Although I have been an outspoken advocate of the legalization of all illicit drugs, I have little tolerance for those who use their alcohol or drug abuse as an excuse for bad behaviour. Don't tell me it was the whiskey talking.
In terms of community safety, there is no doubt that alcohol is the most dangerous drug of all. Over half of all murders are committed while drunk, and recent statistics indicate that 51 per cent of all physical assaults and 48 per cent of all sexual assaults are related primarily to alcohol. It is also clear that when alcohol is involved in spousal abuse, the injuries inflicted are more severe.
It would be quite reasonable to expect that our system of criminal justice would take steps to protect us from the unpredictable drunk and dangerous offender, but last week the Supreme Court of Canada gave us a snapshot of the system's indifference to the problem.
The court was called upon to decide whether a judge could order urine testing as a condition of probation.
Harjit Shoker had been convicted of break and enter with intent to commit sexual assault. While under the influence of speed, he broke into a stranger's apartment, disrobed and slid into the victim's bed. Just a few months earlier he'd pulled the same stunt while drunk, but was acquitted on the grounds that he believed he had entered a friend's apartment. Shoker blamed his bad behaviour on drug and alcohol abuse.
Shoker was sentenced to 20 months in prison followed by two years probation with a condition he abstain from non-medical use of drugs and submit to random drug testing by urinalysis. The Supreme Court concluded that the sentencing judge did not have authority under the Criminal Code to order random urine testing, and if the power did exist, then it infringed upon the offender's right to privacy and to be free from unreasonable search and seizure. I found the decision surprising.
The absence in the Criminal Code of a specific grant of power to order urine testing is not an insurmountable problem. Under the guise of statutory interpretation, the Court has deemed day to be night and black to be white, so the Court has often ended up adding to, subtracting from and modifying the terms and conditions found in the Code.
I also fail to see the compelling nature of Shoker's rights claim. I'm not a big fan of drug testing, because in its usual context of workplace safety it has turned out to be an invasive form of lifestyle control that bears little relationship to workplace safety and productivity.
But in Shoker's case we are dealing with a man who clearly presents a risk when intoxicated. Unless we expect parole and probation officers to move in with the offender, urine testing remains the only viable option for ensuring that the offender complies.
Due to the prevalence of alcohol-driven criminality, many offenders are routinely ordered to abstain from drinking, smoking, snorting and shooting. Many offenders breach this condition before they even get home from court, just as many impaired drivers who have had their licences suspended upon conviction end up driving home from court. The law appears foolish and impotent when it imposes conditions that are so blatantly flouted. It's for this reason that the original judge in the Shoker case decided to impose urine testing as a condition for release into the community.
In rejecting the imposition of this reasonable condition of release, I think the Supreme Court has quietly demonstrated that we should not expect the modern system of criminal justice to play a significant role in solving most social problems.
With respect to alcohol and drug abuse, the system is content simply to order the abuser to abstain, and then naively assumes that the problem will magically disappear. Criminal justice is like the shrink whose only advice to his clinically depressed patients is to cheer up. The only real hope we have of changing social and behavioural problems is to become deeply engaged and involved with the person whose behaviour needs to be changed, but criminal justice has no interest in this labour-intensive and enervating enterprise.
For decades, politicians have misled the public into believing that social problems need criminal justice solutions, but the system is too impersonal and cumbersome for this task. It must be remembered that with the exception of a few pilot projects, criminal courts do not operate in conjunction with any other social services. They know there's a high correlation between crime, substance abuse and unemployment, so it's remarkable that criminal courts do not maintain a dialogue and working relationship with agencies responsible for vocational training and drug treatment.
It is the height of reckless indifference to release Shoker into the community with no effective social control when there are reasonable grounds to believe he may pose a danger to women when drunk or stoned.
But even if the Supreme Court had permitted random urine testing, this would not necessarily solve the problem. If Shoker's urine tested positive, then the court's only mandate would be to consider whether he should be convicted of breach of probation. Perhaps he would be sent back to jail for a short period. While the system can move Shoker quickly through the revolving prison door, it seems powerless to change the conditions that brought him into the system in the first place.