Friday, October 13, 2006

R. v. Shoker -- Case Comment -- Thumbs Up

Mojo Nixon famously told the world, "I ain't going to peepee in no cup/ Unless Nancy Reagan's gonna drink it up." The question is whether he would be able to maintain this position in Canada if convicted of a crime and otherwise ordered by a sentencing judge as a probation term.

The court today said that sentencing judges cannot order urine, blood or breath samples as part of a probation order, unless Parliament more specifically gives them that power. As it stands, the Criminal Code allows a court to prescribe such "reasonable conditions as the court considers desirable ... for protecting society and for facilitating the offender's successful reintigration into the community."

Harjit Singh Shoker broke into a woman's bedroom and, naked, tried to get into her bed. When she called the police, he apparently made no attempt to escape. Charged with breaking and entering a dwelling-house with intent to commit sexual assualt, he blamed the drugs and the booze.

The sentencing judge told him that once he completed his jailtime, he had to abstain from alcohol and non-prescription narcotics. Sensibly enough, the judge thought random testing would be necessary to ensure compliance with this condition, and ordered it.

The Pithlord has no problem with the judge's order. Shoker was convicted of an offence, and if you can deprive him of all his liberty by putting him in jail, you should also be able to subject him to more limited indignities non-criminals are secure from. But he agrees with the majority that, given that such orders are obviously "search and seizure", they need more specific legislative language. Courts are doing what they are supposed to in forcing the politicos to be clear when intruding on personal liberty, however justifiably.

A good day for democracy-forcing.

Case Comment of R. v. Shoker, 2006 SCC 44

Update: I also give a thumbs up to Justice Rothstein's decision in Ritchie v. Walker (defendants do not have to pay increased costs because plaintiffs could not afford to pay their lawyer), but it's too boring for me to blog on a Friday. Complaints are directed to Haloscan.

Update 2: David Fraser, the Privacy Lawyer, blogs about Shoker here.

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