The controversy around Starbucks’ policy to prevent smoking within 25 feet of its stores reminds us that the freedom to hurt yourself is a fundamental one. Balancing your right to smoke and sip lattes against the other guy’s right not to be annoyed is a delicate task.
Unlike Starbucks, the Harper government’s recent efforts to control what people put in their bodies generated no news coverage and no discussion outside criminal law circles. But they pose a far greater threat to civil liberties. The new law allows judges to prohibit the consumption of alcohol or illegal drugs during a period of community supervision and force offenders to submit samples of bodily substances (blood, hair, saliva, breath) to prove they are complying. While the police need reasonable grounds to believe the person is NOT complying before making the demand, there is no restriction on the judge who authorizes it in the first place.
In 2006, the Supreme Court told sentencing judges they could not order bodily samples to enforce non-consumption conditions. Two judges went further and said that doing so would be an illegal seizure. The Harper government’s response? Codify the compulsion and give the police even more sophisticated tools to catch vulnerable people in their moment of weakness.
Problems? We see a few. Vulnerable defendants are going to get targeted. Drug and alcohol addiction cause criminal behaviour. The pull of an addiction is often stronger than the fear of breaking the law. Canadian judges have long recognized that criminal convictions are part of the downward spiral of addiction-fueled behaviour. We have specialized courts for those struggling with addiction based on the principle that treatment, not incarceration, is the best response. More rules do not work.