Her Majesty the Queen v. P.R.F. Her Majesty the Queen v. Rowan et al. Her Majesty the Queen v. McIver Her Majesty the Queen v. Whitebear [Indexed as: R. v. F. (P.R.)]
57 O.R. (3d) 475
[2001] O.J. No. 5084
Docket Nos. C34770 (M27388), C34801, C34802,
C34917 and C35412
Court of Appeal for Ontario
Doherty, Rosenberg and Borins JJ.A.
December 27, 2001
Criminal law -- DNA data bank -- Section 487.052 of the Criminal Code applies where designated offence was committed before provisions came into force and offender still before trial order on or before June 30, 2000 -- In vast majority of cases making a DNA data bank order will be in the best interests of the administration of justice given adult offenders diminished post-conviction expectation of privacy minimal intrusion into security of person to obtain sample and important interests served by DNA data bank -- Test for issuance of order whether court satisfied order in best interest of administration of justice -- No legal burden on Crown but Crown should provide an evidentiary basis to raise issue -- On appeal from discretionary decision regarding making or refusing to make order appellate court to show deference unless shown that decision clearly unreasonable, based on error in principle, failed to consider relevant factor or considered irrelevant factor -- Appropriate for appellate court to make orders that trial court should have issued -- Crown appeal from refusal to make DNA data bank orders allowed and DNA data orders issued -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.052
Criminal law -- Appeals -- DNA data bank orders -- Regime for DNA data bank creating right of appeal from making or refusing to make order but not specifying court to which appeal to be made -- Appropriate to follow usual appellate routes which depend on whether charge tried by indictable or summary conviction proceedings -- Appellate court to show deference unless shown that decision clearly unreasonable, based on error in principle, failed to consider relevant factor or considered irrelevant factor -- Appropriate for appellate court to make orders that trial court should have issued -- Crown appeal from refusal to make DNA data bank orders allowed and DNA data orders issued -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.052
Four appeals which raised issues concerning the interpretation of the DNA data bank provisions of the Criminal Code were heard together. In each case, the Crown had sought a DNA data bank order pursuant to s. 487.052 or s. 487.051(1)(b) of the Code. In Appeal #1, the trial judge refused to make the order on the basis that the provisions of s. 487.052 did not apply since the accused had been found guilty before June 30, 2000, when s. 5(1) of the DNA Identification Act, S.C. 1998, c. 37 came into force. In Appeal #2, the trial judge refused to make the orders because the offence committed and the offenders' prior crimes were not the types of offences where DNA samples would likely assist in the investigation. In Appeal #3, the trial judge refused to make the order because there was no indication bodily fluids had been deposited during the offence and the taking of samples would involve a significant invasion of the offender's privacy. In Appeal #4, the trial judge refused to make the order because the offender's record for violence was "specific to" his estranged spouse.
Held, the appeals should be allowed.
Section 487.054 of the Code provides that the offender or the prosecutor may appeal from a decision of the court made under s. 487.051(1) or s. 487.052(1). While the section does not clearly specify the route of the appeal, the only sensible construction of the section is that the appeal route follows the scheme of the Criminal Code generally. That is, in indictable proceedings, the appeal from the making or refusal to make the order lies to the Court of Appeal, and in summary conviction proceedings, the appeal is taken in accordance with Part XXVII of the Criminal Code.
In cases under s. 487.051(1)(b) and s. 487.052, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a decision to either make or refuse to make a DNA data bank order if the decision was clearly unreasonable. In that case, the appeal court has the power to make the order that should have been made by the trial court.
Strictly speaking, there is no burden on either the Crown or the defence under s. 487.051(1)(b) or s. 487.052. However, as the party seeking the order, the Crown bears an evidential burden to produce sufficient information to raise the issue. The trial judge must then be "satisfied", after weighing and balancing all the relevant considerations, that the order should be made.
Section 487.052 of the Code applies where the designated offence was committed before the coming into force of s. 5(1) of the DNA Identification Act, whether or not the offender had been found guilty prior to June 30, 2000, provided the offender was still before the trial court on or after June 30, 2000.
In cases falling under s. 487.051(1)(b) and s. 487.052, the trial judge is to make the order sought if satisfied that it is in the best interests of the administration of justice to do so. The court is instructed to consider the offender's criminal record, the nature of the offence and the circumstances surrounding its commission, and the impact on the person's privacy and security of the person. Given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA data bank, it will usually be in the best interests of the administration of justice to make the order.
In Appeal #1, the trial judge erred in holding that the provisions were inapplicable because the accused had been found guilty before June 30, 2000. As the accused was still before the court for sentencing after that date, the data bank provision applied. The accused was convicted of sexual interference, including repeated acts of sexual intercourse, with the stepdaughter of the woman with whom he resided. The accused viewed the girl as "his girlfriend" and asserted that she had seduced him. The accused's criminal record was unrelated to the present offence and many of the offences were dated. A DNA order would serve the interests of deterrence and crime detection and the impact on the accused's privacy and security interest would be minimal. The order should have been made and will issue.
