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Response to the Supreme Court of Canada Decision in R. v. Shoker Act (S.C. 2011, c. 7)

Assented to 2011-03-23

Response to the Supreme Court of Canada Decision in R. v. Shoker Act

S.C. 2011, c. 7

Assented to 2011-03-23

An Act to amend the Criminal Code

SUMMARY

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, a conditional sentence order or a recognizance under section 810, 810.01, 810.1 or 810.2 of that Act.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

ALTERNATIVE TITLE

Marginal note:Alternative title

 This Act may be cited as the Response to the Supreme Court of Canada Decision in R. v. Shoker Act.

R.S., c. C-46CRIMINAL CODE

 The Criminal Code is amended by adding the following after section 729:

Marginal note:Proof of certificate of analyst — bodily substance
  • 729.1 (1) In a prosecution for failure to comply with a condition in a probation order that the accused not consume drugs, alcohol or any other intoxicating substance, or in a hearing to determine whether the offender breached such a condition of a conditional sentence order, a certificate purporting to be signed by an analyst that states that the analyst has analyzed a sample of a bodily substance and that states the result of the analysis is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person who appears to have signed the certificate.

  • Definition of “analyst”

    (2) In this section, “analyst” has the same meaning as in subsection 254(1).

  • Marginal note:Notice of intention to produce certificate

    (3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

  • Marginal note:Requiring attendance of analyst

    (4) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

Marginal note:1995, c. 22, s. 6
  •  (1) Paragraph 732.1(3)(c) of the Act is replaced by the following:

    • (c) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;

    • (c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

    • (c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

  • (2) Section 732.1 of the Act is amended by adding the following after subsection (6):

    • Marginal note:Notice — samples at regular intervals

      (7) The notice referred to in paragraph (3)(c.2) must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.

    • Marginal note:Designations and specifications

      (8) For the purposes of paragraphs (3)(c.1) and (c.2) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

      • (a) designate the persons or classes of persons that may take samples of bodily substances;

      • (b) designate the places or classes of places at which the samples are to be taken;

      • (c) specify the manner in which the samples are to be taken;

      • (d) specify the manner in which the samples are to be analyzed;

      • (e) specify the manner in which the samples are to be stored, handled and destroyed;

      • (f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;

      • (g) designate the persons or classes of persons that may destroy the samples; and

      • (h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.

    • Marginal note:Further designations

      (9) For the purpose of paragraph (3)(c.1) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.

    • Marginal note:Restriction

      (10) Samples of bodily substances referred to in paragraphs (3)(c.1) and (c.2) may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (8).

    • Marginal note:Destruction of samples

      (11) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a probation order to be destroyed within the periods prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 733.1.

    • Marginal note:Regulations

      (12) The Governor in Council may make regulations

      • (a) prescribing bodily substances for the purposes of paragraphs (3)(c.1) and (c.2);

      • (b) respecting the designations and specifications referred to in subsections (8) and (9);

      • (c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (11); and

      • (d) respecting any other matters relating to the samples of bodily substances.

 The Act is amended by adding the following after section 732.1:

Marginal note:Prohibition on use of bodily substance
  • 732.11 (1) No person shall use a bodily substance provided under a probation order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.

  • Marginal note:Prohibition on use or disclosure of result

    (2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a probation order.

  • Marginal note:Exception

    (3) The results of the analysis of a bodily substance provided under a probation order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 733.1 or, if the results are made anonymous, for statistical or other research purposes.

  • Marginal note:Offence

    (4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

Marginal note:1995, c. 22, s. 6
  •  (1) Paragraph 742.3(2)(a) of the Act is replaced by the following:

    • (a) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;

    • (a.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, the supervisor or someone designated under subsection (7) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to suspect that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

    • (a.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by the supervisor in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

  • (2) Section 742.3 of the Act is amended by adding the following after subsection (4):

    • Marginal note:Notice — samples at regular intervals

      (5) The notice referred to in paragraph (2)(a.2) must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.

    • Marginal note:Designations and specifications

      (6) For the purposes of paragraphs (2)(a.1) and (a.2) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

      • (a) designate the persons or classes of persons that may take samples of bodily substances;

      • (b) designate the places or classes of places at which the samples are to be taken;

      • (c) specify the manner in which the samples are to be taken;

      • (d) specify the manner in which the samples are to be analyzed;

      • (e) specify the manner in which the samples are to be stored, handled and destroyed;

      • (f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;

      • (g) designate the persons or classes of persons that may destroy the samples; and

      • (h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.

