Conditional Sentence Picklist

CONDITIONAL SENTENCE PICKLIST

Table of Contents

[1] [2] [3] [4]

[5] Compulsory Terms

TERM OF THE You must comply with the conditions of a conditional ORDER1 sentence order2 for a term of ______.3

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 742.3(2)(f) can impose any reasonable conditions s/he considers desirable for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences. In R. v. Proulx, 2000 SCC 5, the court observed that conditional sentence orders should normally contain punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception. 3 The maximum term of a conditional sentence order is 2 years less one day: s. 742.1. Conditional Sentence Picklist: May 1, 2017 The conditions of the order are:

COMPULSORY 3001 You must keep the peace and be of good behaviour. CONDITIONS4 You must appear before the court when required to do so by the court.

You must notify the court or your conditional sentence supervisor ( __ days) in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.5

You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province. (You must carry the written permission when you are outside the province).

[6] Compulsory No Contact and No Go Complainant

COMPULSORY 3002 You must have no contact or communication, directly or NO CONTACT indirectly, with ______(except with a further order of this court)6. The exceptions are as follows: 7 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.8 c. in accordance with a Family Court Order made by a judge who has reviewed this order.9 You must forthwith file a

4 The compulsory conditions of the conditional sentence order are set out in s. 742.3. The compulsory no contact and no go conditions came into force on September 19, 2014. 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 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. 7 Pursuant to s. 742.1(2)(a.1)(ii) of the Criminal Code, reasons must be given when permitting contact. It is important to remember that contact is the exception not the rule. 8 Judges can specify in the order how and where pick-ups and drop-offs will occur to ensure safety. 9 It is important that the judge making the family court order reviews the criminal order. Without this requirement, the parties could obtain a consent order or file a separation 2 Conditional Sentence Picklist: May 1, 2017 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).10 d. during one attendance, in the company of a peace officer for the purpose of retrieving your personal belongings. e. through or in the immediate presence of ______(but only after he or she has been informed by your conditional sentence supervisor officer of this order and your history as described in your criminal record).11 f. you may have contact and communication with ______but you must immediately leave (his or her) presence upon their request (or the request of a peace officer)12. If this happens you must have no further contact, or communication with ______without further order of this court.13 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 body14 or in your immediate possession, except in accordance with a medical prescription. (continued) 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 agreement permitting contact without the family court being aware of the criminal order. 10 Criminal court is sometimes the better place to deal with exceptions because the Crown is present and is able to describe the alleged circumstances and provide input with respect to issues surrounding risk to the victim and/or children. 11 If a named person is not available, a judge might consider permitting contact in the presence of an unnamed third party, informed of the circumstances, for specific purposes. 12 For a myriad of reasons, our committee which included Crown, defence counsel and police were not supportive of this exception. The police indicated that they were reluctant to be involved in the monitoring of this section and that is why (at the request of a peace officer) is optional. Questions arose about how the discretion might be exercised. 13 In the context of domestic violence, an order providing that an offender must leave the presence of the victim at the victim’s request may provide a degree of safety that is more illusory than real. This condition can be problematic due to the undue pressure on the complainant and the vulnerability to retribution if s/he does not comply with the demands of the offender. In some regions the Crown policy prohibits Crown from recommending this term. A judge should use caution in permitting exceptions to no contact orders. Given the compulsory nature of this condition, the drafters of this picklist decided that the discretion to allow the person to return to the presence of the victim should be determined by the courts. 14 The phrase “drugs in your body” is a phrase found in use in other jurisdictions. We considered other phrases like under the influence, intoxicated, no consumption within x hours and determined this would be easiest for the accused to understand and police to enforce. Conditions which attempt to limit the probationer's use of alcohol are usually hopelessly imprecise (e.g., "refrain from the excessive use of alcohol") and/or quite unrealistic (e.g., "not to be over .08% blood-alcohol at any time". Very few persons who need control upon their use of alcohol will be able to stop drinking at any moderate point once they start drinking at all.) 3 Conditional Sentence Picklist: May 1, 2017 adults are present). k. during scheduled court appearances or case conferences but only with a sheriff present.15

(OPTIONAL) NO 3003 You must not publish or publicly make available any SOCIAL MEDIA information respecting ______via the internet or social media including Facebook, Twitter, My Space, Instagram, text messaging and email, or any other like service.

(OPTIONAL) 3004 You must have no contact or communication directly or NON- indirectly with (co-accused or gang) (except:)16 ASSOCIATION a. during scheduled court appearance; b. through or in the immediate presence of a lawyer who has reviewed this order.

COMPULSORY 3005 You must not go to (or be within ____ metres of)17 (any NO GO residence, school or workplace of ______), (a specific address )18 (except with a further order of this court)19. 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).20 c. in accordance with a Family Court Order made by a judge who has reviewed this order. You must forthwith file a copy of this order in any family proceeding in which you are a party or become a party. (You must give notice of any Family Court application for parenting or contact time, with a copy of this order attached, to the Director of Child Protection). d. for the purpose of ___ on ___between the hours of ____. e. in the immediate presence of ______, for the purpose of ______on ______between the hours of ______. f. you may attend but you must immediately leave the place upon the request of ______, and if that happens you must not re-attend without further order of this Court. 21 g. while in a moving motor vehicle on your way to some other place (for the sole purpose of ______).

Exception to Pursuant to s. 742(3) (1.1)(a) of the Criminal Code, after Compulsory reviewing the written consent of ______, the Court is not Written Consent imposing the mandatory conditions referred to in s. 742 (1.1).

15This term is important if there is any possibility of family court litigation. 16 If one is prohibiting a person not to associate with a certain group or category of people it is important to ensure that the condition is not impermissibly vague or overbroad. In R. v. Kirton , 2007 MBCA 38, a probation term prohibiting the accused from associating or communicating directly or indirectly with any person known to him to be a member or associate of a gang including the Hells Angels was found to be vague and uncertain to be enforceable and therefore unreasonable. In R. v. Shoker , 2006 SCC 44, the Court observed that a judge could order an offender not to associate with his drinking buddies to ensure better compliance with an abstention clause and thereby facilitate the offender’s rehabilitation and protect society. 17 Metres was chosen because blocks can be vague and in some rural areas blocks do not exist. 4 Conditional Sentence Picklist: May 1, 2017 Exception To Pursuant to s. 742(3) (1.1)(b) of the Criminal Code, because Compulsory of the following exceptional circumstances: ______the Exceptional Court is not imposing the mandatory conditions referred to in Circumstances s. 742 (1.1).

[7] [8]

[9] Compulsory Reporting

REPORT 22 3101 You must report in person to the conditional sentence supervisor at ______by 3:00 PM today (date and time), and after that, you must report as directed by the conditional sentence supervisor.23

REPORT 3102 You must report immediately in person to the conditional IMMEDIATELY sentence supervisor at ______and after that, you must report as directed by the conditional sentence supervisor.

