Court of Appeal for Ontario

Date: 2002-11-18 Docket: C36811

Before: Weiler, Charron, and Moldaver JJ.A.

Between:

Her Majesty the Queen Appellant

• and -

Larry Young Respondent

Counsel: Laura Eplett, For the appellant Catrina Verner, For the respondent

Heard: November 8, 2002

Crown appeal under s. 487.054 of the Criminal Code against the refusal by Justice Norman Dyson to grant a DNA databanking order under s. 487.052 of the Criminal Code.

BY THE COURT:

[1] The respondent concedes that the trial judge erred in refusing to make an order for the taking of DNA on the sole basis that the offence had been committed before the Code provisions came into force. In so doing, the trial judge failed to consider the provisions of s. 487.052.

[2] The appellant urges this court to consider the factors relevant to the making of such an order and to make the requisite order for the taking of DNA. The respondent, on the other hand, submits that the matter should be remitted back to the trial judge because the defence did not have an opportunity to present the evidence that would have been relevant to this issue.

[3] We have not been persuaded on the material before us that the evidentiary record is incomplete. The defence was given notice by the Crown of its intention to make the DNA application and there is no suggestion on the record that the defence either sought or wished to have any evidence led on it. Regardless, in this court, the respondent made no attempt to lead fresh evidence on this issue. We think that in this case, it was incumbent on the respondent to do so to establish a basis for remitting the matter back. Given that the issue at hand goes to the fairness of the proceeding, the admissibility of fresh evidence would be governed by the principles in R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, (Ont C.A.) leave to appeal to the S.C.C. refused III C.C.C. (3d) vi.

[4] Assuming, without deciding, that this court would have the power to remit the matter for a new hearing, this is not the appropriate case in which to do so. The evidence in support of the making of an order is overwhelming. Section 487.052 clearly applies and this is a proper case to make the order.

[5] Accordingly the appeal is allowed and an order will go in accordance with s. 487.052 of the Criminal Code.

Released: Nov 18, 2002

"KMW" Signed: "Karen M. Weiler J.A." "Louise Charron J.A." "M.J. Moldaver J.A."