COURT BLOCKS DRUG TESTS FOR HOME INVADER

Probation Condition Violates B.C. Man's Privacy Rights, Judges Rule

OTTAWA -- The Supreme Court of Canada will decide if it would violate the
privacy rights of a drug-addled intruder, who crept naked into bed beside a
sleeping woman, to require him to give occasional urine samples as part of
a probation order that he abstain from non-prescription drugs.

The high court agreed on Thursday to hear the B.C. Crown's appeal of a B.C.
Court of Appeal ruling last December which concluded the constitutional
right of Harjit Singh Shoker to be secure against unreasonable search and
seizure was violated by a probation condition ordering Shoker to submit to
a urinalysis, blood tests or breathalysers when demanded by police or his
probation officer.

The Appeal Court ruled the condition, which appears in thousands of
probation orders across the country, to be unconstitutional and deleted it.

The province's appeal to the top court will determine whether Canadian
sentencing judges have the power to enforce probation requirements that
offenders abstain from drugs and/or alcohol by also requiring offenders to
undergo periodic urinalysis, bloodtesting or breathalyser tests, at the
request of police or probation officers.

The case also asks if judges do have that power, must authorities have
"reasonable and probable grounds" to believe that the offender has taken
drugs or alcohol before they can demand a sample?

Shoker was convicted of break and enter with the intention of committing
sexual assault after he broke into a home in Abbottsford at midnight on
Sept. 7, 2003 and attempted, while naked, to climb into a sleeping woman's
bed. The victim, who was married to an RCMP officer, jumped out of bed
screaming and called 911. Her husband then arrived and arrested Shoker.

Shoker, who has used heroin, speed, cocaine and marijuana, said he was "not
thinking straight" because he was on drugs. He was sentenced to 20 months
in jail, and two years' probation.

He had earlier lost his driver's licence due to an accident caused by his
drug impairment, and a psychologist testified Shoker "showed a lack of
insight into the seriousness" of his substance abuse problem. He was
previously charged and acquitted of entering the home of another sleeping
woman and pulling the blankets off her.

The B.C Appeal Court deleted the probation condition requiring Shoker to
supply bodily samples on request because it concluded there were simply no
safeguards in the Criminal Code that would prevent authorities from
demanding and seizing offenders' bodily samples arbitrarily.

The court acknowledged it was striking down a widely used enforcement
condition but said "there is a gap in the legislation that is the role of
Parliament, not the courts, to fill.

In the absence of such provisions, however, probation officers and police
officers must rely on other methods of enforcing conditions of abstention,
including testimony as to the reasonable grounds for believing that a
person has breached the condition." As is its practice, the Supreme Court
did not give reasons for agreeing to hear the appeal.