those who rely on others for transportation.93 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.94 Section 515(4.1) that states judges ‘shall’ this condition when the accused is charged
authorizations, licences or registration certificates97.
a. Except you may possess a firearm or ammunition for sustenance or employment purposes in accordance with the following terms and conditions:1. You are properly licensed,2. You are sober, and3. You possess the firearm and ammunition only when
travelling to, from or in the course of a legal hunt, or4. You possess the firearm and ammunition only when
travelling to, from or in the course of your employment.
FIREARMS:
Not in Residence
1611
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 FIREARMS98
1613
You must immediately99 (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, licenses or registration certificates, and surrendering all such items to that peace officer. 100
SURRENDER FIREARMS
Upon Release From Custody
1614
Immediately upon your release from custody, you must telephone and speak to a peace officer at the ________ police station. You must tell the officer about this order and arrange 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, licenses or registration certificates. You must surrender all of these items in the manner directed by
with a certain categories of offences, the most common being, offences where violence was used, threatened or attempted, criminal harassment, and offences that involve or are the subject matter of the items listed. The imposition of the condition is rebuttable if a justice is satisfied that it is not required in the interest of the safety of the accused, the victim of the offence, or any other person. The committee felt that referring the accused to another source like the Criminal Code to interpret the section was less than ideal.95 Including possession through another person avoids the problem created by an accused giving guns to a friend to hold for him.96 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.97 An accused 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.98 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.99 Immediate attendance at the police station reduces the risk of the accused accessing the firearms. Requiring the accused to make arrangements with the police eliminates the risk created when an accused approaches a police station in possession of firearms.100 Judges should remind the accused not to attend the police station with any of these items until the accused has been directed to do so by a peace officer.
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 1617
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 or from your place of employment. You must provide your bail supervisor with the particulars of your location and hours of employment if requested to do so;
c. with the written permission of your bail supervisor, in which case you must carry the permission.
KEYS 1618
You must not possess any keys except for vehicles or premises of which you are lawfully entitled to possession.
NO DISGUISES 1628
You must not use or possess anything intended to allow you to mask or disguise your face, including a facemask or balaclava.101
ARSON:
No Incendiary Devices
1629
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 your bail supervisor. If you are granted permission, you must carry a copy of the permission when you possess any of these items outside your residence.
GRAFITTI
Writing and Marking Implements102
1630
You must not possess any paint, dye, (acid103), paint brushes, spray paint cans, or large marking pens outside your residence, except with the written permission of the bail supervisor. If you are granted permission, you must carry a copy of the permission when you possess any of these items outside your residence.
GANG COLOURS 1631
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.
101 See, for example, R. v. Bourque , 2013 BCCA 447 at para 42.102 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.103 Acid can be used for graffiti on glass.
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: 104
a. items in the name of _________; or members of your immediate family
b. for purposes immediately and directly related to your employment.
ACCOUNT INFORMATION AND ELECTRONIC DATA
1620
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 in the following circumstances: 105
a. items in the name of _________; or
b. for purposes immediately and directly related to your employment.
INFORM EMPLOYER
1621
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 your charges and this order.106
NO WORKING IN PRIVATE RESIDENCE
1622
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 bail supervisor. You must carry the permission while engaged in such work.
NO PAWNING 1632
You must not sell, or give anything to a pawn broker as security for money borrowed.
Vehicles
NOT BE IN DRIVER’S SEAT
1623 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.
DRIVER’S SEAT EXCEPT FOR
1624 You must not occupy the driver’s seat of any motor vehicle,
104 Specify the name, if the accused has used different names in the past.105 Specify the name, if the accused has used different names in the past.106 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 (CanLII) at para 23.
a. for the purposes of employment and then only when immediately engaged in work or traveling directly to or from your place of employment. If requested, you must provide your bail supervisor with the particulars of your employment including the hours and location. (continued)
b. in the event of a medical emergency and then only when traveling directly to, or returning directly from a health facility107. If requested, you must provide your bail supervisor with written confirmation that you went to the health facility, signed by a representative of the health facility you went to.108
You must immediately provide a copy of this order to any peace officer who asks to see your driver’s licence.109
ALCOHOL IGNITION INTERLOCK
1625 1. Having consented110, 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 bail 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. (Continued)
4. Within three days after each inspection or maintenance of the device, you must provide the bail 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 bail 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 BE IN VEHICLE
Without Registered Owner
1626 You must not enter any motor vehicle, other than public transportation, unless 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 to any peace officer who stops a vehicle that you are found in.
NO GO PARKING LOTS
1627 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.
107 The term "health facility" is used because not all places have "emergency wards".108 See R. v. Bourque , 2013 BCCA 447 at paras 32-34.109 In R. v. Schroeder, 2010 ONSC 1654 , a similar condition was imposed.110 Section 732.1(3)(g.2) requires the offender’s consent before imposing this condition.
