Reasons for Judgment of the Honourable Madam Justice Levine:

Introduction

[1]                The appellant, Harjit Singh Shoker, appeals his sentence of 12 months custody and two of the conditions imposed on the probation order of two years. He was sentenced following his conviction on one count of break and enter a dwelling house with intent to commit an indictable offence, sexual assault.

[2]                For the reasons set out, I would grant leave to appeal, allow the appeal, and vary the two probation conditions to delete the requirements that the appellant attend treatment and submit to a urinalysis, blood test or breathalyzer test upon demand/request of a Peace Officer or Probation Officer. In my opinion, the condition requiring that the appellant attend treatment was not authorized in the absence of the appellant’s consent, and the requirement that he submit to a demand for bodily substances violates s. 8 of the Canadian Charter of Rights and Freedoms.

Circumstances of the Offence

[3]                The circumstances of the offence are somewhat unusual. About midnight on September 7, 2003, the appellant entered the complainant’s home, undressed outside her bedroom and naked, attempted to climb into her bed. The complainant yelled, jumped out of bed, and went to the kitchen to call 911. The appellant followed her to the kitchen and provided his identification to the 911 operator when asked. The complainant’s husband, a police officer, arrived and arrested the appellant.

[4]                The appellant did not testify at the trial. A psychological assessment of the appellant was prepared for the purpose of sentencing. The appellant explained the circumstances of the offence to the psychologist. He said that he was at a park and needed a ride home. He went to the complainant’s home because there was a police car parked outside and he knew a police officer resided there. He told the psychologist he knocked on the door, which was unlocked, and went inside when there was no answer. He said he was not thinking straight because he was on drugs, had no sexual intent, and entered the complainant’s bedroom to seek help.

Circumstances of the Offender

[5]                In her report, the psychologist summarized the appellant’s history of substance abuse: he had used heroin, speed, cocaine and marijuana. He had lost his driving licence following an accident when using drugs, which interfered with his employment as a truck driver. The appellant told the psychologist, however, that he did not need treatment as he had not been using drugs for the three and a half months that he was in prison. The psychologist noted that despite the fact that drugs had affected his social and psychological functioning, the appellant showed a lack of insight into the seriousness of his problem and the risk of relapse upon release from custody. In her opinion, the appellant required treatment to address his substance abuse problem.

[6]                The psychologist referred in her report to the circumstances of an offence with which the appellant was charged in May 2003 and acquitted before sentencing in this case. The allegations were that a young woman awoke in her home to find the appellant pulling blankets off of her. The appellant admitted that he had entered the apartment, believing it belonged to a friend. He said he had been drinking and was looking for a blanket because he was cold. He denied knowing the woman was there.

[7]                The psychologist concluded: “[The appellant] denied that his crimes are sexually motivated, however his pattern of behaviour is disturbing, and appears to have escalated since his last similar alleged offence.”

Reasons for Sentencing

[8]                In his reasons for sentencing, the sentencing judge referred to the psychologist’s report as “rather complete and very helpful” and stated: “I am going to rely on it.” He noted that the psychologist

...described the circumstances of the instant case and another incident of a similar kind which apparently did not result in court sanctions as constituting a pattern of behaviour that was disturbing...

and commented: “...clearly it is.”

[9]                He also referred to the psychologist’s opinion that while the appellant had no history of violent offending, “his current offence represents an escalation in the severity of his behaviour.” He noted that the appellant had observed the complainant’s house for some time, as he knew there was a police car parked there, and found that “adds to the pattern of behaviour that is so disturbing”.

[10]            The sentencing judge also referred to the appellant’s history of substance abuse, and the psychologist’s comments concerning his lack of insight into the seriousness of the problem, his lack of motivation to attend treatment and the risk of relapse.

[11]            The sentencing judge took into account that at the time of this offence the appellant was on a recognizance (on the offence on which he was subsequently acquitted) which required him to keep the peace and refrain from the use of alcohol and drugs, both of which he had breached. He referred inferentially to the appellant’s minor criminal record, which included two Motor Vehicle Act convictions for driving while prohibited and Criminal Code convictions for obstructing a police officer and failure to appear.

[12]            Crown counsel submitted that a penitentiary sentence was appropriate, but if the sentence was less than two years, a lengthy probationary term should be imposed including a condition that the appellant participate in any assessments and counselling determined to be necessary. Defence counsel agreed that a custodial sentence was appropriate, but asked that the term be based only on the break and enter and not the sexual assault, in light of the appellant’s “diminished capacity” from his use of drugs.

