Her Majesty the Queen v. Briggs, 2001 ONCA 24113

Her Majesty the Queen v. Briggs [Indexed as: R. v. Briggs]

55 O.R (3d) 417

[2001] O.J. No. 3339

Docket No. C34813

Court of Appeal for Ontario

Weiler, Austin and Borins JJ.A.

August 23, 2001

• Application for leave to appeal to the Supreme Court of Canada was dismissed April 4, 2002 (McLachlin C.J., Iacobucci and Arbour JJ.). S.C.C. File No. 28996. S.C.C. Bulletin, 2002, p. 559.

Charter of Rights and Freedoms -- Fundamental justice -- Vagueness -- DNA data bank warrants -- Section 487.052 of Criminal Code provides that judge may make order authorizing taking of bodily sample from offender for national DNA data bank if satisfied that it is in "best interests of administration of justice to do so" -- Provision not unconstitutionally vague or overbroad -- Section 487.052 does not have to be read as requiring that judge have reasonable and probable grounds to believe that offender has committed or will commit further offence -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 87.052.

Charter of Rights and Freedoms -- Search and seizure -- DNA data bank warrants -- Section 487.052 of Criminal Code provides that judge may make order authorizing taking of bodily sample from offender for national DNA data bank if satisfied that it is in best interests of administration of justice to do so -- Requirements for issuance of search warrant do not have to be met in order for s. 487.052 to comply with s. 8 of Charter -- Judge does not have to have reasonable and probable grounds to believe that offender has committed or will commit further offence in order to issue warrant for taking of bodily sample under s. 487.052 -- Canadian Charter of Rights and Freedoms, s. 8 -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.052.

Criminal law -- Search and seizure -- DNA data bank order -- Judge not required to have reasonable and probable grounds to believe that offender has committed or will commit further offence in order to issue warrant for taking of DNA sample under s. 487.052 of Criminal Code -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.052.

Criminal law -- Search and seizure -- Appellate review of DNA data bank order -- Order to provide DNA sample discretionary decision entitled to deference barring error in principle by issuing judge -- Trial judge not articulating all possible considerations but appropriately weighing offender's privacy interests against use of weapons in robbery during offence and offender's prior weapons convictions -- Judge not erring in principle -- Appeal dismissed.

Where a person is charged with an offence prior to the coming into force of the DNA data bank provisions of the Criminal Code, s. 487.052(1) of the Code provides that a judge has a discretion to make an order authorizing the taking of DNA samples with respect to both categories of offences that are subject to DNA orders, that is, primary and secondary designated offences, if the court "is satisfied that it is in the best interests of the administration of justice to do so". Section 487.052(2) contains a number of factors which the court must consider in deciding whether to make the order. The accused pleaded guilty to robbery, unlawful use of an imitation firearm and possession of stolen property. Robbery is a secondary designated offence. The Crown successfully applied for an order under s. 487.052 of the Code authorizing the taking of a bodily sample from the accused's person to be submitted to the national data bank. The accused appealed, submitting that the trial judge failed to consider the a ppropriate factors in deciding that it was "in the best interests of the administration of justice" to make a DNA order. In particular, the accused submitted that the trial judge could not make the order unless the evidence satisfied him that the accused's DNA profile would be of future evidentiary use. Otherwise, the accused submitted, that standard of "the best interests of the administration of justice" is, in this context, overly broad or vague and offends s. 7 of the Canadian Charter of Rights and Freedoms. He also submitted that there were unreasonable search and seizure concerns under s. 8 of the Charter in relation to the use of DNA information obtained and stored in the national data bank.

Held, the appeal should be dismissed.

It would be unwarranted and unnecessary to interpret s. 487.052 as requiring a judge to have reasonable and probable grounds to believe that an offence will be committed or has been committed before a DNA order can be made. It is unwarranted because the purposes, context and expectations of privacy when a DNA order is made are all different from those of a search warrant. The state's interest is not simply one of law enforcement vis-à-vis an individual. The DNA data bank will do the following: deter potential repeat offenders; promote the safety of the community; detect when a serial offender is at work; assist in solving cold crimes; streamline investigations; and, most importantly, assist the innocent by early exclusion from investigative suspicion. To read in the words "reasonable and probable grounds to believe that an offence will be committed in the future" would result in giving the legislation a meaning that would undermine some of its purposes and that would not be in the public interest. It is unnecessary to apply the search warrant standard of reasonable and probable grounds to s. 487.052 to give it an interpretation that is consistent with the Charter. While there is an interference with bodily integrity, that interference is required by the legislation to be reasonable in the circumstances and is a proportionate response to the objectives of the legislation. The uses to which the sample obtained pursuant to court order may be put are also limited in recognition of the individual's privacy interests.

Parliament has not, by using the phrase "in the best interests of the administration of justice", conferred an imprecise discretion on judges. The phrase does not have to be read as importing reasonable and probable grounds to believe that a further offence has been or will be committed in order to avoid vagueness or overbreadth.

The trial judge did not err in making an order for the taking of a DNA sample in the circumstances of this case. He realized that he had to weigh the impact of the DNA order on the accused's right to privacy against his criminal record, the nature of the offence and the circumstances surrounding the offence. While he may not have articulated all of the considerations that he could have, he concluded that, balancing those factors, the DNA order should be made. In particular, having regard to the fact that weapons were involved in the robbery and that the accused had previously been convicted of two weapons offences, he concluded that the accused's privacy interests were outweighed and that it would be appropriate to make the order. He did not err in principle in doing so.

APPEAL from an order authorizing the taking of a DNA sample.

