'SAMPLES' BREACH HIS RIGHTS

The B.C. Court of Appeal, in a split decision, has found a probation
condition requiring a man to provide a breath, urine or blood sample
to determine if he is free from drugs or alcohol breaches his Charter
rights.

The judgment was made Thursday in the appeal brought forward by Harjit
Shoker, who was convicted of break and enter with intent to commit
sexual assault after entering an Abbotsford home in September 2003 and
climbing into a woman's bed, naked.

"I am aware that striking down this commonly used condition may create
difficulty in the enforcement of abstention conditions in probation
orders," concluded Justice Risa Levine.

"I consider that there is a gap in the legislation that is the role of
Parliament, not the courts, to fill. Parliament may wish to enact
appropriate standards and safeguards for demanding bodily samples from
offenders on probation to help authorities determine whether such
offenders are in compliance with conditions to abstain from the
consumption of alcohol and drugs.

"In the absence of such provisions, however, probation officers and
police officers must rely on other methods of enforcing conditions of
abstention, including testimony as to the reasonable grounds for
believing that a person has breached the condition," she said.

In their written decision, Levine and Chief Justice Lance Finch noted
the sentencing judge had jurisdiction to impose a requirement that
Shoker submit to tests of his bodily substances.

"That, however, does not end the matter. Probation condition 9
authorizes a seizure from (Shoker) which, to be constitutionally
valid, must conform to section 8 of the Charter," Levine wrote.

"I have concluded that because there are no legislative or regulatory
standards or safeguards for the protection of the appellants' privacy
in the enforcement of the condition, the condition is unreasonable and
violates section 8 of the Charter."

Section 8 provides that every person has the right to be secure from
unreasonable search and seizure.

"One of the missing safeguards in the probation condition is the
requirement that the probation or peace officer have reasonable and
probable grounds for suspecting or or believing that the offender has
breached the abstention condition," she said.

"That change alone, however, would not bring the condition into
conformity with section 8," she said.

Justice John Hall disagreed with Finch and Levine. He said he did not
think breath or urine tests were "constitutionally defective" where
reasonable and probable grounds exist.

"However, I do consider that the portion of the term concerning a
blood test was not appropriate and should be found to be
constitutionally impermissible," he said, pointing to the invasiveness
of a blood test.

Shoker also argued his 12 month jail sentence was "unfit" because he
felt it took into account an offence for which he had been acquitted.
The justices disagreed.

They did, however, also overturn a condition requiring he attend
treatment as directed by his probation officer because Shoker did not
agree to it. A section of the Criminal Code of Canada indicates an
offender must agree to treatment.