[13]            The sentencing judge concluded that a sentence of 20 months in custody was appropriate, followed by two years’ probation. The custodial term was reduced to 12 months, allowing eight months credit for four months of pre-sentence custody.

[14]            The probation order included the following conditions:

Condition 7: You shall attend for such treatment and counselling as directed by the Probation Officer and successfully complete any such programs to which you are referred.

Condition 9: Abstain absolutely from the possession and consumption of alcohol and non prescription narcotics and to submit to a urinalysis, blood test or breathalyzer test upon demand/request of a Peace Officer or Probation Officer to determine compliance with this condition. Any positive reading will be a breach of this order.

Grounds of Appeal

[15]            The appellant raises three grounds of appeal.

[16]            First, he claims the sentencing judge erred in principle in taking into account an offence for which the appellant had been acquitted, resulting in an unfit sentence.

[17]            Second, he claims the sentencing judge acted without jurisdiction in imposing as a condition of probation that the appellant submit to treatment as directed by the supervising probation officer, and the condition is unreasonable and fails to comply with the Charter.

[18]             Third, he claims the sentencing judge acted without jurisdiction in imposing as a condition of probation the order that the appellant submit upon demand by a probation officer or any peace officer to a urinalysis, blood test or breathalyzer test, and the condition is unreasonable under s. 8 of the Charter.

Fitness of Sentence

[19]            The sentencing judge expressly relied on the psychologist’s report and her conclusion that the two incidents constituted a “pattern of behaviour that was disturbing”. The question is whether that was improper, and resulted in an unfit sentence.

[20]            There was no dispute over the facts that the appellant had twice entered the bedroom of a woman while under the influence of drugs. Crown counsel argues that those facts were evidence of his character, conduct and attitude, which were properly considered by the sentencing judge: R. v. Edwards (2001), 155 C.C.C. (3d) 473 at 490-1 (Ont. C.A.), R. v. Jordan (1991), 69 C.C.C. (3d) 356 at 363 (B.C.C.A.).

[21]            As noted in Edwards at pp. 490 and 505, it is important to distinguish between sentencing an offender taking into account his character, and sentencing him for “untried” offences. The same principle applies to offences for which the offender was acquitted. The principle of proportionality found in s. 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is improper to use the evidence of character to increase the sentence beyond what is proportional for the offence, in effect punishing the offender for an offence for which he was not convicted.

[22]            In this case, however, the admitted circumstances of the two incidents reveal a pattern of behaviour that was relevant and properly considered by the sentencing judge. The current offence demonstrated an escalation in the severity of the appellant’s behaviour over his previous activities, and that was a proper consideration for the sentencing judge.

[23]            There is nothing in the reasons of the sentencing judge that suggests that he used the circumstances of the offence for which the appellant was acquitted other than as evidence of the appellant’s conduct and character.

[24]            Absent an error in principle, this Court may interfere with the sentence only if it is shown to be demonstrably unfit: R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 90.

[25]            The sentence of 20 months for the offence for which the appellant was convicted is entirely fit. Breaking and entering into a residence is a serious offence, as demonstrated by the cases considered by the sentencing judge and those provided by Crown counsel on this appeal. The element of the intention to commit sexual assault increases the seriousness of the offence. In this case there is the additional aggravating factor that the offence was committed while the appellant was on a recognizance to keep the peace and abstain from using drugs or alcohol.

[26]            I have not found any of the cases cited very helpful in determining what a fit sentence would be in these unusual circumstances. I am not persuaded that there is any basis for the Court to interfere.

Treatment Condition

[27]            Section 732.1(3) of the Criminal Code provides that the court may prescribe conditions of probation as set out in paragraphs (a) through (h). Paragraphs (g) and (g.1) provide for conditions requiring the offender to participate in a treatment program:

(g) if the offender agrees, and subject to the program director's acceptance of the offender, participate actively in a treatment program approved by the province;

(g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;

[28]            There is no program as described in paragraph (g.1) in British Columbia.

[29]            The appellant says that he did not consent to attend a treatment program and the sentencing judge was therefore not authorized by paragraph (g) to require that he do so. Crown counsel does not dispute that paragraph (g) requires that the offender consent to treatment and does not seek to justify the order under any of the other provisions of s. 732.1(3), but suggests that defence counsel in submissions at the sentencing hearing implicitly suggested that the appellant was consenting to treatment.

[30]            Defence counsel’s submissions at sentencing were at best ambiguous as to whether the appellant consented to attend a treatment program. On appeal, the appellant takes the position that he did not consent. In the absence of his consent, the appropriate course of action is to amend the probation order to delete from condition 7 the reference to “treatment”.