DETENTION You are detained in custody on (primary, secondary and/or tertiary grounds) for the following reasons:
CONSIDERATION OF VICTIMS’ SAFETY
Pursuant to section 515(13), I have considered the safety and security of every ‘victim’ of the offence when making this order.111
NON- COMMUNICATION
IN CUSTODY
Pursuant to section [515(12) (detention); 516(2) (remand)] you must have no contact or communication directly or indirectly with ________ except as follows:
a. through a lawyer who has reviewed this order.
BAIL REVOCATION
BREACH OF BAIL
Pursuant to section 524(8) I am satisfied that you (have/were about to) contravene the (summons, appearance notice, promise to appear, undertaking or recognizance) on information _________and I am cancelling that previous process, and I am satisfied your detention is required on the following grounds:
BAIL REVOCATION
INDICTABLE OFFENCE WHILE ON BAIL
Pursuant to section 524(8) I am satisfied there are reasonable grounds to believe that you committed an indictable offence after (a summons, appearance notice, promise to appear, undertaking or recognizance was issued, or given to you, or entered into by you) on information _______ and I am cancelling that previous process, and I am satisfied your detention is required on the following grounds:112
3 DAY REMAND Pursuant to section 516(1), you are remanded in custody until _____.113
6 DAY REMAND Pursuant to section 503(3) I am satisfied that you have been arrested without a warrant for an indictable offence alleged to have been committed in the Province of ________.
111 Section 515(13) requires a justice to state on the record of proceedings that s/he has considered the safety and security of every victim of the offence.112 Once the previous process is cancelled the court must detain the accused unless the accused is able to show cause why detention in custody is not justified. This usually happens at the same time.113 A justice has the discretion to remand an accused in custody without a bail hearing for a maximum 3 clear days without the consent of the accused. The adjournment can be longer if the accused consents. An adjournment should only be as long as is necessary in the circumstances. Just as the prosecutor must justify the need for the adjournment, the length of the adjournment (within the parametres of the three clear days) must be substantiated. In R v Khabra (1978), 39 CCC (2d) 475 (BCSC) the court held that 3 clear days meant that the proceedings had to be continued within 3 clear days. In other words, when a matter is adjourned from the 22nd it must proceed on the 25th. This interpretation is at odds with section 27(1) of the Federal Interpretation Act, that states clear days means that both the day the matter is adjourned from and the day the matter is adjourned to are not included in the calculation. In R. v. Petersen, 2013 ONSC 1395, the court made the observation that Khabra is wrong. Also see R v F(CG) (2003), 181 CCC (3d) 422 (NSCA). Where the time limited for the doing of a thing falls on a holiday, the thing may be done on the day next following that is not a holiday. This means holidays and weekends are not included in the calculation of clear days. R. v. Petersen 2013 ONSC 1395; ss. 26, 35 Federal Interpretation Act; and s. 29 Provincial Interpretation Act. The prosecutor can seek more than one s 516 adjournment. R v Petersen, 2013 ONSC 1395.
I am also satisfied that you are the person who is alleged to have committed the offence.
I remand you to await execution of the warrant for your arrest in accordance with section 528 of the Criminal Code. If the warrant is not executed by _____, you must be released.114
SECTION 469 OFFENCE115
Pursuant to section 515(11) you are detained in custody until you appear before a superior court judge of this province.116
114 S. 503(3)(b)(i) refers to just days and not clear days. S. 27(2) of the Interpretation Act provides as follows: Where there is a reference to a number of days, not expressed to be clear days, between two events, in calculating that number of days the day on which the first event happens is excluded and the day on which the second event happens is included. Furthermore, s. 27(3) of the Interpretation Act provides as follows: 'Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that entire day.115 The 3 clear day rule does not apply when a justice remands an accused on a section 469 offence to appear in superior court. See s. 515(11)116 A non-communication order can be added pursuant to section 515(12). R v. Nicholas, 2016 ONSC 5949
Section 11(1)(e) of the Charter specifically guarantees the right of any person charged with an offence “not to be denied reasonable bail without just cause”. Section 11(e) has two distinct components:
(1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and(2) the right not to be denied bail without “just cause”.
“[It] is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728… These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.” R v St Cloud, 2015 SCC 27 at para. 70
“Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom of one day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.” R v AB , 2006 CanLII 21317 (ONSC)
The purpose of bail generally is to ensure the presence of the accused in court, protect the public interest by ensuring the accused will not interfere illegally in the progress of the proceedings; and protect the public by preventing the accused from committing further criminal acts and ensuring the safety and security of every victim of the offence.
It is important to remember this underlying purpose when deciding what conditions to impose. The accused is still presumed innocent. Bail is not the time to correct all wrongs, nor is it the time to rehabilitate accused persons, except in those situations where addressing the underlying condition is necessary to ensure the good conduct of the accused in the community.
There is no obligation to use the conditions set out. Instead, judges can create their own
conditions, or use other picklists. Judicial creativity in crafting bail conditions is encouraged. However the power to impose conditions cannot be construed as unlimited and absolute. The conditions must be:
a) necessary;b) clear and unambiguous;c) properly delegated;d) not in contravention of the provincial/federal legislation including the Charter;e) enforceable; andf) for the underlying purpose of bail.
