PROBATION PICKLIST

Table of Contents

Compulsory No Contact and No Go Complainant............................................................2Intermittent Sentence.......................................................................................................5Reporting..........................................................................................................................6Residence, Curfew, E.M.P., Carry Permission.................................................................6No Go Specific Address and Red Zone...........................................................................9No Go and No Contact with Minors................................................................................10Contact with Future Partners.........................................................................................11No Contact with People Identified by Probation Officer.................................................11Criminal Harassment......................................................................................................11Drugs and Alcohol..........................................................................................................12Counselling, Treatment, Rogers Order, and Release of Info.........................................13Community Work............................................................................................................15Restitution......................................................................................................................16Apology and Restorative Justice....................................................................................16Support Dependents......................................................................................................17Technology.....................................................................................................................17Trafficking and Drug Production.....................................................................................19Firearms and Weapons..................................................................................................21Tools, Disguises and Colours........................................................................................22Commercial Crime.........................................................................................................23Vehicles..........................................................................................................................24

Probation Picklist: May 1, 2017

Compulsory No Contact and No Go Complainant

TERM OF THE ORDER1

You must comply with the conditions of a probation order2 for a term of ________.3 The conditions of the order are:

COMPULSORY CONDITIONS4

2001 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 the probation officer ( __ days) in advance of any change of name or address5, and promptly notify the court or the probation officer of any change of employment or occupation.

COMPULSORY NO CONTACT6

2002 You must have no contact or communication, directly or indirectly, with ____ (except with a further order of this court)7

The exceptions are as follows:8

a. through (email; text; telephone; a named third party) for the sole purpose of ________.9

b. for the sole purpose of picking up and dropping off your children for parenting or contact time.10

c. in accordance with a Family Court Order made by a judge who has reviewed this order.11 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).12

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 probation officer of this order and your history as described in your criminal record).13

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)14. If this happens, you must have no further contact, or

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communication with ________without further order of this court.15

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 body16 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 in the immediate presence of any one or more of the following professionals after he or she has reviewed this order: counsellor, family justice counsellor, or mediator. (continued)

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.17

(OPTIONAL) NO SOCIAL MEDIA

2003 You must not publish or publicly make available any information respecting ________ via the internet or social media including Facebook, Twitter, My Space, Instagram, or any other like service.

(OPTIONAL) NON-ASSOCIATION

2004 You must have no contact or communication directly or indirectly with (co-accused or gang) (except:) 18

a. during scheduled court appearances;

b. through or in the immediate presence of a lawyer who has reviewed this order.

COMPULSORY NO GO

2005 You must not go to (or be within ____ metres of) 19 (any residence, school or workplace of ________), (a specific address)20 (except with a further order of this court)21.

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 while picking up or dropping off your children).22 (continued)

c. in accordance with a Family Court Order made by a judge who has reviewed this order. 23 You must forthwith file a

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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).24

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 ________ (or request of a peace officer), and if that happens you must not re-attend without further order of this Court. 25

g. while in a moving motor vehicle on your way to some other place (for the sole purpose of ________).

Exceptions to No Contact Written Consent

Pursuant to s 732.1(2)(a.1)(i) of the Criminal Code, after reviewing the written consent of ________, the Court is not imposing the mandatory conditions referred to in s 732.1(2)(a.1)

Exceptions to No Contact Exceptional Circumstances

Pursuant to s. 732.1(2)(a.1)(ii) of the Criminal Code, because of the following exceptional circumstances: ________, the Court is not imposing the mandatory conditions referred to in s. 732.1(2)(a.1).

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Intermittent Sentence

INTERMITTENT SENTENCE26

2006

You are sentenced to ____ days of imprisonment.27 You must serve this sentence intermittently from (Friday)28 at ___PM to (Sunday) at ____PM on consecutive weeks starting on_____________ at the _____________ (Police Station; Correctional Centre), in _____ BC.