In Appeal #2, the trial judge took too narrow a view of the purpose of the DNA data bank and misapprehended the nature of the accused's lengthy criminal record. In view of those errors in principle, the Court of Appeal had the power to intervene and should make the orders sought by the Crown.
In Appeal #3, the trial judge placed unreasonable emphasis on the invasion of privacy and misapprehended the purposes of the DNA data bank provisions. Particularly having regard to the nature of the offences, sexual interference with two young children, and the accused's record for similar offences, the order should have been made.
In Appeal #4, the trial judge misapprehended the purposes of the DNA data bank provisions. A DNA data bank order would assist in deterring future offences (including potential crimes against his spouse and potentially others close to her), promote the safety of the public and streamline any future investigations. Having regard to the nature of the offences committed and the offender's record for violent offences, the order should have been made.
APPEALS by the Crown from refusals to make DNA data bank orders.
R. v. Briggs (2001), 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417, 86 C.R.R. (2d) 196, 157 C.C.C. (3d) 38 (C.A.), consd Other cases referred to R. v. Bates (2000), 2000 CanLII 5759 (ON CA), 146 C.C.C. (3d) 321, 35 C.R. (5th) 327 (Ont. C.A.); R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)); R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 151, 161, 264.1(1)(a), 266, 348, 487.04, 487.051, 487.052, 487.054, 487.055, 673, 812, 829, 839 DNA Identification Act, S.C. 1998, c. 37, ss. 3, 5(1) Identification of Criminals Act, R.S.C. 1985, c. I-1
Michal Fairburn and Janet Gallin, for appellant. David E. Harris, for respondents F. (P.R.), Hendry and Whitebear. Andras Schreck, for respondent Rowan. Robert Sheppard, for respondent McIver.
The judgment of the court was delivered by
[1] ROSENBERG J.A.: -- These Crown appeals involving five offenders raise issues concerning the interpretation of the DNA data bank provisions of the Criminal Code, R.S.C. 1985, c. C- 46. In each case, the Crown asks that the appeal be allowed and that this court make an order requiring the offender to supply samples for the purpose of forensic DNA analysis. These orders are sought under s. 487.051(1) (secondary designated offences) or s. 487.052 (retrospective operation). The cases concern only adult offenders. The various issues and my conclusions may be summarized as follows:
The issues in common
(1) Appeal route: The appeal route follows the scheme in the Criminal Code generally. That is, in indictable proceedings, the appeal from the making or refusal to make the order lies to the Court of Appeal and in summary conviction proceedings, the appeal is taken in accordance with Part XXVII of the Criminal Code.
(2) Standard of review: In cases under s. 487.051(1)(b) and s. 487.052, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a decision to either make or refuse to make a DNA data bank order if the decision was clearly unreasonable.
(3) Burden of proof: Strictly speaking, there is no burden on either Crown or defence under s. 487.051(1)(b) or s. 487.052. However, as the party seeking the order, the Crown bears an evidential burden to produce sufficient information to raise the issue. The trial judge must then be satisfied after weighing and balancing all the relevant considerations that the order should be made.
(4) Order to be made: The appeal court has the power to make the order that should have been made by the trial court. In the case of the five respondents, this court should make an order that each provide samples for DNA forensic analysis.
(5) Retrospectivity: Section 487.052 applies where the designated offence was committed before the coming into force of s. 5(1) of the DNA Identification Act, S.C. 1998, c. 37 as amended by S.C. 2000, c. 10 (June 30, 2000) and the offender was still before the trial court on or after June 30, 2000, whether or not the offender had been found guilty prior to June 30, 2000.
(6) Best interests of the administration of justice: In cases falling under s. 487.051(1)(b) and s. 487.052, the trial judge is to make the order sought if satisfied that it is in the best interests of the administration of justice to do so. The court is instructed to consider the offender's criminal record, the nature of the offence and the circumstances surrounding its commission, and the impact on the person's privacy and security of the person. Many of the concerns relating to the interpretation of that phrase in the DNA data bank context have been resolved by this court's decision in R. v. Briggs (2001), 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417, 157 C.C.C. (3d) 38. In my view, given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA data bank, it will usually be in the best interests of the administration of justice for the judge to make the order.
The Individual Cases
R. v. F.
In this case, the trial judge refused to make the order because he was of the view that s. 487.052 had no application since the accused had been found guilty before June 30, 2000. Since the accused was still before the court for sentencing after June 30, 2000, s. 487.052 did apply.