[31]            I do not find it necessary to address the appellant’s submissions that imposing a requirement to attend treatment is unreasonable and violates the Charter.

Bodily Samples Conditions

[32]            Section 732.1(3) of the Code does not expressly provide for a condition that the offender submit to a urinalysis, breathalyzer or blood test on demand.

[33]            Section 732.1(3)(c) authorizes a sentencing judge to order that the offender

(c)        abstain from

(i)         the consumption of alcohol or other intoxicating substances, or

(ii)        the consumption of drugs except in accordance with a medical prescription.

[34]            Section 732.1(3)(h) authorizes the sentencing judge to require that the offender

(h)        comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

[35]            Probation condition 9 requires that the appellant abstain from consumption of alcohol and non-prescription drugs, in accordance with s. 732.1(3)(c). The condition requires the appellant to submit to tests of bodily substances “to determine compliance with this condition”.

[36]            The appellant says that the sentencing judge was not authorized by either ss. 732.1(3)(c) or (h) to impose the additional condition that he submit to tests of bodily substances. He argues that the requirement to submit to such tests on demand, without any reasonable grounds, violates his right under s. 8 of the Charter to be secure from unreasonable search and seizure of his bodily substances, which are entitled to a high level of constitutional protection (R. v. Colarusso, [1994] 1 S.C.R. 20 at 53, 67). He maintains that such a seizure is neither authorized by law nor subject to any safeguards to ensure his protection.

[37]            Crown counsel argues that a. 732.1(3)(h) authorizes a sentencing judge to impose the impugned conditions. She maintains that the conditions could prevent the appellant from using drugs, which the sentencing judge found to be related to his offending, thus protecting society. The conditions also serve a rehabilitative purpose, in that detection or the threat of detection of drug use will assist the appellant in abstaining from their use.

[38]            Crown counsel provided numerous cases of this Court in which a condition that the offender submit to urinalysis alone or urinalysis and breathalyzer tests was either upheld (R. v. Walker, [1990] B.C.J. No. 1223 (C.A.)(QL); R. v. Duncan, [1990] B.C.J. No. 2561 (C.A.)(QL); R. v. Cain, [1993] B.C.J. No. 1369 (C.A.)(QL); R. v. Shore, [1999] B.C.J. No. 832 (C.A.)(QL); R. v. Unger, [1999] B.C.J. No. 1884 (C.A.)(QL); R. v. J.F.C., [2000] B.C.J. No. 1684 (C.A.)(QL); R. v. Robertson,  [2002] B.C.J. No. 2445 (C.A.)(QL)) or added (R. v. Preston (1990), 47 B.C.L.R. (2d) 273 (C.A.); R. v. C.P.M., [1997] B.C.J. No. 2945 (C.A.)(QL); R. v. P.A.H. (1999), 134 C.C.C. (3d) 251 (B.C.C.A.); R. v. Julson, [2001] B.C.J. No. 343 (C.A.)(QL); R. v. M.S.R., [2002] B.C.J. No. 845 (C.A.)(QL); and R. v. J.T.P., [2003] Y.J. No. 97 (C.A.)(QL)).

[39]            In none of these cases, however, was the constitutionality of the condition challenged, nor in any case was there a requirement that blood samples be given. In some of the cases (P.A.H., Robertson, J.T.P.) the condition required that there be reasonable grounds to believe that the offender had breached the abstention condition.

[40]            Arguably, s. 732.1(3)(c) implicitly authorizes the imposition of the type of requirement imposed by the sentencing judge for the reason he gave: to determine compliance with the order to abstain from the use of alcohol or drugs. The requirement to submit to tests of bodily substances provides a means of enforcing the condition. Section 732.1(3)(h), as Crown counsel argues, could provide supporting authority for the condition. I therefore conclude that the sentencing judge had jurisdiction to impose a requirement that the appellant submit to tests of his bodily substances.

[41]            That, however, does not end the matter. Probation condition 9 authorizes a seizure from the appellant which, to be constitutionally valid, must conform to s. 8 of the Charter. Section 8 provides that “[e]veryone has the right to be secure from unreasonable search and seizure.”

[42]            The test for whether a search is reasonable was set out in Collins v. The Queen (1987), 33 C.C.C. (3d) 1 at 14 (S.C.C.): “A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”  In this case, the legal authorization for the search is the probation condition. The question is whether the second part of the test is met: are the terms of condition 9 reasonable in the constitutional sense? I have concluded that because there are no legislative or regulatory standards or safeguards for the protection of the appellants’ privacy in the enforcement of the condition, the condition is unreasonable and violates s. 8 of the Charter.