Probation Order29

At all times when you are not in custody on this order (and until your jail sentence has been served in full)(for ____ months), you are on probation with the following conditions:

1. You must keep the peace and be of good behaviour.

2. You must appear before the court when required to do so by the court.

3. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

4. On each occasion when a part of the intermittent jail sentence is to be served, you must arrive at the place where the sentence is to be served on time and in an entirely sober condition without any alcohol, intoxicating substance or drugs in your body except in accordance with a medical prescription.

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Reporting

REPORT30 2101 You must report in person to a probation officer at ________ by 3:00 PM today (date and time), and after that, you must report as directed by the probation officer.31

REPORT IMMEDIATELY

2102 You must report immediately in person to a probation officer at _________, and after that, you must report as directed by the probation officer.

REPORT BY PHONE

2103 You must report by telephone32 to a probation officer 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 probation officer and received further direction to report. After that, you must report as directed by the probation officer.

REPORT AFTER RELEASE

2104 You must report in person to a probation officer at ________ within (two business days)33 after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by the probation officer.

REPORT AFTER ARREST34

2105 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 probation officer within two business days of your release from custody.

Residence, Curfew, E.M.P., Carry Permission

RESIDE35

CONSENT TO CHANGE

2201 When first reporting to the probation officer, you must inform him or her of your residential address36 and phone number. You must not change your residence or phone number without written permission from your probation officer.37

RESIDENCE APPROVED

2203 You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number, and you must not change your residence or your phone number without written permission

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from your probation officer.38

RESIDE AT SPECIFIC ADDRESS

2204 You must reside at _______, (with ______). You must provide your probation officer with your phone number, and you must not change your residence or your phone number without written permission from your probation officer.

OBEY RULES OF THE HOME

2205 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 probation officer. If there is a conflict, you must tell your probation officer about the conflict immediately.39

NOT LEAVE BC 2206 You must not leave British Columbia unless you have the written permission of the probation officer, and you must carry the permission when you are outside the province.

SURRENDER

TRAVEL DOCS

2207 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 PEACE OFFICER

2208 By (date/time) 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 and thereafter not obtain any further travel documents.

CURFEW 2209 For the duration of this order (first ___ months of this order), 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)41, between __PM and ___AM, each day (every Friday and Saturday). (continued)

You must present yourself immediately at the door to your residence or answer the phone42 when any peace officer or probation officer 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 probation officer. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside

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your residence during the curfew hours. 43

You may also be away from your residence during the curfew hours: (continued)

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 probation officer with details of your employment, including location and hours of work.44 (continued)

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 facility45. If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.46

c. in the immediate presence of __________.

d. in the presence of a person approved in writing by your probation officer. You must carry the written permission with you when you are away from your residence during the curfew hours. 47

REPORT OCCUPANTS

2210 When you first report to your probation officer, you must tell the officer the names of all permanent and temporary occupants of your residence and immediately tell him or her of any change.

NO VISITORS 2211 You must have no visitors at your residence during your curfew, except with the written permission of your probation officer.48 You must keep a copy of the permission at your residence.

CHANGES IN EMPLOYMENT - RELATIONSHIP STATUS

2212 You must provide your probation officer with the particulars of your employment or relationship status. You must inform your probation officer within two business days of any change in your employment or relationship status.49

ELECTRONIC MONITORING (TSR Required)

2213 The curfew condition of this order will be monitored electronically. You must comply with all rules of the electronic monitoring program.50

CARRY COPY 2214 You must carry a copy of this order and any written permission from your probation officer 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

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without being requested to do so (upon the request of a peace officer).51

No Go Specific Address and Red Zone

NO GO SPECIFIC ADDRESS

2301 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

2302 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:52

You must not be within a __ kilometre radius of ___, BC.

The exceptions are as follows: (continued)a. with the written permission of your probation officer 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 probation officer, lawyer or doctor. You must provide your probation officer 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 _______.

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No Go and No Contact with Minors

NO GO PARKS OR SCHOOLS

Transcribe reasons for Community Corrections.