Particularly given the nature of the offence, the order should have been made.
R. v. Rowan and Hendry
In this case, the trial judge refused to make the orders because the offence committed and the offenders' records were not the types of offences where DNA samples would likely assist in the investigation.
In my view, the trial judge took too narrow a view of the purpose of the DNA data bank and misapprehended the nature of the offender's record. In view of these errors in principle, this court has the power to intervene and should make the orders sought by the Crown.
R. v. McIver
In this case, the trial judge assumed that the section applied, although the offender had been found guilty before June 30, 2000, but refused to make the order because there was no indication bodily fluids had been deposited and the taking of samples would involve a significant invasion of the offender's privacy.
In my view, the trial judge placed unreasonable emphasis on the invasion of privacy and misapprehended the purposes of the DNA data bank provisions. Particularly having regard to the nature of the offences, sexual interference with young children, and the respondent's record for similar offences the order should have been made.
R. v. Whitebear
This offender was convicted of offences involving his estranged spouse. The trial judge refused to make the order because the offender's record for violence was "specific to" his estranged spouse.
In my view, the trial judge misapprehended the purposes of the DNA data bank provisions. Particularly having regard to the nature of the offences committed and the offender's record for violent offences, the order should have been made.
[2] My reasons for these dispositions will take the following format. I will set out the relevant statutory provisions and then deal with the common issues. I will then deal with each case and give my reasons for allowing the Crown appeals.
Statutory Provisions
[3] In summary, the legislative scheme provides that after an offender has been found guilty, the judge may order that he or she provide samples for forensic DNA analysis. These samples are then sent to the DNA data bank for analysis. The DNA profile is stored in the data bank and is available for comparison with evidence obtained from other investigations. In these appeals, the offenders had committed a secondary designated offence after the scheme came into effect or a designated offence (primary or secondary) before the scheme came into effect. In either case, the judge has a discretion to make the order where it is in the best interests of the administration of justice to do so. That discretion is described in similar terms under s. 487.051(1)(b) (secondary designated offences) and s. 487.052 (designated offences committed before the scheme came into effect).
[4] Section 487.04 defines "primary designated offences" and "secondary designated offences". The former include sexual interference under s. 151. The latter include break and enter (s. 348) and assault (s. 266). The other relevant sections are the following:
487.051(1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence, the court
(a) shall, subject to subsection (2), in the case of a primary designated offence, make an order in Form 5.03 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1); or
(b) may, in the case of a secondary designated offence, make an order in Form 5.04 authorizing the taking of such samples if the court is satisfied that it is in the best interests of the administration of justice to do so.
(2) The court is not required to make an order under paragraph (1)(a) if it is satisfied that the person or young person has established that, were the order made, the impact on the person's or young person's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.
(3) In deciding whether to make an order under paragraph (1)(b), the court shall consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person's or young person's privacy and security of the person and shall give reasons for its decision.
487.052(1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court may, on application by the prosecutor, make an order in Form 5.04 authorizing the taking, from that person or young person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), if the court is satisfied that it is in the best interests of the administration of justice to do so.
(2) In deciding whether to make the order, the court shall consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person's or young person's privacy and security of the person and shall give reasons for its decision.
487.054 The offender or the prosecutor may appeal from a decision of the court made under subsection 487.051(1) or 487.052(1).
(Emphasis added)
The Issues in Common
(1) Appeal route
[5] Section 487.054 of the Criminal Code provides that the offender or the prosecutor may appeal from a decision of the court made under ss. 487.051(1) or 487.052(1). The wording of the section is somewhat unusual in that it does not clearly specify the route of the appeal. However, it was common ground among the parties that the only sensible construction of the section was that the appeal route follow the scheme in the Criminal Code generally. That is, in indictable proceedings the appeal from the making or refusal to make the order should lie to the court of appeal as defined in s. 673 of the Criminal Code in accordance with Part XXI of the Criminal Code. Similarly, where the case has proceeded as a summary conviction matter, the appeal should be taken in accordance with Part XXVII of the Criminal Code. This will mean that the appeal lies initially to the appeal court as defined in s. 812 or s. 829, as the case may be. Since none of these cases involved summary conviction proceedings, it is unnecessary to decide whether a further appeal lies with leave to the court of appeal, as defined in s. 673, under s. 839 on a question of law alone. I note, however, that the Crown appellant conceded that such an appeal would be available. A resolution of that issue can await a case where it is clearly raised.
(2) Standard of review
[6] In R. v. Briggs, at p. 444 O.R., p. 69 C.C.C., Weiler J.A. said the following concerning the standard of review:
In reviewing the making of a discretionary order, the general test applied on appeal is that, absent an error in principle, the order is entitled to deference and should not be disturbed: See R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657.
