Clause 2 of the bill would require sentencing courts to impose, as part of all probation orders, mandatory conditions prohibiting an offender from communicating with a victim, witness, or other person identified in the order unless that person consents to that contact, or unless the court finds there are exceptional circumstances for not doing so. In the latter case, the courts would be required to provide written reasons for the decision.
The government motion would amend this clause in two ways.
First, it would add a subsection to clause 2 to require, where the victim or other person provides consent to any contact, that consent must be given in writing or in some other manner approved by the court. The reason is this simply clarifies the nature of the consent and ensures certainty that the victim's consent was in fact given in any subsequent proceeding.
The second part of the amendment would amend subsection 2.1 of clause 2 to require the court to state on the record, instead of providing written reasons, its decision for not imposing a condition prohibiting an offender from communicating with a victim. Written reasons in a court are not provided in many cases, and to require written reasons would result in unintended and unnecessary administrative delays and cost. Moreover, the motion's proposed approach is consistent with other Criminal Code provisions, such as where discretionary conditions are currently imposed under subsection 83.3(1), recognizance; subsection 110(3), weapons prohibitions; and subsection 719(3.2), credit for time served.