REPORT 3103 You must report by telephone24 to the conditional sentence BY PHONE supervisor office at (address and telephone number) by 3:00 PM today (date and time). If the office is closed, you must try again the next business day and continue calling until you have spoken to a conditional sentence supervisor and received further direction to report. After that, you must report as directed by your conditional sentence supervisor.

REPORT 3104 You must report in person to the conditional sentence AFTER supervisor at ______within (two business days)25 after

18 Unless the complainant’s address is known to the accused it will rarely be appropriate to put the specific address in the order. The more generic wording also provides flexibility in the event the complainant moves or changes jobs. 19 The drafters recommend using this wording to try and preserve the court’s jurisdiction to amend this compulsory term in the future if there is a likelihood that changes will need to be made. 20 Judge can specify where the pick-up or drop-off will occur. For example: You must not enter the residence of ______(unless you are expressly invited and then only for the sole purpose of picking up or dropping of your child). The child shall be picked up or dropped off at the (front entrance/curbside) of the residence. You shall not leave until the child is safely inside the residence. 21 This condition can be problematic due to the undue pressure on the complainant and the vulnerability to retribution if s/he does not comply with the demands of the accused. In some regions, the Crown policy prohibits Crown from recommending this term. 22 Pursuant to section 742.3(c) unlike probation and bail, reporting is mandatory in a conditional sentence order. 23 “Immediate” reporting is difficult in practice, because the order cannot be prepared immediately. Community Corrections recommends that offenders be required to report by 3:00 PM in order to ensure there is sufficient time to conduct the intake interview before the end of the workday 24 Requiring offenders to report by telephone poses significant challenges in monitoring the offender. Sometimes they call outside work hours and do not leave forwarding numbers or do not return messages. Breaches are often difficult to prove. 25 Two business days should be sufficient time for an offender to get from the institution to the Community Corrections office. Black’s Law Dictionary defines a business day as follows: A business day is considered every official working day of the week. Another common term is working day. Typically, these are the days between and including 5 Conditional Sentence Picklist: May 1, 2017 RELEASE your release from custody, unless you have obtained, prior to your release, written permission from the conditional sentence supervisor to report elsewhere or within a different time frame. After that, you must report as directed by your conditional sentence supervisor.

REPORT 3105 If at any time prior to the expiration of this order, you are AFTER arrested, detained or have served a sentence for another ARREST26 offence, you must report to your conditional sentence supervisor within two business days of your release from custody.

[11] Residence, House Arrest, E.M.P., Carry Permission

RESIDE27 3201 When first reporting to the conditional sentence supervisor, 28 No change you must inform him or her of your residential address and without consent phone number. You must not change your residence or phone number without written permission from your conditional sentence supervisor.29

RESIDE 3203 You must reside at a residence approved in advance by your Approved conditional sentence supervisor. You must provide your phone number to your supervisor, and you must not change your residence or your phone number without written permission from your conditional sentence supervisor.30

RESIDE 3204 You must reside at ______, (with ______). You must Specific address provide your supervisor with your phone number, and you must not change your residence or your phone number

Monday to Friday and do not include public holidays and weekends. 26 The U.S. equivalent goes a step further, under 18 U.S.C. § 3563(b)(18), the offender must report any questioning by police. This the term is usually reserved for high risk offenders or recidivists. 27 A reside term does not require the offender to spend every night at the residence. If that is the intention a curfew condition should be included. 28 Some Community Corrections offices will require daily reporting if the offender is unable to provide an address. 29 The requirement that permission to change the residential address be sought in advance is stricter than the compulsory condition, which only requires notice. Requiring permission to change addresses assists conditional sentence supervisors to supervise offenders, but can be challenging for transient individuals. 30 When imposed, Community Corrections must assess the offender’s residence within 48 hours and consider notifying people who share common living areas with the offender. For example, if the offender lives in an apartment building with a pool or courtyard, other residents may be notified by showing them a photo of the offender and advising them of the protective conditions. New residents will be notified as they move in. “Approved residence” conditions may be appropriate for sex offenders or high risk violent offenders. A judge might consider imposing a curfew condition, to ensure that the offender is in the approved residence every night and not living elsewhere. 6 Conditional Sentence Picklist: May 1, 2017 without written permission from your conditional sentence supervisor.

OBEY RULES 3205 You must obey all of the rules of your residence, so long as OF THE HOME they do not conflict with the terms of this order or the directions of your supervisor. If there is a conflict, you must tell your conditional sentence supervisor about the conflict immediately.31

SURRENDER 3207 You must surrender all travel documents, including any TRAVEL DOCS passport, Nexus card, travel visa or enhanced driver’s licence32 to a peace officer at (police station) by (time and date), and thereafter you must not obtain any further travel documents.

SURRENDER 3208 By (date and time) (immediately), you must attend (police TRAVEL DOCS station) with a copy of this order, you must present the order ACCOMPANYING to a peace officer there, and you must accompany a peace PEACE OFFICER officer to the location of all travel documents in your possession, including any passport, Nexus card, travel visa or enhanced driver’s licence. You must surrender all such items to the peace officer. You must not obtain any further travel documents.

HOUSE 3209 For the duration of this order (first ___ months of this order), ARREST33 you must remain inside your residence, (or within 10 m of the front door of your residence) (or on the lot of your residence)34, under house arrest (24 hours per day) (between

31 The "obey rules" condition results in the delegation of responsibility for supervising the order to someone other than a conditional sentence supervisor, and as a result raises the possibility of treatment facilities telling offenders to comply with rules that are inconsistent with the conditions of the order. Some courts have considered the term too vague and unenforceable. R. v. L.(M.J.), 1990 CarswellAlta 543 (CA); R. v. F.(P.D.), [1987] O.J. No. 1800 (CJ). However, in R. v. E.A . 2015 BCCA 463 the Court held that a condition requiring a young person to follow house rules was not an impermissible delegation of a judicial function, and was not impermissibly vague. In the context of a treatment facility the term was found to be appropriate. R. v. Thompson 2003 BCCA 183 32 When an offender surrenders an enhanced driver’s licence, he or she can obtain a regular driver’s licence. 33 In R. v. Proulx 2000 SCC 5, the court observed at paragraph 36 that “conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception…There must be a reason for failing to impose punitive conditions when a conditional sentence order is made”. 34 Conditions specifying a distance from the front door or permitting presence anywhere on a large lot, may make the order difficult to enforce. 7 Conditional Sentence Picklist: May 1, 2017 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 phone35 when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order. You may be away from your residence during the house arrest hours with the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the house arrest hours. 36 You may also be away from your residence during the house arrest 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 a conditional sentence supervisor with details of your employment, including location and hours of work.37 b. In the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility.38 If requested, you must provide your conditional sentence supervisor with written

35 Some judges include a requirement that the accused maintain/obtain a landline and not use a call forwarding service. However, landlines are becoming quite rare and some cannot afford or have sufficient credit to obtain one. Even if the accused has a cell phone the police find this term helpful. If the accused is not answering the door, they can call the cell phone, and tell the accused to come to the door (if s/he is at home). 36 Conditional sentence supervisors will normally consider employment, education, religion, shopping, appointments etc. to be compelling reasons. They do not have to be specifically listed in this condition of the order. 37 This exception is usually not required because the conditionals sentence supervisor will grant exceptions for work but many offenders prefer that it is specifically set out in the order. 38 The term "health care facility" has been adopted because not all communities have "emergency wards". 8 Conditional Sentence Picklist: May 1, 2017 confirmation that you went to the facility, signed by a representative of the health care facility to which you went.39 c. In the immediate presence of ______. d. In the presence of a person approved in writing by your conditional sentence supervisor. You must carry the written permission with you when you are away from your residence during the house arrest hours.