[43]            The case of Cruikshanks v. Canada (National Parole Board) (1992), 16 B.C.A.C. 59 is instructive on this point. In that case, the Court held that a urinalysis condition imposed by the National Parole Board as a condition of mandatory supervision violated s. 8 of the Charter. The authorization for the condition was s. 16 of the Parole Act, R.S.C. 1985, c. P-2, which provided that the Parole Board could grant parole to an inmate and “impose any terms and conditions that it considers reasonable...”. The Court found (at para. 8) that the condition was “potentially and actually imposed in a completely arbitrary way”.  Chief Justice McEachern for the Court stated that a provision for urinalysis would not necessarily always be a breach of the Charter. He explained (at para. 8):

What is prohibited by the Charter is a regime that interferes with the liberty of the subject under circumstances where there are no standards and where the use of the provision interfering with the liberty of the subject can be applied arbitrarily.

[44]            The Court was concerned with the absence of standards and safeguards in the legislation authorizing the Parole Board to impose conditions on offenders. This concern reflected the statement of Dickson J. (as he then was) in Hunter v. Southam, [1984] 2 S.C.R. 145 at 169, that “it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements”.

[45]            The Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) (which replaced the repealed Parole Act) authorizes the National Parole Board to impose conditions on offenders released on parole, statutory release or unescorted temporary absence (in s. 133(3)) and offenders on a long-term supervision order (in s. 134.1(2)). These sections provide that conditions may be imposed that the National Parole Board “considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”. This language is the same as that found in s. 732.1(3)(h) of the Code.

[46]            Despite this general authorizing language, the CCRA sets out the circumstances under which a demand may be made that an offender submit to urinalysis (ss. 55 and 56). Section 55 requires that the staff member or other authorized person have reasonable grounds to suspect that the offender has breached any condition that requires abstention from alcohol or drugs. Section 56 requires the person making the demand to “forthwith inform the offender of the basis of the demand and the consequences of non-compliance”. The Corrections and Conditional Release Regulations, SOR/92-620 (the “Regulations”) set out detailed provisions for the collection and testing of samples for urinalysis (ss. 66-68) (including a requirement that an inquiry be made as to whether the offender had used any over-the-counter or prescription medication) and set out the consequences of a positive test (ss. 69-72).

[47]            Another example of legislation authorizing the taking of bodily substances from a person who has been convicted of an offence are the provisions of the Code authorizing the taking of DNA samples for the DNA data bank. This legislation was found to be constitutional in R. v. Briggs (2001), 157 C.C.C. (3d) 38 (Ont. C.A.).

[48]            The Ontario Court of Appeal noted (at para. 35) the protections afforded an offender from whom DNA samples are ordered to be taken. The person who is authorized to take samples of bodily substances must do so in a manner that respects the offender’s privacy and that is reasonable in the circumstances (s. 487.07(3)) and the person who takes the sample must be a person with training or experience (s. 487.056(3)). I note in addition that a blood sample must be taken using a sterile lancet (s. 487.06(1)(c)).

[49]            The Ontario Court of Appeal also noted (at paras. 36-37) the privacy interest arising out of the use that will be made of the sample taken. It found that the legislation meets that concern, noting that the DNA Identification Act, S.C. 1998, c. 37 and the Code restrict the uses to which the results of an analysis of samples may be put.

[50]            In her reasons for the Court, Weiler J.A. noted that the extent to which state intrusion with bodily integrity will be tolerated under the Charter is linked to an individual’s reasonable expectation of privacy. She stated (at para. 33):

There is a significant difference in the reasonable expectation of privacy and, hence, the protection from interference with bodily integrity afforded to a person who is a suspect but has not been charged, a person who has been arrested and charged, a person who has been convicted, and a person who is subject to a custodial sentence.

[51]            I would add to that list a person who has been convicted and sentenced to a term of probation following a custodial sentence. A convicted person is no longer entitled to the presumption of innocence and has a lower expectation of privacy from law enforcement measures.

[52]            Despite the lowered expectation of privacy, however, it seems to me that a person on probation should not be subject to more intrusive measures or less protection than others in similar circumstances. Parliament has seen fit to enact protections for offenders released under the CCRA from whom a demand for urinalysis is made and for offenders who are ordered to provide bodily samples for the DNA data bank. These protections address the constitutional requirements to balance the government’s interest in law enforcement with an offender’s right to privacy (see Hunter v. Southam at pp. 159-60) and to have legislation that contains a consistent standard (see Briggs at para. 21).

