Vol. 147, No. 22 — June 1, 2013

Samples of Bodily Substances Regulations

Statutory authority

Criminal Code

Sponsoring department

Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

For many decades, criminal courts across Canada have routinely been imposing orders against individuals prohibiting the consumption of alcohol or non-prescriptive drugs. These prohibitions are intended to enhance public safety by ensuring that individuals who show a propensity to engage in criminal conduct while under the influence of such substances are discouraged from substance abuse under court-ordered supervision. To allow for effective monitoring and enforcement of the court ordered prohibitions, courts would often also impose a condition requiring the individual to provide a bodily sample when requested. If the individual refused to provide the sample, or if the sample tested positive for the use of alcohol or drugs, the sample analysis could be used as evidence of breach of the court order.

In October 2006, the Supreme Court of Canada held that a probation condition allowing a demand for a bodily sample as part of a condition to abstain from alcohol or drugs was unlawful because an express authority for such a demand was not included in the Criminal Code probation provision (section 732.1). The Response to the Supreme Court of Canada in R. v. Shoker Act (the Act) received Royal Assent on March 23, 2011. This Act amends the probation, conditional sentence and peace bond provisions of the Criminal Code to provide explicit authority for a court to include a condition that an offender must provide a bodily sample on demand or at regular intervals to police and probation officers. The Act is not yet in force.

2. Issue

The Act limits the specific types of bodily samples that can be collected to those stipulated by regulation. As a result, the provisions of the Act would be inoperative without complementary regulations, as police and probation officers would not be authorized to demand bodily samples from offenders, thus limiting the enforceability of conditions to abstain from the consumption of alcohol or drugs and depriving Crown prosecutors of reliable and compelling evidence at trial where a breach is charged.

3. Objectives

The Act amends the Criminal Code to provide lawful authority to take bodily samples to ensure that these types of conditions, which are included in a great number of probation orders, conditional sentences and peace bonds in sections 810, 810.01, 810.1 and 810.2 of the Criminal Code, can be effectively monitored for compliance.

The proposed Regulations are intended to complement the provisions of the Act and create a framework for the exercise of the new authority that ensures minimum standards across the country in the collection, storage and analysis of these samples. A prepublication in the Canada Gazette followed by a 30-day comment period will provide an opportunity for interested parties to offer input on the proposed Regulations. This feedback will be useful in ensuring that the proposed Regulations provide a fair and effective framework for the Act.

4. Description

The objective of the Act is to ensure that police and probation officers are able to properly enforce court orders and monitor individuals in the community under a court order to abstain from the consumption of drugs and alcohol.

If an offender fails to provide, without lawful excuse, a bodily sample as stipulated by regulations, or if a sample provided tests positive for drugs or alcohol, the individual may be prosecuted for breaching the probation order or peace bond, which carries a maximum penalty of up to two years imprisonment. If the individual breaches a prohibition condition under a conditional sentence of imprisonment, the court may require the offender to serve out the remainder or a portion of the remainder of the sentence in prison, or the court may opt not to terminate the conditional sentence but instead change the conditions.

The proposed Regulations provide authority for the following types of samples to be taken: breath, urine, blood, hair, and saliva. These are the types of bodily samples commonly used across Canada to identify the use of alcohol or drugs. The proposed Regulations also specify that blood samples will only be allowed to be taken by qualified medical practitioners and qualified technicians designated for the purposes of taking blood samples. However, a blood sample would only be taken if a qualified medical practitioner is satisfied that the taking of such a sample would not endanger the person’s life or health.

Finally, the proposed Regulations provide that any bodily sample taken under the authority of the Act must be destroyed no later than one year after the day on which the sample was provided. This would ensure that bodily samples collected are not retained for unnecessary periods of time, thereby striking a balance between the need to ensure compliance with the prohibition orders and the need to preserve the privacy of the individual as well as the integrity of the sample.

