The cases, which were both argued in front of B.C. Provincial Court Judge Ted Gouge, reveal that B.C. Corrections is in possession of a legal opinion it believes severely limits the discretion of probation officers and bail supervisors in many instances.
R. v. S.N.P. concerned a convicted sexual offender who was under a probation order that did not allow him to be around young people unless he was supervised by someone approved by his probation officer. However, his probation officer told him he would never approve any supervisor, regardless of who was proposed.
The supervisor of the Port Alberni probation office told the court he and other officers had routinely approved requests for supervisors in similar cases in the past.
But in early 2014, his superiors informed him of a legal opinion that stated probation officers didn’t have the legal authority to approve supervisors in these sorts of circumstances.
“He has, however, been instructed by his superiors that neither he nor the probation officers whom he supervises is to approve any supervisors for Mr. P, or for any other offender similarly situate,” wrote Gouge.
A similar situation arose in R. v. L.P., which dealt with a woman who had been arrested for assaulting her partner. She was released on the condition she not contact her partner. However, she wished to reunify her family with the help of the Ministry of Children and Family Development and asked the court to allow her some limited contact with her partner under a variety of conditions. One of which would be that she gain written permission from her bail supervisor.
The Crown was willing to go along with that, except Crown counsel David Fitzsimmons said in his experience, bail supervisors wouldn’t actually give her permission to do so.
In both cases Gouge stated that while he has not seen the legal opinion, he believes it’s wrong.
“I am firmly of the view that the legal opinion provided to Corrections Branch is mistaken, and that probation officers have both the authority to implement bail conditions of the kind proposed . . . and the responsibility to consider, reasonably and in good faith, any proposal by Ms. P. about how that authority should be exercised in her case,” he wrote in R. v. L.P.
In R v. S.N.P., Gouge argued if the legal opinion is correct then the B.C. Court of Appeal has in the past made probation orders which the probation officers had no legal authority to implement.
“It necessarily follows that the opinion is incorrect,” he wrote.
Gouge however stated he would not be able to amend the probation orders himself since the power to oversee probation officer’s decisions lies with the superior courts.
The Ministry of Justice did not respond to a request for comment by press time.