[53]            In upholding the statutory provisions for the taking of samples for the DNA data bank under s. 8 of the Charter, the Ontario Court of Appeal in Briggs focussed on the safeguards surrounding the collection and use of the samples taken. The Supreme Court of Canada focussed on similar safeguards in upholding the constitutionality of the DNA warrant provisions in the Code: R. v. S.A.B., [2003] 2 S.C.R. 678 at paras. 43-50. 

[54]            There is no legislative or regulatory framework governing the enforcement of probation condition 9 comparable with those in the CCRA and Regulations governing urinalysis demands and the Code provisions governing the taking of DNA samples. Their absence leads me to conclude that the impugned requirement to submit to demands for bodily substances violates s. 8 of the Charter for the same reasons that the condition in issue in Cruikshanks was found to be constitutionally invalid.

[55]            In the absence of standards and safeguards for the protection of the liberty, privacy and safety of the offender, the condition requiring the appellant to submit to a urinalysis, blood test or breathalyzer test on demand has the potential to be applied arbitrarily. Although ss. 732.1 (3)(c) and (h) may authorize the imposition of such a condition, neither they nor the condition provides the appropriate standards and safeguards present in other statutory regimes for similar types of searches. In the absence of such a regime, the offender cannot be said to be “secure against unreasonable search and seizure”.

[56]            One of the missing safeguards in the probation condition is the requirement that the probation or peace officer have reasonable and probable grounds for suspecting or believing that the offender has breached the abstention condition. If amending the condition to add that requirement would cure the constitutional defects, this Court could order that the condition be amended in that manner.

[57]            That change alone, however, would not bring the condition into conformity with s. 8. The CCRA and Regulations and the provisions of the Code authorizing the taking of DNA samples demonstrate the types of safeguards and protection that Parliament has seen fit to provide offenders who are required to provide bodily samples, including rules for the collection and use of samples. The constitutional reason for these provisions is to protect the offender’s reasonable expectation of privacy, which extends equally to the taking of samples of breath, urine or blood.

[58]            As stated in Hunter v. Southam (at p. 169):

While the Courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.

[59]            I therefore find the portion of probation condition 9 following the words “non prescription narcotics” to be constitutionally invalid and would order that it be deleted.

[60]            I am aware that striking down this commonly used condition may create difficulty in the enforcement of abstention conditions in probation orders. I consider that there is a gap in the legislation that is the role of Parliament, not the courts, to fill. Parliament may wish to enact appropriate standards and safeguards for demanding bodily samples from offenders on probation to help authorities determine whether such offenders are in compliance with conditions to abstain from the consumption of alcohol and drugs. In the absence of such provisions, however, probation officers and police officers must rely on other methods of enforcing conditions of abstention, including testimony as to the reasonable grounds for believing that a person has breached the condition (see R. v. Palfrey (1995), 136 Nfld. & P.E.I.R. 185, [1995] N.J. No. 357 (S.C.-T.D.)(QL)).

Conclusion

[61]            I would grant leave to appeal, allow the appeal, and vary conditions 7 and 9 of the probation order as follows:

(a)        delete the reference to “treatment” in condition 7; and

(b)               delete all that part of condition 9 following the words “non prescription narcotics”.

“The Honourable Madam Justice Levine”

I AGREE:

“The Honourable Chief Justice Finch”

Reasons for Judgment of the Honourable Mr. Justice Hall:

[62]            I have read in draft the reasons of Madam Justice Levine.  I agree with her that the custodial sentence imposed in this case was a fit one and we ought not to interfere with it.  I also agree with her that the reference to “treatment” in Condition 7 of the probation order ought to be deleted because I do not discern from the record any agreement by the appellant that he would undertake to participate in a treatment program.  Section 732.1(3)(g) makes such agreement a pre-condition to the imposition of this class of term.

[63]            I do not, however, entirely agree with my colleague concerning Condition 9 of the probation order.  For ease of reference I will set that out here:

Condition 9: Abstain absolutely from the possession and consumption of alcohol and non prescription narcotics and to submit to a urinalysis, blood test or breathalyzer test upon demand/request of a Peace Officer or Probation Officer to determine compliance with this condition.  Any positive reading will be a breach of this order.

[64]            Prior to 1995, the relevant provision of the Code contained in s. 737 provided that a court could prescribe as a condition of a probation order that an accused abstain from the consumption of alcohol either absolutely or on such terms as the court may specify.  Now by the provisions of s. 732.1(3)(c) the court may prescribe as a condition of a probation order that an offender abstain from (i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription.

