R. v. Shoker (H.S.), (2006) 230 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 13, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 230 B.C.A.C. 1 (SCC);2006 SCC 44

R. v. Shoker (H.S.) (2006), 230 B.C.A.C. 1 (SCC);

    380 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] B.C.A.C. TBEd. OC.046

Her Majesty The Queen (appellant) v. Harjit Singh Shoker (respondent) and Attorney General of Canada and Criminal Lawyers' Association (Ontario) (intervenors)

(30779; 2006 SCC 44; 2006 CSC 44)

Indexed As: R. v. Shoker (H.S.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.

October 13, 2006.

Summary:

The accused was convicted of breaking and entering a dwelling house with intent to commit the indictable offence of sexual assault. The accused was sentenced to 12 months' imprisonment plus two years' probation, including conditions requiring treatment and submission to a urinalysis, blood test or breathalyzer test upon demand by a peace officer or probation officer. The accused appealed his sentence.

The British Columbia Court of Appeal, Hall, J.A., dissenting in part, in a judgment reported (2004), 206 B.C.A.C. 266; 338 W.A.C. 266, allowed the sentence appeal to the limited extent of deleting the probation conditions respecting treatment and submission to a urinalysis, blood test or breathalyzer test. There was no authority to impose treatment without the accused's consent and the urinalysis, blood test or breathalyzer test provision violated s. 8 of the Charter. The Crown appealed.

The Supreme Court of Canada, per McLachlin, C.J.C., Binnie, Fish, Abella and Charron, JJ., dismissed the appeal on the ground that a sentencing judge had no jurisdiction under the Criminal Code to authorize a search and seizure of bodily substances as part of a probation order. Accordingly, the term was properly quashed and it was neither necessary nor advisable to determine the constitutional question. Bastarache and LeBel, JJ., concurring in the result, opined that (1) a sentencing judge had authority under the Criminal Code to impose a probation condition authorizing the search and seizure of bodily substances for enforcement purposes; (2) compelled blood tests were too intrusive and would violate s. 8 of the Charter; and (3) it was the responsibility of Parliament to determine the appropriate standards and safeguards governing the collection of breath and urine samples for enforcement purposes, which could only then be measured against the requirements of s. 8 of the Charter.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - Section 732.1(3) of the Criminal Code listed optional probation conditions, including abstention from alcohol and drugs (s. 732.1(3)(c)) - Requiring an accused to provide a blood, urine or breath sample upon demand by a peace officer or probation officer was not a listed option, although the residual clause (s. 732.1(3)(h)) authorized a judge to impose "other reasonable conditions" - A majority of the Supreme Court of Canada (McLachlin, C.J.C., Binnie, Fish, Abella and Charron, JJ.) held that the residual clause did not authorize the imposition of a term requiring an accused to provide bodily samples for analysis to determine whether an accused was complying with the abstention provisions of his probation order - The majority stated that it was "reasonable to infer that additional conditions imposed under the residual power would be of the same kind as the listed conditions. However, conditions intended to facilitate the gathering of evidence for enforcement purposes do not simply monitor the probationer's behaviour and, as such, are of a different kind and, because of their potential effect, absent the probationer's consent to such conditions, raise constitutional concerns. ... In the absence of a legislative scheme authorizing the seizure of bodily samples, the enforcement of abstention conditions must be done in accordance with existing investigatory tools." - The majority found it unnecessary to determine whether the mandatory testing violated s. 8 of the Charter - The minority (Bastarache and LeBel, JJ.), concurring in the result, opined that (1) a judge had authority to impose a probation condition authorizing the search and seizure of bodily substances for analysis for enforcement purposes; (2) compelled blood tests were too intrusive and violated s. 8 of the Charter; and (3) it was Parliament's responsibility to determine the appropriate standards and safeguards governing the collection of breath and urine samples for enforcement purposes, which would then need to be measured against the requirements of s. 8.

Civil Rights - Topic 1404

Security of the person - Law enforcement - Blood tests - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath samples - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 5724

Punishments (sentence) - Probation or probation order - Unreasonable conditions - [See Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449; 2000 SCC 5, refd to. [para. 10].

R. v. Kootenay (E.P.) (2000), 271 A.R. 156; 234 W.A.C. 156; 150 C.C.C.(3d) 311; 2000 ABCA 289, refd to. [para. 13].

R. v. Traverse (B.R.) (2006), 201 Man.R.(2d) 212; 366 W.A.C. 212; 205 C.C.C.(3d) 33 (C.A.), refd to. [para. 13].

R. v. Ziatas (1973), 13 C.C.C.(2d) 287 (Ont. C.A.), refd to. [para. 13].

R. v. Caja (1977), 36 C.C.C.(2d) 401 (Ont. C.A.), refd to. [para. 13].

R. v. Lavender (1981), 59 C.C.C.(2d) 551 (B.C.C.A.), refd to. [para. 13].

R. v. L. (1986), 69 A.R. 159; 50 C.R.(3d) 398 (C.A.), refd to. [para. 13].

R. v. McLeod (R.G.) (1992), 109 Sask.R. 8; 42 W.A.C. 8; 81 C.C.C.(3d) 83 (C.A.), refd to. [paras. 21, 37].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 119 D.L.R.(4th) 74, refd to. [para. 23].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 144 D.L.R.(4th) 193, refd to. [para. 23].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 23].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 25].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, refd to. [para. 35].

R. v. Carlson (C.J.) (1996), 141 Sask.R. 168; 114 W.A.C. 168 (C.A.), refd to. [para. 37].

R. v. Curtis (C.G.) (1996), 144 Sask.R. 156; 124 W.A.C. 156 (C.A.), refd to. [para. 37].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 731 [para. 10]; sect. 732.1(2) [para. 11]; sect. 732.1(3) [para. 12].

Authors and Works Noticed:

Beaulac, Stéphane, and Côté, Pierre-André, Driedger's "Modern Principle" at the Supreme Court of Canada: Interpretation, Justification, Legitimization (2006), 40 R.J.T. 131, generally [para. 29].

Ferris, Thomas Wayne, Sentencing: Practical Approaches (2005), pp. 79, 116, 216, 217 [para. 37].

Manson, Allan, Healy, Patrick, and Trotter, Gary, Sentencing and Penal Policy in Canada: Cases, Materials, and Commentary (2000), p. 280 [para. 32].

Ruby, Clayton C., Sentencing (6th Ed. 2004), para. 10.57 [para. 32].

Counsel:

Wendy L. Rubin and Susan J. Brown, for the appellant;

Garth Barriere and Dana Kripp, for the respondent;

David Schermbrucker and Kenneth J. Yule, Q.C., for the intervenor, Attorney General of Canada;

James Stribopoulos and Sarah Loosemore, for the intervenor, Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Attorney General of British Columbia, Vancouver, B.C., for the appellant;

Garth Barriere, Vancouver, B.C., for the respondent;

Attorney General of Canada, Vancouver, B.C., for the intervenor, Attorney General of Canada;

Kapoor & Stribopoulos, Toronto, Ontario, for the intervenor, Criminal Lawyers' Association (Ontario).

This appeal was heard on February 14, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On October 13, 2006, the judgment of the Supreme Court of Canada was delivered in both officials languages and the following opinions were filed:

Charron, J. (McLachlin, C.J.C., Binnie, Fish and Abella, JJ., concurring) - see paragraphs 1 to 26;

LeBel, J. (Bastarache, J., concurring), concurring in the result - see paragraphs 27 to 44.