R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632, 11 O.A.C. 279, 23 D.L.R. (4th) 532, 18 C.R.R. 132, 23 C.C.C. (3d) 48, 48 C.R. (3d) 341 (C.A.) [Leave to appeal to S.C.C. dismissed [1986] 1 S.C.R. ix, 54 O.R. (2d) 509n, 65 N.R. 159n, 15 O.A.C. 238, 33 C.R.R. 384n], consd Other cases referred to Eaton v. Brant County Board of Education (1996), 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, 31 O.R. (3d) 574n, 142 D.L.R. (4th) 385, 207 N.R. 171, 41 C.R.R. (2d) 240; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 33 Alta. L.R. (2d) 193, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, 9 C.R.R. 355, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97 (sub nom. Southam Inc. v. Director of Investigation and Research of Combines Investigations Branch); Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, 2000 S.C.C. 69, 83 B.C.L.R. (3d) 1, 193 D.L.R. (4th) 193, 263 N.R. 203, [2001] 2 W.W.R. 1, 79 C.R.R. (2d) 189, 150 C.C.C. (3d) 1, 38 C.R. (5th) 209; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, 2000 S.C.C. 65, 193 D.L.R. (4th) 440, 262 N.R. 346, 79 C.R.R. (2d) 1, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, 71 Sask. R. 1, 55 D.L.R. (4th) 481, 88 N.R. 205, [1989] 1 W.W.R. 97, 36 C.R.R. 90 , 45 C.C.C. (3d) 57, 66 C.R. (3d) 97 (sub nom. Beare v. R.); R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123, 12 C.R. (5th) 310 (Ont. C.A.); R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, 134 N.S.R. (2d) 321, 119 D.L.R. (4th) 74, 171 N.R. 1, 383 A.P.R. 321, 24 C.R.R. (2d) 51, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147; R. v. Dickens, 2001 ABCA 51, [2001] A.J. No. 217 (C.A.); R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, 73 Nfld. & P.E.I.R. 13, 55 D.L.R. (4th) 503, 89 N.R. 249, 229 A.P.R. 13, 38 C.R.R. 301, 45 C.C.C. (3d) 244, 66 C.R. (3d) 348, 10 M.V.R. (2d) 1; R. v. F. (S.) (2000), 2000 CanLII 5627 (ON CA), 182 D.L.R. (4th) 336, 70 C.R.R. (2d) 41, 141 C.C.C. (3d) 225, 32 C.R. (5th) 79 (Ont. C.A.), affg (1997), 1997 CanLII 12443 (ON SC), 153 D.L.R. (4th) 315, 47 C.R.R. (2d) D-1, 120 C.C.C. (3d) 260, 11 C.R. (5th) 232 (Ont. Gen. Div.) (sub nom. F. (S.) v. Canada (Attorney General)); R. v. Feeney, 2001 BCCA 113, [2001] B.C.J. No. 311 (C.A.); R. v. Garcia, 1969 CanLII 450 (ON CA), [1970] 1 O.R. 821, [1970] 3 C.C.C. 124 (C.A.); R. v. Hall (2000), 2000 CanLII 16867 (ON CA), 50 O.R. (3d) 257, 77 C.R.R. (2d) 1, 147 C.C.C. (3d) 279, 35 C.R. (5th) 201 (C.A.) [Leave to appeal to S.C.C. allowed (2001), 80 C.R.R. (2d) 188n]; R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, 120 D.L.R. (4th) 348, 174 N.R. 81, 24 C.R.R. (2d) 189, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133; R. v. J.R.T., [1998] M.J. No. 345 (Q.B.); R. v. Kyllo, [1999] B.C.J. No. 717 (C.A.); R. v. LeBeau (1999), 50 M.V.R. (3d) 204 (Ont. S.C.J.), 47 M.V.R. (3d) 248 (Ont. S.C.J.); R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, 82 N.S.R. (2d) 271, 44 D.L.R. (4th) 193, 80 N.R. 161, 207 A.P.R. 271, 32 C.R.R. 41, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1 (sub nom. Lyons v. R.); R. v. McCullough (2000), 2000 CanLII 1983 (ON CA), 142 C.C.C. (3d) 149 (Ont. C.A.); R. v. McIntyre, [2000] O.J. No. 3939 (C.J.); R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627, 72 O.R. (2d) 798n, 39 O.A.C. 385, 68 D.L.R. (4th) 568, 106 N.R. 385, 47 C.R.R. 151, 55 C.C.C. (3d) 530, 76 C.R. (3d) 283, 90 D.T.C. Â6243; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, 171 D.L.R. (4th) 1, 237 N.R. 157, 61 C.R.R. (2d) 244, 133 C.C.C. (3d) 129, 24 C.R. (5th) 97; R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, 144 N.R. 176, 12 C.R.R. (2d) 31, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74; 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. S.J.S., [1999] S.J. No. 498 (Q.B.); R. v. Sheenberger, [2000] S.J. No. 640 (C.A.); 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; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Turner, [2001] N.J. No. 104 (Nfld. S.C.T.D.); Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416, 93 N.R. 183, 40 C.R.R. 100, 26 C.C.E.L. 85, 89 C.L.L.C. 14,031 (sub nom. Davidson v. Slaight Communications Inc.); Weatherall v. Canada (Attorney General) (1993), 1993 CanLII 112 (SCC), 64 F.T.R. 306n, [1993] 2 S.C.R. 872, 105 D.L.R. (4th) 210, 154 N.R. 392, 16 C.R.R. (2d) 256, 83 C.C.C. (3d) 1, 23 C.R. (4th) 1 (sub nom. R. v. Conway) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 85, 344, 355, 487.04, 487.05, 487.051, 487.052, 487.053, 487.054, 487.056(3), 487.06, 487.07(3), 487.071, 487.08, 487.09, 492.1, 492.2, 684(1) Courts of Justice Act, R.S.O. 1990, c. C-43, s. 109 DNA Identification Act, S.C. 1998, c. 37, ss. 3, 4, 5(1), 6, 9(2), 9.1(1), 10(7), 10.1, 11 National Defence Act, R.S.C. 1985, c. N-5 Privacy Act, R.S.C. 1985, c. P-21, s. 8(2)(f) Young Offenders Act, R.S.C. 1985, c. Y-1, ss. 45(2), 45.02(3), 45.03(3) Authorities referred to Adams, D., Statement for the Record on Forensic DNA Analysis, before the Subcommittee on Crime of the House Judiciary Committee (2000), online: F.B.I. at p. 2 (http:// www.fbi.gov/congress/congress00/dadams.htm) Bauman, C., "The DNA Data Bank: Privacy Concerns and Safeguards" (2000), 34 C.R. (5th) 39 at p. 57 Chayko, G.M., ed., Forensic Evidence in Canada (Aurora: Canada Law Book, 1999) Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) Zigayer, M., "The Canadian DNA Data Bank" (1998), Les Éditions Revue de droit, Université de Sherbrooke, in the Actes du Colloque, Police, Techniques modernes d'enquête ou de surveillance et Droit de la preuve.

Michal Fairburn and Carol Ann Bauman, for respondent. Delmar Doucette and John Norris, for appellant.

The judgment of the court was delivered by

WEILER J.A.: --

Overview

[1] The appellant appeals from an order pursuant to s. 487.052 of the Criminal Code, R.S.C. 1985, c. C-46 authorizing the taking of a bodily sample from his person to be submitted to the national DNA data bank. The appellant pleaded guilty to robbery (s. 344), unlawful use of an imitation firearm (s. 85), and possession of stolen property (s. 355). After the appellant was sentenced to 30 months' imprisonment, the Crown made the application that resulted in the DNA order. The appellant appeals on the basis that the trial judge misinterpreted s. 487.052 and that he should not have made the order for the taking of a bodily sample.

[2] For ease of reference, s. 487.052 and other sections of the Criminal Code relevant to the interpretation of s. 487.052 are reproduced below. It is only if an offence has been designated by s. 487.04 that a DNA order may be made. Robbery is a secondary designated offence.

487.04 In this section and sections 487.05 to 487.09,

"designated offence" means a primary designated offence or a secondary designated offence;

"DNA" means deoxyribonucleic acid;

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.

487.053 An order shall not be made under section 487.051 or 487.052 if the prosecutor advises the court that the national DNA data bank, established under the DNA Identification Act, contains a DNA profile, within the meaning of section 2 of that Act, of the person or young person in question.

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).

487.06(1) A peace officer or another person under the direction of a peace officer is authorized to take samples of bodily substances from a person by a warrant under section 487.05 or an order under section 487.051 or 487.052 or an authorization under section 487.055 or 487.091, by any of the following means:

(a) the plucking of individual hairs from the person, including the root sheath;

(b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or

(c) the taking of blood by pricking the skin surface with a sterile lancet.

(Emphasis added)

[3] Section 487.04 of the Criminal Code designates two categories of offences that are subject to DNA orders: primary and secondary offences. DNA data bank orders (and DNA search warrants) can only issue when an offender has been convicted of a designated offence listed in s. 487.04. Primary offences are the most serious offences in the Criminal Code and include murder and sexual offences. Secondary offences, such as robbery, are less serious than primary offences, but are serious on their own. Pursuant to s. 487.051, if a person is convicted of a primary designated offence, and no order has previously been made for the taking of a bodily sample of DNA, a judge "shall" make the order unless the court is satisfied that the person has established that the impact on the person's "privacy and security of the person is 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". If a person is convicted of a secondary designated offence, the court "may" make an order authorizing the taking of samples of DNA "if the court is satisfied that it is in the best interests of the administration of justice to do so". Thus, a judge has a discretion to make an order authorizing the taking of a sample of DNA with respect to both primary and secondary offences although that discretion would appear to be more limited with respect to primary offences.

[4] The section in issue here, s. 487.052, is concerned only with the situation where a person was charged with a crime prior to the coming into force of the legislation and convicted after it came into force. The appellant's offence was committed on October 9, 1999; the legislation came into force on June 30, 2000 and he was convicted afterwards on July 21, 2000. Pursuant to s. 487.052(1), a judge has a discretion to make an order authorizing the taking of samples of DNA with respect to both primary and secondary designated offences, "if the court is satisfied that it is in the best interests of the administration of justice to do so". Section 487.052(2) contains a number of factors which the court must consider in deciding whether to make the order.

[5] The real crux of this case lies in the proper role of the phrase "the best interests of the administration of justice" in deciding whether to make an order for the taking of DNA. The appellant submits that the trial judge failed to consider the appropriate factors in deciding that it was "in the best interests of the administration of justice" to make an order for the taking of DNA. In particular, the appellant submits that the trial judge could not make the order unless the evidence satisfied him that the appellant's DNA profile would be of future evidentiary value. In other words, the judge must have reasonable and probable grounds to believe that the offender has committed or will likely commit a crime in the future where his DNA will be of assistance in proving the crime. Otherwise, the appellant submits that the statutory requirement the trial judge must consider, namely, the interests of the administration of justice is overly broad or vague and offend s. 7 of the Canadian Charter of Rights and Freedoms. The appellant also submits that there are unreasonable search and seizure concerns under s. 8 of the Charter in relation to the use of the DNA information obtained and stored in the national data bank. Finally, the appellant submits that the trial judge should have exercised his discretion to refuse to make the order in this case.

[6] Because the interpretation of the phrase, "the best interests of the administration of justice" and the meaning to be given to s. 487.052 cannot be undertaken in isolation, these reasons necessarily make some reference to the legislative scheme as a whole. I wish to make it clear, however, that my comments are for the purpose of interpreting s. 487.052.