[7] In R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193, and R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, the Supreme Court of Canada held that the standard of review of sentencing dispositions is one of considerable deference. In R. v. M. (C.A.), at para. 90, Lamer C.J.C. described the standard of review as follows:
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
[8] The options available and the factors that the trial judge must weigh in determining whether to make a DNA order are more limited than in making a sentencing decision. However, as Weiler J.A. said in Briggs, the standard of review of orders under s. 487.051(1)(b) and s. 487.052 should be the standard applied to the review of such discretionary orders. Accordingly, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a decision to either make or refuse to make a DNA data bank order if the decision was clearly unreasonable.
(3) Burden of proof
[9] Under s. 487.051(1)(b) and s. 487.052, the trial judge is to make a DNA data bank order if "satisfied" that it is in the best interests of the administration of justice. The section does not place the persuasive burden on either the Crown or defence. Once again, some assistance can be obtained from the sentencing regime in resolving the question of the burden of proof. In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449, at para. 121 [p. 123 S.C.R.], Lamer C.J.C. rejected a submission from the Crown that the offender bears the legal burden of proof where the offender is seeking a conditional sentence:
In matters of sentencing, while each party is expected to establish elements in support of its position as to the appropriate sentence that should be imposed, the ultimate decision as to what constitutes the best disposition is left to the discretion of the sentencing judge.
[10] He pointed out, however, at para. 122 [pp. 123-24 S.C.R.], that the offender will ordinarily bear the tactical burden of coming forward with information to support imposition of a conditional sentence:
Having said this, in practice, it will generally be the offender who is best situated to convince the judge that a conditional sentence is indeed appropriate. Therefore, it would be in the offender's best interests to establish those elements militating in favour of a conditional sentence . . .
[11] In my view, similar considerations apply to the making of the DNA data bank order. Strictly speaking, there is no burden on either Crown or defence under s. 487.051(1)(b) or s. 487.052. However, under s. 487.052, the order is made "on application by the prosecutor" and as a practical matter it will be the Crown that asks the judge to exercise his or her discretion under s. 487.051(1)(b). Thus, in my view, the Crown bears an evidential burden to produce sufficient information to raise the issue. The trial judge must then be satisfied, after weighing and balancing all the relevant considerations, that the order should be made.
(4) Order to be made
[12] As with the appeal route, the Criminal Code is silent on the powers of the appellate court in dealing with an appeal from the decision concerning a DNA data bank order. Parliament could not have intended to provide a right of appeal, yet give the appellate court no power to correct the errors through an appropriate remedy. The appeal court must at least have the power to make the order that should have been made by the trial court. It may be that the appellate court also has the power to remit the matter back to the trial court. I would consider this a highly unusual order, involving as it would additional time and expense.
(5) Retrospectivity
[13] In two of these appeals, F. and McIver, the offenders were found guilty prior to June 30, 2000 but were sentenced after that date. The trial judge in F. held that he had no jurisdiction to make an order under s. 487.052 in such circumstances. The trial judge in McIver assumed that she had power to make the order but declined to do so for other reasons. Whether or not the courts had power to make the order under s. 487.052 requires interpretation of s. 487.052(1):
487.052(1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court may, on application by the prosecutor, make an order in Form 5.04 authorizing the taking, from that person or young person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), if the court is satisfied that it is in the best interests of the administration of justice to do so.
(Emphasis added)
[14] It may also be useful to take into account s. 3 of the DNA Identification Act:
- The purpose of this Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.
(Emphasis added)
[15] The trial judge in F. held that s. 487.052 only applies if the offender was actually convicted after June 30, 2000, the date when s. 5(1) of the DNA Identification Act came into force. I do not agree with that interpretation. Section 487.052 was intended to operate retrospectively, that is, to apply to offences committed before June 30, 2000. That is apparent from the words of the section that I have emphasized and from s. 3 of the DNA Identification Act. The only temporal limitation on the application of the provision is implied by the use of the word "court", which in context must refer to the court that convicted or discharged the adult or found the young person guilty as the case may be. Once that court has imposed sentence or disposition, it is functus and would have no power to make a DNA data bank order under s. 487.052. [See Note 1 at end of docment] I see no reason for importing any other limitation on the scope of the section. The interpretation favoured by the F. trial judge would leave a gap in the legislative scheme, dependent solely on the date when a finding of guilt was entered. Counsel for the respondents could advance no policy interest that would be served by such an interpretation. I can see no reason for not giving s. 487.052 its plain meaning.
[16] Accordingly, s. 487.052 applies where the designated offence was committed before the coming into force of s. 5(1) of the DNA Identification Act (June 30, 2000), whether or not the offender had been found guilty prior to June 30, 2000, provided the offender is still before the trial court on or after June 30, 2000.