    • Marginal note:Further designations

      (7) For the purpose of paragraph (2)(a.1) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.

    • Marginal note:Restriction

      (8) Samples of bodily substances referred to in paragraphs (2)(a.1) and (a.2) may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (6).

    • Marginal note:Destruction of samples

      (9) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a conditional sentence order to be destroyed within the periods prescribed by regulation, unless the samples are reasonably expected to be used as evidence in proceedings under section 742.6.

    • Marginal note:Regulations

      (10) The Governor in Council may make regulations

      • (a) prescribing bodily substances for the purposes of paragraphs (2)(a.1) and (a.2);

      • (b) respecting the designations and specifications referred to in subsections (6) and (7);

      • (c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (9); and

      • (d) respecting any other matters relating to the samples of bodily substances.

 The Act is amended by adding the following after section 742.3:

Marginal note:Prohibition on use of bodily substance
  • 742.31 (1) No person shall use a bodily substance provided under a conditional sentence order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.

  • Marginal note:Prohibition on use or disclosure of result

    (2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a conditional sentence order.

  • Marginal note:Exception

    (3) The results of the analysis of a bodily substance provided under a conditional sentence order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of proceedings under section 742.6 or, if the results are made anonymous, for statistical or other research purposes.

  • Marginal note:Offence

    (4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

Marginal note:1994, c. 44, s. 81(2)
  •  (1) Subsection 810(3) of the Act is replaced by the following:

    • Marginal note:Adjudication

      (3) If the justice or summary conviction court before which the parties appear is satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for the fear, the justice or court may order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months.

    • Marginal note:Refusal to enter into recognizance

      (3.01) The justice or summary conviction court may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance.

    • Marginal note:Conditions in recognizance

      (3.02) The justice or summary conviction court may add any reasonable conditions to the recognizance that the justice or court considers desirable to secure the good conduct of the defendant, including conditions that require the defendant

      • (a) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;

      • (b) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or

      • (c) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.

  • (2) Subsection 810(4) of the Act is replaced by the following:

    • Marginal note:Forms

      (4) A recognizance and a committal to prison in default of recognizance may be in Forms 32 and 23, respectively.

Marginal note:2009, c. 22, s. 19(1)
  •  (1) Subsection 810.01(3) of the French version of the Act is replaced by the following:

    • Marginal note:Décision

      (3) Le juge devant lequel les parties comparaissent peut, s’il est convaincu par la preuve apportée que les craintes du dénonciateur sont fondées sur des motifs raisonnables, ordonner que le défendeur contracte l’engagement de ne pas troubler l’ordre public et d’avoir une bonne conduite pour une période maximale de douze mois.

  • Marginal note:2009, c. 22, s. 19(2)

    (2) The portion of subsection 810.01(4.1) of the Act before paragraph (a) is replaced by the following:

    • Marginal note:Conditions in recognizance

      (4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable for preventing the commission of an offence referred to in subsection (1), including conditions that require the defendant

  • (3) Subsection 810.01(4.1) of the Act is amended by striking out “or” at the end of paragraph (d) and by adding the following after paragraph (e):

    • (f) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or

    • (g) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.

 Subsection 810.1(3.02) of the Act is amended by striking out “or” at the end of paragraph (f) and by adding the following after paragraph (g):

  • (h) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or

  • (i) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.

 Subsection 810.2(4.1) of the Act is amended by striking out “or” at the end of paragraph (d) and by adding the following after paragraph (e):

  • (f) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or

  • (g) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.

 The Act is amended by adding the following after section 810.2:

Marginal note:Samples — designations and specifications
  • 810.3 (1) For the purposes of sections 810, 810.01, 810.1 and 810.2 and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

    • (a) designate the persons or classes of persons that may take samples of bodily substances;

    • (b) designate the places or classes of places at which the samples are to be taken;

    • (c) specify the manner in which the samples are to be taken;

    • (d) specify the manner in which the samples are to be analyzed;

    • (e) specify the manner in which the samples are to be stored, handled and destroyed;

    • (f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;

    • (g) designate the persons or classes of persons that may destroy the samples; and

    • (h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.

  • Marginal note:Further designations

    (2) Subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate the persons or classes of persons

    • (a) to make a demand for a sample of a bodily substance for the purposes of paragraphs 810(3.02)(b), 810.01(4.1)(f), 810.1(3.02)(h) and 810.2(4.1)(f); and

    • (b) to specify the regular intervals at which a defendant must provide a sample of a bodily substance for the purposes of paragraphs 810(3.02)(c), 810.01(4.1)(g), 810.1(3.02)(i) and 810.2(4.1)(g).

