BILL 4 — 2011
OFFENCE AMENDMENT ACT, 2011

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 of the Offence Act, R.S.B.C. 1996, c. 338, is amended by adding the following definitions:

"optional conditions" means the conditions referred to in section 89.2 that may be included in a probation order;

"probation order" means a probation order made under section 89; .

2 Section 41 (1) is amended by striking out "who executed the warrant," and substituting "who issued the warrant,".

3 Section 73 is repealed.

4 Section 87 is repealed and the following substituted:

Intermittent imprisonment

87  (1) If a defendant who is convicted of an offence is sentenced to a term of imprisonment of 90 days or less and the justice considers it just and reasonable to do so, the justice may, by order, direct that the defendant

(a) serve the sentence intermittently at the times specified by the justice in the order, and

(b) comply with the conditions in a probation order

(i) when the defendant is not in custody during the period the sentence is being served, and

(ii) on the defendant's release from custody after the defendant completes the sentence.

(2) A defendant who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to a prosecutor, apply to a justice for an order allowing the defendant to serve the sentence on consecutive days.

(3) If a justice imposes a term of imprisonment on a defendant who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence must be served on consecutive days, unless the justice orders otherwise.

5 Section 89 is repealed and the following substituted:

Probation order

89  If a defendant is convicted of an offence, the justice, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding the commission of the offence, may, by order,

(a) instead of sentencing the defendant to punishment, suspend the passing of sentence and direct that the defendant be released on the conditions in a probation order, or

(b) in addition to imposing on the defendant a fine or term of imprisonment, direct that the defendant comply with the conditions in a probation order.

6 The following sections are added:

Mandatory conditions in probation order

89.1  The justice must include, as conditions in a probation order, that the defendant do all of the following:

(a) keep the peace and be of good behaviour;

(b) appear before the court as and when required to do so by a justice;

(c) notify the justice or a person designated by the justice

(i) in advance of any change in the defendant's name or address, and

(ii) promptly of any change in the defendant's employment or occupation.

Optional conditions in probation order

89.2  The justice may include, as additional conditions in a probation order, that the defendant must comply with one or more of the following, as specified in the order:

(a) the defendant must report to a probation officer or other person designated by the justice

(i) within 2 business days after the probation order is made, unless a longer period is specified by the justice, and

(ii) after reporting under subparagraph (i), at the times and in the manner directed by the probation officer or designated person;

(b) the defendant must be under the supervision of the probation officer or designated person referred to in paragraph (a);

(c) the defendant must not possess or consume

(i) alcohol or other intoxicating substances, or

(ii) a controlled substance, as defined in the Controlled Drugs and Substances Act (Canada), except in accordance with a medical prescription;

(d) the defendant must not own, possess or carry a weapon;

(e) the defendant must provide for the support or care of a spouse or other dependants;

(f) the defendant must perform community service;

(g) if the defendant agrees and is accepted into the program, the defendant must actively participate in a treatment or other program approved by the government;

(h) the defendant must make restitution or reparation for any loss or damage suffered as a result of the commission of the offence;

(i) the defendant must not make contact with a person or may have only limited contact with a person;

(j) the defendant must not be present at a place or premises;

(k) the defendant must provide a written apology;

(l) the defendant must comply with any other reasonable conditions the justice considers appropriate to

(i) protect the public,

(ii) prevent similar unlawful conduct by the defendant, or

(iii) contribute to the rehabilitation of the defendant.

Term and form of probation order

89.3  (1) A probation order may be kept in force for a term not exceeding 2 years.

(2) The justice who makes a probation order must specify the term of the probation order.

(3) A probation order may be in Form 25.

Obligations of justice

89.4  (1) The justice who makes a probation order must take reasonable steps to ensure that the defendant

(a) receives a copy of the order,

(b) receives an explanation of the following:

(i) the mandatory and optional conditions in the order;

(ii) the process under section 89.5 for making changes to the order;

(iii) the consequences under section 89.6 for failing to comply with a probation order, and

(c) understands the order and the explanations given under paragraph (b).

(2) For certainty, a failure to comply with subsection (1) does not affect the validity of a probation order.

Changes to probation order

89.5  (1) A defendant, probation officer or prosecutor, with notice to the others, may apply to a justice for an order under subsection (3).

(2) On an application under subsection (1), the justice must require the defendant to appear before the justice.