(6) Best interests of the administration of justice
[17] In R. v. Briggs, Weiler J.A. dealt with many of the issues that may arise in interpreting s. 487.051(1)(b) and s. 487.052. In particular, she held as follows:
(1) Whether or not there is evidence at the scene of the crime of which the offender was convicted that would likely yield a DNA profile of the perpetrator is not necessarily a relevant consideration.
(2) The phrase "best interests of the administration of justice" does not import as a prerequisite to making the order that there be reasonable and probable grounds to believe a further offence will be committed.
(3) The state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by this offender. Rather, the provisions have much broader purposes including the following:
- Deter potential repeat offenders;
- Promote the safety of the community;
- Detect when a serial offender is at work;
- Assist in the solving of "cold" crimes;
- Streamline investigations; and
- Most importantly, assist the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.
(4) Provisions in the Criminal Code and the DNA Identification Act restricting the use that can be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender's privacy.
(5) The procedures for seizures of bodily substances authorized by the provisions are of short duration and involve no, or minimal, discomfort. There is a minimal intrusion with no unacceptable affront to human dignity.
(6) A person convicted of a crime has a lesser expectation of privacy.
(7) The trial judge is entitled to look at the offender's entire record, not just the crimes that may be designated offences.
[18] I would summarize the effect of these holdings as follows. In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order.
[19] I do, however, wish to highlight one aspect of the DNA data bank legislative scheme that is of some concern. As Weiler J.A. points out in Briggs, a purpose of the DNA Identification Act is to protect the privacy of individuals with respect to personal information. To that end, the legislation includes some safeguards against appropriation of the information collected by the data bank for purposes other than those set out in the Act. The main purpose of the legislation is to provide the mechanism for comparison of DNA profiles gathered in a criminal investigation with the DNA profiles in the data bank. If there is a match, the Commissioner of the R.C.M.P. may inform the law enforcement agency of that fact along with any information, other than the DNA profile itself, that is contained in the data bank in relation to that DNA profile. Unauthorized use is an offence under the Act.
[20] Thus, use of the DNA data bank information resembles the use of fingerprint information that law enforcement agencies collect and have collected for many years under the Identification of Criminals Act, R.S.C. 1985, c. I-1, with this important difference. So far as I am aware, fingerprint information can only be used for comparison purposes. It does not provide any personal information about the offender. A DNA profile is different. It is capable of providing the most intimate details of the person because it can show the person's genetic make-up. The DNA sample can be analyzed to determine, for example, if the person carries certain genes that make the person more susceptible to disease. It is not beyond the realm of possibility that in the future scientists may claim to be able to isolate genes that make a person more prone to violence. To guard against abuse, it is the policy of the DNA data bank to only use "non-coding" or "junk" DNA, that is, only that part of the DNA that does not predict any medical, physical or mental characteristics. This policy or convention is not, however, written into the legislation.
[21] Further, subject to certain exceptions, as where the offender's conviction is quashed and a final acquittal entered, the DNA bank is permitted to keep the sample, even after the DNA profile has been obtained. There are good forensic reasons for this. As the technology improves, it may be possible to obtain additional comparison information from the sample. However, if government policy changes in the future the present limitations on the use of the information and the conventions for analysis may also change. The risk that personal information about medical, physical or mental characteristics may be obtained and used for purposes other than forensic comparison cannot be entirely discounted. [See Note 2 at end of document]
[22] I agree with Weiler J.A.'s analysis in Briggs and with the importance of collecting DNA profiles for the salutary purposes she identifies. The courts must nevertheless keep in mind the distinction between routine fingerprinting and DNA profiling. This distinction is highlighted by the fact that under s. 487.051(3) and s. 487.052(2), the court is required to give reasons for making the DNA order. That said, and leaving aside other considerations, I would expect that in most cases the balance would be struck in favour of making the order under s. 487.051(1)(b) or s. 487.052, as the case may be.
[23] There are, of course, other considerations. Under both of these provisions, the court is instructed to take into account the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission. I will consider the latter two factors first. As explained by Weiler J.A., the legislation is not focused solely on the possibility that this offender will commit another offence in which DNA profile information may prove useful. Thus, as she said, the fact that the offence of which the accused was convicted is not ordinarily one where DNA evidence might be found is not necessarily relevant. The legislation has already struck a balance by limiting the reach of the DNA data bank orders to persons convicted of serious offences, being those designated as primary or secondary offences. However, the description of some of these offences can also embrace some relatively minor conduct. For example, assaulting a police officer is a secondary designated offence, but this could include merely pushing a police officer who was in the execution of his or her duty. The trivial circumstances of the particular offence may be a factor favouring not making the order.