  • Marginal note:Restriction

    (3) Samples of bodily substances referred to in sections 810, 810.01, 810.1 and 810.2 may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (1).

  • Marginal note:Destruction of samples

    (4) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a recognizance under section 810, 810.01, 810.1 or 810.2 to be destroyed within the period prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 811.

  • Marginal note:Regulations

    (5) The Governor in Council may make regulations

    • (a) prescribing bodily substances for the purposes of sections 810, 810.01, 810.1 and 810.2;

    • (b) respecting the designations and specifications referred to in subsections (1) and (2);

    • (c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (4); and

    • (d) respecting any other matters relating to the samples of bodily substances.

  • Marginal note:Notice — samples at regular intervals

    (6) The notice referred to in paragraph 810(3.02)(c), 810.01(4.1)(g), 810.1(3.02)(i) or 810.2(4.1)(g) must specify the places and times at which and the days on which the defendant must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the defendant is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.

Marginal note:Prohibition on use of bodily substance
  • 810.4 (1) No person shall use a bodily substance provided under a recognizance under section 810, 810.01, 810.1 or 810.2 except for the purpose of determining whether a defendant is complying with a condition in the recognizance that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.

  • Marginal note:Prohibition on use or disclosure of result

    (2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a recognizance under section 810, 810.01, 810.1 or 810.2.

  • Marginal note:Exception

    (3) The results of the analysis of a bodily substance provided under a recognizance under section 810, 810.01, 810.1 or 810.2 may be disclosed to the defendant to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 811 or, if the results are made anonymous, for statistical or other research purposes.

  • Marginal note:Offence

    (4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

 The Act is amended by adding the following after section 811:

Marginal note:Proof of certificate of analyst — bodily substance
  • 811.1 (1) In a prosecution for breach of a condition in a recognizance under section 810, 810.01, 810.1 or 810.2 that a defendant not consume drugs, alcohol or any other intoxicating substance, a certificate purporting to be signed by an analyst that states that the analyst has analyzed a sample of a bodily substance and that states the result of the analysis is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person who appears to have signed the certificate.

  • Definition of “analyst”

    (2) In this section, “analyst” has the same meaning as in subsection 254(1).

  • Marginal note:Notice of intention to produce certificate

    (3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

  • Marginal note:Requiring attendance of analyst

    (4) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

 Part XXVIII of the Act is amended by adding the following after Form 50:

FORM 51(Paragraphs 732.1(3)(c.2), 742.3(2)(a.2), 810(3.02)(c), 810.01(4.1)(g), 810.1(3.02)(i) and 810,2(4.1)(g))NOTICE OF OBLIGATION TO PROVIDE SAMPLES OF BODILY SUBSTANCE

To A.B., of ................, (occupation), (address in Canada), (date of birth), (gender):

Because, on (date), you were ordered, under (applicable provision) of the Criminal Code, to provide samples of a bodily substance prescribed by regulation at regular intervals for the purpose of analysis;

You are provided with this notice to inform you of your obligations with respect to providing samples.

1. On (specify a day not earlier than 24 hours after the day on which the notice is served), you must report, at any time from (time) to (time), at (address of place at which sample to be taken, as designated by the Attorney General of the province or Minister of Justice of the territory), to provide a sample of your (specify type of bodily substance prescribed by regulation).

2. Every (specify a number not less than seven) days after you first report to provide a sample, you must report, at any time from (time) to (time), at (address of place at which sample to be taken, as designated by the Attorney General of the province or Minister of Justice of the territory), to provide a sample of your (specify type of bodily substance prescribed by regulation).

3. You have the right to apply to a court to terminate the obligation to provide samples, and the right to appeal any decision of that court.

4. If you are found to have not complied with your obligation to provide samples as set out in this notice, you may be subject to a fine or imprisonment, or to both (or, in the case of a conditional sentence, you may be subject to proceedings under section 742.6 of the Criminal Code, the consequences of which may include imprisonment).

5. The results of the analysis of the bodily substances may be used or disclosed in accordance with the Criminal Code, including in proceedings against you, the result of which may be that you are subject to a fine or imprisonment, or to both (or, in the case of a conditional sentence, including in proceedings under section 742.6 of the Criminal Code, the consequences of which may include imprisonment).

Served on (date), at (place the notice is served).

..................................................

(Signature of probation officer, supervisor or person designated by the Attorney General or Minister of Justice, as the case may be)

COMING INTO FORCE

Marginal note:Order in council

 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Date modified: