A New Path? The SCC Defers to Parliament in R v Shoker
I attended a conference on the weekend where, in the context of a panel on police accountability and access to justice, I had the opportunity to hear James Stribopoulos speak briefly on how police powers have broadened in the post-Charter era. Particularly, Professor Stribopoulos highlighted the difficulties inherent in relying on the exclusionary provision in the Charter to serve as a check on the exercise of police power. He noted that in practice, the Charter has largely served as a means of crime control, rather than of due process.
The courts regularly fill in legislative gaps – when the statutory framework does not provide the state with powers percieved to be crucial in the investigation and prevention of crime. In many of these cases (for example see R v Golden,  3 SCR 679), the Supreme Court of Canada (“SCC”) has been very willing to fill in the gaps by articulating limits and boundaries for the exercise of state power in the context of criminal procedure rather than deferring this exercise to Parliament.
Though it is not clear whether the SCC is truly forging a new path, in R v Shoker, 2006 SCC 44, the majority of the SCC finally did defer to Parliament. This case centered on a probation order issued under ss. 732.1(3)(c) and 732.1(3)(h) of the Criminal Code, RSC 1985, c C-46 [the Code]. The issue before the SCC was whether these provisions provide a sentencing judge the requisite jurisdiction to require a probationer to provide samples of breath, urine or blood to test for compliance with probation conditions which require the probationer to abstain from drugs and alcohol.
The SCC Decision
The majority of the SCC, in a judgment written by Charron J., held that there was no authority under the Code to authorize the search and seizure of bodily substances as part of a probation order. The majority then determined that because such conditions in Mr. Shoker’s probation order must be quashed for lack of jurisdiction, there was no need to consider the constitutional question – that is, if there was jurisdiction in the Code for such conditions, would they be constitutional?
In this case, the SCC held that it is “Parliament’s role to determine appropriate standards and safeguards governing the collection of bodily samples for enforcement purposes” and further that “such a scheme cannot be judicially enacted on the ground that the court may find it desirable in an individual case.” Essentially, in the spirit of dialogue, the SCC threw the ball back in Parliament’s court.
It may be no coincidence that Professor Stribopoulos himself appeared before the SCC in this case. In light of the state of police confusion (or perhaps willful blindness) resulting from the evolving jurisprudence on investigative detentions, random traffic stops and police search powers, one would hope that deference to Parliament will result in clear codified rules. That is, if Parliament chooses to create the statutory power to require probationers to provide samples of bodily substances as a condition of probation, that the grant of power will be clear, unambiguous and bounded by strict limitations as to process and preconditions (such as reasonable suspicion) for compelling such searches.
I see promise in the majority’s decision to defer the first attempt at crafting such a grant of power to our elected representatives. Nevertheless, the minority’s holding is slightly worrisome. The minority actually found jurisdiction within the language of the provisions for the probation conditions, but then held that such provisions were unconstitutional. Though this holding, had it prevailed, also would have required Parliament to craft another provision that does not offend constitutional principles, it does so only after a broad liberal reading of the jurisdiction of the sentencing judge. In essence, the minority is very comfortable to continue filling in the gaps in the legislation.
However, one must turn to the Code to actually see how far the minority had to stretch to fill in this particular gap. Section 732.1(3)(c) of the Code provides that a probationer must abstain from the consumption of alcohol or drugs except in accordance with medical prescriptions, while s. 732.1(3)(h) provides that a probationer must “comply with such other reasonable conditions as the court considers desirable…for protecting society and for facilitating the offender’s successful reintegration into the community.” Yet, s.731.1(g) also allows the court to make participation in a treatment program a condition of probation, but only if the offender agrees. Further, s.731.1(g.2) enables the use of an alcohol ignition interlock device to be a condition, but only if such a program exists in the offender’s province and if the offender agrees to participate.
It seems clear that if the statute is explicit about requiring the offender’s consent to impose conditions such as the use of an alcohol ignition interlock device and compliance with a treatment program, compelling the provision of bodily samples cannot be implied in the statute as a “reasonable condition,” nor can it be interpreted to have been Parliament’s intention without something more explicit!
Justice LeBel notes that Parliament has granted sentencing judges wide discretion and that monitoring conditions (such as electronic monitoring) are provided for in the statute. Setting aside the obvious – that electronic monitoring is a far cry from a vague power to compel the production of bodily samples – thankfully the majority recognized that the discretion of a judge to read powers that may be deemed convenient or necessary into a statutory framework is not limitless.