In R. v. E.Z.O., 2023 BCCA 122, March 6, 2023, the accused, a young offender, was  convicted of a number of offences. A custodial sentence, followed by a period of probation was imposed.  The probation order contained the following conditions:

Condition 4: You must reside as directed by your Youth Worker and obey all the rules and regulations of that residence and not change your residence without obtaining the prior written permission of your Youth Worker.

Condition 6: You are to attend for and participate in any assessment, treatment, counselling or programming as directed by your Youth Worker, including but not limited to that which is offered through Youth Forensic Psychiatric Services.

The accused appealed from sentence, arguing that the conditions were unreasonable. Section 38(2)(e.1) of the Youth Criminal Justice Act indicates that conditions as part of a youth sentence may only be imposed if: “(i) it is necessary to achieve the purpose set out in s. 38(1); (ii) the young person will reasonably be able to comply with the condition; and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures”.

The appeal was allowed. The British Columbia Court of Appeal indicated that the “power to craft individualized conditions of probation is broad, but it is not unlimited…In R. v. Duguay, 2019 BCCA 53 at para. 66, this court affirmed the need for probation conditions ‘to be clear, unambiguous and enforceable’, ‘reasonable’ in the circumstances and ‘desirable’ to achieve the purposes of a probation order’, and ‘compliant with other provincial and federal legislation’” (at paragraph 10).

Condition 4:

The Court of Appeal concluded that the words “and obey the rules and regulations of that residence” must “be deleted from Condition 4” (at paragraphs 15 and 16):

In this case, I am persuaded that the term requiring obedience to the rules and regulations must be deleted, for four reasons. First, the sentencing judge did not have before her the substance of the residence’s rules and regulations that she required the appellant to obey. Rather, the manager of the residence provided an imprecise summary of them, such as “respecting the staff”, “doing chores”, and “cleaning up”. Although the sentencing judge properly sought to clarify those rules and regulations, the witness was not in a position to answer her reasonable questions. In this circumstance, it cannot be said that the rules and regulations of the residence were properly reviewed by the court for content, reasonableness, or clarity.

Second, arising from this gap in the evidence, the result here is a condition that, considering the potential penal consequences to the appellant of non‑compliance, is impermissibly vague. Third, there is no evidence in the record that could give the court confidence that the residence’s rules and regulations were not subject to material change by management. Such indeterminate flexibility in the material content of standards incorporated into a probation order is, in my view, incompatible with the court’s judicial function, remembering that breach of the term could result in penal consequences. Fourth, there was a vacuum of information necessary for the judge to properly consider s. 38(2)(e.1), and indeed no reference was made in the reasons to the requirements of that provision.

Condition 6:

The Court of Appeal noted that section 42(8) of the Youth Criminal Justice Act states: “Nothing in this section abrogates or derogates from the rights of a young person regarding consent to physical or mental health treatment or care”.

The Court of Appeal pointed out that the “right of a minor to consent to health care is codified in the Infants Act, R.S.B.C. 1996, c. 223, s. 17, with the critical test being that the youth understands the nature and consequences and the reasonably foreseeable benefits and risks of the care.  And so it is that in certain circumstances, a youth may be capable of deciding the issue of consent in respect of treatment. I will call this youth ‘the mature minor’” (at paragraph 24).

The Court of Appeal concluded that condition 6 should be varied so as to add the words “except that you shall not be required to submit to any treatment or medication to which you do not consent” (at paragraphs 25 to 27):

In this case, the sentencing judge did not individually tailor Condition 6 to address the applicability of the potential right of a mature minor to refuse or consent to medical treatment, to the case before her. I conclude that imposition of the condition requiring the appellant to attend for and participate in any treatment without consideration of his potential right to refuse medical treatment, is a failure to consider a relevant factor of the sort that allows us to intervene.

Further, the nature of the treatment captured by this term is ambiguous. It lacks any description of the type of treatment contemplated and is, so to speak, a blank cheque for treatment of any sort. Without more definition in Condition 6, it cannot be said that the judge addressed the issues set out in s. 38(2)(e.1)