2303 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.53

The exceptions are:

a. With the written permission of your probation officer. You must carry the written permission when you are in the prohibited area.

b. In the immediate presence of __________.

(conintued)

c. In the immediate presence of another adult, and only after he or she has been informed by your probation officer of this order and your history as described in your criminal record, Pre-Sentence Report, if any, and these Reasons for Judgment.

NO CONTACT MINORS54

Transcribe reasons for Community Corrections.55

2304 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:

a. if they are your children (names).

b. if you have the written permission of your probation officer in which case, you must carry the permission.56

c. in the immediate presence of ______ (and only after he or she has been informed by your probation officer of this order and your history as described in your criminal record, Pre-Sentence Report ,if any, and these Reasons for Judgment).

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 knowledge of this order, or when contact is necessary and incidental to the employment;

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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

2305 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 probation officer and when so engaged, you must carry this permission.57

ELTON HUBBS

Relationships with children

Transcribe reasons for Community Corrections.

2306 You must not date, or enter into a marriage or common-law relationship58 that has the care or access to children under the age of ___years59 until you have identified to your probation officer the person with whom you propose to enter into such a relationship and your probation officer has informed that person of your history as described in your criminal record, Pre-Sentence Report, if any, and these Reasons for Judgment.

Contact with Future Partners

ELTON HUBBS60

Relationships with adults

Transcribe reasons for Community Corrections.

2307 You must not date, or enter into a marriage or common-law relationship with any person, until you have identified to your probation officer the person with whom you propose to live, and your probation officer 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 People Identified by Probation Officer

NO CONTACT WITH PERSONS

IDENTIFIED61

2308 You must not associate or have a relationship with anyone named by your probation officer if your probation officer 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.

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Criminal Harassment

PROVIDE CELL NUMBER AND VEHICLE INFORMATION

2309 You must provide the probation officer 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 MEDIA63

2003 You must not publish or publicly make available any information respecting ________ via the internet or social media including Facebook, Twitter, My Space, Instagram, or any other like service.

CHANGES IN EMPLOYMENT - RELATIONSHIP STATUS

2212 You must provide your probation officer with the particulars of your employment or relationship status. You must inform your probation officer within two business days of any change in your employment or relationship status.64

Drugs and Alcohol

NO ALCOHOL OR DRUGS

2401 You must not possess or consume alcohol, drugs or any other intoxicating substance65 except in accordance with a medical prescription.66

NO ALCOHOL

Residence Exception

2402 You must not 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.67

NO GO LIQUOR OUTLETS

2403 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.68

NO GO LIQUOR OUTLETS

Alternate Wording

2404 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)69

NO ALCOHOL OR DRUGS IN RESIDENCE

2405 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.70

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DRUG PARAPHERNALIA

2406 You must not possess drug paraphernalia including but not limited to pipes, rolling papers and syringes.71

Counselling, Treatment, Rogers Order, and Release of Info

COUNSELLING

Delegated to Probation Officer72

2501 You must attend, participate in and successfully complete any intake, assessment, counselling or program73 as directed by the probation officer.

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 addiction74.

RESIDENTIAL TREATMENT

2502 Having consented, you must attend, participate in and successfully complete any intake, assessment, counselling, program, treatment or residential treatment program as directed by your probation officer.75

FORENSIC SERVICES

2503 Having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling or treatment program through Forensic Psychiatric Services.76

PRIVATE PROGRAMS AND TREATMENT FACILITIES

2504 Having consented, you must attend participate in and successfully complete ________ program as directed by your probation officer.

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 probation officer. If they do conflict, you must advise your probation officer as soon as possible.77

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When the program ends you must immediately provide proof of your completion of the program to your probation officer.

RELEASE INTO CARE OF PRIVATE FACILITY

2505 1. You are to be released to (a representative of the facility/ home/named third party).

2. You must report to a probation officer at the probation office at (address nearest to the facility/ home) either in person or by telephone within the first business day of your admission to the (facility/ home), and thereafter report as directed.