(3) After hearing from the defendant and one or both of the probation officer and the prosecutor, the justice may, by order, do any of the following:

(a) if the justice considers it appropriate because of a change in circumstances,

(i) change an optional condition in the probation order,

(ii) add an optional condition to the probation order, or

(iii) remove an optional condition from the probation order;

(b) relieve the defendant from compliance with an optional condition in the probation order, either absolutely or on terms or for a period the justice considers appropriate;

(c) terminate the probation order or decrease the period for which the probation order is to be kept in force.

(4) If the justice makes an order under subsection (3), the justice must

(a) endorse the probation order accordingly, and

(b) take reasonable steps to ensure that the defendant

(i) is informed of any changes made to the probation order under subsection (3) (a) to (c), and

(ii) receives a copy of the endorsed probation order.

Failure to comply with probation order

89.6  (1) A defendant who is bound by a probation order commits an offence if the defendant, without reasonable excuse, fails to comply with a condition in the probation order.

(2) A defendant who is charged with an offence under subsection (1) may be tried and punished by any justice having jurisdiction to try that offence in

(a) the place where the offence is alleged to have been committed, or

(b) the place where the defendant is found, arrested or in custody.

Arrest without warrant

89.7  (1) In this section, "police officer" means

(a) a special provincial constable, as defined in the Police Act,

(b) a designated constable, as defined in the Police Act,

(c) an officer, member or constable of the provincial police force,

(d) an officer, member or constable of a municipal police force in the Province, or

(e) a member of the Royal Canadian Mounted Police.

(2) A police officer may arrest without warrant a person whom the police officer believes on reasonable and probable grounds is committing an offence under section 89.6.

Application of provisions in section 732.2 of Criminal Code

89.8  Section 732.2 (1) and (2) (a) of the Criminal Code applies, with the necessary changes and so far as applicable, to a probation order.

7 Section 90 is repealed and the following substituted:

Additional punishment for breach of probation order

90  (1) A justice who meets the requirements under subsection (2) may make an order under subsection (3) if a defendant who is bound by a probation order is convicted of an offence, including an offence under section 89.6, and

(a) the defendant has elected not to appeal against the conviction for that offence,

(b) the time limit for bringing an appeal against the conviction for that offence has expired and the defendant has not appealed against the conviction, or

(c) the defendant has appealed against the conviction for that offence and the appeal has been dismissed or abandoned.

(2) A justice may make an order under subsection (3) only if the justice

(a) is the same justice who made the probation order, or

(b) has jurisdiction in the territorial division in which the probation order was made.

(3) If the requirements under subsections (1) and (2) are met, then, in addition to any punishment that may be imposed for the offence, the justice may, by order,

(a) change an optional condition in the probation order,

(b) add an optional condition to the probation order,

(c) remove an optional condition from the probation order,

(d) extend the period, by not more than one year, for which the probation order is to be kept in force,

(e) terminate the probation order, or

(f) if the probation order was made under section 89 (a),

(i) revoke the probation order, and

(ii) impose any sentence that could have been imposed if the passing of sentence had not been suspended.

(4) If a justice makes an order under subsection (3), the justice must

(a) endorse the probation order accordingly, and

(b) take reasonable steps to ensure that the defendant

(i) is informed of any changes made to the probation order under subsection (3) (a) to (f), and

(ii) receives a copy of the endorsed probation order.

8 Section 104 is amended by striking out "the Supreme Court Civil Rules." and substituting "the Criminal Rules of the Supreme Court of British Columbia."

9 Section 124 (1) (a) is amended by striking out "section 109, or" and substituting "section 102, or".

10 The Schedule is amended

(a) by repealing Form 13, and

(b) by adding the following Form:

Form 25

(Offence Act)

Probation Order

Canada:
Province of British Columbia:
County of

On .......................... [month, day, year], ....................................................................... [here insert name of defendant], called the "defendant", of ........................................................ [here insert city of residence of defendant], was convicted of the offence of ..................................................................................................................... [here state the offence to which the defendant pleaded guilty or for which the defendant was convicted or found guilty, as the case may be], contrary to section .............. [here state the section number] of the ............................................. Act [here name the Act under which the defendant was convicted].

On .......................... [month, day, year], at ............................................................... [here insert location of courthouse], [check all that apply]

❏ instead of sentencing the defendant to punishment, the court suspended the passing of sentence and directed that the defendant be released on the conditions set out below.