REPORT 3210 When you first report to your conditional sentence supervisor, OCCUPANTS you must tell the supervisor the names of all permanent and temporary occupants of your residence and immediately tell him or her of any change.

NO VISITORS 3211 You must have no visitors at your residence during your house arrest, except with the written permission of your conditional sentence supervisor.40 You must keep a copy of the permission at your residence.

CHANGES IN 3212 You must provide your conditional sentence supervisor with EMPLOYMENT the particulars of your employment or relationship status. You RELATIONSHIP must inform your conditional sentence supervisor within two STATUS business days of any change in your employment or relationship status.41

39 See R. v. Bourque, 2013 BCCA 447 at paras 32-34; R. v. Amhaz, 2013 BCCA 348 at para 24 where the offenders were required to provide this type of information 40 When the offender shares her residence with other people, consider permitting exceptions for the other people, or consider omitting this condition entirely. 41 This term is more robust than the compulsory term requiring the offender to report changes to employment. Loss of employment or the dissolution of a marriage are high risk factors for recidivism. 9 Conditional Sentence Picklist: May 1, 2017 ELECTRONIC 3213 The house arrest condition of this order will be monitored MONITORING electronically. You must comply with all rules of the electronic (TSR Required) monitoring program.42

CARRY COPY 3214 You must carry a copy of this order and any written permission from your conditional sentence supervisor with you at all times when you are outside your residence. If a peace officer stops you for any reason, you must immediately provide the peace officer with a copy of this order and written permission without being requested to do so (upon the request of a peace officer).43

[12] No Go Specific Address and Red Zone

NO GO 3301 You must not go to (or be within ____ metres of) ______,

42 The electronic supervision condition must not be imposed unless a Technical Suitability Report has been prepared in advance. Community Corrections will confirm that both the offender and the residence are suitable for electronic supervision. If there are other residents, their informed consent will be obtained. In order to give effect to an electronic supervision condition, Community Corrections requests that the curfew, reside, and not change residence without permission conditions also be included in the order. Although the central monitoring agency will advise community corrections of any breaches, and Community Corrections will try to advise the complainant as soon as possible, if the breach occurs after-hours or on the weekend, they will not be able to do so until the beginning of the next working day. The monitoring has GPS capabilities which can enhance the ability of police to locate the person quickly if the bracelet has not been removed, and Community Corrections has the ability to monitor the accused’s location during scheduled absences. 43 A similar condition was imposed in cases like R. v. Caza, 2005 BCCA 318 (CanLII); R. v. Caron, 2013 BCCA 475 ; and R. v. Sidhu, 2015 ABCA 308. The benefits include providing the offender with a quick reference to the terms of his or her conditional sentence order, reminding the offender what s/he has committed to doing, and providing peace officers with information about the terms of the order and any permission granted thereby limiting the need for lengthy interactions. Community Corrections make wallet- sized copies of orders for most of their clients. 10 Conditional Sentence Picklist: May 1, 2017 SPECIFIC (except:) ADDRESS 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 3302 1a. Boundaries: defined area Options: You must not be in the area of ______, BC bounded 1. Boundaries by ______on the East, ______on the West, ______on the North and ______on a. defined area, the South. b. defined point 1b. Boundaries: defined point 2. Banishment You must not be (north/south/east/west) of (City). 2. Banishment:44 You must not be within a ____ kilometre radius of ______, BC. The exceptions are as follows: a. with the written permission of the conditional sentence supervisor in which case you must carry the written permission with you when you are in the (prohibited area/community). b. to attend scheduled court appearances, or appointments with the police, your conditional sentence supervisor, lawyer or doctor. You must provide your bail supervisor with advance notice of your attendance within the prohibited area. c. while in a moving motor vehicle on your way to some other place (for the sole purpose of travelling to and from

44 In R. v. Etifier, 2009 BCCA 292, the Court canvassed the principles to apply when considering banishment orders. This condition should be used sparingly. It is rarely appropriate for the court to foist one community’s problem onto another. Banishment can sometimes remove the accused from his only support network, creating bigger problems then it was intended to solve. 11 Conditional Sentence Picklist: May 1, 2017 _____). d. one attendance, in the company of a peace officer for the purpose of retrieving your personal belongings. e. in the immediate presence of ______.

[13] No Go and No Contact with Minors

NO GO PARKS 3303 You must not go to any public park, public swimming area, or OR SCHOOLS community centre where persons under the age of ___ years are present or can reasonably be expected to be present, or a Reasons to be 45 transcribed for daycare centre, school ground, playground, (except:) Community a. with the written permission of your conditional sentence Corrections supervisor. You must carry the permission with you when you are in the prohibited area. b. in the immediate presence of ______. c. in the immediate presence of another adult, and only after he or she has been informed by your conditional sentence supervisor of your history as described in your criminal record, Pre-Sentence Report, if any, and these Reasons for Judgment.

NO CONTACT 3304 You must have no contact or communication directly or MINORS46 indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be under the age of____ years. The exceptions are as follows: a. if they are your children (names); b. if you have the written permission of your conditional sentence supervisor in which case you must carry the permission.47 c. in the immediate presence of ______, (and only after he or she has been informed by your conditional sentence supervisor of this order, and your history as described in your criminal record, Pre-Sentence Report, if any, and these Reasons for Judgment. A copy of these Reasons for Judgment must be transcribed and provided to the conditional sentence supervisor);48