(continued)

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 probation officer at ________, and thereafter as directed (daily), until such time as the (facility/home) is able to admit you or the court changes this order.78

4. You must reside at _____________ located at _______ or any other location associated with (that facility/ home), unless you obtain the written permission of your probation officer 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 probation officer. Such permission is to be given only for compelling reasons. You must also carry the written permission when you are outside the (facility/ home).

6. 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 probation officer about the conflict immediately.79

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 probation officer, you must advise your probation officer forthwith. If the

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probation office is closed, you must contact your probation officer immediately when the office opens on the next business day.

EXPULSION

FROM PROGRAM

2506 If you are expelled from the ________ or voluntarily remove yourself from the program without permission being obtained in advance from your probation officer, you must advise your probation officer forthwith. If the office is closed, you must contact your probation officer immediately when the office opens on the next business day.

ROGERS ORDER80

2507 Having consented, you must do the following:

1. At the direction of your probation officer report to the 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.81

4. Give your doctor, psychiatrist, and counsellor a copy of this order.

5. You must provide your probation officer with the names, addresses, and phone numbers of your doctor, psychiatrist, and counsellor.

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 probation officer.

If you decide not to follow these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer.

RELEASE FOR COUNSELLING AND TREATMENT

2508 1. You must sign any waiver of confidentiality or release of information forms as will enable your probation officer, 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.82

2. You must sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. (continued)

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3. You must provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed by your probation officer.

Community Work

COMMUNITY WORK 83

Completion By

2509 You must complete ______ hours84 of community work under the direction of the probation officer. Your community work service must be completed by (date).85

COMMUNITY WORK

Hours per Month

2510 You must complete ______ hours of community work under the direction of the probation officer. Your community work service must be completed at a rate of no fewer than _______ hours per month.

COMMUNITY WORK 86

For the Benefit

2511 Your community work service may be completed for the benefit of ________, with the permission of your probation officer.

COMMUNITY WORK

Credit Counselling

2512 Any hours spent receiving counselling under this order will be credited towards your community work service hours.87

Restitution

RESTITUTION88

Monthly Amounts

2513 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

2514 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 ______.89

Apology and Restorative Justice

APOLOGY 2515 You must apologize to _____________ in the manner directed by your probation officer and to the satisfaction of

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your probation officer by ________.90

RESTORATIVE JUSTICE

2516 Subject to the consent of _____________, you must participate in a restorative justice program at the direction of your probation officer.

Support Dependents

SUPPORT DEPENDENTS

2517 a. You must provide adequate support for your dependents (names); or 91 (continued)

b. You must pay _____, $______ on the ____ of each month for the support of your dependents (names).

Technology

NO INTERNET92

2601 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, 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. 93

4. Having consented, you must sign any release of

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information forms as will enable your probation officer to monitor your compliance with this term. (continued) Any information obtained by the probation officer can be given to a peace officer. 94

5. Having consented, you must provide the device and any password used to lock the device to your probation officer or peace officer, upon their request, in order for him or her to monitor your compliance with this order.

You are permitted to (own, 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 probation officer.

d. You have the written permission of your probation officer.

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 only be used in the course of your employment, and with the permission of the employer, and only after the employer has confirmed with your probation officer that she or he has read copy of this order.

g. It is required for purposes directly and immediately related to your employment, not including self-employment.

NO INTERNET

UK wording95

2602 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 probation officer or a peace officer. (continued)

2. Delete the history of the internet use from the device.

3. Use the internet to contact or to attempt to contact any

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(person/female/male) 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 probation officer or a peace officer.

5. Having consented, you must provide the device and any password used to lock the device to your probation officer or peace officer, upon their request, in order for him or her to monitor your compliance with this order.

NO ISP CONTRACT96

2603 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

2604 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 probation officer.

b. You are required by an employer, other than yourself, to use a device that is owned and controlled by the employer. 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 probation officer that she or he has read this order.

