BLOOD, PEE TESTS NOT CONSTITUTIONAL

Judges cannot order convicted criminals to surrender blood and urine
samples on demand when on probation, the seven-member Supreme Court
of Canada ruled on Oct. 13.

The decision stems from the case of Abbotsford resident Harjit Singh
Shoker, who in a drug stupor, broke into an Abbotsford home at
midnight on Sept. 7, 2003, and crawled naked into the bed of an RCMP
officer's wife. He followed the woman into the kitchen when she
called 911, but her husband came home and arrested the intruder
before the local police arrived.

Shoker was subsequently convicted of break and enter with intention
to commit a sexual assault, and was sentenced to 20 months in jail
and two years probation.

Probation conditions required Shoker to submit to random drug tests
when ordered by police or his probation officer. Shoker had used
heroin, speed, cocaine and marijuana. Drug tests could include
urinalysis, breathalyzer and blood tests.

However, in December 2004, the three-member B.C. Court of Appeal
ruled 2-1 that Shoker's constitutional right to be secure against
unreasonable search and seizure was violated by the probation order.
columnist Ian Mulgrew noted last week that Victoria cut funding for
the urinalysis program in March 2003, meaning Shoker never actually
had to produce a sample.

The Supreme Court agreed on June 30, 2005 to hear the B.C. Crown
prosecutors' appeal of the Court of Appeal finding.

The Supreme Court found the Criminal Code of Canada did not authorize
search and seizure of bodily substances.

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

She said while "there is no question that a probationer has a lowered
expectation of privacy . . . it is up to Parliament, not the courts,
to balance the probationers' Charter rights as against society's
interest in effectively monitoring their conduct."