Can't compel blood, urine samples as probation condition: SCOC

Probation orders can't compel people to provide bodily fluid samples to check if they're complying with conditions, Supreme Court of Canada rules.

Judges cannot issue probation orders requiring people to provide blood or urine samples to check if they are obeying conditions to abstain from drugs or alcohol, the Supreme Court of Canada ruled Friday.

Indismissing a Crown appeal of a B.C. Court of Appeal decision, the country's top court ruledthatprobation orders compelling people to provide bodily samples were contrary to the Charter of Rights and Freedoms.

'The seizure of bodily samples must be subject to stringent standards and safeguards to meet constitutional requirements.'— Supreme Court ruling

Itnoted that there is no federal law giving the courts power to order such tests in these circumstances.

"Compelling blood tests, absent a statutory framework governing such tests, is not consistent with the charterand random drug testing at a probation officer's discretion could become highly arbitrary," the court said.

The case began in September 2003, when an Abbotsford, B.C., woman awoke to find a naked intruder, Harjit Singh Shoker, crawling into her bed.

Shoker was sentenced to 20 months in jail for breaking and entering with intent to commit sexual assault and placed on two year's probation.

A psychological assessment prepared for his sentencing indicated that Shoker blamed his behaviour on drug use and that he had a history of substance abuse.

Judge had no authority for order, court says

As a condition of his probation, he was ordered to stay away from drugs and alcohol and also submit to urinalysis, blood tests or breathalyzer tests upon the demand of a peace officer or probation officer to determine whether he was complying.

The judge also said any positive reading would constitute a breach of probation.

Shoker appealed and a B.C. Court of Appeals justiceupheld the sentence but overturned the probation conditions requiring the tests.

The Supreme Court agreed, ruling unanimously thatthe sentencing judge had no authority to authorize a search and seizure of bodily substances as part of a probation order and no jurisdiction to predetermine that any positive reading was a breach.

"The seizure of bodily samples must be subject to stringent standards and safeguards to meet constitutional requirements," the court said.

It also said considering a positive test an automatic breach of probation "is contrary to criminal law principles that require guilt to be proved in the usual manner."