[24] The court is also directed to consider the offender's record. If the offender has no prior record and the circumstances of the secondary designated offence are relatively minor, the court may be justified in not making the order. However, particularly if the offender has a record that includes offences described as primary designated offences, I would think it exceptional that the order not be made. In general, the more serious the record the less likely the court could exercise its discretion against making the order.
[25] On balance, I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s. 487.051(1)(b) and s. 487.052, as the case may be. This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations.
[26] I will now turn to the individual appeals and explain why I would make the DNA order in each case.
The Individual Cases
R. v. F.
The facts
[27] The respondent F. pleaded guilty to one count of sexual interference. The victim of his offence was the stepdaughter of the woman with whom he was cohabiting. In 1997, the victim's stepmother obtained employment that took her out of the home on Thursday and Friday evenings. The respondent took advantage of this situation by engaging in sexual acts with the 12-year-old victim. The conduct began with fondling and progressed to full sexual intercourse. The victim had attempted to resist the assaults but eventually she gave up. At the time, the respondent was 41 years of age. The abuse ended when the stepmother came home unexpectedly and discovered the respondent engaging in sexual intercourse with the child. The respondent had no insight into the gravity of his conduct. He referred to the victim as his "girlfriend" and believed the child had seduced him. The respondent had a prior record for break and enter, possession of narcotics and unsafe storage of firearms. Most of the offences were committed many years previously.
Analysis
[28] The trial judge sentenced the respondent to two years less one day's imprisonment and three years' probation. As indicated, he refused to make the DNA order because of his view that the legislation did not apply. In view of this error, it is for this court to decide whether or not the order should have been made. In my view, this is a proper case for making the order. I reach that conclusion for the following reasons.
[29] Sexual interference is a primary designated offence. Were it not for the fact that the offence was committed prior to June 30, 2000, the order would be mandatory unless the offender could establish that the impact on his privacy and security of the person would be "grossly disproportionate" to the public interest in the protection of society and the proper administration of justice. It is the kind of offence for which DNA evidence might well be significant. This is a particularly serious example of sexual interference involving multiple acts of sexual intercourse by a person in a position of trust. The nature of the offence and the circumstances of its commission strongly favour making the order. A troubling aspect of the case is the respondent's lack of insight into his criminal conduct suggesting that he is at risk to commit further offences. The DNA order in this case would at least serve the interests of deterrence and crime detection. The respondent's criminal record is, at best, a neutral factor. I consider the impact on the respondent's privacy and security of the person to be minimal.
[30] Accordingly, I would allow the appeal and make the order sought.
R. v. Rowan and Hendry
The facts
[31] On July 11, 2000, the respondents pleaded guilty to one count each of breaking and entering. At around 3 a.m. on June 6, 2000, the two respondents, along with a third man, threw a brick through the glass front door of a small store. The respondents entered the premises through the broken door and tried to pull out the cash register. This attempt was unsuccessful, but caused damage to the front counter area. They took cameras, film and batteries from the store. Meanwhile, a citizen who heard the glass breaking notified the police, who arrived to find the three men inside the store. The men refused to come out and tried to dig themselves out of the basement in order to evade capture. When that attempt proved futile, the respondents and their co-accused eventually acceded to police commands and exited the premises through the front door they had broken upon entering. The damage to the store and its contents was approximately $1,000. The respondents were heavily intoxicated at the time of the offence.
[32] The respondent Rowan's criminal record covers the period from 1974 to 1999 and includes 61 convictions. While there are many convictions for property offences, he has multiple convictions for robbery, weapons offences and assault as well as convictions for aggravated assault, assault causing bodily harm and assault with a weapon. The respondent Hendry's criminal record spans 15 years and while also including many property offence convictions, includes convictions for assault and robbery.
[33] The trial judge gave the following reasons for refusing to make the DNA orders.
While the court is directed to take into account the record as one factor to be considered, in this case the records both consist of largely property offences not dissimilar in kind to the charge before the court. Certain more serious convictions not disclosing a general pattern are not here sufficient to provide grounds for a DNA order.
Regarding the nature of the offence, the nature of the charge before the court does not generally lend itself to the loss or exchange of bodily fluids, this is particularly so where the break and enter was of a commercial premises for the purpose of theft.
It has been designated a "secondary offence" thus indicating Parliament's intention that the nature of the offence itself would not create a presumption that a DNA order should issue.
Regarding the circumstances of the offence, this break and enter was remarkably inept, given the records of both accused and their longtime involvement with property offences. The front window of the premises was smashed with a brick and resulted in the police being called. The accused were found still inside the premises in the basement, apparently making some misguided effort to dig themselves out of the building.
The entry was into a commercial premises, and there is no suggestion that the two accused were armed. There is little in the circumstances of this case that assists the Crown's argument that samples should be provided. Further, such samples would rarely be helpful in the investigation of this type of offence or like property offences for which both accused have been convicted in the past.