45 This condition is patterned on section 161 of the Criminal Code. 46 When imposed, Community Corrections must assess the offender’s residence within 48 hours and consider notifying people who share common living areas with the offender. For example, if the offender lives in an apartment building with a pool or courtyard, other residents may be notified by showing them a photo of the offender and advising them of the protective conditions. New residents will be notified as they move in. “Approved residence” conditions may be appropriate for sex offenders or high risk violent offenders. A judge might consider imposing a curfew condition, to ensure that the offender is in the approved residence every night and not living elsewhere. 47 When judges delegate the function of approving the third party to Community Corrections, they are not authorized to do any background checks on the party being proposed. Without background checks, most officers are reluctant to approve third parties. But see R. v. S.(N.P.) , 2014 BCPC 199 where the court held that Community Corrections could not refuse to accept the delegation. 48 The BCCA approved an alternative wording in R. v. R.R.M., 2009 BCCA 578 (CanLII): You must not be in the company of any person under the age of 18 years, unless you are supervised by an adult who was previously approved in writing by your conditional sentence supervisor. See also R. v. Power, 2010 BCCA 21 (CanLII). We prefer ‘immediate presence’ because ‘supervised’ can mean from afar or another room. 12 Conditional Sentence Picklist: May 1, 2017 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 3305 You must not engage in activities, volunteer work or WITH employment that could bring you in contact with persons CHILDREN under the age of ___ years without the written permission of your conditional sentence supervisor and when so engaged, you must carry this permission.49

ELTON HUBBS 3306 You must not date, or enter into a marriage or common-law 50 (Children) relationship with anyone who has the care or access to children under the age of ___ years51 until you have identified Transcribe to your conditional sentence supervisor the person with whom reasons for you propose to enter into such a relationship and your Community conditional sentence supervisor has informed that person of Corrections your history as described in your criminal record, Pre- Sentence Report, if any, and these Reasons for Judgment.

[14] Contact with Future Partners

ELTON 3307 You must not date, or enter into a marriage or common-law HUBBS52 relationship with any person, until you have identified to your (Adults) conditional sentence supervisor the person with whom you propose to enter into such a relationship, and your conditional Transcribe sentence supervisor has informed that person of your history reasons for as described in your criminal record, Pre-Sentence Report, if Community any, and these Reasons for Judgment. Corrections

[15] No Contact with Persons Identified by Supervisor

NO CONTACT 3308 You must not associate or have a relationship with anyone WITH PERSON named by your conditional sentence supervisor if your IDENTIFIED53 supervisor has reasonably determined the relationship or association to be a risk to yourself or others or to be detrimental to your programming, counselling, re-integration into the community or a risk to the protection of society.

49 The conditional sentence supervisor may not accept the delegation of this responsibility. 50 Thought was given to a broader type of relationship, like a romantic relationship, but at the court in United States v. Reeves, 591 F.3d 77 (2d Cir. 2010), it would be too difficult to define. 51 A judge might consider adjusting the age, based on the circumstances of the case. 52 The wording of this condition is based on the decision in R. v. Hubbs, 1993 CanLII 1642 (BCCA). 53The 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. 13 Conditional Sentence Picklist: May 1, 2017 [16] Criminal Harassment

PROVIDE CELL 3309 You must provide the conditional sentence supervisor with NUMBER AND the carrier information and phone number of any mobile VEHICLE device or tablet that you possess, and the make, model, INFORMATION colour and licence plate numbers of any vehicle that you drive.54

NO SOCIAL 3003 You must not publish or publicly make available any MEDIA55 information respecting ______via the internet or social media including Facebook, Twitter, My Space, Instagram, text messaging and email, or any other like service.

CHANGES IN 3212 You must provide your conditional sentence supervisor with EMPLOYMENT the particulars of your employment or relationship status. RELATIONSHIP You must inform your conditional sentence supervisor within STATUS two business days of any change in your employment or relationship status.56

[17] Drugs and Alcohol

NO ALCOHOL 3401 You must not possess or consume alcohol, drugs or any OR DRUGS other intoxicating substance,57 except in accordance with a medical prescription.58

NO ALCOHOL 3402 You not must possess or consume alcohol or any other Residence intoxicating substance, except while inside your residence, Exception or while transporting it sealed directly to your residence. You must not be found in any public place in an intoxicated condition.59

NO GO LIQUOR 3403 You must not enter any liquor store, beer and wine store, OUTLETS bar, pub, lounge, night club, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence.60

NO GO LIQUOR 3404 You must not enter any liquor store, beer and wine store, OUTLETS bar, pub, lounge, nightclub, or beer garden (or any other 61 Alternate wording place where the primary commodity sold is liquor).

NO ALCOHOL 3405 You must not reside at any place where any other resident OR DRUGS IN has illegal drugs or alcohol in his or her possession, or RESIDENCE permit any of these items to be brought inside your residence.62

DRUG 3406 You must not possess drug paraphernalia including but not PARAPHERNALI limited to pipes, rolling papers and syringes.63 A

54 This term might be considered in cases of criminal harassment. 55 An additional term to consider: You must provide your bail supervisor with your Facebook, Twitter, Instagram, or other public media account and not change, or add accounts without notifying your bail supervisor. 56 This term is more robust than the compulsory term requiring the offender to report changes to employment. Loss of employment or the dissolution of a marriage are high risk factors for recidivism. 57 “Intoxicated” has been said to mean drunk to “such a marked degree that the person is a danger to himself or others or is causing a disturbance.” R. v. Wallace 1998 CanLII 6701 (BC SC). 14 Conditional Sentence Picklist: May 1, 2017 [18] Counselling, Treatment, Rogers Order, and Releases

COUNSELLING 3501 You must attend, participate in and successfully complete 65 Delegated to any intake, assessment, counselling or program as Conditional directed by the conditional sentence supervisor. Sentence Without limiting the general nature of this condition, the Supervisor64 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 addiction66.

RESIDENTIAL 3502 You must attend, participate in and successfully complete

58 Note the consideration of abstinence clauses in R. v. Omeasoo 2013 ABPC 328 at paras 41-44. There does not have to be alcohol involved in the predicate offence before a court can impose an abstinence clause. The court only needs to be satisfied that the conditions is necessary for the defined purpose of a a probation order, namely protecting society and facilitating the offender’s successful reintegration into the community. Also see R. v. Patrick, 2016 BCCA 232. It is often important to prohibit the use of both alcohol and drugs. Alcohol use can trigger a recovering drug addict’s return to drug use. Additionally, substance-dependent defendants may substitute alcohol for their drug of choice. 59 This wording was used in R. v. Forrest (1992) CanLII 1552 (BCCA). 60 This wording was recommended in R. v. Joy 2011 BCCA 189 at para 14. 61 The language in italics was rejected by the Court of Appeal in R. v. Joy 2011 BCCA 189. It is included here because some judges still prefer it. 62 This condition may unnecessarily restrict an offender’s ability to find suitable housing. 63 Caution is urged with this term. The imposition of this condition may result in the person sharing things like needles and pipes, thus creating the spread of infectious disease, unless there is a safe injection site available. 64 Community Corrections officers are trained to determine which criminogenic factors need to be addressed and in what priority. Risk factors can change and conditional sentence supervisors need to be able to adjust priorities. They prefer that judges do not specify the type of counselling required. Even though the conditions reads ‘not limited to’ many of their clients do not read it the same way and resist their efforts to get them into more productive forms of counselling. Other times, a judge might decide to specifically limit the type of counselling. When doing so, judges need to make sure they get it right. Some experts opine that anger management programs are not effective for people convicted of domestic violence. Community Corrections has developed programs specific for persons convicted of domestic violence which are different than anger management. 65 Unlike a probation order, under s. 742.3(2)(e) of the Criminal Code the offender's consent is not required before he or she may be ordered to actively participate in a treatment program as a term of a conditional sentence. As the Supreme Court in R. v. Proulx, 2000 SCC 5 observed, “in practice, however, this difference is not very significant, since it is unlikely that an offender faced with the choice between imprisonment and a suspended sentence with treatment as a condition of probation would refuse to consent to treatment.” 66 If the root cause of the offending behaviour is a gambiling addiction, consideration might be given to a condition similar to that used by U.S. courts in 18 U.S.C. § 3563(b) (22): You must not engage in any form of gambling (including, but not limited to, lotteries, on-line wagering, sports betting) and you must not enter any casino or other establishment where gambling is the primary purpose (e.g., horse race tracks, off-track betting establishments). 15 Conditional Sentence Picklist: May 1, 2017 TREATMENT any intake, assessment, counselling, program, treatment or residential treatment program as directed by your conditional sentence supervisor.67

