Vol. 148, No. 27 — December 31, 2014
SI/2014-105 December 31, 2014
RESPONSE TO THE SUPREME COURT OF CANADA DECISION IN R. V. SHOKER ACT
Order Fixing the Day that is 90 Days after the Day on which this Order is registered as the Day on which the Act Comes into Force
P.C. 2014-1449 December 12, 2014
His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 14 of the Response to the Supreme Court of Canada Decision in R. v. Shoker Act, chapter 7 of the Statutes of Canada, 2011, fixes the day that is 90 days after the day on which this Order is registered as the day on which that Act comes into force.
(This note is not part of the Order.)
An Act to amend the Criminal Code (the Response to the Supreme Court of Canada Decision in R. v. Shoker Act) [the Act], formerly referred to as Bill C-30, amends the Criminal Code to provide lawful authority to take bodily samples to ensure that conditions prohibiting the consumption of illicit drugs and alcohol, which are included in the majority of all probation orders, conditional sentences and peace bonds under sections 810, 810.1 and 810.2, can be effectively monitored for compliance.
This Order fixes 90 days after the date of the registration as the date of the coming into force of the Act assented to on March 23, 2011. This Order is made pursuant to section 14 of the Act.
The Act ensures that police and probation officers are able to properly monitor individuals in the community who are under a court order to abstain from the consumption of illicit drugs and alcohol.
For many decades, criminal courts across Canada routinely imposed orders against individuals prohibiting the consumption of illicit drugs and alcohol. These prohibitions were intended to enhance public safety, by ensuring that individuals with a propensity to engage in criminal conduct while under the influence of such substances are discouraged from substance abuse, under the threat of criminal offence sanctions. To allow for effective monitoring and enforcement of the court-ordered prohibitions, courts in most cases would also impose a condition requiring the individual to provide a bodily sample, such as breath, urine, saliva, hair or blood, when requested. If the individual refused to provide the sample, or if the sample tested positive for illicit drugs or alcohol, the offender could be prosecuted for breaching the court order in a criminal proceeding.
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 illicit drugs and alcohol was unlawful, as express authority for such a demand is not included in the Criminal Code probation provision (section 732.1).
The 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 requires that the Governor in Council prescribe the types of samples that may be taken. The Samples of Bodily Substances Regulations (the Regulations), which will come into force at the same time as the Act, provide that the following types of bodily samples can be taken: breath, urine, blood, hair, and saliva. The Act also requires that the Regulations specify when samples should be destroyed.
In addition, the Act gives provinces and territories the authority to establish specific rules (designations), subject to the Regulations, for how specific types of samples are to be collected, handled, stored, tested and destroyed under subsections 732.1(8), 742.3(6) and 810.3(1) of the Criminal Code, as amended by the Act. Examples of such designations are the places where an offender would go to provide, for example, a breath sample; how the sample must be collected; how much privacy the offender would have when providing the sample; and what happens to the sample after it is collected.
No bodily substance samples may be collected or used under the Act in a jurisdiction until these designations are made. While some jurisdictions have indicated that they are prepared to establish the designations as soon as the Act comes into force, others have indicated that they will delay establishing designations until they have a capacity for administering a sampling regime.
If an offender fails to provide such a sample without lawful excuse, or if a provided sample tests positive for illicit drugs or alcohol, the offender may be prosecuted for breach of the probation or peace bond condition. These offences carry a maximum penalty of up to two years’ imprisonment. In the case of conditional sentences, the court may revoke the community sentence and order that the offender serve the remainder of the sentence in prison.
In 2007, the High Risk Offender Working Group of the Federal-Provincial-Territorial (FPT) Coordinating Committee of Senior Officials (CCSO), comprised of justice, corrections and police officials, and which reports to FPT deputy ministers responsible for justice, began extensive consultations regarding the decision in R. v. Shoker to identify legislative options that would restore the lawful authority for bodily sampling conditions in the Criminal Code while responding to the privacy concerns raised by the court.
Following those consultations, the Working Group recommended that the Government of Canada draft legislation 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 recommendations also focussed on the establishment of sufficient privacy safeguards, while ensuring that provinces and territories retained adequate discretion to properly manage the new scheme within their respective jurisdictions. The legislation, tabled in the House of Commons in 2010, was consistent with the FPT recommendations, and was fully supported by all provinces and territories and the law enforcement community while the bill was debated in Parliament.
After the Act received Royal Assent on March 23, 2011, FPT consultations within the CCSO organization continued regarding the content of the proposed Regulations, and regarding the form of provincial and territorial operational designations, under subsections 732.1(8), 742.3(6) or 810.3(1) of the Criminal Code, as amended by the Act. Both the Regulations and the designations are required under the Act before any jurisdiction can begin demanding bodily samples under the new authority.
Criminal Law Policy Section
Department of Justice