TOP COURT'S RULING SENDS DRUG TESTS BACK TO PARLIAMENT

Man Fought Order for Random Drug-Checking While On Probation

Harjit Singh Shoker -- the 25-year-old jailed for climbing naked and
uninvited into bed with an RCMP officer's wife -- has won his
two-year battle against random drug testing while on probation.

What's funny about the Supreme Court of Canada ruling last week is
that Victoria cut funding for the urinalysis program in March 2003,
meaning Shoker never actually had a date with the beaker.

Still, while the issue was moot, the court considered whether any
offender can be required under the terms of a probation order to
submit to a demand for a sample of bodily substances, including
breath, urine and blood.

The country's highest bench held the Criminal Code did not authorize
such a search and seizure of bodily substances.

It confirmed the B.C. Court of Appeal's December decision to quash
that section of Shoker's probation order because it violated his
constitutional rights.

Judges in B.C. since have been ordering probationers to abstain from
illicit drugs and alcohol but have not included the companion (and
near-automatic in the past) random-testing provision.

High on speed at the time of this September 2003 incident, Shoker was
convicted of break and enter with intent to commit sexual assault --
the woman called 911 and her RCMP husband raced home to make the
arrest before the Abbotsford cops arrived.

Shoker was sentenced to 20 months' imprisonment and two years'
probation with conditions to help control the risk.

He has a history of substance abuse, so he also was ordered to
undergo treatment.

The B.C. Court of Appeal said the trial judge had no authority to
order treatment without Shoker's consent -- and tossed that provision.

No one disagreed.

The trial judge also ordered Shoker to abstain from alcohol and drugs
and to provide on demand samples of his urine or other bodily fluids
as a monitoring mechanism.

When the Court of Appeal erased that provision too, the B.C. Crown --
even though the province had eliminated the urinalysis program --
appealed to the Supreme Court.

What's interesting about this ruling is that the high court looks to
be defending charter rights when in effect, it's merely telling
Parliament to do its job if it wants this kind of testing regime.

Justice Louise Charron, who wrote the majority ruling, didn't rule
out the possibility of such "highly intrusive" action.

She said it required "stringent standards and safeguards to meet
constitutional requirements."

"There is no question that a probationer has a lowered expectation of
privacy," Charron wrote. "However, it is up to Parliament, not the
courts, to balance the probationers' charter rights as against
society's interest in effectively monitoring their conduct."

Where Parliament authorizes the collection of bodily samples, it uses
clear language and sets out standards and safeguards for collecting
these samples.

At present, there are three areas where the seizure of bodily fluids
is authorized: the collection of DNA samples for investigative
purposes or for inclusion in the DNA databank; the collection of
breath and blood samples during the investigation of impaired driving
offences, and the collection of urine samples from federal prisoners
and parolees.

Justice Charron said lawmakers in this case had not provided in this
section of the Criminal Code for the collection of bodily samples
from those on probation.

She said if Parliament wants judges to impose such testing in
probationary orders, it must provide safeguards for individual privacy rights.

"The establishment of these standards and safeguards cannot be left
to the discretion of the sentencing judge in individual cases,"
Justice Charron added.

"Those are precisely the kinds of policy decisions for Parliament to
make having regard to the limitations contained in the charter . . .