5. Consultation

Following the 2006 decision of the Supreme Court of Canada in R. v. Shoker, the High Risk Offender Working Group of the Federal-Provincial-Territorial (FPT) Coordinating Committee of Senior Officials (CCSO), which reports to FPT deputy ministers responsible for justice and public safety, began consultations in 2007 to examine legal and operational issues associated with the taking of bodily samples from offenders to ensure compliance with prohibition orders made pursuant to the Criminal Code. Those consultations resulted in a unanimous recommendation from the Working Group to the FPT ministers responsible for justice and public safety in support of amending the Criminal Code to provide explicit authority for bodily sampling to ensure compliance with drug and alcohol prohibitions as a condition of a probation order, conditional sentence or peace bond.

The Act was supported by all provinces and territories as well as the law enforcement community.

Further consultations with provincial and territorial senior justice and police officials regarding the content of the proposed Regulations occurred from April 2011 to December 2012 within the FPT CCSO forum. All jurisdictions support the objectives of the proposed Regulations.

6. Rationale

The types of bodily samples listed in the proposed Regulations can be analyzed to provide clear and reliable evidence regarding an alleged breach. To prove this offence without the evidence of bodily samples, Crown prosecutors would have to rely on oral testimony from persons who witnessed the accused’s symptoms or consumption of alcohol or drugs; obtaining this type of evidence and presenting it in court poses challenges for the police and Crown prosecutors respectively.

Prior to the 2006 Supreme Court of Canada decision in R. v. Shoker, the most common type of bodily sample taken was breath samples, given that the majority of breaches involved alcohol, and given the wide and long-established use of such techniques by police agencies in all jurisdictions. Urine samples were most commonly used where the breach was related to illicit drugs. Hair and sweat samples were rarely used, but consultations with all jurisdictions indicate that increased reliance on these techniques is anticipated. Blood samples were rarely taken, except in the most serious cases where the offender was unable or unwilling to provide other types of samples.

7. Implementation, enforcement and service standards

The proposed Regulations will come into force on the same day as the coming into force of the Act. At that time, all provinces and territories will be required under the Act to establish specific parameters for police and corrections officers to follow in the collection, storage, testing and destruction of any bodily samples taken under the authority of the Act. The parameters are required to be established by the Attorney General of each province, and the minister of justice of each territory. These parameters will ensure that all jurisdictions follow specific procedures uniformly, and within acceptable norms given the impact on an individual’s privacy rights.

8. Contact

Doug Hoover
Counsel
Criminal Law Policy Section
Department of Justice
Telephone: 613-952-1991

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsections 732.1(12) (see footnote a), 742.3(10) (see footnote b) and 810.3(5) (see footnote c) of the Criminal Code (see footnote d), proposes to make the annexed Samples of Bodily Substances Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Doug Hoover, Criminal Law Policy Section, Department of Justice, 284 Wellington Street, Ottawa, Ontario K1A 0H8 (tel.: 613-952-1991; fax: 613-941-9310; email: doug. hoover@justice.gc.ca).

Ottawa, May 23, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

SAMPLES OF BODILY SUBSTANCES REGULATIONS

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

  • “Code”
    « Code »
  • “Code” means the Criminal Code.
  • “qualified medical practitioner”
    « médecin qualifié »
  • “qualified medical practitioner” means a person duly qualified under provincial law to practise medicine.
  • “qualified technician”
    « technicien qualifié  »
  • “qualified technician” means any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of sections 254, 256 and 258 of the Code.

PART 1 SAMPLES OF BODILY SUBSTANCES PROVIDED IN COMPLIANCE WITH A PROBATION ORDER

Application

2. This Part applies in respect of samples of bodily substances provided by offenders in compliance with conditions of a probation order prescribed by a court under paragraphs 732.1(3)(c.1) and (c.2) of the Code.

Prescribing bodily substances

3. The following are prescribed bodily substances for the purposes of paragraphs 732.1(3)(c.1) and (c.2) of the Code:

  • (a) breath;
  • (b) urine;
  • (c) blood;
  • (d) hair; and
  • (e) saliva.

Designating persons and classes of persons that may take blood samples

4. (1) Qualified medical practitioners and qualified technicians are designated for the purposes of taking blood samples.

