Vol. 148, No. 27 — December 31, 2014

Registration

SOR/2014-304 December 12, 2014

CRIMINAL CODE

Samples of Bodily Substances Regulations

P.C. 2014-1459 December 12, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsections 732.1(12) (see footnote a), 742.3(10) (see footnote b) and 810.3(5) (see footnote c) of the Criminal Code (see footnote d), makes the annexed Samples of Bodily Substances Regulations.

SAMPLES OF BODILY SUBSTANCES REGULATIONS

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

“Code”
« Code »

“Code” means the Criminal Code.

“qualified medical practitioner”
« médecin qualifié »

“qualified medical practitioner” means a person duly qualified under provincial law to practise medicine.

“qualified technician”
« technicien qualifié »

“qualified technician” means any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of sections 254, 256 and 258 of the Code.

PART 1

SAMPLES OF BODILY SUBSTANCES PROVIDED IN COMPLIANCE WITH PROBATION ORDER

Application

2. This Part applies in respect of any samples of bodily substances that are provided by offenders in compliance with the conditions of a probation order prescribed by a court under paragraph 732.1(3)(c.1) or (c.2) of the Code.

Designations and specifications

3. If the Attorney General of a province or the minister of justice of a territory proposes to make designations or specifications under subsection 732.1(8) of the Code, they must notify the Attorney General of Canada in writing that the province or territory has the technical and operational capability to take, analyze, store, handle and destroy any samples of bodily substances that are to be provided.

Prescribed bodily substances

4. The following are prescribed bodily substances for the purposes of paragraphs 732.1(3)(c.1) and (c.2) of the Code:

Designation of persons to take blood samples

5. (1) Only qualified medical practitioners and qualified technicians may be designated for the purposes of taking blood samples.

Medical opinion required

(2) A blood sample may be taken from a person only if a qualified medical practitioner is satisfied that taking the sample would not endanger the person’s life or health.

Analysis of breath samples

6. A breath sample must be analyzed either by using an instrument that has been approved under the Approved Breath Analysis Instruments Order or by using a screening device that has been approved under the Approved Screening Devices Order.

Storage of blood samples

7. A blood sample must be stored in a container that has been approved under the Order Approving Blood Sample Containers.

Prescribed period for destruction of samples

8. For the purposes of subsection 732.1(11) of the Code, a sample of a bodily substance must be destroyed within one year after the day on which the sample is provided.

PART 2

SAMPLES OF BODILY SUBSTANCES PROVIDED IN COMPLIANCE WITH CONDITIONAL SENTENCE ORDER

Application

9. This Part applies in respect of any samples of bodily substances that are provided by offenders in compliance with the conditions of a conditional sentence order prescribed by a court under paragraph 742.3(2)(a.1) or (a.2) of the Code.

Designations and specifications

10. If the Attorney General of a province or the minister of justice of a territory proposes to make designations or specifications under subsection 742.3(6) of the Code, they must notify the Attorney General of Canada in writing that the province or territory has the technical and operational capability to take, analyze, store, handle and destroy any samples of bodily substances that are to be provided.

Prescribed bodily substances

11. The following are prescribed bodily substances for the purposes of paragraphs 742.3(2)(a.1) and (a.2) of the Code:

Designation of persons to take blood samples

12. (1) Only qualified medical practitioners and qualified technicians may be designated for the purposes of taking blood samples.

Medical opinion required

(2) A blood sample may be taken from a person only if a qualified medical practitioner is satisfied that taking the sample would not endanger the person’s life or health.

Analysis of breath samples

13. A breath sample must be analyzed either by using an instrument that has been approved under the Approved Breath Analysis Instruments Order or by using a screening device that has been approved under the Approved Screening Devices Order.

Storage of blood samples

14. A blood sample must be stored in a container that has been approved under the Order Approving Blood Sample Containers.

Prescribed period for destruction of samples

15. For the purposes of subsection 742.3(9) of the Code, a sample of a bodily substance must be destroyed within one year after the day on which the sample is provided.

