CONVICTS NEED NOT SURRENDER FLUIDS, TOP COURT RULES

OTTAWA - The country's top court says Parliament will have to rewrite
federal legislation before judges can require convicted criminals to
provide samples of bodily fluids on demand.

In a unanimous decision today, the Supreme Court threw out the
prosecution's appeal in the case of Harjit Singh Shoker.

"A sentencing judge has a broad jurisdiction in determining
appropriate conditions of probation," said the decision, written by
Justice Louise Charron. "However, there is no authority under the
Criminal Code to authorize a search and seizure of bodily substances
as part of a probation order.

"It is Parliament's role to determine appropriate standards and
safeguards governing the collection of bodily samples for enforcement
purposes."

Shoker was sentenced to 20 months in jail and two years' probation for
a September 2003 break-in during which he climbed naked into a woman's
bed in Abbotsford, B.C.

Shoker's original probation terms included an order to abstain from
drugs and alcohol, and said he must submit to urinalysis, blood tests
or breathalyzer tests on the demand of police or a probation officer.

The B.C. Court of Appeal, however, overturned part of that
order.

It ruled that while the Criminal Code allows judges to include
monitoring conditions in probation orders, compelling convicts to
provide samples of bodily fluids is contrary to the Charter of Rights.

The Supreme Court agreed, saying the seizure of bodily samples must be
subject to stringent standards to meet constitutional requirements,
and without federal law the courts have no power to require urine or
blood tests.

Prosecutors argued the enforcement scheme should be implied by the
right to impose a probationary condition to abstain from alcohol and
drugs.

"I do not accept this argument," Charron wrote. "Breach of probation
is a criminal offence under the Criminal Code and, as such, it is
subject to the usual investigatory techniques and manner of proof as
any other offence.

"The probationer who exhibits signs of alcohol or drug impairment can
be prosecuted and the offence can be proven by testimonial evidence
much in the same way as an offence for impaired driving. The power to
demand bodily samples and the resulting analyses would undoubtedly
assist in the enforcement of a . . . condition, but it cannot on that
basis simply be implied."

The ruling was unanimous, although two of the six justices -- Louis
LeBel and Michel Bastarache -- cautioned that a "narrow
interpretation" of Charron's reasons could throw the use of electronic
monitoring devices into question.

Charron, however, said that wasn't the case.

"The legality of electronic monitoring . . . is not before us and,
hence, this court is not deciding this issue," Charron wrote.

"We are concerned here only with the compelled seizure of bodily
samples as an enforcement mechanism."

The Abbotsford police chief apologized to the woman and her husband in
2004 after the pair complained about delays in responding to a 911
call she made when Shoker crawled into her bed.

The woman initially called her husband, an RCMP officer, after the man
broke into their Abbotsford home while she slept. He told her to call
911, but the complaint-taker and the dispatcher did not take the call
as seriously as she expected.

During the three-minute call, in which the woman had to insist that
the man was in fact in her bed, the 911 dispatcher said: "You're
awfully calm for that to be happening."

The woman's husband arrived home and arrested the man, turning him
over to Abbotsford police when they arrived five minutes later.

Police Chief Ian Mackenzie took no disciplinary action after a formal
review, preferring instead to counsel the 911 civilian employees on
better ways to handle calls.