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10-13-2006, 06:47 PM
Can't compel blood, urine samples as probation condition: Supreme Court
Last Updated: Friday, October 13, 2006 | 2:54 PM ET
CBC News
Judges cannot issue probation orders requiring people to provide blood
or urine samples to check if they are obeying conditions to abstain
from drugs or alcohol, the Supreme Court of Canada ruled Friday.
In dismissing a Crown appeal of a B.C. Court of Appeal decision, the
country's top court ruled that probation orders compelling people to
provide bodily samples were contrary to the Charter of Rights and
Freedoms.
'The seizure of bodily samples must be subject to stringent
standards and safeguards to meet constitutional requirements.'—
Supreme Court ruling
It noted that there is no federal law giving the courts power to order
such tests in these circumstances.
"Compelling blood tests, absent a statutory framework governing such
tests, is not consistent with the charter and random drug testing at a
probation officer's discretion could become highly arbitrary," the
court said.
The case began in September 2003, when an Abbotsford, B.C., woman
awoke to find a naked intruder, Harjit Singh Shoker, crawling into her
bed.
Shoker was sentenced to 20 months in jail for breaking and entering
with intent to commit sexual assault and placed on two year's
probation.
Continue Article
A psychological assessment prepared for his sentencing indicated that
Shoker blamed his behaviour on drug use and that he had a history of
substance abuse.
Judge had no authority for order, court says
As a condition of his probation, he was ordered to stay away from
drugs and alcohol and also submit to urinalysis, blood tests or
breathalyzer tests upon the demand of a peace officer or probation
officer to determine whether he was complying.
The judge also said any positive reading would constitute a breach of probation.
Shoker appealed and a B.C. Court of Appeals justice upheld the
sentence but overturned the probation conditions requiring the tests.
The Supreme Court agreed, ruling unanimously that the sentencing judge
had no authority to authorize a search and seizure of bodily
substances as part of a probation order and no jurisdiction to
predetermine that any positive reading was a breach.
"The seizure of bodily samples must be subject to stringent standards
and safeguards to meet constitutional requirements," the court said.
It also said considering a positive test an automatic breach of
probation "is contrary to criminal law principles that require guilt
to be proved in the usual manner."
http://www.cbc.ca/canada/story/2006/10/13/probation-samples.html
http://scc.lexum.umontreal.ca/en/2006/2006scc44/2006scc44.html
Last Updated: Friday, October 13, 2006 | 2:54 PM ET
CBC News
Judges cannot issue probation orders requiring people to provide blood
or urine samples to check if they are obeying conditions to abstain
from drugs or alcohol, the Supreme Court of Canada ruled Friday.
In dismissing a Crown appeal of a B.C. Court of Appeal decision, the
country's top court ruled that probation orders compelling people to
provide bodily samples were contrary to the Charter of Rights and
Freedoms.
'The seizure of bodily samples must be subject to stringent
standards and safeguards to meet constitutional requirements.'—
Supreme Court ruling
It noted that there is no federal law giving the courts power to order
such tests in these circumstances.
"Compelling blood tests, absent a statutory framework governing such
tests, is not consistent with the charter and random drug testing at a
probation officer's discretion could become highly arbitrary," the
court said.
The case began in September 2003, when an Abbotsford, B.C., woman
awoke to find a naked intruder, Harjit Singh Shoker, crawling into her
bed.
Shoker was sentenced to 20 months in jail for breaking and entering
with intent to commit sexual assault and placed on two year's
probation.
Continue Article
A psychological assessment prepared for his sentencing indicated that
Shoker blamed his behaviour on drug use and that he had a history of
substance abuse.
Judge had no authority for order, court says
As a condition of his probation, he was ordered to stay away from
drugs and alcohol and also submit to urinalysis, blood tests or
breathalyzer tests upon the demand of a peace officer or probation
officer to determine whether he was complying.
The judge also said any positive reading would constitute a breach of probation.
Shoker appealed and a B.C. Court of Appeals justice upheld the
sentence but overturned the probation conditions requiring the tests.
The Supreme Court agreed, ruling unanimously that the sentencing judge
had no authority to authorize a search and seizure of bodily
substances as part of a probation order and no jurisdiction to
predetermine that any positive reading was a breach.
"The seizure of bodily samples must be subject to stringent standards
and safeguards to meet constitutional requirements," the court said.
It also said considering a positive test an automatic breach of
probation "is contrary to criminal law principles that require guilt
to be proved in the usual manner."
http://www.cbc.ca/canada/story/2006/10/13/probation-samples.html
http://scc.lexum.umontreal.ca/en/2006/2006scc44/2006scc44.html