Last week, Yorkton Provincial Court Judge Ross Green refused to impose a probation condition on a 22-year-old Yorkton man who had just pleaded guilty to sexual assault, uttering threats and unlawful confinement. The condition would have required Layne Stehr to provide on-demand samples of bodily substances for two years following a 10-month prison term to prove he was abstaining from illegal drugs.
The judge cited case law R. v. Shoker in which the Supreme Court of Canada (SCC) ruled the condition unconstitutional on a probation order. He said he thought there may be legislation pending that could make the condition legal, but in the meantime was uncomfortable imposing it.
In Shoker the Court ruled the probation condition was contrary to The Charter of Rights and Freedoms Section 8, which reads: "Everyone has the right to be secure against unreasonable search or seizure."
I was intrigued. I read R. v. Shoker and found the subsequent legislation addressing the case. In fact, it had already been passed back in December 2011. They even called it the Response to the Supreme Court of Canada Decision in R. v. Shoker Act.
The summary of the legislation states: "This enactment amends the Criminal Code to allow a court to require that an offender or defendant provide a sample of a bodily substance on the demand of peace officers, probation officers, supervisors or designated persons, or at regular intervals, in order to enforce compliance with a prohibition on consuming drugs or alcohol imposed in a probation order."
I was outraged. Surely a government can't simply amend the Criminal Code of Canada (CCC) to nullify an SCC constitutional decision. If something is unconstitutional, wouldn't it still be unconstitutional under the new law? Wouldn't this require an amendment to the Constitution?
Fortunately, before I let my emotional brain dictate what I was willing to put in print, my logical brain kicked in and did a reality check.
First of all, I had to examine my bias. I have become so used to disagreeing with the Conservatives about the fast and loose way they play with the Charter and their antagonism toward the judiciary, perhaps my initial outrage was a bit of a knee-jerk reaction.
After all, this guy had just pleaded guilty to sexual assault. The evidence in the case indicated he had put the woman he attacked, his ex-girlfriend no less, in mortal danger and threatened her. His defence attorney submitted that one of the underlying causes of the assault was his addiction to illegal drugs. He even said his client was willing to consent to the probation condition.
If I was being true to my conviction that the purpose of the justice system is rehabilitation, not simply vengeance, was it not perfectly reasonable to require a condition aimed at addressing a root cause of the offences. Is it not in the offender's best interest, and that of society, particularly in a case as egregious as sexual assault?
It really doesn't seem unreasonable, but that doesn't necessarily make it constitutional. I went over the SCC decision and the new legislation again.
I was confused. I could not see anything in either that really answered my questions. But I am constitutional expert, so I consulted one.
Peter Russell is a professor emeritus at the University of Toronto and one of the foremost experts on the Constitution in the world. He was not familiar with the specific case so did not answer the question directly. What he told me was that a government that doesn't like an SCC decision "it can pass new legislation on the subject designed to meet the particular objection that the SCC had to the law it struck down...."
I was enlightened. The key was the "particular objection" of the Court. When I reread the decision yet again, it became clear the justices were not saying that demanding bodily substances as a condition of a probation order inherently violated Section 8 of the Charter, but that there was no explicit provision in the Criminal Code that would allow it.
Now there is.
