JUDGES' RIGHTS LIMITED, SUPREME COURT DECLARES

Probation Order In B.C. Sexual-Assault Case Overstepped Charter
Tenets, Ruling Says

A British Columbia judge went too far when he ordered a man convicted
of sexual assault to submit blood and urine for testing on demand as a
condition of his probation, the Supreme Court of Canada ruled yesterday.

"The seizure of bodily samples is highly intrusive and -- as this
court has often reaffirmed -- it is subject to stringent standards and
safeguards to meet constitutional requirements," the judges said in a
7-0 ruling.

"Such a scheme cannot be judicially enacted on the ground that a court
may find it desirable in an individual case . . . The establishment of
these standards and safeguards cannot be left to the discretion of the
sentencing judge in individual cases."

The ruling raised issues that have often sparked public controversy in
the past: the privacy rights of the criminally accused versus the need
to detect and discourage crime.

"There is no question that a probationer has a lowered expectation of
privacy," Madam Justice Louise 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."

The case involved a Vancouver man, Harjit Singh Shoker, who broke into
a woman's home on Sept. 7, 2003, and slipped into her bed naked. When
she ran to the kitchen to call police, Mr. Shoker followed her, and
did not attempt to flee.

Mr. Shoker was convicted of breaking and entering with intent to
commit sexual assault. His trial judge heard evidence that the
defendant was on speed at the time and that he had a history of
substance abuse.

Mr. Shoker was given 20 months in jail and two years on probation. The
probation order specified that he could not consume drugs or alcohol.
It also included a compliance condition stating that Mr. Shoker must
provide samples of breath, urine or blood on demand to his probation
officer.

If any of the samples indicated that Mr. Shoker had been drinking or
taking drugs, the judge said, it would constitute a breach of his
probation order.

The order was rooted in a broad right for judges to impose "other
reasonable conditions," which may protect society and facilitate the
offender's reintegration into the community.

In its ruling, the Supreme Court said that while sentencing judges may
prohibit a broad range of behaviour under a probation order, breaches
have to be investigated and dealt with by probation officers and
police in the usual manner.

In separate reasons for the judgment, Mr. Justice Louis LeBel and Mr.
Justice Michel Bastarache deviated from their colleagues by saying
that sentencing judges do have a statutory right to impose this type
of condition. However, they said the particular order in the Shoker
case amounted to a breach of the Charter's search-and-seizure section.

"Although it may very well be a more efficient way to monitor
compliance, random drug testing at the probation officer's discretion
could become highly arbitrary," they said. The two judges said it is
wrong to assume that individual judges cannot create compliance orders
without running afoul of the law. If the courts prohibit judges from
fashioning such orders, they warned, it may become impossible to
impose probation measures such as electronic monitoring.

Judge LeBel and Judge Bastarache joined the other judges in urging
Parliament to consider whether a legislative remedy is needed.

The other judges participating in the ruling were Chief Justice
Beverley McLachlin, Mr. Justice Ian Binnie, Mr. Justice Morris Fish
and Madam Justice Rosalie Abella.