SUPREME COURT MAY ASK FOR NEW LAWS ON DRUG TESTS

The Supreme Court of Canada will revisit a B.C. Court of Appeal decision
that found judges' orders that force offenders on parole to submit to drug
tests would violate their rights to privacy.

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 tried to crawl naked into the bed of an RCMP officer's wife.

The woman called 911, but the officer returned home and arrested the man
before the Abbotsford police could get there.

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

The probation conditions required Shoker to abstain from non-prescription
drugs and 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 a 2-1 decision, the three-member B.C. Court of Appeal ruled
last December that Shoker's constitutional right to be secure against
unreasonable search and seizure was violated by the probation order.

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

"That's rare. More matters are denied than discussed, but this is an area
that needs to be looked at by the highest court," said Stan Lowe, a
Victoria community lawyer for the criminal justice branch of the attorney
general's office. The Supreme Court may take some cues from the Court of
Appeal judges, said Lowe.

The Court of Appeal majority decision determined there was no legal or
regulatory safeguards to direct how individuals should be treated with
regard to random drug tests.

"The Supreme Court may say, 'If you want to make it constitutional, you
have to put it into law and include the safeguards,'" said Lowe.

There are precedents for this in statutes such as the Corrections and
Conditional Release Act, which addresses drug tests and has provisions in
place that take into account the individuals' rights to liberty, privacy
and safety of the individual, Lowe said.

The Supreme Court could also agree with the appeal court's dissenting
judge, who suggested law enforcement officials could use "reasonable and
probable cause" to demand drug tests, Lowe said.

"What we're seeking is guidance," he said Tuesday.

Meanwhile, since the December ruling, judges have been able to order only
abstention from drugs, but not random drug testing.

Lowe said this makes it harder for police to enforce probation and bail
orders, but not impossible as there are still ways to determine alcohol and
some drug use.

Police and probation officers can still smell alcohol, or note slurred
speech, red eyes and drunkenness, or observe parolees drinking at a bar,
said Lowe. Some drugs, however, are hard to detect without urine or blood
samples.

The next step for B.C.'s Crown prosecutors' office is to forward its notice
of appeal and factum to the Supreme Court, which will be followed by a
factum submitted by the respondents, and some time after that, the court
will set a date.