[7] The basic principle of statutory interpretation is that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament": (E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87, as applied in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at p. 1007, 149 C.C.C. (3d) 449 at p. 463). The context of this case requires that the interpretation of the phrase, "the best interests of the administration of justice" as used in s. 487.052(1), be done with the competing interests of the state and the individual in mind. The people of this country have a right to go about their daily lives without fear of harm to their person. To this end, it is in the interests of everyone that serious crime be effectively investigated and prosecuted. At the same time, respect for the privacy of individuals is an equally important value deserving of protection. Each of these values is protected in s. 7 of the Charter of Rights and Freedoms. There is no issue, nor can there be, that the discretion granted in s. 487.052 to order the taking of a sample of DNA must be exercised in a manner consistent with the Charter of Rights and Freedoms: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 at pp. 1192-93, 150 C.C.C. (3d) 1 at p. 53. The issue is whether the standard proposed by the appellant, which is derived from the standard with respect to the issuance of search warrants, must be applied in order for the legislation to be consistent with ss. 7 and 8 of the Charter.

Background to the [DNA Identification Act](https://www.canlii.org/en/ca/laws/stat/sc-1998-c-37/latest/sc-1998-c-37.html)

[8] Before 1995, the Criminal Code did not authorize the taking of bodily substances for analysis from individuals accused of a crime. Nevertheless, police officers took samples of bodily substances from some accused persons until the practice was challenged under s. 8 of the Charter as contravening the right to be secure from unreasonable search and seizure: see R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, 92 C.C.C. (3d) 404. In that case, hair and blood samples were taken from an accused charged with sexual assault. Since no legislative provision authorized the seizure and the accused's consent had not been validly obtained, the Supreme Court declared the seizure illegal. In so doing, the court recognized the interest of an accused in information pertaining to his or her bodily substances.

[9] The decision in Borden, supra, led Parliament to amend the Criminal Code in 1995 to provide in ss. 487.04 to 487.09 for a DNA search warrant. That legislation was recently held to be constitutional in R. v. F. (S.) (2000), 2000 CanLII 5627 (ON CA), 141 C.C.C. (3d) 225, 182 D.L.R. (4th) 336 (Ont. C.A.). In that case, this court held that the principle against self-incrimination was not a free- standing constitutional right but was qualified by the requirement of due process. Thus, the rules of fundamental justice do not prohibit the Crown from compelling the production of evidence but rather control the manner in which this evidence may be obtained. The court also held that the DNA search warrant legislation does not violate s. 8 of the Charter because it is not unreasonable. The taking of bodily substances as prescribed by the legislation and on the evidence resulted in a minimal interference with the suspect's body while fostering a valid government objective in enforcing the criminal law.

[10] With this context in mind, in 1997, Parliament introduced further legislation. This legislation authorized a judge to order persons found guilty of certain offences to provide a sample of their DNA to a national DNA data bank. The DNA Identification Act, S.C. 1998, c. 37 (hereinafter "the Act") came into force on June 30, 2000. The Act governs the creation, operation and maintenance of a national DNA data bank, which is administered by the Commissioner of the Royal Canadian Mounted Police ("R.C.M.P."). The Act effected consequential amendments to the Criminal Code and added ss. 487.051 to 487.055. Similar amendments were also made to the National Defence Act, R.S.C. 1985, c. N-5, to include those in the military.

The structure of the DNA data bank

[11] The DNA data bank consists of two indices or libraries of DNA profiles: (1) crime scene index; and (2) convicted offenders index. The crime scene index contains DNA profiles extracted from bodily substances left behind at unsolved crime scenes throughout Canada. The convicted offenders index contains DNA profiles of individuals convicted of designated offences (listed in s. 487.04 of the Criminal Code) who have provided a sample of a bodily substance pursuant to court order.

[12] The profiles contained in these respective indices are compared against each other, together with new profiles that are submitted on an ongoing basis. Working together, the two indices create a highly effective and reliable tool that permits investigators to link crimes and apprehend recidivist criminal offenders. An officer investigating a fresh crime or an historical unsolved cold crime may submit a DNA profile from the crime scene. This profile will then be compared to other DNA profiles in both indices. If there is a "hit" (match) in the crime scene index, it would suggest that the same person committed the unsolved crimes. Linkage of DNA from various crime scenes can be of vital importance, particularly where the offences have been committed in different jurisdictions and the police may be looking for a serial offender. If there is a "hit" in the convicted offender index, it would suggest that the bodily sample at the crime scene is that of the offender.

The convicted offenders index and the criteria for inclusion

[13] Only certain convicted offenders are eligible to be included in the convicted offenders index. The Criminal Code sets out the criteria to be applied in determining whether an order for the taking of a bodily substance should be made. The criteria are slightly different depending on when the offence was committed (before or after the coming into force of the Act), the nature of the offence (primary or secondary), and the circumstances of the offender. Pursuant to s. 487.052(1) of the Code, the decision to make an order for the taking of a sample of DNA for the data bank is not mandatory but is discretionary. This section provides that when an offender is convicted of a designated offence "the court may, on application by the prosecutor, make [a DNA order] . . . if the court is satisfied that it is in the best interests of the administration of justice to do so." Subsection 487.052(2) provides the following criteria for the court to consider in exercising its discretion: "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."

Method used to obtain bodily samples and DNA profiles

[14] A DNA sample is obtained from the offender (convicted of a designated offence) through the collection of a blood sample (fingerprick), hair plucking, or mouth swab (buccal). The collected sample is then analyzed to produce a DNA "profile". The profile is then added to the convicted offender index. The sample itself, although retained, does not form part of the index. An analysis of certain portions of the DNA strand can reveal various personal characteristics about an individual, but these portions are deliberately excluded from analysis in the creation of a profile for the data bank. Instead, portions of the DNA strand which currently have no known identifying characteristics are used. These "non-coding" portions are colloquially known as "junk DNA". Thus far, no one has been able to determine personal (and private) characteristics of an individual from looking at the profile. Much like a fingerprint, this limited DNA profile serves the purpose of identifying an individual, without revealing biological information about that individual. Even if science progresses to the point that some kind of personal information can be obtained from the tested loci, it remains an offence to misuse the DNA samples and profiles. See C. Bauman, "The DNA Data Bank: Privacy Concerns and Safeguards" (2000), 34 C.R. (5th) 39 at p. 57; D. Adams, "Statement for the Record on Forensic DNA Analysis, before the Subcommittee on Crime of the House Judiciary Committee" (2000), online: F.B.I. at p. 2 (http:// www.fbi.gov/congress/congress00/dadams.htm); M. Zigayer, "The Canadian DNA Data Bank" (1998), Les Éditions Revue de droit, Université de Sherbrooke, in the Actes du Colloque, Police, Techniques modernes d'enquête ou de surveillance et Droit de la preuve.

Process involved in collecting DNA samples

[15] The appellant's factum provides a helpful summary of the steps under the statutory scheme for the collection of bodily samples for DNA analysis in the Criminal Code and the DNA Identification Act:

(1) The samples shall be taken "at the time the person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, or as soon as is feasible afterwards, even though an appeal may have been taken" (s. 487.056(1)).

(2) The samples shall be taken by a peace officer or another suitable person acting under the direction of a peace officer (s. 487.056(3)).

(3) The order authorizes the plucking of individual hairs (including the root sheath), the taking of buccal swabs or the taking of blood by pricking the skin surface with a sterile lancet (s. 487.052(1) and s. 487.06(1)). To promote the accuracy and integrity of the DNA data bank fingerprints will be taken at the same time DNA samples are collected for the data bank.

(4) The peace officer shall file a report with the provincial court judge who made the order stating the time and date the samples were taken and a description of the bodily samples that were taken (s. 487.057(1)).

(5) The results of the forensic DNA analysis of the bodily samples collected shall be transmitted to the Commissioner of the RCMP for entry in the convicted offenders index of the national DNA data bank established under the DNA Identification Act (s. 487.071(1)).

(6) Any unused portions of the bodily substances shall be forwarded to the Commissioner of the RCMP for the purposes of the DNA Identification Act (s. 487.071(2)).

(7) DNA profiles stored in the convicted offenders index shall be compared with DNA profiles stored in the crime scene index and the results of this comparison may be communicated to any authorized user of the automated criminal conviction records retrieval system maintained by the RCMP for the purposes of the investigation or prosecution of a criminal offence (DNA Identification Act, s. 6(1) and (2)).