Medical opinion required

(2) A blood sample may only be taken from a person if a qualified medical practitioner is satisfied that the taking of such a sample would not endanger the person’s life or health.

Analysis of breath samples

5. A breath sample must either be analyzed using an instrument approved under the Approved Breath Analysis Instruments Order or using a screening device approved under the Approved Screening Devices Order.

Storage of blood samples

6. Any blood sample provided must be stored in a container approved under the Order Approving Blood Sample Containers.

Prescribed period for the destruction of samples of bodily substances

7. For the purposes of subsection 732.1(11) of the Code, a sample of a bodily substance must be destroyed no later than one year after the day on which the sample was provided.

PART 2 SAMPLES OF BODILY SUBSTANCES PROVIDED IN COMPLIANCE
WITH A CONDITIONAL SENTENCE ORDER

Application

8. This Part applies in respect of samples of bodily substances provided by offenders in compliance with conditions of a conditional sentence order prescribed by a court under paragraphs 742.3(2)(a.1) and (a.2) of the Code.

Prescribing bodily substances

9. The following are prescribed bodily substances for the purposes of paragraphs 742.3(2)(a.1) and (a.2) of the Code:

  • (a) breath;
  • (b) urine;
  • (c) blood;
  • (d) hair; and
  • (e) saliva.

Designating persons and classes of persons that may take blood samples

10. (1) Qualified medical practitioners and qualified technicians are designated for the purposes of taking blood samples.

Medical opinion required

(2) A blood sample may only be taken from a person if a qualified medical practitioner is satisfied that the taking of such a sample would not endanger the person’s life or health.

Analysis of breath samples

11. A breath sample must either be analyzed using an instrument approved under the Approved Breath Analysis Instruments Order or using a screening device approved under the Approved Screening Devices Order.

Storage of blood samples

12. Any blood sample provided must be stored in a container approved under the Order Approving Blood Sample Containers.

Prescribed period for the destruction of samples of bodily substances

13. For the purposes of subsection 742.3(9) of the Code, a sample of a bodily substance must be destroyed no later than one year after the day on which the sample was provided.

PART 3 SAMPLES OF BODILY SUBSTANCES PROVIDED IN COMPLIANCE
WITH A RECOGNIZANCE TO KEEP THE PEACE

Application

14. This Part applies in respect of samples of bodily substances provided by defendants in compliance with conditions of a recognizance to keep the peace prescribed by a court under paragraphs 810(3.02)(b) and (c), 810.01(4.1)(f) and (g), 810.1(3.02)(h) and (i) and 810.2(4.1)(f) and (g) of the Code.

Prescribing bodily substances

15. The following are prescribed bodily substances for the purposes of paragraphs 810(3.02)(b) and (c), 810.01(4.1)(f) and (g), 810.1(3.02)(h) and (i) and 810.2(4.1)(f) and (g) of the Code:

  • (a) breath;
  • (b) urine;
  • (c) blood;
  • (d) hair; and
  • (e) saliva.

Designating persons and classes of persons that may take blood samples

16. (1) Qualified medical practitioners and qualified technicians are designated for the purposes of taking blood samples.

Medical opinion required

(2) A blood sample may only be taken from a person if a qualified medical practitioner is satisfied that the taking of such a sample would not endanger the person’s life or health.

Analysis of breath samples

17. A breath sample must either be analyzed using an instrument approved under the Approved Breath Analysis Instruments Order or using a screening device approved under the Approved Screening Devices Order.

Storage of blood samples

18. Any blood sample provided must be stored in a container approved under the Order Approving Blood Sample Containers.

Prescribed period for the destruction of samples of bodily substances

19. For the purposes of subsection 810.3(4) of the Code, a sample of a bodily substance must be destroyed no later than one year after the day on which the sample was provided.

COMING INTO FORCE

S.C. 2011, c. 7

20. These Regulations come into force on the day on which sections 3, 5 and 11 of the Response to the Supreme Court of Canada Decision in R. v. Shoker Act come into force, but if they are registered after that day, they come into force on the day on which they are registered.

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