NO PORN 2605 You must not possess any pornographic material or access any pornographic material by electronic means. 97

Trafficking and Drug Production

TRAFFICKING:

One Phone Exception

2606 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 probation officer, lawyer, or for lawful employment, or in an emergency (or ______).

You must provide your probation officer with the telephone number and service provider, and not change either without the written permission of the probation officer. (continued)

(Having consented), you must:

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a. Sign any release of information forms as will enable your probation officer to monitor your compliance with this term. Any information obtained by the probation officer can be given to a peace officer. 98

b. Provide the device and any password used to lock the device to your probation officer or peace officer, upon their request, in order for him or her to monitor your compliance with this order.

c. Provide your probation officer 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 probation officer.99

d. Retain a history of and not delete your call and text usage.

NO CELL PHONES

2607 You must not possess or use a cell phone or any other device capable of accessing any cellular or computer network including the internet.100

TRAFFICKING:

Vehicle and Cell

2608 You must not be in any motor vehicle in which there is a cell phone except if the vehicle is public transportation.101

GROW OPERATION OR METH LAB

2609 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, (continued) hypo-phosphorous acid, lye, drain cleaners, or lithium.

DRUG PARA-PHERNALIA

2406 You must not possess drug paraphernalia including but not limited to pipes, rolling papers and syringes.102

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Firearms and Weapons

FIREARMS AND WEAPONS PROHIBITION103

Exception

2610 You must not possess, either personally or through another person,104 any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm,105 any weapon as defined in section 2 of the Criminal Code, or any related authorizations, licences or registration certificates.106

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

2611 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

21

or explosive substance.

SURRENDER FIREARMS107

2613 You must immediately108 (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.109

SURRENDER FIREARMS

Upon Release From Custody

2614 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.

FIREARMS

Transfer

2615 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 2616 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

2617

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,

22

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 probation officer with the particulars of your location and hours of employment if requested to do so;

c. with the written permission of the probation officer, in which case you must carry the permission.

KEYS 2618

You must not possess any keys except for vehicles or premises of which you are lawfully entitled to possession.

ROBBERY:

No Masks

2628

You must not use or possess anything intended to allow you to mask or disguise your face, including a facemask or balaclava.110

ARSON:

No Incendiary Devices

2629

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 probation officer. If you are granted permission, you must carry a copy of the permission when you possess any of these items outside your residence.

MISCHIEF:

Writing and Marking Implements111

2630

You must not possess any paint, dye, (acid112), paintbrushes, spray paint cans, or large marking pens outside your residence, except with the written permission of your probation officer. If you are granted permission, you must carry a copy of the written permission with you when you possess any of these items outside your residence.

GANG COLOURS

2631

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

2619 You must not possess any identification documents, including credit cards, debit cards, cheques, negotiable

23

IDENTIFICATION 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: 113

a. items in the name of __; or members of your family.

b. for purposes immediately and directly related to your employment.

ACCOUNT INFORMATION AND ELECTRONIC DATA

2620 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):114

a. items in the name of _________; or

b. for purposes immediately and directly related to your employment.

INFORM EMPLOYER

2621 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.115

NO WORKING IN PRIVATE RESIDENCE

2622 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 probation officer. You must carry the permission while engaged in such work.

NO PAWNING 2632 You must not sell anything to a pawn broker, nor give anything to a pawnbroker for money borrowed.

Vehicles

NOT TO BE IN DRIVERS SEAT

2623 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

2624 You must not occupy the driver’s seat of any motor vehicle except:

24

WORK 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 probation officer with the particulars of your employment including the location and hours.

b. in the event of a medical emergency and then only when traveling directly to, or returning directly from a health care facility116. If requested, you must provide your probation officer with written confirmation that you went to the health care facility, signed by a representative of the health care facility you went to.117

(Continued)

You must immediately provide a copy of this order to any peace officer who asks to see your driver’s licence.118

ALCOHOL IGNITION INTERLOCK

2625 1. Having consented,119 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 probation officer 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 probation officer 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 probation officer 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

2626 You must not enter any motor vehicle, other than public transportation, unless the registered owner of the vehicle

25

WITHOUT REGISTER OWNER

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

2627 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.

