Sentencing judge can't impose drug testing without legislative scheme that balances privacy right

According to the Supreme Court's decision in R. v. Shoker (handed down today), a sentencing judge does not have the power to "fill in the blanks" of the Criminal Code to require a probationer to submit to random blood, breath and urine samples to determine if he or she is obeying the condition to abstain from drugs and alcohol. It is up to Parliament to try to devise a scheme that includes adequate respect for the Charter rights of probationers.

R. v. Shoker:

"25 The establishment of these standards and safeguards cannot be left to the discretion of the sentencing judge in individual cases. There is no question that a probationer has a lowered expectation of privacy. However, it is up to Parliament, not the courts, to balance the probationers’ Charter rights as against society’s interest in effectively monitoring their conduct. Since the purpose of s. 8 is preventative, the following principle in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 169, is particularly apposite here:

While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.

In this case, the Crown argues that reasonable and probable grounds are not required for the search and seizure of bodily substances from probationers and that the seizure of blood samples is also reasonable. Hall J.A. disagreed. He would have deleted the requirement to provide blood samples as too intrusive and conditioned the requirement to provide urine and breath samples upon the establishment of reasonable and probable grounds. Those are precisely the kinds of policy decisions for Parliament to make having regard to the limitations contained in the Charter. Parliament has specifically addressed the issue of alcohol and intoxicating substances in ss. 732.1(3)(c), (g.1) and (g.2) but it has not provided for a scheme for the collection of bodily samples as it has done in respect of parolees. Such a scheme cannot be judicially enacted on the ground that the court may find it desirable in an individual case. In addition to the constitutional concerns raised by the collection of bodily samples, the establishment of such a scheme requires the expenditure of resources and usually the cooperation of the provinces. This reality is exemplified in this case where the funding for urinalysis has been discontinued in British Columbia rendering the probation condition moot. This is yet another reason why the matter is one for Parliament.

Back over to you, Parliament ....