THIS IS ONE DRUG TEST WE NEED

Court's Refusal to Monitor Urine of Sloshed Criminals Sets Stage For
Repeat Offences

Although I have been an outspoken advocate of the legalization of all
illicit drugs, I have little tolerance for those who use their
alcohol or drug abuse as an excuse for bad behaviour. Don't tell me
it was the whiskey talking.

In terms of community safety, there is no doubt that alcohol is the
most dangerous drug of all. Over half of all murders are committed
while drunk, and recent statistics indicate that 51 per cent of all
physical assaults and 48 per cent of all sexual assaults are related
primarily to alcohol. It is also clear that when alcohol is involved
in spousal abuse, the injuries inflicted are more severe.

It would be quite reasonable to expect that our system of criminal
justice would take steps to protect us from the unpredictable drunk
and dangerous offender, but last week the Supreme Court of Canada
gave us a snapshot of the system's indifference to the problem.

The court was called upon to decide whether a judge could order urine
testing as a condition of probation.

Harjit Shoker had been convicted of break and enter with intent to
commit sexual assault. While under the influence of speed, he broke
into a stranger's apartment, disrobed and slid into the victim's bed.
Just a few months earlier he'd pulled the same stunt while drunk, but
was acquitted on the grounds that he believed he had entered a
friend's apartment. Shoker blamed his bad behaviour on drug and alcohol abuse.

Shoker was sentenced to 20 months in prison followed by two years
probation with a condition he abstain from non-medical use of drugs
and submit to random drug testing by urinalysis. The Supreme Court
concluded that the sentencing judge did not have authority under the
Criminal Code to order random urine testing, and if the power did
exist, then it infringed upon the offender's right to privacy and to
be free from unreasonable search and seizure. I found the decision surprising.

The absence in the Criminal Code of a specific grant of power to
order urine testing is not an insurmountable problem. Under the guise
of statutory interpretation, the Court has deemed day to be night and
black to be white, so the Court has often ended up adding to,
subtracting from and modifying the terms and conditions found in the Code.

I also fail to see the compelling nature of Shoker's rights claim.
I'm not a big fan of drug testing, because in its usual context of
workplace safety it has turned out to be an invasive form of
lifestyle control that bears little relationship to workplace safety
and productivity.

But in Shoker's case we are dealing with a man who clearly presents a
risk when intoxicated. Unless we expect parole and probation officers
to move in with the offender, urine testing remains the only viable
option for ensuring that the offender complies.

Due to the prevalence of alcohol-driven criminality, many offenders
are routinely ordered to abstain from drinking, smoking, snorting and
shooting. Many offenders breach this condition before they even get
home from court, just as many impaired drivers who have had their
licences suspended upon conviction end up driving home from court.
The law appears foolish and impotent when it imposes conditions that
are so blatantly flouted. It's for this reason that the original
judge in the Shoker case decided to impose urine testing as a
condition for release into the community.

In rejecting the imposition of this reasonable condition of release,
I think the Supreme Court has quietly demonstrated that we should not
expect the modern system of criminal justice to play a significant
role in solving most social problems.

With respect to alcohol and drug abuse, the system is content simply
to order the abuser to abstain, and then naively assumes that the
problem will magically disappear. Criminal justice is like the shrink
whose only advice to his clinically depressed patients is to cheer
up. The only real hope we have of changing social and behavioural
problems is to become deeply engaged and involved with the person
whose behaviour needs to be changed, but criminal justice has no
interest in this labour-intensive and enervating enterprise.

For decades, politicians have misled the public into believing that
social problems need criminal justice solutions, but the system is
too impersonal and cumbersome for this task. It must be remembered
that with the exception of a few pilot projects, criminal courts do
not operate in conjunction with any other social services. They know
there's a high correlation between crime, substance abuse and
unemployment, so it's remarkable that criminal courts do not maintain
a dialogue and working relationship with agencies responsible for
vocational training and drug treatment.

It is the height of reckless indifference to release Shoker into the
community with no effective social control when there are reasonable
grounds to believe he may pose a danger to women when drunk or stoned.

But even if the Supreme Court had permitted random urine testing,
this would not necessarily solve the problem. If Shoker's urine
tested positive, then the court's only mandate would be to consider
whether he should be convicted of breach of probation. Perhaps he
would be sent back to jail for a short period. While the system can
move Shoker quickly through the revolving prison door, it seems
powerless to change the conditions that brought him into the system
in the first place.