FORENSIC 3503 You must attend at the direction of your conditional SERVICES sentence supervisor for a psychiatric intake, assessment, counselling or treatment program through Forensic Psychiatric Services.68

PRIVATE 3504 Having consented, you must attend participate in and PROGRAMS AND successfully complete ______program as directed by TREATMENT your conditional sentence supervisor. 69 FACILITIES You must comply with all the rules of the program so long as the rules do not conflict with this order or the directions of your conditional sentence supervisor. (continued) If they do conflict, you must advise your conditional sentence supervisor as soon as possible.70 When the program ends, you must immediately provide proof of your completion of the program to your conditional sentence supervisor.

RELEASE TO 3505 1. You are to be released to a (a representative of facility/ PRIVATE home/ named third party). FACILITY 2. You must report to a conditional sentence supervisor by telephone at (address and telephone of Community Corrections Office at originating location) within the first business day of your admission to the (facility/ home), and thereafter report as directed by your conditional sentence supervisor. 3. If (a representative of the facility/ home) is unable to attend, escort, and admit you on the date of your eligible release, you are to be released and report forthwith to a conditional sentence supervisor at ______, and thereafter as directed (daily), until such time as (facility/ home) is able to admit you or the court changes this order.71 4. You must reside at ______located at ______or any other location associated with (that facility/ home), unless you have the written permission of the conditional sentence supervisor to reside elsewhere. 5. You must not leave the (facility/ home) unless you are in the immediate presence of a staff member of the (facility/ home) or you have the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must

67 Currently in British Columbia there are no treatment programs that have been approved by the Lieutenant Governor in Council. 68 Naming Forensic Psychiatric Services in the order will usually speed the process of having the offender accepted for assessment or treatment. 69 Consent should be obtained when the treatment facility is a private facility. 70 If an offender asks to be ordered to attend a private treatment facility or Recovery House which is not on Community Corrections approved list, consider including a condition reminding the offender that he or she must ultimately follow the directions of the conditional sentence supervisor where the directions conflict with the facility or house. 71 This condition is recommended to address situations where the facility is scheduled to pick up the offender from jail but fails to show. Judges may want to consider requiring the facility to be present at the time of sentencing and avoid this complication. 16 Conditional Sentence Picklist: May 1, 2017 also carry the written permission when you are outside the (facility/ home). 6. You must abide by all rules of the (facility/ home), so long as they do not conflict with the terms of this order. If there is a conflict, you must tell your conditional sentence supervisor about the conflict immediately.72 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/ home). (continued)

9. If you are expelled from the (facility/ home) or voluntarily remove yourself from the program without permission being obtained in advance from your conditional sentence supervisor, you must advise your conditional sentence supervisor forthwith. If the office is closed, you must contact your conditional sentence supervisor immediately when the office opens on the next business day.

ROGERS 3507 Having consented you must do the following: 73 ORDER 1. At the direction of your conditional sentence supervisor report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment. 2. Attend all scheduled appointments with your doctor, psychiatrist and counsellor. 3. Take all medications prescribed to you.74 4. Give your doctor, psychiatrist and counsellor a copy of this order. 5. You must provide your conditional sentence supervisor with the names, addresses, and phone numbers of your doctor, psychiatrist, and counsellor. (continued) 6. Tell your doctor, psychiatrist, and counsellor that if you do not follow any terms of this order, he or she is to inform your conditional sentence supervisor. If you decide not to follow these directions, you must immediately report to your conditional sentence supervisor when his or her office is open and tell your supervisor.

EXPULSION 3506 If you are expelled from the ______or voluntarily FROM remove yourself from the program without permission PROGRAM being obtained in advance from your conditional sentence supervisor, you must advise your conditional sentence supervisor forthwith. If the office is closed, you must contact your conditional sentence supervisor immediately when the office opens on the next business day.

72 The "obey rules" condition results in the delegation of responsibility for supervising the order to someone other than your conditional sentence supervisor, and as a result raises the possibility of treatment facilities telling offenders to comply with rules that are inconsistent with the conditions of the conditional sentence order. In the context of a treatment facility the term was appropriate in R. v. Thompson 2003 BCCA 183. 73 This term has evolved from a term that was imposed in R. v. Rogers, 1990 CanLII 432 (BCCA). 74 Some judges use this term to deal with people on the methadone program. 17 Conditional Sentence Picklist: May 1, 2017 RELEASE FOR 3508 1. You must sign any waiver of confidentiality or release of COUNSELLING information forms as will enable your conditional AND sentence supervisor, counsellors or treatment providers TREATMENT to monitor your attendance, and completion of any intake, assessment, counselling, or treatment programs, and to collaboratively discuss your treatment needs.75 2. You must sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. 3. You must provide proof of your attendance and completion of any assessments, counselling or treatment programs as directed by your conditional sentence supervisor.

[19] Community Work

COMMUNITY 3509 You must complete ______hours77 of community work under WORK 76 the direction of your conditional sentence supervisor. Completion By Your community work service must be completed by (date).78

COMMUNITY 3510 You must complete ______hours of community work under WORK the direction of your conditional sentence supervisor. Hours per Your community work service must be performed at a rate of Month no fewer than ______hours per month.

COMMUNITY 3511 Your community work service may be performed for the benefit WORK 79 of ______, with the permission of your conditional For the Benefit sentence supervisor.