Consequence of a DNA match

[16] When a profile in the convicted offender's index is found to match a profile in the crime scene index, the police force which is investigating the crime in question is notified that there has been a match between a certain person and the crime scene. Neither the profile, nor the sample is revealed to the investigating force. [^1] Instead, the fact that a match was made may be used by the police to further investigate the offence. The match in the data bank will not, by itself, serve as evidence in criminal proceedings. Rather, it is contemplated that the match will furnish the requisite grounds for the officer to obtain a "DNA warrant" under s. 487.05 of the Criminal Code, authorizing collection of a new bodily substance directly from the suspect. The analysis of the DNA sample obtained by search warrant (as opposed to the DNA data bank sample) will constitute the evidence that is tendered at any ensuing trial. See Zigayer, "The Canadian DNA Data Bank", supra.

Destruction of samples and profiles

[17] The Act provides for the destruction of both samples and profiles taken from convicted offenders in the following circumstances:

-- When a conviction is quashed and a final acquittal entered, (s. 9(2)(a)) and s. 10(7)(a));

-- One year after an absolute discharge (unless the person is convicted of another offence in the meantime) (s. 9(2)(b) (i)) and s. 10(7)(b)(i));

-- Three years after a conditional discharge (unless the person is convicted of another offence in the meantime) (s. 9(2) (b)(ii) and s. 10(7)(b)(ii));

-- For young offenders, whenever the last part of a record is required to be destroyed under ss. 45(2), 45.02(3) or 45.03(3) of the Young Offenders Act, R.S.C. 1985, c. Y-1 (s. 9.1(1) and s. 10.1).

[18] With this background in mind, I will now review the issues raised by the appellant.

Analysis

Must the requirements of s. 487.052 conform to the requirements for the issuance of a search warrant in order for the authorizing judge to exercise his or her discretion in conformity with [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[19] The appellant relies on Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at pp. 158-59, 166-69, 14 C.C.C. (3d) 97 at pp. 108, 114-15 in support of the proposition that the appropriate standard in this case is reasonable and probable grounds to believe that an offence will be committed or has been committed before a DNA order can be made. In Hunter v. Southam Inc., Dickson J. explained that an assessment of the constitutionality of a statute that authorizes a search or seizure must focus on its reasonable or unreasonable impact on the subject of the search or seizure and not simply on its rationality in furthering some government objective. He explained that s. 8 protects a person's reasonable expectation of privacy and at pp. 159-60 S.C.R., p. 108 C.C.C. he further explained:

. . . an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.

[20] This balancing of interests is to be conducted, where feasible, in advance of the search or seizure by an individual who is capable of acting judicially. Dickson J. described the guiding principles at pp. 167-68 S.C.R., pp. 114-15 C.C.C.:

The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant's reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.

The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one.

[21] In assessing whether legislation authorizing a search or seizure is reasonable, one of the requirements is that the authorization must be obtained in advance. The legislation in this case complies with that requirement. A second requirement is that the legislation contain a consistent standard. Here, the standard is the "best interests of the administration of justice". The appellant submits that, on the basis of Hunter v. Southam Inc., supra, that standard includes reasonable and probable grounds to believe that an offence has been or will be committed. In his concluding comments, Dickson J. acknowledged that the standard of reasonable and probable grounds might not always be appropriate and he specifically mentioned two contexts in which the standard might not apply: (1) where the state's interest is not simply law enforcement, or (2) where the search threatens bodily integrity.

[22] In this case, the state's interest is not simply one of law enforcement vis-à-vis an individual -- it has a much broader purpose. The DNA data bank will: (1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).

[23] The appellant's submission assumes that there is only one context or purpose for obtaining a DNA order, the likelihood that an offender has committed or will commit an offence in the future and that a sample of his DNA will afford evidence of commission of that crime. Acceptance of the appellant's submission would negate other broader purposes of the legislation, such as deterring an offender from committing crimes in the future. The appellant's submission if accepted would also negate the early exclusion of innocent persons from investigation. Weeding out wrongful suspects early in an investigation serves as a benefit to the state by saving resources to apply to other suspects and as a benefit to the wrongfully accused who are spared the emotionally taxing and financially costly ordeal of protecting their innocence. One of the core principles of our criminal justice system has always been to ensure that innocent persons are not convicted. The DNA data bank legislation supports this principle. The broa der purposes of the DNA data bank legislation are one indication that the standard used for search warrants ought not to apply. I will discuss bodily integrity shortly, but before doing so it is appropriate to point out some further differences between search warrant legislation and the DNA data bank legislation.

Further comparison of search warrants and DNA data bank legislation

[24] The underlying purpose of a search warrant is result- oriented, namely, obtaining information with which to prosecute a suspect. The underlying purpose of taking DNA is the identification of offenders. The state's interest in their identification is clearly expressed in s. 3 of the Act:

Purpose

3. 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]

[25] With the utilization of modern technology and science, the collection of DNA from the scene of a crime is much like the collection of fingerprints except that it is on a genetic level. In many cases where an ordinary fingerprint may not have been left at the scene of a crime, a genetic fingerprint will be present. DNA technology has advanced significantly in recent years, to the point where a DNA profile can now be derived from objects that one would not ordinarily think to be the source of DNA. While blood and semen remain excellent sources of DNA, a profile can also be derived from numerous other sources. For example, in Canadian case law alone, forensic DNA typing has been performed on cigarette butts, [^2] mucous ridden tissues, [^3] licked envelopes, [^4] Halloween masks and balaclavas, [^5] chewing gum, [^6] chapstick, [^7] jewellery, [^8] a car air bag, [^9] and an electrical cord (used to strangle the victim). [^10] In addition to blood and semen, other sources of DNA include skin, bone, teeth, hair roots, nasal secretions, ear wax, saliva, urine, feces, vomitus, nail clippings and dandruff. As the Supreme Court of Canada has recognized, a DNA profile can be derived if a person blew his nose, smoked a cigarette, chewed gum, used the toilet or ate from a spoon. [^11] Thus, the potential to solve the identity of the perpetrators of crimes through DNA analysis extends far beyond those instances where fingerprints have been left behind.

[26] Before an investigating officer takes fingerprints, there is no need to show reasonable grounds exist that the prints will provide evidence with respect to the offence for which the individual has been arrested or will provide evidence of some future or past offence. This onerous standard was rejected by La Forest J. in R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, 45 C.C.C. (3d) 57, at pp. 411-12 S.C.R., p. 76 C.C.C.:

The judges in the Court of Appeal thought their objections to the discretionary features of the legislation could be met if the following conditions were satisfied: a peace officer, in addition to having reasonable and probable grounds for believing the accused had committed an offence, had reasonable and probable grounds for believing that fingerprinting would likely provide evidence relating to the offences, or reasonably doubted the identity of the accused, or believed on reasonable and probable grounds that fingerprinting would provide evidence of the subject's identity . . . I am by no means sure this does not ignore the wide variety of reasons for which fingerprints may legitimately be used. Nor am I convinced these additional steps would afford any significant protection to an accused, and if more stringent requirements were imposed they could unduly limit the police in the exercise of their duty to investigate crime. . . . Assuming such procedures . . . would constitute some improvement to the present unstructured system, I do not think it is constitutionally mandated. As the court stated in [R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1 at p. 46], s. 7 of the Charter guarantees fair procedures but it does not guarantee the most favourable procedures that can possibly be imagined. In my view, the requirements necessary to issue and confirm an appearance notice offer a sufficient safeguard to meet the requirements of fundamental justice for the taking of fingerprints.

[27] A DNA profile obtained after conviction, like fingerprints, is an identification marker. The standard of reasonable and probable grounds is not mandated for the taking of fingerprints. To import the standard suggested by the appellant into the legislation would be to ignore the legislation's intent and would deny the advantageous variety of reasons for which DNA may legitimately be used.

[28] The context in which the authorization to take DNA under s. 487.052 is requested is different from the context in which a search warrant is sought. A search warrant is generally an ex parte procedure: R. v. F. (S.), supra, at p. 244 C.C.C. The application occurs prior to prosecution when the accused is still presumed innocent and is entitled to all the rights associated with an innocent person. In the search warrant context, because the procedure is generally ex parte and the targets of the investigation are still presumed innocent, the authorizing judge must act as "the guardian of the law and of the constitutional principles protecting privacy interests": Araujo, supra, at p. 1008 S.C.R., p. 464 C.C.C.

[29] The DNA order under s. 487.052 occurs in a post- conviction context after the offender has been convicted (of specific designated offences), after the prosecution makes the request for a DNA order, and after a court has heard submissions from both the defence and the Crown. An order authorizing the taking of a sample of DNA is made only after the Crown and the defence have had opportunities to present their positions.

