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Canadian Charter - Criminal - Criminal Law - Probation - Whether a sentencing judge who imposes a condition in a probation order that an offender abstain from drugs and alcohol is precluded, because of the absence of legislative or regulatory standards or safeguards for the protection of the offender’s privacy, from including in the order an enforcement term requiring the offender to submit to demands for bodily samples - If such enforcement terms may be imposed, whether the demand for bodily samples could only be made on the basis of reasonable and probable grounds that the offender has breached the abstention condition in the probation order - Criminal Code, R.S.C. 1985, c. C-46, ss. 732.1(3)(c), 732.1(3)(h).

The Respondent was convicted of break and enter with intent to commit a sexual assault. He was sentenced to custody followed by probation. The probation order contains a condition stating that he shall abstain absolutely from the possession and consumption of alcohol and non prescription narcotics and, to determine compliance with the abstention condition, he shall submit to a urinalysis, blood test or breathalyzer test upon the demand of a Peace Officer or Probation Officer. The Court of Appeal held that demands for bodily samples, in the absence of a regulatory or statutory framework governing how the samples will be taken and tested, violate s. 8 of the Charter and the defect cannot be cured. Hall J.A., in dissent, would have amended the probation order such that a demand for breath or urine samples can be made based on reasonable and probable grounds to suspect a violation of the abstention condition.