Response to the Supreme Court of Canada Decision in R. v. Shoker Act (S.C. 2011, c. 7)
Full Document:
Assented to 2011-03-23
6. 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)
7. (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)
8. (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.
9. 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.
10. 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.
11. 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.
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