Department of Justice Canada

Department of Justice Canada

October 30, 2009 12:18 ET

The Government of Canada Introduces Legislation to Ensure Offenders Comply With Court Orders Prohibiting Drug and Alcohol Use

OTTAWA, ONTARIO--(Marketwire - Oct. 30, 2009) - The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, today introduced a bill that would help reduce repeat criminal behaviour by ensuring that individuals comply with court orders prohibiting drug and alcohol use.

"Police and probation officers need to regain the ability to collect breath and other samples from offenders who are under court order to abstain from consuming drugs and alcohol," said Minister Nicholson. "Upon passage of this bill, offenders who have a history of committing crimes while under the influence of alcohol and drugs can once again be properly monitored."

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 was used as evidence in a prosecution for a breach of the court condition, an offence that carried up to a two-year prison sentence.

In 2006, the Supreme Court of Canada, in the decision R. v. Shoker, decided that such demands for bodily samples were unlawful. As a result, police and probation officers have been unable to obtain blood and other samples under probation orders, making it difficult to ensure proper monitoring and compliance.

Under the proposed Criminal Code amendments, a judge would be able to impose drug and alcohol prohibition orders to allow police and probation officers to request bodily samples from individuals under probation orders, conditional sentences and peace bond provisions.

"The amendments being introduced today are an effective response to the Supreme Court of Canada's decision that made it impossible for law enforcement officials to fully monitor individuals under court order prohibiting them from using drugs or alcohol," concluded Minister Nicholson.

In addition to today's tabled legislation, the Government of Canada has taken other action to help ensure the safety and security of our communities. It is standing up for victims of crime, and putting the rights of law-abiding citizens ahead of the rights of criminals.

An on-line version of today's announced legislation will be available at www.parl.gc.ca.

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BACKGROUNDER: Drug and Alcohol Prohibition Compliance

In order to help reduce repeat criminal behaviour linked to substance abuse, the Government is proposing Criminal Code amendments that would re-establish the ability of police and probation officers to collect bodily samples from offenders who are under court order to abstain from consuming drugs and alcohol.

The amendments proposed will serve to re-establish the discretion of a court to impose 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 include breath, blood, urine, saliva, hair and sweat samples. The amendments will allow for conditions to be included in probation orders, conditional sentences and peace bonds.

Under this legislation, failure to provide a sample for drugs or alcohol would constitute a breach of the court order. Currently, 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 returned to prison to serve out the remainder of the sentence.

The provisions will make it clear that the authority is restricted and that samples can only be demanded to enforce compliance for the duration of the court order. The ability to make a sample demand will be limited to situations where there are reasonable grounds to believe that an individual has breached a condition when they are subject to a probation order or peace bond, and reasonable grounds to suspect when they are subject to a conditional sentence. Samples will only be obtained for the purpose of compliance and be destroyed once the condition has expired. Statutory provisions and regulations will stipulate how the sample can be obtained, screened, tested, stored, handled and destroyed to ensure privacy.

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 belief of the offender that there was a high probability of being caught.

However, in October 2006, the Supreme Court of Canada (R. v. Shoker) held that, while these provisions gave authority to the courts 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, including as 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.

Contact Information

  • Office of the Minister of Justice
    Pamela Stephens
    Press Secretary
    613-992-4621
    or
    Department of Justice Canada
    Media Relations
    613-957-4207
    www.canada.justice.gc.ca