[65]            A probation order is a sentencing provision.  By the terms of s. 718 of the Criminal Code, one of the purposes of sentencing set out in s. 718(d) is to assist in rehabilitating offenders.  It is also noted in s. 718 that one of the fundamental purposes of sentencing is to contribute to the maintenance of a just, peaceful and safe society.  It seems to me that when the learned trial judge imposed the conditions relating to abstention from drugs and alcohol in the probation order, he was seeking to address and alleviate the difficulties that this appellant has faced arising out of his abuse of intoxicating substances.  Defence counsel noted at the sentencing proceedings that the appellant has suffered from long-term drug usage and the trial judge noted that he as well had some problems with alcohol.  Thus, in addition to the custodial sentence, the learned Provincial Court judge placed the appellant on probation for a period of two years containing the usual conditions relating to keeping the peace, reporting to a probation officer and not changing his residence without obtaining the prior consent of the probation officer of the court with additional optional terms inter alia encompassing the requirement to refrain from the use of alcohol and non-prescription narcotics.  I see these terms as specifically tailored to address problems the appellant has been having with substance abuse and to attempt to ensure by requiring him to abstain from using drugs and alcohol, he will be more likely to avoid difficulties in the future with the criminal law.  The judge provided as a component of this particular term of the probation order that the appellant would "upon demand by a probation officer or any peace officer submit to a breath test, a blood test or urinalysis testing to determine compliance with this condition, and any positive reading obtained as a result of such tests shall constitute a breach of this order".

[66]            Counsel for the appellant argued firstly that the sentencing judge was without jurisdiction to prescribe a condition that would require the appellant to provide a sample of breath, urine or blood for analysis and further that this requirement is an unreasonable one having regard to the provisions of s. 8 of the Charter.  Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.  In my view, the terms ordered by the learned sentencing judge are not sustainable in their entirety but I differ from my colleague Madam Justice Levine as to the validity of certain portions of the terms included in the probation order by the sentencing judge.  I would observe concerning the direction that "any positive reading obtained as a result of such tests shall constitute a breach of this order" that this seems to me to be a finding that could only be made consequent upon a finding by a court that the appellant was in breach of the order by reason of his consumption of alcohol or drugs.  I would order the deletion of that portion of the term of the probation order.

[67]            Additionally, it seems to me that the order as it stands has about it a quality of the arbitrary, the type of defect found to exist in a previous judgment of this Court, Cruikshanks v. National Parole Board (1992), 16 B.C.A.C. 59, [1992] B.C.J. No. 1680 ("Cruikshanks").  I say that because there is not contained in the probation order any requirement that a peace officer or probation officer have any reasonable and probable grounds or indeed any basis to believe that the appellant may have ingested alcohol or drugs prior to requesting the appellant to submit to a test to determine if such is the fact.  This Court, in the case of R. v. P.A.H. (1999), 124 B.C.A.C. 308, 1999 BCCA 194, imposed a requirement that the accused in that case should abstain from the consumption of non-prescription drugs and provide a sample of urine to the probation officer or any peace officer who had reasonable grounds to believe that he had failed to comply with such condition.  Perhaps it seemed obvious to the sentencing judge that no probation officer or peace officer would make a request of the appellant to undergo such a test procedure absent reasonable and probable grounds to believe that he had ingested alcohol or drugs.  However, as the order stands, it seems to me to be constitutionally defective by reason of the absence of such a term, namely reasonable and probable grounds for such a request.

[68]            It will be noted that the test condition as imposed requires the appellant to submit to "a breath test, a blood test or urinalysis testing" in order to determine whether or not the appellant is in breach of any term of the requirement to abstain from the consumption of drugs and alcohol.  I am not of the view that the requirements for a breath test or a urinalysis sample are constitutionally defective where reasonable or probable grounds exist nor was the judge without authority to order such.  However, I do consider that the portion of the term concerning a blood test was not appropriate and should be found to be constitutionally impermissible.  I shall expand on why I have reached these conclusions.

[69]            Crown counsel suggested that these terms of the order made by the sentencing judge could be supported under the provisions of s. 732.1(3)(h) which reads as follows:

732.1(3)           The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

. . .

(h)        comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community.