[30] If reasonable grounds exist to believe that the offender has committed a particular offence in the past and that the DNA profile will provide evidence of the offence, a DNA search warrant could be obtained and there would be no need to make an application for an order under s. 487.052. Indeed, the DNA warrant legislation provides the best indication that Parliament did not intend that reasonable grounds be a consideration. Section 487.05 states:

487.05(1) A provincial court judge who on ex parte application made in Form 5.01 is satisfied by information on oath that there are reasonable grounds to believe

(a) that a designated offence has been committed,

(b) that a bodily substance has been found or obtained

(i) at the place where the offence was committed,

(ii) on or within the body of the victim of the offence,

(iii) on anything worn or carried by the victim at the time when the offence was committed, or

(iv) on or within the body of any person or thing or at any place associated with the commission of the offence,

(c) that a person was a party to the offence, and

(d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person

and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 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).

(2) In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including

(a) the nature of the designated offence and the circumstances of its commission; and

(b) whether there is

(i) a peace officer who is able, by virtue of training or experience, to take samples of bodily substances from the person, by means of the investigative procedures described in subsection 487.06(1), or

(ii) another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures.

(3) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.

[As am. S.C. 1995, c. 27, s. 1; S.C. 1997, c. 18, s. 44, S.C. 1998, c. 37, s. 16.]

[31] In s. 487.05, Parliament specified that in order to issue a DNA warrant, the provincial judge must first be satisfied that there are reasonable grounds to believe that an offence has been committed in addition to other factors before considering whether it is in the best interests of the administration of justice to issue the DNA warrant. It is apparent that in this section, the phrase "the best interests of the administration of justice" means something other than reasonable and probable grounds to believe that an offence has been committed because this is a separate pre-condition. It is a basic principle of statutory interpretation that the same phrase should be given the same meaning respecting the same subject matter. With respect to the subject matter of DNA, Parliament specified the standard of reasonable and probable grounds separately from "the best interests of the administration of justice". The logical inference is that the omission of the words reasonable and probable grounds from s. 487.052 was deliberate.

[32] Again, the appellant's argument proceeds as if only one interpretation -- reasonable grounds to believe that a seized item will afford evidence -- will satisfy s. 8 Charter concerns in the DNA context. This is not so. As Dickson J. recognized, the reasonableness standard under s. 8 of the Charter fluctuates with the context. The specific wording of a section is informed by its history, purpose, structure and function. Section 8 of the Charter does not require that each and every search and seizure be done only on the basis of the existence of reasonable grounds. See: R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, 133 C.C.C. (3d) 129 at pp. 146-47; and ss. 492.1 and 492.2 of the Criminal Code. Thus, the reasonableness of a search and the surrounding standards of belief must be assessed in the context of each case. As Wilson J. noted in R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627, 55 C.C.C. (3d) 530 at p. 645 S.C.R., pp. 542-43 C.C.C.:

Since individuals have different expectations of privacy in different contexts and with regard to different kinds of information and documents, it follows that the standard of review of what is "reasonable" in a given context must be flexible if it is to be realistic and meaningful.

The effect of the interpretation proposed by the appellant would be to impose an inflexible standard that would undermine the broader purposes and effectiveness of the data bank.

Privacy and bodily integrity

[33] The second exception to the reasonable and probable grounds standard mentioned by Dickson J. in Hunter v. Southam, supra, is when an individual's bodily integrity is affected. The extent to which state intrusion with bodily integrity will be tolerated under the Charter is linked to the reasonable expectation of privacy that an individual has. There is a significant difference in the reasonable expectation of privacy and, hence, the protection from interference with bodily integrity afforded to a person who is a suspect but has not been charged, a person who has been arrested and charged, a person who has been convicted, and a person who is subject to a custodial sentence. See Beare, supra, at pp. 412-13 S.C.R., p. 77 C.C.C.; Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872 at pp. 876-77, 83 C.C.C. (3d) 1 at p. 4. In Stillman, supra, at pp. 639-41 S.C.R., pp. 342-43 C.C.C., the court held that the taking of DNA samples was state interference with the accused's bodily integrity, a breach of his privacy and an affront to human dignity. At the time that the samples of DNA were obtained, Stillman had not been convicted of a crime and it is in that context that the court's comments must be considered. The court held that a higher justification for state interference was necessary than the common law power of search incident to arrest and mentioned the new legislative provisions respecting DNA search warrants. A person who has been convicted of a designated offence, unlike an accused person, no longer has the benefit of the presumption of innocence. Persons convicted of serious crimes may be subject to sentences of incarceration in prison or in jail. Such persons are subjected to strip searches, body cavity searches and constant supervision. An offender serving a sentence in the community is also subject to supervision and the imposition of terms and conditions limiting the conduct of the offender's life.

[34] Human dignity is closely aligned with an individual's freedom of choice. A person convicted of a crime has a lesser expectation of privacy not because that person's worth as a human being is less, but because the person's right to make choices about his or her life is curtailed.

[35] Human dignity will also be impacted by the methods used to obtain the sample of DNA and the sites from which the samples are obtained. Dental impressions were taken from Stillman and the court held that this was a lengthy and intrusive process. By contrast, one of the methods for taking DNA provided for in the Code is the relatively quick and less discomfiting procedure of swabbing the lips, tongue and inside the cheeks of the mouth. Stillman had pubic hairs removed as well as hair from his scalp. The Code provides for the plucking of individual hairs including the root sheath but does not specify the location on the body from which the hair may be taken. However, the Code requires that the person who is authorized to take samples of bodily substances do so in a manner that respects the offender's privacy and that is reasonable in the circumstances (s. 487.07(3)). Thus, a person would not ordinarily be required to expose a part of the body that is not ordinarily exposed to view. If, as in F. (S.), supra, the hair is plucked from the head, the intrusion on the individual's privacy will be minimal. Finally, the Code provides for the taking of a drop of blood by pricking the surface of the skin. This may be done by pricking a finger. The person who is to take the sample must be a person with training or experience (s. 487.056(3)). A judge may specify the manner in which the sample is to be taken (s. 487.06(2)). The legislation therefore proposes a contextual approach to the making of an order authorizing the taking of a sample of a bodily substance to be used to conduct a DNA analysis. The legislative scheme is sensitive to the privacy interests of the offender and the requirement that any seizure be reasonable in the circumstances. It aims at compliance with s. 8 of the Charter.

[36] Another real concern is the privacy interest arising out of the use of the offender's DNA profile. In this regard, the principles of the Act must be borne in mind in relation to the seizure of samples. Section 4 of the Act states:

Principles

4. It is recognized and declared that

(a) the protection of society and the administration of justice are well served by the early detection, arrest and conviction of offenders, which can be facilitated by the use of DNA profiles;

(b) the DNA profiles, as well as the samples of bodily substances from which the profiles are derived, may be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose;

(c) to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on

(i) the use and communication of, and access to, DNA profiles and other information contained in the national DNA data bank, and

(ii) the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act.

[37] The offender has a residual interest in the use that will be made of the sample taken. The legislation meets the concern expressed by La Forest J. in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, 45 C.C.C. (3d) 244 that the use to which the information is put must conform to the purpose for which the information was taken. In that case, a doctor took a blood sample from the accused for medical purposes and later handed it over to the police. The court stated that a contextual analysis was appropriate and, following this analysis, concluded that the appellant had a reasonable expectation that the blood sample would be used only for the medical purposes for which it had been given. For the state to use the blood sample for a different purpose, that is, evidence that he had committed an offence, constituted a seizure that violated s. 8 of the Charter.

[38] The following passage by La Forest J. at pp. 429-30 S.C.R., pp. 255-56 C.C.C. encapsulates the reasoning of the court:

Finally, there is privacy in relation to information. This too is based on the notion of the dignity of the individual. . . . "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained: see for example, the Privacy Act, S.C. 1980-81-82-83 c.111 (Sch. II.).

