Legislation Comes Into Force to Ensure Offenders Comply With Court Orders Prohibiting Alcohol and Illicit Drug Use

OTTAWA, ONTARIO--(Marketwired - March 31, 2015) - Department of Justice Canada

Minister of Justice and Attorney General of Canada Peter MacKay today announced the coming into force of the Response to the Supreme Court of Canada Decision in R. v. Shoker Act. The legislation supports the Government of Canada's commitment to help keep our streets and communities safe for Canadian families and stand up for victims of crime.

Under Criminal Code amendments brought into force in this Act and the accompanying regulations, a judge will once again lawfully be able to ensure that drug and alcohol prohibition orders can be properly enforced by allowing police and probation officers to demand bodily samples from individuals under probation orders, conditional sentences and peace bond provisions.

This reform reflects the Government's commitment in the 2013 Speech from the Throne to re-establish Canada as a country where those who break the law are punished for their actions, where prison time matches the severity of crimes committed, and where vulnerable victims are better protected.

Quick Facts

• The Supreme Court of Canada, in the 2006 R. v. Shoker case, ruled that demands for bodily samples from individuals under probation conditions were unlawful.

• As a result, police and probation officers have not been able to ensure proper monitoring and compliance with court orders prohibiting drug and alcohol use.

• Prior to October 2006, police and probation workers routinely made demands for bodily samples from individuals under probation, conditional sentences and peace bond conditions to ensure they were abstaining from the use of drugs and alcohol in accordance with the court order.

• A positive sample for drugs or alcohol can now, once again, be used as evidence in a prosecution for a breach of the court condition, an offence that carries up to a two-year prison sentence.

• The Act will enable better monitoring of individuals under court-ordered supervision who are at risk of offending if they do not comply with drug and alcohol prohibition conditions.

Quotes

"Our Government is following through on its commitment to give law enforcement officials, courts and victims the legal tools they need to fight crime, and put victims back at the heart of the criminal justice system. Police and probation workers will now be able to take breath, blood, or other samples to ensure offenders are complying with court orders. Our Government is standing up for victims of crime, and helping ensure that the rights of law-abiding Canadians are placed over those of criminals."

Peter MacKay

Minister of Justice and Attorney General of Canada

"This legislation is in keeping with the Government's Plan for Safe Streets and Communities, which focuses on holding violent criminals accountable, putting public safety first, and increasing the efficiency of our justice system. The safety and security of Canadians continues to be a priority for this Government and the coming into force of this Act will help decrease criminal behaviour linked to alcohol and illicit drug abuse."

Robert Goguen

Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Related Products

Backgrounder: the Response to the Supreme Court of Canada Decision in R. v. Shoker Act

Regulations

Associated Links

Response to the Supreme Court of Canada Decision in R. v. Shoker Act

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Backgrounder

Drug and Alcohol Prohibition Compliance

The Response to the Supreme Court of Canada Decision in R. v. Shoker Act amends the Criminal Code to establish the ability of police and probation officers to collect bodily samples from offenders who are under a court order to abstain from consuming drugs and alcohol.

The Act gives a court the authority to impose mandatory conditions requiring bodily samples to be provided to police and probation officers on demand or at regular intervals where the court sees fit to prohibit the individual from consuming drugs and alcohol. Bodily samples may include breath, blood, urine, saliva, hair, and sweat samples, as stipulated by Regulations under the Act. The amendments to the Criminal Code allow for these conditions to be included in probation orders, conditional sentences, and peace bonds.

Under the Act, failure to provide a sample for drugs or alcohol constitutes a breach of the court order. Failure to comply with a condition of a probation order or peace bond is a criminal offence that can result in up to two years' imprisonment. Failure to abide by restrictions set out in a conditional sentence can result in the individual being sent to prison to serve out the remainder of the sentence.

The provisions ensure that the samples can be taken and analysed only to enforce compliance for the duration of the court order. The ability to make a sample demand is limited to situations where there are reasonable grounds to believe that an individual has breached a condition, such as where a probation officer witnesses behaviour that may have been caused by drug or alcohol consumption, when that person is subject to a probation order or peace bond, and reasonable grounds to suspect when they are subject to a conditional sentence. In Canadian law, "reasonable grounds to suspect" is a lower evidentiary threshold than "reasonable grounds to believe," and this lower threshold is justifiable for conditional sentences, as under the Criminal Code a conditional sentences is considered to be a term of imprisonment.

A court may also order an individual to provide samples at regular intervals where such a condition is justified in the circumstances.

Samples obtained under the Act must be used only for the purpose of determining compliance with the prohibition conditions and will be destroyed once the condition has expired.

History

Prior to October 2006, a number of provisions in the Criminal Code allowed the court to impose conditions against the consumption of alcohol or non-prescription drugs. Typically, these conditions were placed on individuals whose criminal offending pattern was linked to substance abuse.

In order to ensure compliance with abstention conditions, courts would often also attach a condition that required an offender to provide bodily samples on demand to police and probation workers. Refusal to provide a bodily sample, or a sample that tested positive for drugs or alcohol, often resulted in prosecutions for breach of the court condition and carried serious penal consequences. Even the threat of a demand for a sample was an effective deterrent to substance abuse and potentially to further criminal conduct as it reinforced the offender's belief that there was a high probability of being caught.

However, in October 2006, the Supreme Court of Canada held in the R. v. Shoker case that, while these provisions gave the courts authority to impose a condition prohibiting drug and alcohol consumption, there was no such authority for a court to require these offenders to provide bodily samples to ensure compliance. This decision significantly hampered the ability of police and probation officers to monitor offenders in the community, under court order, whose criminal conduct and pattern of re-offending were often tied to substance abuse.

Probation Orders, Conditional Sentences and Peace Bonds

Probation orders, conditional sentences and peace bonds allow for conditions to be imposed upon individuals in the community to ensure public safety. Probation orders and conditional sentences are usually imposed by a court as part of a sentence for a criminal offence.

Probation orders may be imposed for up to three years and can be used whenever an offender is sentenced to less than two years' imprisonment. Conditional sentences may be up to two years in length, and they are served in the community, often under house arrest.

Peace bonds are imposed by a court where there is no criminal conviction but a complainant has satisfied the court that an individual is likely to commit a criminal act. Peace bonds may be up to two years in length, are renewable, and are designed to target specific types of offences, such as property and assault offences, sexual offences against children, and serious personal injury offences.