ADULT PROBATIONPursuant to section 732.1(3)(h) a judge can impose any probation condition s/he considers desirable for protecting society and facilitating the offender’s successful reintegration into the community.

The purpose of a probation order Is explained in R. v. Proulx, 2000 SCC 5 at para. 32:

Probation has traditionally been viewed as a rehabilitative sentencing tool. Recently, the rehabilitative nature of the probation order was explained by the

Saskatchewan Court of Appeal in R. v. Taylor   (1997) , 122 C.C.C. (3d) 376  (Sask. C.A.). Bayda C.J.S. wrote, at p. 394:

Apart from the wording of the provision, the innate character of a probation order is such that it seeks to influence the future behaviour of the offender. More specifically, it seeks to secure "the good conduct" of the offender and to deter him from committing the same or other offences. It does not particularly seek to reflect the seriousness of the offence or the offender's degree of culpability. Nor does it particularly seek to fill the need for denunciation of the offence or the general deterrence of others to commit the same or other offences. Depending upon the specific conditions of the order there may well be a punitive aspect to a probation order but punishment is not the dominant or an inherent purpose. It is perhaps not even a secondary purpose but is more in the nature of a consequence of an offender's compliance with one or more of the specific conditions with which he or she may find it hard to comply. [Emphasis in original.]

In R v Bosco, 2016 BCCA 55, the court made the following observation at paragraph 55:

[W]hen a probation order is made its conditions need not be limited to rehabilitative objectives and may have deterrent and denunciatory effects

26

which are punitive: Voong at paras. 37-43. However, such conditions can only be imposed if there is a nexus between the condition and the offender, the protection of the community and the offender's reintegration into the community. While a condition may serve one or both goals of protecting society and facilitating reintegration, if imposed solely to punish the offender it will lack the requisite nexus. Without the requisite nexus, a probation condition, punitive or otherwise, cannot be imposed lawfully.

This picklist was prepared in consultation with the various criminal justice system stakeholders.

There is no obligation to use the conditions set out in this picklist. Instead, judges can create their own conditions. Judicial creativity in sentencing is encouraged, including creativity in probationary 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; andf) for the purpose of protecting society and facilitating the offender’s successful

reintegration into the community.

27

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).2 Pursuant to section 732.1(3)(h), a judge can impose any conditions he or she considers desirable for protecting society and facilitating the offender’s successful reintegration into the community.3 The maximum term of a probation order under the Criminal Code is 3 years: s. 732.2(2)(b). The maximum term of a probation order under the Offence Act is 2 years: s. 89.3.4 The compulsory conditions of the probation order are set out in s. 732.1(2).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.6 The compulsory no contact and no-go conditions came into force on September 19, 2014.7 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.8 Pursuant to s. 732.1(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.9 The advantage of text or email is that there is a written record of the communication10 Judges can specify in the order how and where pick-ups and drop-offs will occur to ensure safety.11 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.12 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.13 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.14 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. Defence counsel also raised concerns about the police using their power to liberally.15 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.16 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.)17This term is important if there is any possibility of family court litigation.18 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 associate with his drinking buddies to ensure better compliance with an abstention clause and thereby facilitate the offender’s rehabilitation and protect society.19 Metres were chosen because blocks can be vague, and in some rural areas, blocks do not exist.20 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.21 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.22Judge 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.23 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.24 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.25 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.26 Section 732 provides for intermittent sentences and requires the offender to comply with the mandatory conditions prescribed in the Code when not in confinement. The maximum length is 90 days. Sections 87 and 89 of the Offence Act also provide for intermittent sentences.27 The maximum intermittent sentence is 90 days.28 Traditionally intermittent sentences are served on weekends. However, most lockup facilities will take prisoners any day of the week. Consult your local lockup to find out if they do.29 When the intent is that the offender serves a period of probation beyond the term of the