[39] The DNA legislation addresses the concern in Dyment with respect to the use of information in the following ways. The convicted offender's DNA profile is tested in a way that does not reveal intimate details about the individual. The penalties for the misuse of information obtained as a result of an order to provide DNA recognize that an offender has the right not to have the information contained in the sample used for a purpose other than that authorized by law. The Criminal Code restricts the uses to which the results of the analysis of the sample may be put. The results of the analysis cannot be used except to transmit them to the Commissioner of the R.C.M.P. (s. 487.08). The Act also controls the use to which the information can be put. As I have indicated in the portion of this judgment dealing with the background structure of the DNA data bank, the DNA profile is placed in a convicted offenders index. The profiles from the convicted offenders index are compared to those in the crime scene index. If a match is obtained, the fact that there is a match may be used in an application by a police officer to obtain a DNA warrant for a fresh sample of a bodily substance from the named individual. Non-compliance with the Act by inappropriate use of the sample obtained is a punishable offence under s. 11 of that Act. The privacy concern in the use to which information may be put is addressed in the legislation by the limitation as to the use of the information and by the penalties attached to misuse of DNA information. In addition, if an offender's conviction is quashed and a final acquittal is entered or a conditional or absolute discharge is obtained, the sample must be destroyed.

Implication

[40] The interpretation of s. 482.052 suggested by the appellant is unwarranted and unnecessary. It is unwarranted because the purposes, context and expectations of privacy when a DNA order is made are all different from those of a search warrant. To read in the words "reasonable and probable grounds to believe that an offence will be committed in the future", as suggested by the appellant, would result in giving the legislation a meaning that would undermine some of its purposes and that would not be in the public interest. It is unnecessary to apply the search warrant standard of reasonable and probable grounds to s. 487.052 to give it an interpretation that is consistent with the Charter. While there is an interference with bodily integrity, that interference is required by the legislation to be reasonable in the circumstances and is a proportionate response to the objectives of the legislation. The uses to which the sample obtained pursuant to court order may be put are also limited in recognition of the individual's privacy interests. Both the taking of the sample pursuant to s. 487.052 and its use are consistent with the Charter without adopting the interpretation proposed by the appellant. A careful case-by-case consideration of the issue of whether a sample should be taken is preferable to the blanket standard proposed by the appellant.

Is the standard, "Best interests of the administration of justice" "overly broad or vague" unless the reasonable and probable grounds standard is imported into it?

[41] Interests in bodily integrity, personal autonomy and privacy are encompassed by the protections of life, liberty and security of the person guaranteed by s. 7 of the Charter: See R. v. Stillman, supra. In most respects, s. 7 will not add anything to the specific protections of s. 8: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, 139 C.C.C. (3d) 321. There is, however, an important protection guaranteed uniquely by s. 7. This is the protection against legislation that is vague or over-broad: Stillman, supra, at pp. 642-43 S.C.R., p. 345 C.C.C.; Mills, supra, at pp. 725-26 S.C.R., p. 368 C.C.C.

[42] The appellant submits that the legislation is too sweeping in relation to its objectives and that one of the criteria in the legislation, the interests of the administration of justice, is a standardless sweep. For this reason, the appellant submits that, although the requirement of reasonable and probable grounds to make the order are not contained in s. 487.052, it is necessary to import them into the phrase, "best interests of the administration of justice". In support of its position, the appellant relies on decisions in which the constitutionality of legislation was challenged such as R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, 94 C.C.C. (3d) 481 at p. 516; R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 at pp. 728-29, 77 C.C.C. (3d) 91 at p. 101, and R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632, 23 C.C.C. (3d) 48 (C.A.). Although the court has not been asked to declare s. 487.052 invalid, the appellants seek a remedy that has in the past been obtained when the constitutionality of legislation has been challenged.

[43] In the absence of the constitutionality of the legislation being raised in the appropriate manner, this court has no authority to do so. A party intending to challenge the constitutional validity of legislation is required to provide notice of a constitutional question to the Attorneys General of the Province and Canada. Absent such notice, the court is barred from considering the issue. See s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C-43. At the appellate level, the appropriate foundation for the argument raised may also be missing.

[44] The importance of the notice requirement was considered by Sopinka J. in Eaton v. Brant County Board of Education (1996), 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241 at pp. 264-65, 142 D.L.R. (4th) 385 at p. 400. He stated that the power to declare legislation invalid that contravenes the Charter and that is not saved under s. 1 can only be exercised after a full opportunity has been given to the government to support its validity. In making that decision, it is also important that the court have the benefit of a record that is the result of a thorough examination of the constitutional issues. Here, notice of a constitutional question was not given until after the appeal was filed and the court does not have the benefit of an examination of the constitutional issues in the court of first instance.

[45] As I understand the appellant's position, it is that by using the language, "in the best interests of the administration of justice", Parliament has conferred an imprecise discretion on judges. An imprecise discretion must be interpreted by not allowing Charter rights to be infringed: Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416. In the context of s. 7 of the Charter, the analysis is two-fold. First, there must be a finding that there has been a deprivation of life, liberty or security of the person. Second, there must be a finding that that deprivation is contrary to principles of fundamental justice.

[46] The appellant submits that the phrase "best interests of the administration of justice" must be read as importing reasonable and probable grounds to believe that a further offence will be or, alternatively, I would add, has been committed. If this is done the standard will not be imprecise but clear in accordance with s. 7. In support of this submission, the appellant relies on the decision of this court in R. v. Finlay and Grellette, supra, at pp. 654-57 O.R., pp. 70-72 C.C.C., leave to appeal to S.C.C. refused [1986] 1 S.C.R. ix, 54 O.R. (2d) 509n, where Martin J.A. did exactly that.

[47] The appellant's submission, however, again ignores the context with which Martin J.A. was dealing. In Finlay and Grellette, the court was dealing with an application to intercept a private communication and the court was sensitive to the potential that the legislation not be interpreted in a way that authorized fishing expeditions based on mere suspicion. Martin J.A. held that countenancing fishing expeditions on the basis of mere suspicion would not further the best interests of the administration of justice but would bring them into disrepute. Consequently, he interpreted the legislation as requiring reasonable grounds to believe that an offence had been or was being committed. Martin J.A. was careful to state that his interpretation was made ". . . in the context of the legislative scheme". He stated at p. 655 O.R., pp. 70-71 C.C.C.:

Thus, it appears to me that the prerequisite that the judge must be satisfied that it would be in the best interests of the administration of justice to grant the authorization in the context of the legislative scheme imports as a minimum requirement that the authorizing judge must be satisfied that there are reasonable grounds to believe that a particular offence or a conspiracy, attempt or incitement to commit it has been, or is being, committed."

(Emphasis added)

[48] Although the phrase "best interests of the administration of justice" cannot be precisely defined, it takes its meaning from the context in which it is found. In Finlay and Grellette, the court was dealing with a pre- prosecution situation that dealt with the rights of innocent persons. In the DNA context, the court is assessing a post- conviction context as it impacts on offenders convicted of serious crimes who might be a concern to the safety of the community.

[49] The comments of Martin J.A. in Finlay and Grellette, supra, are nevertheless instructive. At p. 655 O.R., p. 70 C.C.C., he stated:

Although the term "in the best interests of the administration of justice" is incapable of precise definition it imports, in my view, in the context, two readily identifiable and mutually supportive components. The first component is that the judge must be satisfied that the granting of the authorization will further or advance the objectives of justice. The second component imports a balancing of the interests of law enforcement and the individual's interest in privacy.

(Emphasis in original)

[50] The exercise of discretion after balancing competing interests is a role that judges are frequently called upon to perform. For example, a judge may make an order appointing counsel to assist an appellant with an appeal pursuant to s. 684(1) of the Code, if to do so is in the "interests of justice". In R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 at p. 131, 12 C.R. (5th) 310 (Ont. C.A.), Doherty J.A. held that the use of the phrase, "interests of justice", is found throughout the Criminal Code and denotes the existence of a judicial discretion to be exercised on a case-by-case basis by balancing the interests of society against the specific interests of a particular accused. The balancing of competing interests is required in many other contexts as well, such as in deciding whether a conditional sentence should be imposed. The discretion to exclude evidence contained in s. 24(2) of the Charter where its admission "would bring the administration of justice into disrepute" also involves the exercise of discretion and consideration of circumstances that detract from, as opposed to furthering, the administration of justice. Judges are well situated to engage in these balancing exercises, to determine what promotes the interests of the administration of justice: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449.

[51] There is another important difference between the interpretation of the phrase, "best interests of the administration of justice" as it is used with respect to the issuance of an authorization to intercept private communications and s. 487.052. In enacting legislation authorizing the interception of a private communication, Parliament did not give guidance as to how the judge's discretion was to be exercised in determining the "best interests of the administration of justice." Once the prerequisite that other investigative procedures have either been, or would likely be, unsuccessful or impracticable, a judge may make the order if it "would be in the best interests of the administration of justice to do so". By contrast, in s. 487.052(2), Parliament has given some general interpretative guidance to the phrase, "best interests of the administration of justice". For convenience, I will repeat s. 487.052(2):

487.052(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.