COMMUNITY 3512 Any hours spent receiving counselling under this order will be WORK credited towards your community work service hours.80 Counselling

75 The offender’s consent is not required. See R. v. Bennett, 2005 ABCA 119, and R. v. Bourque, 2013 BCCA 447 76 As a correctional strategy community work provides a way for offenders to acquire job readiness skills and job experience or broaden their network of associates in a more productive direction. In addition to the specific sentencing purpose to be served, the desired by-product of community service is always to benefit the community. 77 Section 742.3(2)(d) of the Criminal Code provides that the court may order an offender to perform up to 240 hours over a period of eighteen months. In accordance with their policy, if more than 50 hours is ordered, conditional sentence supervisors will apply to the court for consideration in the reduction of hours. Their experience is that more than 50 hours is counter-productive to rehabilitation. Like donations in lieu of fines, donations in lieu of community work service are likely impermissible. 78 A judge might consider imposing a deadline three months before the end of the term of the conditional sentence order, to allow time to deal with any breach of this condition. 79 Judges need to be careful in using this condition. Having an offender do community service for a specific organization could be perceived the same way as what charity a charitable donation should be made to. See PPSC Policy on Charitable Donations. 80 This condition should be used cautiously. Some counselors find that it detracts from the seriousness of the counselling, as offenders attend counselling merely to put in time. 18 Conditional Sentence Picklist: May 1, 2017 [20] Restitution

RESTITUTION81 351 You must pay restitution in the amount of $______to Monthly 3 the Clerk of the Court for the benefit of ______, Amounts 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 351 You must pay restitution in the amount of $______to Due Date 4 the Clerk of the Court for the benefit of ______. Your restitution must be paid in full by ______.82

[21] Apology and Restorative Justice

APOLOGY 3515 You must apologize to ______in the manner directed by your conditional sentence supervisor and to the satisfaction of your conditional sentence supervisor by ______.83

RESTORATIVE 3516 Subject to the consent of ______, you must participate JUSTICE in a restorative justice program at the direction of your conditional sentence supervisor.

[22] Support Dependents

SUPPORT 3517 a. You must provide adequate support for your dependents DEPENDENTS (names); or 84 b. You must pay _____, $______on the ____ of each month for the support of your dependents (names).

[24] Technology

NO 3601 You must not own, possess or use any device capable of INTERNET85 accessing any computer network including the internet, except as permitted by this order. While (owning, possessing or using) any such device pursuant to this order: 1. You must not delete your browsing history,

81 Section 738 of the Criminal Code provides for stand-alone restitution orders. An ability to pay inquiry should be conducted before ordering restitution. The ability to pay can include a future ability to pay. An inability to pay is not an absolute bar to a stand- alone restitution order. Section 739.1 82 A judge might consider imposing a deadline before the completion of the conditional sentence order, to allow time to deal with any breach of this condition. 19 Conditional Sentence Picklist: May 1, 2017 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. 86 4. Having consented, you must sign any release of information forms as will enable your conditional sentence supervisor to monitor your compliance with this term. Any information obtained by the conditional sentence supervisor can be given to a peace officer. 87 5. Having consented, you must provide the device and any password used to lock the device to your conditional sentence supervisor or peace officer, upon their request, in order for him or her to monitor your compliance with this order. You are permitted to (own, possess or use) any device capable of accessing any computer network including the internet (if:) a. You are at a public device located at ______b. You are in the immediate presence of ______, c. You are in the immediate presence of a person approved of in writing by your conditional sentence supervisor. (Continued) d. You have the written permission of your conditional sentence supervisor. e. You are accessing the internet for the sole purpose of paying bills, banking, searching or applying for employment, searching for books at a public library, or communicating with a government agency. f. You are required by an employer, other than yourself, to use a computer or other device that is owned and controlled by the employer. The device must be used in the course of your employment, and with the permission of the employer, and only after the employer has confirmed with your conditional sentence supervisor that she or he has read a copy of this order. g. It is required for purposes directly and immediately related to your employment (not including self- employment)

NO INTERNET 3602 You must not: UK wording88 1. Use any device capable of accessing the internet unless: a. it has the capacity to retain and display the history of the internet use; and b. you consent to inspection of the device by your conditional sentence supervisor or a peace officer. 2. Delete the history of the internet use from the device. 3. Use the internet to contact or to attempt to contact any

20 Conditional Sentence Picklist: May 1, 2017 (person/male/female) you know to be or who reasonably appears or represents him or herself to be under the age of____ years, (except members of your immediate family). 4. Possess any device capable of storing digital images, unless you consent to inspection of the storage device by your conditional sentence supervisor or a peace officer. 5. You must provide the device and any password used to lock the device to your conditional sentence supervisor or a peace officer, upon their request, in order for him or her to monitor your compliance with this order.

NO ISP 3603 You must not enter into any agreement or contract with any CONTRACT89 internet service provider for any internet access or any form of data plan, mobile or otherwise.

NO DATA 3604 You must not possess any device capable of storing data as STORAGE defined in the Criminal Code, (unless): a. You have the written permission of your conditional sentence 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. The device must be used in the course of your employment, and with the permission of the employer, after the employer has confirmed with your conditional sentence supervisor that she or he has read this order.

NO PORN90 3605 You must not possess any pornographic material or access any pornographic material by electronic means.

[25] Trafficking and Drug Production

TRAFFICKING: 3606 You must not possess or use any mobile communication One Phone device, except you may possess one cell phone with one Exception phone number, which can only be used for the purposes of contacting your conditional sentence supervisor, lawyer, for lawful employment, or in an emergency. You must provide your conditional sentence supervisor with the telephone number and service provider and not change either without the written permission of the conditional sentence supervisor. You must: 1. Sign any release of information forms as will enable your conditional sentence supervisor to monitor your compliance with this term. Any information obtained by the conditional sentence supervisor can be given to a peace officer. 91 2. Provide the device and any password used to lock the device to your conditional sentence supervisor or peace officer, upon their request, in order for him or her to monitor your compliance with this order. 3. Provide your conditional sentence supervisor with a copy of your monthly cell phone bill with details of all phone and text message activity. A peace officer may obtain a copy 21 Conditional Sentence Picklist: May 1, 2017 of these records from your conditional sentence supervisor.92 4. Retain a history of and not delete your call and text usage.

NO CELL 3607 You must not possess or use a cell phone or any other device PHONES capable of accessing any cellular or computer network including the internet.93

PHONES AND 3608 You must not be in any motor vehicle in which there is a cell VEHICLES phone except if the vehicle is public transportation.94

GROW OP OR 3609 a. You must not possess any marijuana seeds, metal halide METH LAB lights, light bulbs of more than 250 watts, sodium vapor lights, ballasts, capacitors, light timers, or diesel generators. b. You must not possess any equipment or ingredients used in the production of methamphetamine including, but not limited to, heating mantles, beakers, round bottom flasks, red phosphorous, more than 3 grams of ephedrine or psuedoephedrine, reaction flasks of a volume exceeding 500 ml, iodine crystals or tincture of iodine, muriatic acid, ether, acetone, sodium thiosulfate, hypophosphorous acid, lye, drain cleaners, or lithium.

