R v Goddard, 2019 BCCA 164
Were certain conditions attached to the appellant’s probation vague, overbroad and unreasonable because there was an insufficient nexus between the conditions and the protection of the public and the appellant’s rehabilitation?
Of the 23 conditions imposed by the sentencing judge, the British Columbia Court of Appeal struck conditions 17 and 18 as a violation of the Appellant’s rights under the Charter.
The Fine Print
This was a complicated case where the 29-year-old Appellant pleaded guilty to breaching several conditions of his sentence. His criminal record dated back to 2010 and the offences included sexual offences against minors where the internet was used to contact the young victims.
This matter related to a breach of probation where the Appellant pleaded guilty to possessing a mobile phone capable of accessing the internet contrary to section 733.1(1) of the Code. He was sentenced to 1 day in jail followed by 3 years of probation which included 23 conditions. The defence contended that some of the conditions imposed should not be enforceable as they were unauthorized by government legislation and infringed the Appellant’s Charter rights.
At para 19, the BCCA noted the sentencing judge’s wide discretion in determining conditions on probation and that the appellate court will only intervene should there be an error in principle or a condition that is clearly unreasonable/manifestly inappropriate/renders the sentence unfit.
Under section 732.1(3)(h) of the Code, the sentencing judge is able to impose reasonable probation conditions that are considered desirable for “protecting society and facilitating the offender’s successful reintegration into society.” Along with these purposes, the conditions must also be reasonable and compliant with other provincial and federal legislation, including the Charter. “Reasonable conditions” will generally be linked to the particular offence but that is not an absolute requirement. What is required is a nexus between the offender, the protection of the community and the offender’s reintegration into the community: R v Duguay, 2019 BCCA 53 at para 65. R v Proulx, 2000 SCC 5 also held at para 32 that probation has typically been viewed as a rehabilitative sentencing tool and while it may have punitive aspects of effects, punishment will not be the primary purpose of its imposition.
The impugned conditions read as follows (at paras 33 and 34):
Condition 17: You shall, upon your consent, allow any peace officer and/or probation officer to examine any device in your possession and permit any peace officer to bring any device in your possession to the police department to verify compliance with this order. You shall provide any peace officer and/or probation officer any passwords, access codes and manuals associated to any device in your possession to enable examination of the device. If you do not consent, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer decides that daily reporting is not necessary [Emphasis added].
Condition 18: You shall, upon your consent, allow any peace officer and/or probation officer to access your residence to confirm your compliance with the conditions of this order. If you do not consent to allow a peace officer and/or probation officer access to your residence to confirm compliance with conditions of this order, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer determines that daily reporting is no longer necessary [Emphasis added].
The Court noted at para 41 that, “[the Appellant] can refuse to provide consent to these searches. Significantly, however, his refusal comes at the price of daily reporting to his probation officer for as long as the probation officer deems necessary.” The Court found that the threat of daily reporting, should the Appellant not consent to a search, to be extraneous to the purpose of preventing him from using the internet to prey upon children. At para 48, the Court noted about the condition, “[…] it is, in its effect, a retaliatory and punitive measure that appears to be designed to pressure the appellant to waive his constitutional right.”
As noted at para 49, “[f]or a waiver of constitutional rights to be valid it must, among other things, be voluntary, meaning that the individual can choose one course of conduct over another, free from coercion.” The Court stated at para 53 that without the daily reporting provisio, the conditions would likely be acceptable. However, the conditions would simply state that the Appellant could consent to a search and this was unnecessary. Both of the conditions were struck from the Appellant’s probationary order.