The portion of the section requiring that the impact of the order on the offender's privacy be assessed echoes the sentiments of Martin J.A. In addition, the court is given further specific guidance in the legislation to consider the criminal record of the offender, the nature of the offence and the circumstances of the crime.

[52] By enacting s. 487.052(2), Parliament has provided a basis on which to review the exercise of a judge's discretion respecting whether the making of an order is in "the best interests of the administration of justice". See, by analogy, R. v. Hall (2000), 2000 CanLII 16867 (ON CA), 50 O.R. (3d) 257, 147 C.C.C. (3d) 279 (C.A.), leave to appeal to S.C.C. granted March 15, 2001 #28233, S.C.C. Bulletin, p. 516, (2001), 80 C.R.R. (2d) 188n.

[53] To conclude, in the context of this legislative scheme, the words "reasonable and probable grounds" do not have to be imported into the standard, "the best interests of the administration of justice" in order for the legislation not to be overly broad or vague as required by the requirement of fundamental justice in s. 7 of the Charter.

Did the trial judge err in making an order for the taking of a DNA sample in the circumstances of this case?

[54] On October 9, 1999, the appellant and an accomplice entered the Toronto Shiatsu massage parlour. After entering the massage parlour, the appellant produced an imitation sawed-off shotgun, which had been concealed inside his coat. The appellant's accomplice produced a knife. While brandishing the imitation firearm at the victim, the appellant removed $590 in cash from the till and took the victim's watch, chain and cell phone (the total value of which was $400). The appellant and his accomplice then fled the premises. There were no injuries to any of the parties involved. The incident was investigated by the Toronto Police Service Hold-Up Squad. The appellant was identified from images recorded by a surveillance video camera located at the scene and a warrant for his arrest was issued. This incident gave rise to the charges of robbery and use of an imitation firearm in the commission of an indictable offence.

[55] On May 19, 2000, the police attended at a residential break and enter in progress and located the appellant and an accomplice inside the residence. The appellant fled but was apprehended a short distance away. The appellant was found in possession of a key for a stolen car. That vehicle was parked in the driveway of the residence that was the target of the break and enter. The appellant was arrested in relation to this incident but was not charged with breaking and entering, a secondary designated offence. He was instead charged with possession of property over $5,000 obtained by crime. The appellant initially gave a false name to the police but upon being identified through his fingerprints he was arrested on the outstanding warrant for the October 9, 1999 robbery, a secondary designated offence. In argument before us, the appellant's counsel laid great stress on the fact that the robbery was the appellant's only conviction for a designated offence.

[56] The appellant spent two months in pre-trial custody. On a joint submission, he was sentenced to imprisonment for 18 months on the robbery charge, 12 months consecutive on the use of an imitation firearm charge and 3 months concurrent on the possession over charge for a total period of imprisonment of 30 months.

[57] The Crown applied for an order pursuant to s. 487.052(1) for a sample of a bodily substance to be taken from the appellant for the purpose of DNA analysis. The authority to make such an order was founded on the robbery conviction, which as I have indicated, is a "secondary designated offence" under the legislation. Over the objections of counsel made in argument for the appellant, the trial judge made the order.

[58] With the Crown's consent, the trial judge stayed the execution of the order for 30 days to afford the applicant an opportunity to appeal the order. The execution of the order was further deferred upon the agreement of counsel. On February 26, 2001, this court (per Goudge and Simmons JJ.A., Doherty J.A. dissenting) ordered that the order for the taking of DNA be stayed pending appeal.

The DNA Order

[59] The trial judge's reasons for making the order are as follows:

. . . I am going to order the taking of the sample. The legislation that underlies the sections in the Code which allow me to make that order is the DNA Identification Act, which sets out certain principles in s. 4, the first of which is that the protection of society and the administration of justice are well-served by the early detection, arrest, and conviction of offenders which can be facilitated by the use of DNA profiles, and I have taken that principle into consideration in assessing whether I should make the order here.

I have also looked at the section of the Code, s. 487.05(2), which governs your situation. Of course it sets out that the considerations which I need to look at are your criminal record, the nature and circumstances of the offence in question, and the impact that the order would have on your privacy and security of the person.

With respect to the offence and the circumstances, it's obviously a very serious one, which involved your co-accused using a knife, and you being in possession of an imitation sawed-off shotgun, and the -- I needn't elaborate, I think, on the seriousness of the offenses.

With respect to your record, there's a 1998 entry for possession of a weapon, and a 1999 entry for possession of an unregistered restricted weapon, and those are serious, as well, especially in view of the fact that this new offence involved weapons.

Now, with respect to the third criteria, namely your right to privacy and security, in my view, the Code is suggesting that a balance be struck between the consideration of the offence in the circumstances, and your record, and your right to privacy and security, and I don't agree that the test is that the State, through the Crown, should have reasonable and probable grounds as your lawyer has suggested. I'm not sure how to articulate the test, other than to say that, in my view, it's a balancing of the different interests that are set out.

Here, because of the severity of the offence, the fact that there were weapons involved, and coupled with the fact that your record contains those two prior weapons offenses, I conclude that balancing those factors, with your right to privacy and security of the person, it's appropriate for me to make the order for the taking of the DNA sample, and I am going to do that.

Analysis of the Issuance of the DNA Order

[60] Parliament has provided for an appeal when a judge has exercised his or her discretion and made a DNA order. 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.

[61] In reviewing whether the authorizing judge erred in principle, it is important to start with the words of the section.

Sections 487.052 and 487.053

[62] Section 487.052 begins with the words, "Subject to section 487.053". Section 487.053 provides that an order shall not be made if the prosecutor advises the court that the DNA data bank already contains a DNA profile of the offender.

[63] A person's DNA does not change. There is obviously no need to take a further sample for DNA analysis if the data bank contains the offender's DNA profile. In making an application for a DNA data bank order, the Crown should place on the record the fact that no prior sample has been taken for the data bank. There is no suggestion that any prior DNA data bank order exists here.

487.052(1) if a person is convicted, . . . of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act . . .

[Emphasis added]

[64] In the case before us, the offender pled guilty and was convicted of the offence of robbery, a secondary designated offence. The offence was committed on October 9, 1999, prior to the coming into force of s. 5(1) of the DNA Identification Act on June 30, 2000, which provides for the establishment of a national DNA data bank. The appellant was convicted on July 21, 2000.

[65] The appellant submits that the fact that he committed the robbery offence prior to the coming into force of the legislation is a consideration that ought to weigh against the making of the order. Parliament has specifically provided for the judge to exercise his discretion to make an order in the present circumstances. In addition, one of the purposes of s. 3 [of] the Act is to assist law enforcement agencies in identifying persons alleged to have committed designated offences, "including those committed before the coming into force of the Act". The appellant's submission is without merit.

[66] Under s. 487.051, a judge "shall" make an order in respect of primary designated offences unless the offender can show that the impact on the offender's privacy is disproportionate to the public interest. The appellant submits that a judge should be more reluctant to make an order requiring the offender to give a sample of DNA with respect to a secondary designated offence than with respect to a primary designated offence. Each case must turn on its own facts. I would simply note that with respect to primary designated offences the onus is on the offender to show that an order for the taking of a sample should not be made because his privacy interest outweighs the public interest. With respect to secondary designated offences, there is no such onus.

487.052(1) . . . [T]he court may, on application by the prosecutor make an order . . . 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, . . . the nature of the offence and the circumstances surrounding the commission and the impact such an order would have on the . . . privacy and security of the person and give reasons for its decision.

[Emphasis added]

[67] The phrase, "the best interests of the administration of justice" has been given content by requiring the court to consider: (1) the offender's criminal record; (2) the nature of the offence; (3) the circumstances surrounding its commission; and (4) the impact of the order on the person's privacy and security.

(1) The offender's criminal record

[68] Prior to committing the offence of robbery, the appellant had a criminal record that consisted of the following convictions:

1991-05-03 (1) ESCAPE LAWFUL CUSTODY (x2) (2) MISCHIEF OVER $1000

1992-10-15 (1) FAIL TO COMPLY WITH PROBATION ORDER (2) POSSESSION OF PROPERTY OBTAINED BY CRIME UNDER $1000 (3) ESCAPE LAWFUL CUSTODY

1992-12-02 FAIL TO COMPLY WITH RECOGNIZANCE

1993-01-20 (1) THEFT UNDER $1000 (2) FAIL TO COMPLY WITH RECOGNIZANCE

1996-04-15 FAIL TO COMPLY WITH RECOGNIZANCE

1998-12-02 (1) FAIL TO ATTEND COURT (x2) (2) POSSESSION OF A WEAPON

1999-03-21 POSSESSION OF A SCHEDULED SUBSTANCE

1999-04-09 POSSESSION OF UNREGISTERED RESTRICTED WEAPON

[69] The appellant's record indicates that he had never been convicted of a primary or secondary designated offence prior to the date he was convicted of robbery.