DRUG PARA- 3406 You must not possess drug paraphernalia including but not PHERNALIA limited to pipes, rolling papers and syringes.95

[26] Firearms and Weapons

FIREARMS 3610 You must not possess, either personally or through another AND person,97 any firearm, cross-bow, prohibited weapon, WEAPONS restricted weapon, prohibited device, ammunition or PROHIBITION96 explosive substance, anything that resembles a weapon or firearm,98 any weapon as defined in section 2 of the Criminal Code, or any related authorizations, licences or registration certificates.99 Exception 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: 3611 You must not reside in any residence in which any other Not in person keeps or stores any firearm, cross-bow, prohibited Residence weapon, restricted weapon, prohibited device, ammunition or explosive substance.

SURRENDER 3613 You must immediately101 (or by 3:00 PM today) go to the FIREARMS100 ______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

22 Conditional Sentence Picklist: May 1, 2017 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. 102

SURRENDER 3614 Immediately, upon your release from custody you must FIREARMS telephone the______police station and speak to a peace Upon Release officer. You must tell the officer about this order and make From Custody 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

83 An apology condition will require an exception to the compulsory no contact condition. In R. v. Pine , [2002] O.J. No. 280 (ONCA), the court observed that a condition requiring an accused to write an apology to the victim was inappropriate inasmuch as an expression of remorse is fruitless when mandated. 84 This condition is imposed infrequently, but is provided for in section 742.3(c) of the Criminal Code. In Regina v. Hawley (1973), 15 Cr. L.Q. 258, the Ontario Court of Appeal decided that the appellant should be placed on probation rather than in goal. The appellant's recent employment, marriage and parenthood were important factors influencing the court's decision. In these circumstances one of the conditions of probation ordered by the court was that he provide for the support of his wife and child. Such a condition may also be appropriate in cases where the offence was committed upon the offender's spouse and precipitated a family separation. In such cases the probationer may agree to make certain payments or the order can provide that the probationer is to: Provide for the support of his family if so ordered by a court of competent jurisdiction and as ordered by that court and to provide proof to the satisfaction of the probation officer that such payments are being made. The section is too general to be of any real value in such cases but, short of an agreement on quantum by the probationer, it is submitted that the determination of quantum should not be attempted in the setting of a criminal court, although it may sometimes be appropriate to specify an amount to be paid for a short period of time, thus giving the spouse an opportunity to initiate proceedings and obtain an order in family court.If you are ordered by a court to make child support payments or to make payments to support a person caring for a child, you must make the payments and comply with the other terms of the order. You must meet any legal obligation to support or make payment toward the support of any person, including any dependent child, the co-parent or caretaker of a dependent child, or a spouse or former spouse. According to the US legislation the purpose of this conditions is to ensure that the defendant complies with court orders and avoids collateral consequences for not complying with court orders such as lost driver’s license, garnishment of wages, and loan ineligibility. The court cannot require the defendant to pay his child support obligations at a rate different than that established by the state court, because family relations are a traditional area of state concern. United States v. Lakatos, 241 F3d 690 (CA9 Cal 2001). 85 When imposing a term restricting the offender’s access to the internet, a judge must balance the goals of rehabilitation and reintegration into the community, including the online community, and the goal of protecting the community, which includes the online community. See the discussion in Queen v. Smith et al, [2011] EWCA Crim 1772 (CA). As Karakatsanis J. stated in R. v. K.R.J., 2016 SCC 31 at para. 54, "depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life". Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on. In United States v. Peterson, 248 F3d 79 (CA2 NY 2001), the court described it this way, “Although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones. Nor would defendant's proclivity toward pornography justify a ban on all books, magazines, and newspapers.” Also see R. v. Brar , 2016 ONCA 724 86 Wording similar to R. v Brar, 2016 ONCA 724 23 Conditional Sentence Picklist: May 1, 2017 you or through another person, and any related authorizations, licences or registration certificates. You must surrender all of these items in the manner directed by the peace officer.

TRANSFER OF 3615 Within 90 days, you can transfer legal ownership in the FIREARMS 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

87 A somewhat similar condition was imposed in R. v. Amhaz , 2013 BCCA 348. However, conditional sentence supervisors have limited resources and expertise to review internet usage logs. 88 This is the wording adopted in Queen v. Smith et al, [2011] EWCA Crim 1772 (CA). 89 When imposing a term restricting the offender’s access to the internet, a judge must balance the goals of rehabilitation and reintegration into the community, including the online community, and the goal of protecting the community, also including the online community. See the discussion in Queen v. Smith et al, [2011] EWCA Crim 1772 (CA). As Karakatsanis J. stated in R. v. K.R.J., 2016 SCC 31 at para. 54, "depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life". Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on. Unlike the U.S.the Code does not permit the installation of computer monitoring software, nor does Community Corrections have access the same. This is one area in need of a legislative overhaul identifying what is permissible.Also see R. v. Brar , 2016 ONCA 724 90 Prohibiting viewing sexually explicit material might be necessary for sex offender treatment and prevent recidivism. In the U.S., The Ninth Circuit has ruled that banning a defendant from possessing "any pornographic, sexually oriented or sexually stimulating materials" is unconstitutionally vague. United States v. Antelope (2005), 395 F3d 1128. 91 A somewhat similar condition was imposed in R. v. Amhaz , 2013 BCCA 348. However, conditional sentence supervisors have limited resources and expertise to review internet usage logs. 92 See R. v. Amhaz 2013 BCCA 348; R. v. Noble 2008 BCSC 216 93 Like blanket prohibitions on internet use, blanket prohibitions of cell phones should be imposed with care. Additionally, allowing the offender to possess a cell phone can make it much easier for Community Corrections to keep track of him or her. 94 This term can have an adverse impact on those who rely on others for transportation. 95 Caution is urged with this term. The imposition of this condition may result in the person sharing things like needles and pipes, thus creating the spread of infectious disease, unless there is a safe injection site available. 96 This condition is substantially broader than a section 109 or 110 order, but does expire at the end of the term of the conditional sentence order. The committee felt that referring the accused to another source like the Criminal Code to interpret the section was less than ideal. 97 Including possession through another person avoids the problem created by an offender giving guns to a friend to hold for him. 98 Pellet guns, air guns and starter pistols are frequently made to resemble firearms, including handguns. Many can cause significant injuries. They may be used to intimidate victims in different criminal activities. 99 An offender who retains a physical licence may be able to purchase rifles or shotguns. The closure of the long gun registry eliminated the requirement for vendors to register the sale of long guns, which in turn removed the requirement to check the validity of the licence presented. 100 Section 115 of the Criminal Code provides that everything in the offender’s possession the possession of which is prohibited by an order is forfeited to Her Majesty, unless the prohibition order states otherwise. 24 Conditional Sentence Picklist: May 1, 2017 the entry of this order, the items are forfeited to Her Majesty.

KNIVES103 3616 You must not possess any knife, except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment.

