In a ruling last week, the Canadian Supreme Court held that the country's Criminal Code does not allow judges to require offenders on probation to submit to drug tests or other demands for a sample of bodily substances. The ruling came in the case of Harjit Singh Shoker, who in 2003 climbed naked into bed with an RCMP officer's wife with rape on his mind in the midst of a methamphetamine binge.

Shoker was convicted of breaking and entering with the intent to commit sexual assault and was sentenced to 20 months in prison and two years probation. His sentencing judge including as conditions of his probation that he must undergo drug treatment, abstain from using alcohol and drugs, and undergo drug tests on demand. He appealed those conditions of his sentence.

In 2004, the British Columbia Court of Appeals ruled that the trial judge had no authority to order Shoker into treatment without his consent, nor did he have the authority to demand that Shoker submit to drug tests. Since then BC judges have continued to order probationers to avoid drugs and alcohol, but have foregone what had been an almost automatic companion order to submit to drug testing.

The BC Crown Prosecutors Office did not challenge the drug treatment ruling, but did appeal the ruling on drug testing -- even though the province had eliminated funding for the drug testing program in 2003. But BC prosecutors got no solace from the Supreme Court.

Justice Louise Charron, who authored the ruling, called drug testing so "highly intrusive" that it required "stringent standards and safeguards to meet constitutional requirements." Parliament could craft such standards, making a drug testing requirement legal, she noted. "There is no question that a probationer has a lowered expectation of privacy," Charron wrote. "However, it is up to Parliament, not the courts, to balance the probationers' charter rights as against society's interest in effectively monitoring their conduct."

If Parliament wants judges to be able to impose drug testing as a condition of probation, it must address the issue and not leave it to the whim of individual judges. "The establishment of these standards and safeguards cannot be left to the discretion of the sentencing judge in individual cases," Charron wrote. "Those are precisely the kinds of policy decisions for Parliament to make having regard to the limitations contained in the charter."

What a difference a border makes! On the US side, coerced drug treatment and drug testing is the norm. On the Canadian side, it's unconstitutional, at least the way they tried it.