Pubdate: Fri, 01 Jul 2005
Source: Victoria Times-Colonist (CN BC)
Copyright: 2005 Times Colonist
Contact:  http://www.canada.com/victoria/timescolonist/
Details: http://www.mapinc.org/media/481
Author: Cristin Schmitz, CanWest News Service
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

COURT BLOCKS DRUG TESTS FOR HOME INVADER

Probation Condition Violates B.C. Man's Privacy Rights, Judges Rule

OTTAWA -- The Supreme Court of Canada will decide if it would violate the 
privacy rights of a drug-addled intruder, who crept naked into bed beside a 
sleeping woman, to require him to give occasional urine samples as part of 
a probation order that he abstain from non-prescription drugs.

The high court agreed on Thursday to hear the B.C. Crown's appeal of a B.C. 
Court of Appeal ruling last December which concluded the constitutional 
right of Harjit Singh Shoker to be secure against unreasonable search and 
seizure was violated by a probation condition ordering Shoker to submit to 
a urinalysis, blood tests or breathalysers when demanded by police or his 
probation officer.

The Appeal Court ruled the condition, which appears in thousands of 
probation orders across the country, to be unconstitutional and deleted it.

The province's appeal to the top court will determine whether Canadian 
sentencing judges have the power to enforce probation requirements that 
offenders abstain from drugs and/or alcohol by also requiring offenders to 
undergo periodic urinalysis, bloodtesting or breathalyser tests, at the 
request of police or probation officers.

The case also asks if judges do have that power, must authorities have 
"reasonable and probable grounds" to believe that the offender has taken 
drugs or alcohol before they can demand a sample?

Shoker was convicted of break and enter with the intention of committing 
sexual assault after he broke into a home in Abbottsford at midnight on 
Sept. 7, 2003 and attempted, while naked, to climb into a sleeping woman's 
bed. The victim, who was married to an RCMP officer, jumped out of bed 
screaming and called 911. Her husband then arrived and arrested Shoker.

Shoker, who has used heroin, speed, cocaine and marijuana, said he was "not 
thinking straight" because he was on drugs. He was sentenced to 20 months 
in jail, and two years' probation.

He had earlier lost his driver's licence due to an accident caused by his 
drug impairment, and a psychologist testified Shoker "showed a lack of 
insight into the seriousness" of his substance abuse problem. He was 
previously charged and acquitted of entering the home of another sleeping 
woman and pulling the blankets off her.

The B.C Appeal Court deleted the probation condition requiring Shoker to 
supply bodily samples on request because it concluded there were simply no 
safeguards in the Criminal Code that would prevent authorities from 
demanding and seizing offenders' bodily samples arbitrarily.

The court acknowledged it was striking down a widely used enforcement 
condition but said "there is a gap in the legislation that is the role of 
Parliament, not the courts, to fill.

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." As is its practice, the Supreme Court 
did not give reasons for agreeing to hear the appeal.
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MAP posted-by: Jay Bergstrom