PART 3

SAMPLES OF BODILY SUBSTANCES PROVIDED IN COMPLIANCE WITH RECOGNIZANCE TO KEEP THE PEACE

Application

16. This Part applies in respect of any samples of bodily substances that are provided by defendants in compliance with the conditions added to a recognizance to keep the peace under paragraph 810(3.02)(b) or (c), 810.01(4.1)(f) or (g), 810.1(3.02)(h) or (i) or 810.2(4.1)(f) or (g) of the Code.

Designations and specifications

17. If the Attorney General of a province or the minister of justice of a territory proposes to make designations or specifications under subsection 810.3(1) of the Code, they must notify the Attorney General of Canada in writing that the province or territory has the technical and operational capability to take, analyze, store, handle and destroy any samples of bodily substances that are to be provided.

Prescribed bodily substances

18. The following are prescribed bodily substances for the purposes of paragraphs 810(3.02)(b) and (c), 810.01(4.1)(f) and (g), 810.1(3.02)(h) and (i) and 810.2(4.1)(f) and (g) of the Code:

Designation of persons to take blood samples

19. (1) Only qualified medical practitioners and qualified technicians may be designated for the purposes of taking blood samples.

Medical opinion required

(2) A blood sample may be taken from a person only if a qualified medical practitioner is satisfied that taking the sample would not endanger the person’s life or health.

Analysis of breath samples

20. A breath sample must be analyzed either by using an instrument that has been approved under the Approved Breath Analysis Instruments Order or by using a screening device that has been approved under the Approved Screening Devices Order.

Storage of blood samples

21. A blood sample must be stored in a container that has been approved under the Order Approving Blood Sample Containers.

Prescribed period for destruction of samples

22. For the purposes of subsection 810.3(4) of the Code, a sample of a bodily substance must be destroyed within one year after the day on which the sample is provided.

COMING INTO FORCE

S.C. 2011, c. 7

23. These Regulations come into force on the day on which the Response to the Supreme Court of Canada Decision in R. v. Shoker Act comes into force, but if these Regulations are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

For many decades, criminal courts across Canada have routinely been imposing orders against individuals prohibiting the consumption of illicit drugs and alcohol. These prohibitions are intended to enhance public safety by ensuring that individuals who show a propensity to engage in criminal conduct while under the influence of such substances are discouraged from substance abuse under court-ordered supervision. To allow for effective monitoring and enforcement of the court-ordered prohibitions, courts often imposed a condition requiring the individual to provide a bodily sample when requested. If the individual refused to provide the sample, or if the sample tested positive for the use of illicit drugs or alcohol, the individual could be charged with breaching the court order.

In October 2006, the Supreme Court of Canada held that a probation condition allowing a demand for a bodily sample, as part of a condition to abstain from illicit drugs and alcohol, was unlawful because an express authority for such a demand was not included in the Criminal Code probation provision (section 732.1). The Response to the Supreme Court of Canada Decision in R. v. Shoker Act (the Act) received Royal Assent on March 23, 2011. This Act amends the probation, conditional sentence and peace bond provisions of the Criminal Code to provide explicit authority for a court to include a condition that an offender must provide a bodily sample on demand or at regular intervals to police and probation officers.

2. Issues

The Act limits the specific types of bodily samples that can be collected to those stipulated by regulation. As a result, the provisions of the Act would be inoperative without complementary regulations, as police and probation officers would not be authorized to demand bodily samples from offenders. This would limit the enforceability of conditions to abstain from the consumption of alcohol or drugs by depriving Crown prosecutors of reliable and compelling evidence at trial where the offender is charged with a breach of the court order.

3. Objectives

The Act amends the Criminal Code to provide lawful authority to take bodily samples to ensure that these types of conditions, which are included in a great number of probation orders (Criminal Code, section 732.1), conditional sentences (section 742.3) and peace bonds (sections 810, 810.01, 810.1 and 810.2), can effectively be monitored for compliance.

The Samples of Bodily Substances Regulations (the Regulations) are intended to complement the provisions of the Act and create a framework for the exercise of the new authority that ensures minimum standards across the country in the collection, storage and analysis of these samples.

4. Description

The objective of the Act is to ensure that police and probation officers are able to properly enforce court orders and monitor individuals in the community under a court order to abstain from the consumption of drugs and alcohol.

