Judges can't require criminals to provide bodily fluid samples: Supreme Court

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.

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