[27] Tools, Disguises and Colours

BREAK IN 3617 You must not possess any tools or instruments capable of TOOLS use for criminal activity, including (pry bars, screwdrivers, bump keys, bolt cutters, pliers, blow torches, grinders, night vision goggles, slim jims, lock picks,) (except): a. while on your property; b. for the purposes of employment and then only when immediately engaged in work or traveling directly to and from your place of employment. You must provide your conditional sentence supervisor with the particulars of your location and hours of employment if requested to do so; c. with the written permission of your conditional sentence supervisor, in which case you must carry the permission with you.

KEYS 3618 You must not possess any keys except for vehicles or premises of which you are lawfully entitled to possession.

FACE MASK 3628 You must not use or possess anything intended to allow you to mask or disguise your face, including a facemask or balaclava.104

ARSON: 3629 You must not possess any incendiary device, flammable No Incendiary product or explosive substance. This prohibition includes, Devices but is not limited to, lighters, matches, jerry cans, fire accelerant and fireworks, except with the written permission of the conditional sentence supervisor. If you are granted permission, you must carry a copy of the written permission when you possess any of these items outside your residence.

GRAFITTI 3630 You must not possess any paint, dye, (acid106) paint Writing and brushes, spray paint cans, or large marking pens outside Marking your residence, except with the written permission of the Tools105 conditional sentence supervisor. If you are granted permission, you must carry a copy of the written permission when you are possess any of these items outside your residence.

101 Immediate attendance at the police station reduces the risk of the offender accessing the firearms. Requiring the offender to make arrangements with the police eliminates the risk created when an offender approaches a police station in possession of firearms. 102 Judges should remind the offender not to attend the police station with any of these items until the accused has been directed to do so by a peace officer. 103 If Knives are a concerned it can sometimes be prudent to include this term because they do not always easily fall within the definition of weapon. 104 See, for example, R. v. Bourque , 2013 BCCA 447 at para 42. 105 One might also consider a no-go except while in moving motor vehicle or no loitering at places that graffiti artists frequent like certain neighbourhoods, bridges, or highway overpasses. 106 Acid can be used for graffiti on glass. 25 Conditional Sentence Picklist: May 1, 2017 GANG 3631 You must not wear, own, possess or display any clothing, COLOUR 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.

[28] Commercial Crime

CREDIT 3619 You must not possess any identification documents, CARDS AND including credit cards, debit cards, cheques, negotiable ID 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: 107 a. items in the name of ____; or members of your family. b. for purposes immediately and directly related to your employment.

ACCOUNT 3620 You must not possess any account information, credit or INFO debit card data or any electronic storage medium, including ELECTRONIC any credit or identification card with a data strip or security DATA chip, that contains personal information, with the exception of your own account information or data, (except): a. items in the name of ______; or b. for purposes immediately and directly related to your employment.

INFORM 3621 Before seeking, obtaining, or continuing any employment, or EMPLOYER 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.108

NO 3622 You must not work in any capacity that requires you to enter WORKING IN another person’s private residence unless you have the PRIVATE written permission of your conditional sentence supervisor. RESIDENCE You must carry the permission with you while engaged in such work.

NO PAWNING 3632 You must not sell anything to a pawnbroker, nor give anything to a pawnbroker for money borrowed.

[29] Vehicles

NOT TO BE 3623 You must not occupy the driver’s seat of any motor vehicle. IN DRIVER You must provide a copy of this order to any peace officer SEAT who asks to see your driver’s licence.

NO DRIVING 3624 You must not occupy the driver’s seat of any vehicle (except:) EXCEPT FOR a. for the purposes of employment and then only when WORK immediately engaged in your employment or traveling

107 Specify the name, if the offender has used different names in the past. 108 This condition should be used sparingly, but may be necessary in cases of theft from employer. See, for example, R. v. Burkar t, 2006 BCCA 446 at para 23. It may form part of a separate prohibition order: s. 380.2(1) of the Criminal Code. 26 Conditional Sentence Picklist: May 1, 2017 directly to or from your place of employment. If requested, you must provide your conditional sentence supervisor with the particulars of your employment including the hours and location. b. in the event of a medical emergency and then only when traveling directly to, or returning directly from a health care facility.109 If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility you went to.110 (Continued) You must immediately provide a copy of this order to any peace officer who asks to see your driver’s licence.111

ALCOHOL 3625 1. You must not operate any motor vehicle unless it is IGNITION equipped with an Alcohol Ignition Interlock device INTERLOCK approved by the province of BC. 2. You must provide the conditional sentence supervisor with written proof of the installation of the device on any private motor vehicle you use no later than ______. 3. You must ensure that the device is in working order and you must have it monitored, inspected and maintained in accordance with the manufacturer’s recommendations. 4. Within three days after each inspection or maintenance of the device, you must provide the conditional sentence supervisor with any report or documentation produced after the inspection or maintenance. 5. You are permitted to operate a motor vehicle that is not equipped with an Alcohol Ignition Interlock device only for purposes directly related to your employment and while in the course of your employment. 6. You must provide the conditional sentence supervisor with written proof of your employment and the make, model and licence plate number of any vehicles directly related to your employment that you will be operating. 7. You must provide a copy of this order to any peace officer who asks to see your driver’s licence.

NOT TO BE 3626 You must not enter any motor vehicle, other than public IN VEHICLE transportation, unless you are the registered owner, or the

109 The term "health facility" is used because not all communities have "emergency wards". 110 See R. v. Bourque , 2013 BCCA 447 at paras 32-34. 111 In R. v. Schroeder, 2010 ONSC 1654 a similar condition was imposed. ______

27 Conditional Sentence Picklist: May 1, 2017 WITHOUT registered owner of the vehicle is present in the vehicle or you REGISTERED have in your immediate possession the written permission of OWNER 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 3627 You must not loiter in any parkade, parking lot, motor vehicle PARKING dealership lot, or property where the primary business is the LOTS repair of motor vehicles.

CONDITIONAL SENTENCE

The purpose of a conditional sentence order is explained in R. v. Proulx, 2000 SCC 5 at para. 22-23:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation…While a suspended sentence with probation is primarily a rehabilitative sentencing tool, the evidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives.

And at paragraphs 36-37:

Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception…There must be a reason for failing to impose punitive conditions when a conditional sentence order is made. Sentencing judges should always be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise have been sent to jail. If the judge is of the opinion that punitive conditions are unnecessary, then probation, rather than a conditional sentence, is most likely the appropriate disposition. There is no obligation to use this picklist. Instead, judges can create their own conditions or use a different picklist. Judicial creativity in sentencing is encouraged, including creativity in conditional sentence conditions. However the power to impose conditions cannot be construed as unlimited and absolute. The conditions should be:

a) necessary; b) clear and unambiguous; c) properly delegated; d) not in contravention of the provincial/federal legislation including the Charter; e) enforceable; and

28 Conditional Sentence Picklist: May 1, 2017 f) for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

29 Conditional Sentence Picklist: May 1, 2017