intermittent sentence, only one probation order is required. R. v. Winchera , 2003 ABCA 18 30 It is not always necessary for an offender to report to a probation officer. 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 offender has strong roots in the community, is not a flight risk, or does not need the supports and resources available through Community Corrections, a requirement for reporting may be unnecessary.31 “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.32 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.33 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.34 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.35 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.36 Some Community Correction offices require daily reporting until the offender provides an address.37 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 probation officers to supervise offenders. The requirement can be challenging for transient individuals.38 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.39 The "obey rules" condition results in the delegation of responsibility for supervising the order to someone other than the probation officer, 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 Carswell Alta 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 . 40 When an offender surrenders an enhanced driver’s licence, he or she can obtain a regular driver’s licence.41 Conditions specifying a distance from the front door, or permitting presence anywhere on

a large lot, may make the order difficult to enforce.42 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 nor 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).43 Probation officers 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 probation order.44This exception is usually not required because the probation officer will grant exceptions for work but many offenders prefer that it be specifically set out in the order.45 The term "health care facility" is used because not all communities have "emergency wards".46 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.47 In R v Sidhu (1998), 129 CCC (3d) 26 (BCCA) the Court concluded that home confinement was an appropriate term of a probation order for the purpose of the maintenance of rehabilitation. However, in R v. Singh, 2016 MBCA 38, the court held that the curfew condition was improper because it did not serve any rehabilitative or protective purpose. It was imposed solely for punitive purposes. Also see R. v. Bosco, 2016 BCCA 55. A curfew may be imposed even when the offence occurred in daylight hours since it may be necessary to prevent flight, protect the community or aid in the offender’s rehabilitation. R v. Patko 2005 BCCA 183 48 When the offender shares her residence with other people, consider permitting exceptions for the other people, or consider omitting this condition entirely.49 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.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 offender 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 are 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.51 A similar condition was imposed in cases like R. v. Caza, 2005 BCCA 318 (CanLII) ; R. v. Caron, 2013 BCCA 475 , R. v. Reyat, 2008 BCCA 291, and R. v. Sidhu, 2015 ABCA 308. The benefits include providing the offender with a quick reference to the terms of his or her probation, 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.52 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.53 This condition is patterned on section 161 of the Criminal Code.54 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.55 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 probation officer. See also R. v. Power , 2010 BCCA 21 (CanLII). 56 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. However, see R. v. S.(N.P.) , 2014 BCPC 199 where the court held that the probation officer could not refuse to accept the delegation.57 The probation officer may not accept the delegation of this responsibility.58 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.59 A judge might consider adjusting the age, based on the circumstances of the case.60 The wording of this condition is based on the decision in R. v. Hubbs , 1993 CanLII 1642 (BCCA).61 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 62 This term might be considered in cases of criminal harassment.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 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.65 “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).66 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.67 This wording was used in R. v. Forrest (1992) CanLII 1552 (BCCA) .68 This wording was recommended in R. v. Joy 2011 BCCA 189 at para 14.69 The language in brackets was left in because some judges still prefer it but it was rejected by the Court of Appeal in R. v. Joy 2011 BCCA 189

