R v Duguay – 2019 BCCA 53 (Fitch):

[RESIDENCY CONDITION]
[75] The imposition of a residency condition by a sentencing judge will often be a critical component of an appropriate and just community-based disposition. As the Crown points out, if
deprived of the power to impose such a condition, a sentencing judge could not prohibit:
* a paedophile from residing across the street from a school or playground,
or from residing in a multi-unit development with neighbouring children
and common space;
* a domestic abuser from residing in the familial home;
* a criminal harasser from residing across the street from his victim’s place
of residence or work; or
* a drug-addicted offender from residing at a residence used for
drug-trafficking or a “crack shack.”
Such a result would undermine the purpose of the residual clause and the obvious intent of
Parliament in enacting it.

[76] I see no reason to depart from the holding in Degan that the imposition of a residency
condition is authorized by the broad language of the residual clause and within the jurisdiction of a sentencing judge. In my view, the judge erred in coming to a contrary conclusion.
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[106] Taking all of these factors into account, it is my view that where a residency condition has
been judicially imposed, delegation to a probation officer of the authority to approve a probationer’s proposed residence is properly regarded as a permissible delegation of administrative authority to implement and manage the condition provided the order as a whole reasonably permits discernment of the criteria to be applied in determining whether to grant or withhold such approval. Challenges to residency condition on grounds of improper delegation are unlikely to arise often, as the applicable criteria will generally be evident on the face of the order and from the circumstances of the offence and the offender.

[107] Section 732.1(3)(g) was enacted in response to R. v. Rogers (1990), 61 C.C.C. (3d) 481
(B.C.C.A) and Kieling. Rogers held that a probation order compelling an offender to take psychiatric treatment or medication is contrary to s. 7 of the Charter; Kieling reached the same
result, though for different reasons. Mere attendance at counselling was not considered in Rogers or Kieling. The provision is designed to prevent the imposition of a forced treatment condition in the absence of an offender’s consent. It was not, in my view, intended to oust the jurisdiction of a
sentencing court to impose a mandatory counselling condition under the residual clause: see
Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs
(Issue No. 92, 21 March 1995); D.P. Cole, “Bill C-41: An Overview and Some Introductory
Thoughts” (Paper delivered at the Canadian Institute for the Administration of Justice Conference, Montréal, 24-26 April 1997) at 68.

[COUNSELLING per PO]
[110] In R. v. Shoker, 2004 BCCA 643, this Court amended a probation order by deleting a
reference to “treatment” but left intact a requirement that the offender attend for counselling. I
would note, however, that the authority of a sentencing judge to impose a counselling condition
under the residual clause in the absence of an offender’s consent does not appear to have been a live issue on appeal. Further, it was not an issue on appeal to the Supreme Court of Canada.

[111] In my view, a counselling condition can be imposed as part of a probation order under the
residual clause without an offender’s consent. As noted, the presentence report prepared in the case at bar carefully distinguished between counselling and active participation in a sex offender
treatment program. The language used by the sentencing judge in Condition 9 blended these two
requirements and likely ran afoul of s. 732.1(3)(g) and this Court’s judgment in Shoker. While the condition should probably have been amended, the appeal judge erred as a matter of law in
concluding that a counselling condition cannot be imposed under the residual clause without an
offender’s consent.