On the evidence before me I am not satisfied that the Crown has shown on the balance of probabilities that the interests of the administration of justice in identifying perpetrators of offences outweighs in this case the privacy interests of the accused.
(Emphasis added)
Analysis
[34] In my view, the trial judge misapprehended the evidence and misdirected himself as to the purposes of the DNA order. In fairness, as with the other appeals, the trial judge did not have the benefit of the Briggs decision.
[35] With respect to the respondents' records, while it is true that those records include property offences, the records include convictions for serious offences against the person. These records strongly favour making the order in the interests of deterrence, promotion of safety of the community and detection of crime. It was an error in principle to refuse to make the order because some or even most of the prior convictions were for property offences. The trial judge unreasonably discounted the importance of the respondents' records. He also erred in principle in refusing to make the order because he could not detect any "general pattern" in the record. No such pattern or disposition is necessary to justify making the order.
[36] The trial judge also erred in principle in refusing to make the order because of the inept nature of the crime, because it was a break-in of commercial premises and because "such samples would rarely be helpful in the investigation of this type of offence". Even in the present state of technology, break and enter is very much a crime that can be solved through DNA analysis.
[37] I would allow the appeal and make the orders in the case of both respondents. Their records, the nature of the offence and the circumstances surrounding its commission require that the order be made. I consider the impact of the order on the privacy and security of the person of these mature offenders with their lengthy records, including several prison sentences, to be minimal.
R. v. McIver
The facts
[38] The respondent McIver pleaded guilty to six counts of sexual interference contrary to s. 151 of the Criminal Code. He was sentenced to a term of imprisonment of two years less a day to be followed by three years' probation and was placed on a s. 161 prohibition order. The s. 161 order prohibits the respondent for life from working with children, or attending at daycare centres, schoolgrounds and playgrounds. The order also prohibits the respondent from attending at public parks, public swimming areas and community centres for a period of five years.
[39] The six counts of sexual interference relate to two sisters (three counts with respect to each sister). The offences occurred between 1994 and 1996, when the older sister, K.S., was between eight and ten years old and the younger sister, S.S., was between seven and nine years old. The respondent was an old public school friend of the girls' father and had befriended the girls when he encountered the family at a campground on a family vacation. The respondent took to visiting the family at their home, parking his camping trailer in their driveway. The girls only disclosed the abuse once the appellant stopped visiting the family. The respondent was between 35 and 38 years old in the period covered by the indictment. The offences involved touching and fondling of the victims' breasts and genital areas. The respondent committed the offences in his trailer or in the victims' home. While the respondent may not have been in a position of trust, on at least some of the occasions, the parents had left the children in the respondent's care.
[40] The respondent has a record for property offences and breaches of court orders. More significantly, he has a record for seven prior sexual offences involving children. He was on probation during part of the time that he committed these most recent offences. A psychiatric assessment provided to the trial judge shows that the respondent presents features of heterosexual paedophilia. The respondent showed little insight into his behaviour, leading the psychiatrist to conclude "it does not bode well for the future and probably puts him at a high risk of re-offending". At the sentence hearing, his own counsel conceded the obvious, that this respondent was likely to re-offend.
[41] The trial judge refused to make the DNA order because the taking of the sample is a "significant" invasion of privacy. She also stated:
There was no indication of bodily fluids here at all, in the sense that there was no intercourse and so on. The intent of the DNA legislation is, as far as I can understand it, and so on, is to assist in creating the databank where the use of the information that comes from the DNA would be of use [in subsequent cases].
Analysis
[42] In my view, the trial judge erred in principle in placing unreasonable emphasis on the invasion of the respondent's privacy. Compared to the sentence of imprisonment and the s. 161 order, the invasion of privacy from the taking of the blood sample for DNA analysis was minor. The trial judge also erred in failing to take into account the respondent's record. The Criminal Code requires that this factor be taken into account and, in the circumstances of this case, the record alone was conclusive in favour of making the order.
[43] The trial judge also took too narrow a view of the purposes of the legislation. Again, in fairness, she did not have the benefit of the Briggs decision. Parliament could not have intended to limit the reach of the section to cases where there was intercourse. Most of the sexual offences listed as primary designated offences can be committed without intercourse. Even if there is no intercourse, DNA evidence could well be found on the victim's clothing or in the area where the sexual assault was committed. Sexual interference is a primary designated offence and it is only because the respondent's offences were committed prior to June 30, 2000 that he did not fall under the provisions of s. 487.01(1)(a), where the presumption is strongly in favour of making the order.