70 This condition may unnecessarily restrict an offender’s ability to find suitable housing.71 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.72 Community Corrections officers are trained to determine which criminogenic factors need to be addressed and in what priority. Risk factors can change during the probationary period and probation officers 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 offenders 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 that is different than anger management.73 Counselling is distinguished from treatment, and counselling does not require the offender’s consent. See R. v. Lee , 2012 BCSC 137 (CanLII) . In R. v. Proulx, 2000 SCC 5, the Supreme Court said, “ In practice however the difference [between probation orders and conditional sentence orders] is not very significant since it is unlikely, that an offender when faced with a choice between imprisonment and a suspended sentence with treatment as a condition of probation would refuse to consent to treatment.”74 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).75 Under s. 732.1(3)(g) of the Criminal Code, the offender's consent is required before he or she may be ordered to actively participate in a treatment program, unless it is a drug and alcohol program at a treatment facility designated by the Lieutenant Governor in Council, under section 732.1(3)(g.1). Currently in British Columbia, there are no treatment programs that have been approved by the Lieutenant Governor in Council.76 Naming Forensic Psychiatric Services in the probation order will usually speed the process of having the offender accepted for assessment or treatment.77 If an offender asks to be ordered to attend a private treatment facility or support recovery home 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 probation officer where the directions conflict with the facility or house.78 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. A judge cannot order an offender to be held in custody until a treatment bed becomes available: R. v. Hopkins , 2009 ABCA 159 .79 The "obey rules" condition results in the delegation of responsibility for supervising the order to someone other than the probation officer, and as a result raises the possibility of treatment facilities telling offenders to comply with rules that are inconsistent with the conditions of the probation order. In the context of a treatment facility the term was appropriate in R. v. Thompson, 2003 BCCA 183 . 80 This term has evolved from a term that was imposed in R. v. Rogers, 1990 CanLII 432 (BCCA) . 81 Some judges use this term to deal with people on the methadone program.82 The offender’s consent is not required. See R. v. Bennett, 2005 ABCA 119, and R. v. Bourque, 2013 BCCA 447 . 83 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.84 Section 732(2.2)(f) of the 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, probation officers will apply to the court for consideration in the reduction in 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 is also likely an impermissible term.85 A judge might consider imposing a deadline three months before the end of the term of probation, to allow time to deal with any breach of this condition.86Judges 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 Donations87 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.88 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 739.189 A judge might consider imposing a deadline three months before the end of the term of probation, to allow time to deal with any breach of this condition.90 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.91 This condition is imposed infrequently, but is provided for in section 732.1(3)(e) of the Criminal Code. The Code does not provide any guidance on how judges are to impose this condition. 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 jail. 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. 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. In the U.S. under 18 U.S.C. § 3563(b)(20) the courts employ the following language: 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).92 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.” 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 , 201 6 ONCA 724 . 93 Wording similar to R v Brar , 201 6 ONCA 724 94 A somewhat similar condition was imposed in R. v. Amhaz , 2013 BCCA 348 . However, probation officers have limited resources and expertise to review internet usage logs.95 This is the wording adopted in Queen v. Smith et al, [2011] EWCA Crim 1772 (CA).96 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. Also see R. v. Brar , 2016 ONCA 724 .97 Prohibiting the viewing of sexually-explicit material may be necessary in some cases as part of sex offense-specific 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 1128.98 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.99 See R. v. Amhaz 2013 BCCA 348 ; R. v. Noble 2008 BCSC 216 100 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.101 This term can have an adverse impact on those who rely on others for transportation.102 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.103 This condition is substantially broader than a section 109 or 110 order, but does expire at the end of the term of the probation order. The term is more robust than the previous term that simply referred to sections 2 and 109. The committee felt that referring the

accused to another source like the Criminal Code to interpret the section was less than ideal.104 Including possession through another person avoids the problem created by an offender giving guns to a friend to hold for him.105 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.106 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.107 Section 115 of the Criminal Code provides that everything in the offender’s possession the possession of which is prohibited by an order be forfeited to Her Majesty, unless the prohibition order states otherwise.108 Immediate attendance at the police station reduces the risk of the offender accessing the firearms. Requiring the offender to arrange with the police eliminates the risk created when an offender approaches a police station in possession of firearms.109 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.110 See, for example, R. v. Bourque , 2013 BCCA 447 at para 42.111 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.112 Acid can be used for graffiti on glass.113 Specify the name, if the offender has used different names in the past.114 Specify the name, if the offender has used different names in the past.115 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.116 The term "health care facility" is used because not all communities have "emergency wards".117 See R. v. Bourque , 2013 BCCA 447 at paras 32-34.118 In R v Schroeder, 2010 ONSC 1654 a similar condition was imposed.119 Section 732.1(3)(g.2) requires the offender’s consent before imposing this condition.