[70] The appellant has submitted that the authorizing judge ought not to have made a DNA data bank order unless he was satisfied that there are reasonable and probable grounds that the appellant would likely commit a crime in the future. I have already given my reasons for rejecting this argument. Moreover, in the circumstances of this case, the argument is simply inapplicable. At the time the offender pleaded guilty to the offence of robbery, he also pleaded guilty to the offence of possession of stolen property in excess of $5,000, an offence committed several months after the robbery offence. Thus, at the time that the authorizing judge made the DNA data bank order relative to the offence in respect to which the Crown sought the order, he did not have to consider whether the offender was likely to commit a future offence. He knew that the offender had already committed a further offence and that this offence was again a property related offence.

[71] I appreciate, in considering the criminal record of an accused person with respect to sentence, that a judge is only entitled to look to the record of offences prior to the date of the offence for which the offender is being sentenced: R. v. Garcia, 1969 CanLII 450 (ON CA), [1970] 1 O.R. 821 at p. 823, [1970] 3 C.C.C. 124 (C.A.). A DNA data bank order is not, however, a sentence and does not require the same safeguards to be in place. A DNA order is not a punishment and should not be treated as one: see R. v. McIntyre, [2000] O.J. No. 3939 (C.J.). Consequently, an authorizing judge may take into consideration the entire criminal record of the offender, including whether the offender has been convicted of further offences committed after the date of the offence on which the application is based and the nature of those offences.

(2) The nature of the offence

[72] Secondary designated offences can be roughly grouped into five categories which are not intended to be hierarchical. These are: (1) offences related to violence or the threat of violence to the person: assault, torture, assaulting a peace officer, hostage taking, robbery, arson and using explosives (depending on the circumstances); (2) other offences against the person: causing death or harm by criminal negligence, dangerous operation of a motor vehicle causing bodily harm or death, mischief that causes actual danger to life; (3) sexual offences mostly relating to children not included as primary designated offences: bestiality in the presence of or by a child, child pornography, parent or guardian procuring sexual activity, indecent acts; (4) offences relating to public safety: hijacking, endangering safety of aircraft or airport, seizing control of ship or fixed platform; and (5) property offences: piratical acts, breaking and entering with intent, committing offence of breaking out, and arson (respecting one's own property). With one exception, all of the offences are either indictable offences or hybrid offences. The exception is the commission of an indecent act for a sexual purpose by exposure of one's genitals to a person under 14 years of age, an offence that is only punishable by summary conviction.

[73] The nature of the offence here relates to that group of offences that involve violence or the threat of violence to the person. The offence of robbery is also related to those in the category of property offences.

[74] Counsel for the appellant submitted that the nature of the offence was not the type of offence where DNA would be left behind. The trial judge commented that he did not see the relevance of the submission.

[75] Whether or not there is evidence at the scene of a crime that would likely yield a DNA profile of the perpetrator of the crime if subjected to analysis is a relevant consideration in the decision [of] whether or not to issue a search warrant. Inasmuch as the purpose of a DNA search warrant is the gathering of evidence for use in a particular prosecution, whether there is DNA at the scene of the crime is a relevant consideration. The underlying purpose of a DNA data bank warrant is, as I have indicated, much broader and the existence of DNA at the scene of the crime may, but will not necessarily be, a relevant consideration.

[76] In most of the early cases in which forensic DNA evidence was used to solve crimes, the crime scene DNA was derived from either blood or semen clearly present at the scene or upon the victim. Technology has now developed to the point where microscopic deposits of biological substances can yield a DNA profile. See G. M. Chayko et al., eds., Forensic Evidence in Canada (Aurora: Canada Law Book, 1999), at p. 297. In addition, there is a wide variety of situations in which an offender may leave a sample of DNA that is unrelated to the nature of the crime (chewing gum, used Kleenex tissue, sweat on objects touched, etc.). The trial judge did not err in ignoring the fact that no DNA appears to have been left at the scene of the robbery.

(3) The circumstances of the commission of the offence

[77] There was no gratuitous violence committed during the robbery. While the appellant did not himself wield the knife used in the robbery to which he was a party, included in the appellant's record are two weapons offences. The trial judge noted the weapons convictions in the appellant's record and related them to the fact that the robbery of which the appellant had been convicted involved the use of a weapon. The trial judge is entitled to look at the appellant's entire record, not just the crimes that may be designated offences. I cannot say it was inappropriate for the trial judge to relate the criminal record of the appellant concerning the weapons convictions to the robbery in considering whether to make a DNA data bank order. One of the purposes of the DNA data bank is to promote the safety of the community. The trial judge's approach indicates that he did not consider each of the factors in isolation but rather that he considered them together and related them to one another. It was appropriate for him to take this approach.

(4) The impact an order would have on the person's privacy and security

[78] In R. v. F. (S.), this court upheld the constitutionality of the DNA search warrant provisions. In doing so, Finlayson J.A. agreed with the trial judge, Hill J., that the individual's interests of bodily integrity, dignity and privacy were considerations in assessing the reasonableness of a seizure under s. 8. In regard to the individual's privacy interest, Finlayson J.A., at p. 240 C.C.C., adopted the findings of Hill J. that:

On the evidence, the seizure procedures are of short duration and involve no or minimal discomfort. There [are] neither inhumane nor abusive tactics. The legislation does not authorize state conduct which is brutal, humiliating or psychologically offensive. The seizure methodology leaves no lasting impression and does not risk the health of the subject. In short, there is minimal intrusion with no unacceptable affront to human dignity.

[79] There is no evidence here to suggest that the result would be any different. If, for example, a buccal swab is taken, or hairs from the head are plucked, the taking, like fingerprinting, would ordinarily be of short duration, would not involve an undue incursion on an individual's privacy and would leave no lasting impression.

[80] The offender has been sentenced to a term of imprisonment of 18 months for the robbery and an additional consecutive term of 12 months for the use of an imitation weapon in relation to the same offence, for a total sentence of 30 months in the penitentiary. It is likely that routine searches of the appellant when he enters the prison or if he leaves it on a pass will result in his being subjected to greater and more intrusive bodily interference than that involved in the taking of a sample of bodily substance for DNA analysis.

[81] The authorizing judge realized that he had to weigh the impact of the DNA data bank order on the appellant's right to privacy against his criminal record, the nature of the offence and the circumstances surrounding the offence. While he may not have articulated all of the considerations that he could have, he concluded that, balancing those factors, the DNA data bank order should be made. In particular, having regard to the fact that weapons were involved in the robbery, and that the appellant had previously been convicted of two weapons offences, he concluded that the appellant's privacy interests were outweighed and that it would be appropriate to make the order. I cannot say that he erred in principle in doing so.

[82] For the reasons I have given, I would dismiss the appeal.

Appeal dismissed.

Notes

[^1]: The profile itself may be released only under ss. 6(4) and (5) of the Act to foreign states or international organizations who have entered into an agreement in accordance with s. 8(2)(f) of the Privacy Act, R.S.C. 1985, c. P-21.

[^2]: R. v. McCullough (2000), 2000 CanLII 1983 (ON CA), 142 C.C.C. (3d) 149 (Ont. C.A.); R. v. Feeney, 2001 BCCA 113, [2001] B.C.J. No. 311 (C.A.).

[^3]: R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321.

[^4]: R. v. S.J.S., [1999] S.J. No. 498 (Q.B.).

[^5]: R. v. J.R.T., [1998] M.J. No. 345 (Q.B.).

[^6]: R. v. Kyllo, [1999] B.C.J. No. 717 (C.A.).

[^7]: R. v. Sheenberger, [2000] S.J. no. 640 (C.A.); R. v. S.J.S., supra.

[^8]: R. v. Turner, [2001] N.J. No. 104 (Nfld. S.C.T.D.).

[^9]: R. v. LeBeau (1999), 47 M.V.R. (3d) 248 (Ont. S.C.J.).

[^10]: R. v. Dickens, 2001 ABCA 51, [2001] A.J. No. 217 (C.A.).

[^11]: R. v. Stillman, supra, at p. 347, para. 59.