Standard Condition on Officer Release Undertaking Restricting Travel Outside of the Province Considered

R. v. Thompson 2013 NSPC 124 – a Nova Scotia Provincial Court Judge heard an application under s. 515.1 of the Code (variation of Undertaking) to vary a Form 11.1 undertaking which required, among other things, that the accused remain within the Province of Nova Scotia.  The accused’s job required him to travel outside the province of Nova Scotia.  Officers have been called to task over recent years by simply “checking off” a release condition because it is an option for them to do, without thinking or articulating that the condition is necessary (e.g. the standard “Keep the Peace and be of Good Behaviour” clause, or a curfew clause that is not justifiable in the case).

The authority of the police to release persons arrested with or without warrant, upon terms of Form 11.1 undertakings, is set out in sub-ss. 499(2) (when the arrest is made with a warrant) and 503(2.1) (covering arrests without warrant) of the Code. The two provisions are identical, and state as follows:

… [T]he peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; or

(h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

The NSPC considered R. v. Morales [1992] S.C.J. No. 98 at paras. 35-40, which said that bail is structured to get the accused to return to court as required, prevent the commission of further offences, and prevent the commission of offences against the administration of justice; public safety and evidence preservation are implicit in this.  The NSPC said that in order for bail to be reasonable, it makes sense that the conditions of bail must be reasonable. A condition imposed upon the liberty interests of a person admitted to bail that is not connected reasonably to one of the constitutional purposes of the bail system is, in effect, not constitutionally compliant.

It followed, according to the court, that the automatic inclusion in Form 11.1 bail of a condition that the accused remain within the territorial jurisdiction of the province is not lawful, as it has the effect of making mandatory a condition that is clearly optional under paras. 499(2)(a) and 503(2.1)(a) of the Code.  As per the NSPC:

The imposition of such a condition would be constitutionally compliant only if the officer processing the release were to have sufficient grounds to believe that the accused would pose a flight risk. In none of the Form 11.1 bail-variation applications that I have heard has that been the case, which leads me to have concern that this condition is being imposed in many cases improperly.

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