If an offender fails to provide, without lawful excuse, a bodily sample as stipulated by the Regulations, or if a sample provided tests positive for illicit drugs or alcohol, the individual may be prosecuted for breaching the probation order or peace bond, which carries a maximum penalty of up to two years’ imprisonment. If the individual breaches a prohibition condition under a conditional sentence of imprisonment, the court may require the offender to serve out the remainder or a portion of the remainder of the sentence in prison, or the court may opt not to terminate the conditional sentence but instead change the conditions. The Act is very clear that any bodily samples authorized for collection by the Regulations may only be used for the purpose of ensuring compliance with a condition to abstain from the consumption of illicit drugs and alcohol.

The Regulations provide authority for the following types of samples to be taken: breath, urine, blood, hair, and saliva. These are the types of bodily samples that have been used in the past in varying degrees to identify the use of illicit drugs and alcohol by individuals under court orders to abstain from the consumption of illicit drugs and alcohol. The Regulations also specify that blood samples, where provinces and territories have opted to take such samples, will only be allowed to be taken by qualified medical practitioners or qualified technicians designated for the purpose of taking blood samples. However, a blood sample would only be taken if a qualified medical practitioner is satisfied that the taking of such a sample would not endanger the person’s life or health.

The Regulations also specify that where a provincial or territorial jurisdiction decides to exercise its authority under the Act to establish specific rules (designations) setting out how samples shall be collected, handled, stored, tested and destroyed, the province or territory in question must first notify the Attorney General of Canada in writing that they have the capability to properly manage a sampling regime.

Finally, the Regulations provide that any bodily sample taken under the authority of the Act must be destroyed no later than one year after the day on which the sample was provided. This ensures that bodily samples collected are not retained for unnecessary periods of time, thereby striking a balance between the need to ensure compliance with the prohibition orders and the need to preserve the privacy of the individual as well as the integrity of the sample.

5. Consultation

Following the 2006 decision of the Supreme Court of Canada in R. v. Shoker, the High Risk Offender Working Group of the Federal-Provincial-Territorial (FPT) Coordinating Committee of Senior Officials (CCSO), which reports to FPT deputy ministers responsible for justice and public safety, began consultations in 2007 to examine legal and operational issues associated with the taking of bodily samples from offenders to ensure compliance with prohibition orders made pursuant to the Criminal Code. Those consultations resulted in a unanimous recommendation from the Working Group to the FPT ministers responsible for justice and public safety in support of amending the Criminal Code to provide explicit authority for bodily sampling to ensure compliance with drug and alcohol prohibitions as a condition of a probation order, conditional sentence or peace bond.

Further consultations with provincial and territorial senior justice, public safety and police officials regarding the content of the Regulations occurred from April 2011 up until the proposed Regulations were published in the Canada Gazette, Part I, on June 1, 2013.

Publication in the Canada Gazette, Part I, allowed for a 30-day comment period from any interested parties, which ended on July 2, 2013. In response to the publication, the Department received two letters of comment on the proposed Regulations.

The first letter was from the Office of the Privacy Commissioner of Canada, which recommended that the proposed Regulations be amended to only allow the taking of blood samples where “it would be impracticable to obtain a sample of breath.” The Department has reviewed the comment but has not considered such an amendment as it would be beyond the scope of regulatory authority authorized by the Act, as passed by Parliament. The Department cannot go beyond the enabling authority in the Act.

The Office of the Privacy Commissioner also noted that, prior to the taking of a bodily sample, the Act does not require a review by an independent adjudicator, and recommended that the proposed Regulations be amended to add a requirement that authorized officers seeking a demand for a sample would have to document, in writing, the basis for that demand. The written notice would then be provided to the offender. This recommendation from the Office of the Privacy Commissioner was considered; it was decided that such an amendment was not necessary to protect the privacy rights of the offender.