[70]            I do not consider that submission sustainable because it seems to me that Parliament has spoken in a specific manner about alcohol and drugs in s. 732.1(3)(c).  It appears to me that s. 732.1(3)(h) is contained in the legislation in order to afford the court a power to impose specific conditions tailored to an individual case where some special term is considered requisite.  In my opinion, the power of the sentencing judge to impose a requirement for testing to detect drugs or alcohol in the system of a probationer flows from s. 732.1(3)(c) itself.  It appears to me that this is a reasonable methodology to ensure that such an order is effective.  This type of provision has a rehabilitative effect in that it provides encouragement to the probationer to adhere to the terms of probation ordered by the sentencing judge.  In the instant case, it is obvious that the use of intoxicating substances has been in the past a significant contributing factor to precipitating criminal behaviour on the part of this appellant.

[71]            On the question of possible infringement of s. 8 of the Charter, counsel for the Crown referred us to a number of earlier cases wherein such terms had been imposed although in most of those cases I observe that there was nothing in the orders relating to a blood test.  I agree with my colleague that those cases are of little assistance because it does not appear that the constitutional issue here sought to be raised was advanced in those cases.  This case is therefore effectively a case of first impression concerning the interpretation of the provisions of s. 732.1 of the Criminal Code.  I would observe as does my colleague that a person who has been convicted and sentenced to a term of probation has a somewhat lowered expectation of privacy from law enforcement measures.  It appears to me to come down to a question of balancing the rights of the appellant and the interests of society.

[72]            The earlier case of Cruikshanks, referred to above and strongly relied upon by the appellant here, dealt with provisions of the then Parole Act since replaced by the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA").  The section of the statute that was utilized to require the appellant in that case to submit to urinalysis or breathalyser sampling was cast at a very high level of generality.  The Parole Board was authorized to "impose any terms and conditions that it considers reasonable".  In that case Chief Justice McEachern said at para. 8:

            However this condition is considered, it was potentially and actually applied in a completely arbitrary way.  The only justification offered, not to the appellant but rather to us, was that the authorities needed a "baseline" to monitor future samples.  We are not pronouncing upon the vires of s. 16 generally, but only upon the arbitrary breach of the appellant's Charter rights on January 17, 1992.  We are not even saying that a provision for a urinalysis would necessarily always be breach of the Charter.  What is prohibited by the Charter is a regime that interferes in such a serious way with the liberty of the subject under circumstances where there are no standards and where the use of the provision interfering with the liberty of the subject can be applied arbitrarily.

[Emphasis added.]

[73]            I consider it important to consider what was at issue in the Cruikshanks case.  In that case it was found that the appellant under duress had agreed to a condition of parole requiring periodical urinalysis.  On 17 January 1992, he was going on to mandatory supervision and on that day, although he was initially unwilling to submit to urinalysis, he eventually did consent under the threat that he would be immediately apprehended if he did not furnish a sample.  He was required to strip and furnish a sample under observation.  It appears that a delayed analysis showed a positive result from this test.  As a result, he was apprehended and returned to custody and sometime later the board revoked his mandatory supervision which resulted in him losing nearly four years of earned remission time.  He applied for habeas corpus before a judge of the Supreme Court but his application was dismissed and he appealed to this Court.  Chief Justice McEachern said:

We are agreed as we assume was the learned judge in the court below, that in the particular circumstance of this case the requirement as a condition of mandatory supervision to furnish urinalysis samples on demand by a supervisor or peace officer without reasons or probable grounds, was not authorized by any law or regulation and constituted a breach of Charter s. 8.

We are unable to accede to Mr. Johnson's submission that the accused consented to this procedure because of the circumstance in which such alleged consent was obtained.  We do not suggest, as Mr. Johnson contended, that this judgment on our part means the Board may not impose reasonable limits of the liberty of those on mandatory supervision but they must, of course, comply with Charter principles.

However this condition is considered, it was potentially and actually applied in a completely arbitrary way.  The only justification offered, not to the appellant but rather to us, was that the authorities needed a "baseline" to monitor future samples.  We are not pronouncing upon the vires of s.16 generally, but only upon the arbitrary breach of the appellant's Charter rights on January 17, 1992.  We are not even saying that a provision for a urinalysis would necessarily always be breach of the Charter.  What is prohibited by the Charter is a regime that interferes in such a serious way with the liberty of the subject under circumstances where there are no standards and where the use of the provision interfering with the liberty of the subject can be applied arbitrarily.

[74]            It can be seen that in that case there was a completely arbitrary requirement imposed on the appellant and as well the authorities acted in an arbitrary manner since there were no reasonable and probable grounds to suspect that he had ingested a prohibited substance but the test was required nonetheless.  In that case, had the terms imposed included a requirement for reasonable and probable grounds before any test could be requested and had the authorities acted in a reasonable and not in an arbitrary manner, it seems to me that the results of the test might well have been found to be admissible.

