Pubdate: Thu, 26 Oct 2006
Source: NOW Magazine (CN ON)
Copyright: 2006 NOW Communications Inc.
Contact:  http://www.nowtoronto.com/
Details: http://www.mapinc.org/media/282
Author: Alan Young

THIS IS ONE DRUG TEST WE NEED

Court's Refusal to Monitor Urine of Sloshed Criminals Sets Stage For 
Repeat Offences

Although I have been an outspoken advocate of the legalization of all 
illicit drugs, I have little tolerance for those who use their 
alcohol or drug abuse as an excuse for bad behaviour. Don't tell me 
it was the whiskey talking.

In terms of community safety, there is no doubt that alcohol is the 
most dangerous drug of all. Over half of all murders are committed 
while drunk, and recent statistics indicate that 51 per cent of all 
physical assaults and 48 per cent of all sexual assaults are related 
primarily to alcohol. It is also clear that when alcohol is involved 
in spousal abuse, the injuries inflicted are more severe.

It would be quite reasonable to expect that our system of criminal 
justice would take steps to protect us from the unpredictable drunk 
and dangerous offender, but last week the Supreme Court of Canada 
gave us a snapshot of the system's indifference to the problem.

The court was called upon to decide whether a judge could order urine 
testing as a condition of probation.

Harjit Shoker had been convicted of break and enter with intent to 
commit sexual assault. While under the influence of speed, he broke 
into a stranger's apartment, disrobed and slid into the victim's bed. 
Just a few months earlier he'd pulled the same stunt while drunk, but 
was acquitted on the grounds that he believed he had entered a 
friend's apartment. Shoker blamed his bad behaviour on drug and alcohol abuse.

Shoker was sentenced to 20 months in prison followed by two years 
probation with a condition he abstain from non-medical use of drugs 
and submit to random drug testing by urinalysis. The Supreme Court 
concluded that the sentencing judge did not have authority under the 
Criminal Code to order random urine testing, and if the power did 
exist, then it infringed upon the offender's right to privacy and to 
be free from unreasonable search and seizure. I found the decision surprising.

The absence in the Criminal Code of a specific grant of power to 
order urine testing is not an insurmountable problem. Under the guise 
of statutory interpretation, the Court has deemed day to be night and 
black to be white, so the Court has often ended up adding to, 
subtracting from and modifying the terms and conditions found in the Code.

I also fail to see the compelling nature of Shoker's rights claim. 
I'm not a big fan of drug testing, because in its usual context of 
workplace safety it has turned out to be an invasive form of 
lifestyle control that bears little relationship to workplace safety 
and productivity.

But in Shoker's case we are dealing with a man who clearly presents a 
risk when intoxicated. Unless we expect parole and probation officers 
to move in with the offender, urine testing remains the only viable 
option for ensuring that the offender complies.

Due to the prevalence of alcohol-driven criminality, many offenders 
are routinely ordered to abstain from drinking, smoking, snorting and 
shooting. Many offenders breach this condition before they even get 
home from court, just as many impaired drivers who have had their 
licences suspended upon conviction end up driving home from court. 
The law appears foolish and impotent when it imposes conditions that 
are so blatantly flouted. It's for this reason that the original 
judge in the Shoker case decided to impose urine testing as a 
condition for release into the community.

In rejecting the imposition of this reasonable condition of release, 
I think the Supreme Court has quietly demonstrated that we should not 
expect the modern system of criminal justice to play a significant 
role in solving most social problems.

With respect to alcohol and drug abuse, the system is content simply 
to order the abuser to abstain, and then naively assumes that the 
problem will magically disappear. Criminal justice is like the shrink 
whose only advice to his clinically depressed patients is to cheer 
up. The only real hope we have of changing social and behavioural 
problems is to become deeply engaged and involved with the person 
whose behaviour needs to be changed, but criminal justice has no 
interest in this labour-intensive and enervating enterprise.

For decades, politicians have misled the public into believing that 
social problems need criminal justice solutions, but the system is 
too impersonal and cumbersome for this task. It must be remembered 
that with the exception of a few pilot projects, criminal courts do 
not operate in conjunction with any other social services. They know 
there's a high correlation between crime, substance abuse and 
unemployment, so it's remarkable that criminal courts do not maintain 
a dialogue and working relationship with agencies responsible for 
vocational training and drug treatment.

It is the height of reckless indifference to release Shoker into the 
community with no effective social control when there are reasonable 
grounds to believe he may pose a danger to women when drunk or stoned.

But even if the Supreme Court had permitted random urine testing, 
this would not necessarily solve the problem. If Shoker's urine 
tested positive, then the court's only mandate would be to consider 
whether he should be convicted of breach of probation. Perhaps he 
would be sent back to jail for a short period. While the system can 
move Shoker quickly through the revolving prison door, it seems 
powerless to change the conditions that brought him into the system 
in the first place.
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MAP posted-by: Elaine