Individuals subject to these demands are either under an active sentence, due to a criminal conviction, or subject to a peace bond order. Therefore, they are subject to a different expectation of privacy. Nonetheless, their privacy rights are still protected by the Act. These individuals can only be successfully prosecuted if a court finds that the requisite grounds for the demand existed at the time it was made, based on factual evidence presented in court. The onus to satisfy the court that the officer had sufficient grounds at the time of the demand remains, ultimately, on the Crown. As a result, if sufficient grounds for the demand are absent, the sample is inadmissible as evidence of the breach of the court order. Prior to the trial, the defendant also has the right for disclosure of the officer’s grounds for the demand.

Additionally, the Act does not require a review by an “independent adjudicator” prior to a sampling demand being made because a condition to provide a bodily sample may only be imposed by a criminal court judge after full consideration of the circumstances of the defendant, and in the presence of the defendant who may argue against the necessity for such a condition. The condition to provide a bodily sample may only be imposed by a judge who determines that, in the circumstances, it is necessary to ensure public safety.

The second comment was received from the Government of the Northwest Territories, which expressed a concern that the sampling regime established under the Act was ambiguous regarding whether or not it was mandatory for a province or territory to make operational designations regarding the collection, handling, storage, testing and destruction of samples under subsections 732.1(8), 742.3(6) and 810.3(1) of the Criminal Code, as amended by the Act. The Northwest Territories recommended that these provisions of the Act be amended by replacing the word “shall” with “may.” After consultation with all jurisdictions, the proposed Regulations were amended to clarify the discretionary nature of the operational designations under the Act. The amended Regulations now require, by sections 3, 10 and 17, that the attorney general of a province, or minister of justice of a territory, confirm in writing to the federal attorney general that they have the capacity to take a sample authorized in the Regulations before any designations may be made by that jurisdiction under subsections 732.1(8), 742.3(6) or 810.3(1) of the Criminal Code as amended by the Act. Designations under subsections 732.1(8), 742.3(6) and 810.3(1) of the Criminal Code, as amended by the Act, cannot be made and no samples may be collected until the letter is received.

6. Rationale

The types of bodily samples listed in the Regulations can be analysed to provide clear and reliable evidence regarding an alleged breach. To prove this offence without the evidence of bodily samples, Crown prosecutors would have to rely on oral testimony from persons who witnessed the offender’s symptoms or consumption of alcohol or drugs.

Prior to the 2006 Supreme Court of Canada decision in R. v. Shoker, the most common type of bodily sample taken was breath samples, given that the majority of breaches involved alcohol, and given the wide and long-established use of such techniques by police agencies in all jurisdictions. Urine samples were most commonly used where the breach was related to illicit drugs. Hair and sweat samples were rarely used, but consultations with all jurisdictions indicate that increased reliance on these techniques is anticipated. Blood samples were only very rarely taken in a small number of jurisdictions, and only for the most serious cases involving the most high risk violent and sexual offenders where the offender was unable or unwilling to provide other types of samples.

7. Implementation, enforcement and service standards

The Regulations will come into force on the same day as the Act. All provinces and territories that wish to permit the collection of bodily samples must eventually establish specific parameters for police and corrections officers to follow in the collection, handling, storage, testing and destruction of bodily samples, before any specific types of samples authorized by the Regulations can be taken under the authority of the Act. There is no specific time period stipulated in the Act for provinces and territories to establish the parameters. Jurisdictions will need to carefully consider the type of sampling regime they wish to establish, including what types of samples, if any, they intend to allow to be collected and used for compliance purposes.

Before a jurisdiction establishes its parameters for any specific type of bodily sample, the Regulations require the jurisdiction to notify the Attorney General of Canada, in writing, that it has the operational and technical capacity to properly collect, handle, test, store and destroy that specific type of sample. Once the letter is received, the jurisdiction may then establish the parameters required under the Act that dictate how its officials manage the regime for that type of sample. These steps ensure that any jurisdiction that decides to take a specific type of sample will have sufficient resources, training and privacy safeguards in place before any samples are taken.

8. “One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as it does not impose any administrative burden on business.

9. Small business lens

The small business lens does not apply to this proposal, as it does not impose any burden on small business.

10. Contact

Doug Hoover
Counsel
Criminal Law Policy Section
Department of Justice
Telephone: 613-954-1658