[75]            In the instant case we are dealing with a section of the Criminal Code that specifically authorizes inclusion in an order of requirements to abstain from the use of alcohol and drugs.  Parliament has expressly provided for the inclusion of such terms and it appears to me that the requirement of testing inserted in the order by the sentencing judge is intended to render the order more efficacious in addressing a continuing problem of this appellant.  The legislation we are construing here is rather more specific than the legislation before the Court in Cruikshanks.  It appears to me the result in Cruikshanks very much flowed from the defect of arbitrariness found to exist not only in the imposition of the condition but in the circumstances in which the test was carried out.  The addition to this order of a requirement for reasonable and probable grounds to make a request for a test should ameliorate the problem found to exist in Cruikshanks.

[76]            When considering whether the testing requirements ordered by the sentencing judge ought to be found to meet constitutional requirements it seems to me that the degree of intrusiveness of the tests is a very relevant factor to consider.  This order provides for three possible tests: a breath test, urinalysis and a blood sample.  In my view, having regard to the fact that this appellant has been convicted and is on probation, he has a somewhat lowered expectation of interference by state agents.  My colleague in her reasons has referred to the comments of Weiler J.A. in R. v. Briggs (2001), 157 C.C.C. (3d) 38, 55 O.R (3d) 417, which comments I would adopt on this issue.

[77]            The taking of a sample of the breath of an individual seems to me to not be in any way an invasive procedure or an interference with bodily integrity.  The taking of a sample of urine for urinalysis is also not an invasive procedure provided privacy is afforded for the taking of the sample.  Many persons do this every day for medical health testing purposes and it in no way interferes with bodily integrity.  Of course, if such test was performed in the way it was done in Cruikshanks, it would seriously impact on bodily integrity and personal privacy.  These two types of testing required by Condition 9 of this probation order, if conditioned upon the requirement that such a test can only be demanded upon reasonable and probable grounds, appear to me to pass constitutional muster.  I do, however, consider that the requirement for a blood test found in this Condition is constitutionally unacceptable.  Blood testing is an invasive procedure – the skin of the subject is broken and a substance not normally excreted by the body under natural processes is obtained by an agent of the state.  This sort of procedure is normally performed by someone trained in medical procedures and is done at a medical lab or the offices of a medical professional.  Such a procedure seems to me very different in kind or genus from the aforementioned breath and urine tests.

[78]            Section 487.06 of the Criminal Code is reflective of the nature of this testing of blood and not surprisingly, Parliament has in the legislative provisions set out a quite specific code relating to the methodology of testing and the use of any test results.  Similarly, in the case of the taking of blood in regards to drinking and driving offences, the provisions of s. 254(4) and s. 256(1) of the Code require in the case of the taking of blood samples the involvement of medical personnel and the requirement that a qualified medical practitioner be satisfied that the taking of such samples would not endanger the life or health of the person from whom the samples are to be taken.  I find it difficult to envisage any situation in which the life or health of an individual could be affected by the taking of a breath sample or a urine sample.  But the provision authorizing the taking of a blood sample as was done in the case at bar by the sentencing judge appears to me to be a breach of s. 8 of the Charter.  I agree with my colleague that this portion of Condition 9 should be deleted from the order.  If such an invasive procedure is to be authorized under a probation order, it seems to me that it would require a more detailed statutory regime than is presently contained in s. 732.1 of the Criminal Code.

[79]            In light of certain additional evidence filed by the Crown respondent, it appears that the question of urinalysis testing may be largely moot because this procedure is no longer being funded by Community Corrections.  However, the issue has been raised before us and it seems appropriate for this Court to comment on the issue which arises in this case.  I would partially allow the appeal in the terms of these reasons.  I would otherwise dismiss this appeal from sentence.

“The Honourable Mr. Justice Hall”

Correction:  9 March 2005

At p. 24, para. 62, the third sentence should read: “I also agree with her that the reference to “treatment” in Condition 7 of the probation order out to be deleted…”

Corrigendum:  4 March 2005

Paragraph 55, page 21:  "Although ss. 732.1(c) and (h) . . " should read "Although ss. 732.1(3)(c) and (h) . . . ."

In paragraph 65, page 25: "By the terms of s. 718 of the Criminal Code, one of the purposes of sentencing set out in s. 718(b) . . . ." should read "s. 718(d)".

In paragraph 70, page 29. s. 732.1(c) and 732.1(h) should read s. 732.1(3)(c) and 7.32.(3)(h) respectively.