Her Majesty the Queen v. K.B. et al. [Indexed as: R. v. B. (K.)]

67 O.R. (3d) 391

[2003] O.J. No. 3553

Docket Nos. C39442 and C39443

Court of Appeal for Ontario

Catzman, Abella and Gillese JJ.A.

September 17, 2003

Criminal law -- Young offenders -- DNA order -- Different principles apply when determining whether to make discretionary DNA order against young person -- Assumption that making discretionary DNA order in best interests of administration of justice in vast majority of cases of adult offenders not applicable for young offenders -- Disposition judge should consider factors in s. 487.051(3) of Criminal Code in terms of goals of young offender legislation -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.051(1)(b), (3).

Crown counsel asked the disposition judge to make an order under s. 487.051(1)(b) of the Criminal Code authorizing the taking of DNA samples from the two young offenders. Without giving reasons, the disposition judge declined to do so. The Crown appealed.

Held, the appeal should be allowed.

The disposition judge committed an error in principle in failing to give reasons, as s. 487.051(3) of the Code requires that reasons be given in respect of decisions taken under s. 487.051(1)(b).

Young offenders legislation recognizes that young offenders are to be treated differently by the courts because of differences in vulnerability, maturity, experience and other factors related to their youth. The disposition judge must consider each of the three factors set out in s. 487.051(3) (the criminal record of the person or young person; the nature of the offence and the circumstances surrounding its commission; and the impact an order would have on the person's or young person's privacy and security of the person) in terms of the goals sought to be achieved by young offenders legislation. The assumption, in the case of adult offenders, that it would be in the best interests of the administration of justice to make a DNA order in the vast majority of cases does not apply in the case of young offenders. It cannot be assumed, for example, that there will be minimal impact on a young person's privacy and security of the person. In this case, there was no evidence that addressed the impact a DNA order would have on the privacy and security of the young offenders. The matter should be referred back to the disposition judge.

APPEAL by the Crown from a judgment declining to make a DNA order.

R. v. F. (P.R.) (2001), 2001 21168 (ON CA), 57 O.R. (3d) 475, 161 C.C.C. (3d) 275, 48 C.R. (5th) 310 (C.A.) (sub nom. R. v. Hendry), consd

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Other cases referred to R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417, 86 C.R.R. (2d) 196, 157 C.C.C. (3d) 38, 45 C.R. (5th) 99 (C.A.)

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 487.051(1)(b), (3) DNA Identification Act, S.C. 1998, c. 37, ss. 9.1, 10.1 Young Offenders Act, R.S.C. 1985, c. Y-1, s. 3

Michal Fairburn, for appellant. James Fleming, for respondent K.B. No one appearing for respondent S.W.

[1] BY THE COURT: -- K.B. and S.W., two young persons, were convicted of a number of offences, including breaking and entering and theft, and sentenced to periods of secure custody. Crown counsel at trial asked the disposition judge to make a discretionary order authorizing the taking of DNA samples from each of the accused under s. 487.051(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, but the disposition judge declined, without giving reasons, to do so.

[2] In failing to give reasons, the disposition judge committed an error in principle, because s. 487.051(3) requires that reasons be given in respect of decisions taken under s. 487.051(1)(b).

[3] Having found that such an error was made, this court is entitled to intervene: R. v. Hendry (2001), 2001 21168 (ON CA), 57 O.R. (3d) 475, 161 C.C.C. (3d) 275 (C.A.), at para. 8.

The Best Interests of the Administration of Justice

[4] Section 487.051(1)(b) of the Criminal Code provides that where, as here, secondary designated offences have been committed, the court may make an order authorizing the taking of DNA samples if it "is satisfied that it is in the best interests of the administration of justice to do so".

[5] Section 487.051(3) provides that, in deciding whether to make such an 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.

[6] This court has recently considered the issue of making discretionary DNA orders in the context of adult offenders:

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R. v. Hendry, above; R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417, 157 C.C.C. (3d) 38 (C.A.). The question raised by this appeal is how, if at all, the analysis in those cases ought to be adjusted in cases involving young offenders.

[7] Sections 9.1 and 10.1 of the DNA Identification Act, S.C. 1998, c. 37 make a distinction between adult offenders and young offenders with respect to the retention and destruction of DNA samples and profiles. In brief, when a young person's youth record (recording findings of guilt) is required to be destroyed, so are their DNA profile and sample, whereas DNA samples taken from adult offenders are retained indefinitely. The Code, however, makes no distinction between young and adult offenders respecting the three factors the court should consider in determining whether to order a DNA sample.

[8] The application of these factors, however, will necessarily be different between young and adult offenders. In Hendry, this court held (at para. 25) that "in the vast majority of cases it would be in the best interests of the administration of justice to make the order". No such assumption can be made in the case of a young offender. All legislation dealing with young offenders and, in particular, the Young Offenders Act, R.S.C. 1985, c. Y-1 recognize that young offenders are to be treated differently by the courts because of differences in vulnerability, maturity, experience and other factors related to their youth. The Declaration of Principle heading that precedes ss. 3(1) and 3(2) of the YOA and the principles addressed in those sections support the proposition that young persons, in principle, are to be treated differently from adults who are prosecuted under the Criminal Code. We cannot assume, for example, as with an adult offender, that there will be minimal impact on a young person's privacy and security of the person.

[9] In considering each of the three factors, the disposition judge must, in accordance with the principles of disposition set out in the young offenders legislation, look at each of them in terms of the goals sought to be achieved by that legislation.

Application to this Case

[10] In the present case, both S.W. and K.B. have lengthy records, including prior convictions for designated offences, both primary and secondary; both have served dispositions in open and secure custody; the circumstances of the offence are serious; there was a break and enter and extensive gratuitous damage was done. There is, however, no evidence that addresses the impact such an order would have on their privacy and security.

[11] For that reason, while we would allow the appeal and set aside the disposition judge's decision refusing to make an order

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authorizing the taking of DNA samples, we would decline the Crown's invitation to make the order requested. Instead, we refer the matters back to the disposition judge for consideration and determination in accordance with these reasons.

Appeal allowed.