[44] Almost all of the purposes of the DNA legislation identified in Briggs applied in this case. Because of his psychiatric disposition and his inability to recognize the seriousness of his conduct, the making of the order could be justified in the interests of deterrence, promotion of the safety of the community, detection of a serial offender and streamlining future investigations. The impact of the order on the respondent's privacy and security of the person was minimal. I would allow the appeal and make the DNA order.
R. v. Whitebear
The facts
[45] The respondent Whitebear was convicted of one count of assault and one count of uttering threats, contrary to ss. 266 and 264.1(1)(a) of the Criminal Code. He was sentenced to a term of incarceration of nine months, followed by two years' probation.
[46] On November 10, 2000, the respondent's spouse Keri Whitebear was walking down a local street in Guelph when she met the respondent. The respondent had been living in Alberta, where his Cree band employed him as a woodcutter. The victim told the respondent that he should not be in Guelph, but he insisted that he wanted to see his children. (The respondent and complainant have four children together, aged 7 to 13 years at the time of the offence.) She informed the respondent that Family and Children's Services would not permit him to visit with the children.
[47] The respondent initially indicated that he understood, but then became angry and accused the victim of seeing someone else. He began to hit her. He struck her four times in the face before another man started to come to her assistance. The victim suffered bruising and swelling to the left side of her face as a result of the beating. The respondent fled the scene when the citizen began running toward them. As he left, he shouted at the complainant -- "I'll kill you one day". Once he had left the scene, the victim called her sister and the police. The victim conveyed to Crown counsel, who in turn conveyed to the court, that "she is very much fearful of Mr. Whitebear". The respondent explained to the trial judge that he hit the victim out of frustration because he was unable to see his children.
[48] The respondent's criminal record covers a 14-year period and lists a total of 13 convictions. His record includes convictions for four counts of assault, three weapons offences, two driving offences, two counts of failure to comply with a probation order, an obstruct justice and a narcotics offence. Each assault was related to his having beaten Ms. Whitebear.
[49] The trial judge gave these reasons for refusing to make the DNA order:
[T]he record of this accused as I understand it is, while extremely violent, specific to the wife of the accused. I would not think that this accused is the type of person that the provisions under [s. 487.051(1)(b)] of the Code contemplated, that is as I perceive those intrusive sections, that trying to prove someone committed a crime by way of blood analysis, a blood sample, a DNA sample, and I am exercising my discretion in this case not to make that order.
Analysis
[50] In my view, the trial judge made several errors in principle. He erred in refusing to make the order because the respondent only assaulted his spouse. In R. v. Bates (2000), 2000 CanLII 5759 (ON CA), 146 C.C.C. (3d) 321 at pp. 330 and 331, 35 C.R. (5th) 327, this court recently had occasion to discuss the nature of spousal abuse in terms that are directly applicable to this case:
The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.
Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person, but may also harass and terrorize her friends and family members.
[51] The reasoning of the trial judge would seem to be premised on the fact that because the respondent only assaults his spouse, identity will never be in issue and therefore DNA evidence will be unnecessary. This ignores several painful lessons from the history of spousal abuse. Regrettably, these types of offences can escalate in seriousness to the point where the victim may not be available to identify the offender. Second, on occasion the victim may be so intimidated by the perpetrator that she is unable or unwilling to identify him in court. DNA evidence may indeed be crucial. Third, as was indicated in Bates, this type of offender will not necessarily limit his criminal conduct to the victim, but may assault other persons he believes are close to the victim. Again, DNA evidence may be important to the prosecution's case. The violent offences committed by the respondent are the very kind that would likely result in DNA evidence being available.
[52] The trial judge also placed unreasonable emphasis on the intrusive nature of the DNA order provisions. The taking of the sample represented a minor intrusion into the respondent's privacy and security of the person.
[53] Finally, the trial judge erred in principle in his view of the purpose of the order. The order was justified in this case by reason of deterrence, promotion of safety of the public and to streamline investigations. I would allow the appeal and make the order sought.
Conclusion
[54] Accordingly, I would allow the appeals, and make the orders sought under s. 487.051(1)(b) or s. 487.052, as the case may be. At the hearing of these appeals, counsel agreed upon the form of the orders should the appeals be allowed. I would make the orders in the form of those draft orders.
[55] Finally, I wish to express the court's appreciation for the submissions of all counsel and particularly for the assistance of Mr. Harris who acted as amicus curiae in the F., Hendry and Whitebear cases.
Appeal allowed.
Notes
Note 1: Where the prosecution seeks to have a DNA data bank order made for a person who was sentenced before June 30, 2000, it must resort to the procedure in s. 487.055. That section allows a provincial court judge to make a DNA data bank order in certain defined circumstances and only where the offender is serving a sentence for certain offences or as a result of certain dispositions.
Note 2: The issue does not arise in this case, but such use of the bodily sample might well have implications under the Canadian Charter of Rights and Freedoms.