❏ in addition to imposing on the defendant

❏ a fine

❏ a term of imprisonment,

the court directed that the defendant comply with the conditions set out below.

❏ the court imposed on the defendant a term of imprisonment and directed that the defendant

❏ serve the sentence of imprisonment intermittently

❏ comply with the conditions set out below when the defendant is not in custody during the period the sentence is being served

❏ comply with the conditions set out below on the defendant's release from custody after the defendant completes the sentence.

The court ordered that for the period of ...................................... [here insert term of probation order], starting on .................................... [here insert the date (month, day, year) of the order or, if compliance will start on a different date, insert or describe that date], the defendant must

1. keep the peace and be of good behaviour,

2. appear before the court as and when required to do so by a justice, and

3. notify the justice or a person designated by the justice

a. in advance of any change in the defendant's name or address, and

b. promptly of any change in the defendant's employment or occupation.

And, in addition, the defendant must [here state any additional conditions imposed under section 89.2 of the Offence Act]

4. ...........................................................................

5. ...........................................................................

6. ...........................................................................

[etc.] ............................................................................

Consequential Amendments

Access to Abortion Services Act

11 Section 14 of the Access to Abortion Services Act, R.S.B.C. 1996, c. 1, is amended

(a) in subsection (2) (b) by striking out "recognizance entered into" and substituting "probation order made",

(b) by repealing subsection (6) and substituting the following:

(6) If a justice makes a probation order under section 89 (a) of the Offence Act in respect of a defendant convicted of a first offence under this Act, the justice, in addition to or in place of the conditions set out in section 89.2 of the Offence Act, may order that the defendant must not enter an access zone. ,

(c) in subsection (7) by striking out "be placed on probation by entering into a recognizance, with or without sureties." and substituting "be placed on probation, with or without sureties, and comply with the conditions in a probation order.", and

(d) in subsections (8), (9) and (10) by striking out "recognizance" and substituting "probation order".

12 Section 15 (2) (b) is repealed and the following substituted:

(b) respecting the form of

(i) an undertaking or a recognizance for the purposes of section 12, and

(ii) a probation order for the purposes of section 14 (7);".

Commencement

13  This Act comes into force by regulation of the Lieutenant Governor in Council.

 
Explanatory Notes

SECTION 1: [Offence Act, section 1] adds definitions of "optional conditions" and "probation order" to the Act.

SECTION 2: [Offence Act, section 41] is a housekeeping amendment that replaces a word for clarity.

SECTION 3: [Offence Act, section 73] is self-explanatory.

SECTION 4: [Offence Act, section 87]

• allows a probation order to be imposed in conjunction with an intermittent sentence;
• allows a defendant to apply to court for permission to serve an intermittent sentence on consecutive days;
• provides a default rule for a defendant who receives a jail sentence while serving an intermittent sentence for another offence.

SECTION 5: [Offence Act, section 89] authorizes a probation order to be imposed instead of or in addition to a fine or term of imprisonment.

SECTION 6: [Offence Act, sections 89.1 to 89.8]

• sets out conditions that must be included in a probation order;
• sets out additional conditions that may be included in a probation order;
• specifies the maximum term of a probation order and provides a form that may be used for a probation order;
• requires the court to provide a defendant with a copy of a probation order and with an explanation of the terms of the probation order;
• provides a process and sets out changes that may be made to a probation order;
• creates an offence for failing to comply with a probation order;
• authorizes the police to arrest without warrant a person who is breaching a condition in a probation order;
• specifies that certain provisions of the Criminal Code apply to probation orders.

SECTION 7: [Offence Act, section 90] provides additional punishment options that can be used when a defendant who is subject to a probation order is convicted of another offence, such as breaching a probation order.

SECTION 8: [Offence Act, section 104] is a housekeeping amendment that replaces a reference to the Supreme Court Civil Rules with a reference to the Criminal Rules of the Supreme Court of British Columbia.

SECTION 9: [Offence Act, section 124] is a housekeeping amendment that corrects a cross-reference.

SECTION 10: [Offence Act, Schedule] repeals a Form, consequential to amendments made by this Bill, and adds a new Form for probation orders.

SECTION 11: [Access to Abortion Services Act, section 14] is consequential to amendments made to the Offence Act by this Bill.

SECTION 12: [Access to Abortion Services Act, section 15] is consequential to amendments made to the Offence Act by this Bill.