PROBATIONERS NEED NOT GIVE FLUID SAMPLES

OTTAWA - Convicted criminals cannot be ordered to surrender blood and
urine samples on demand when they're out of jail on probation, the
Supreme Court of Canada ruled Friday.

The decision is a victory for an Abbotsford, B.C., man convicted of
sexual assault, whom a judge ordered to submit fluid samples if
required by police because he had a history of substance abuse.

"The seizure of bodily samples is highly intrusive," wrote Justice
Louise Charron in the unanimous ruling. "It is subject to stringent
standards and safeguards to meet constitutional requirements."

Judges, therefore, cannot order that samples be given without a
federal law in place that deals with privacy concerns, the court concluded.

"There is no question that a probationer has a lowered expectation of
privacy," wrote Charron. "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."

Harjit Singh Shoker was sentenced to 20 months in jail and two-years
probation for a September 2003 break-and-enter in which he climbed
naked into the bed of an RCMP officer's wife.

The woman called 911, but her husband came home and arrested the
intruder before the local police arrived.

Shoker was convicted of break-and-enter with intent to commit sexual
assault.

There was evidence in court that Shoker, then 25, was high on drugs
when he committed his crime and that he had a history of alcohol abuse.

Conditions Of Release

One of the conditions of his release from jail was that he abstain
from drugs and alcohol and submit to urinalysis, blood tests or a
breathalyser if requested by police or his probation officer.

The case raises the perennially competing interests of privacy rights
verses public safety concerns.

The Crown had argued in the appeal that the conditions imposed on
Shoker upon release were "highly desirable for the rehabilitation of
the offender and the protection of the public" and that there needed
to be an effective way of checking up on him.

Charron noted in the ruling that the power to demand samples would
"undoubtedly assist" in enforcing Shoker's probation conditions.

"But it cannot on that basis simply be implied," she wrote.

Charron added that in cases where Parliament authorizes the collection
of bodily samples, it uses clear language and sets out standards and
safeguards for collecting them.