Her Majesty the Queen v. Jackpine Her Majesty the Queen v. Rodgers [Indexed as: R. v. Jackpine]
70 O.R. (3d) 97
[2004] O.J. No. 1073
Docket Nos. C37153 and C37238
Court of Appeal for Ontario
Doherty, Borens and Cronk JJ.A.
March 15, 2004
Charter of Rights and Freedoms -- Benefit of lesser punishment -- DNA order -- Section 487.055 not violating s. 11(i) of Charter when applied to persons who committed offences before that provision came into effect -- Taking of sample for DNA databank not constituting punishment -- Canadian Charter of Rights and Freedoms, s. 11(i) -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.055.
Charter of Rights and Freedoms -- Fundamental justice -- DNA order -- Section 487.055(1) of Criminal Code not infringing s. 7 of Charter by granting discretion to proceed ex parte with application for DNA warrant -- Judge hearing application required to exercise discretion to proceed ex parte in manner consistent with Charter principles -- Judge should start with assumption that target of application should receive notice -- Crown may rebut presumption of notice with evidence that notice could frustrate process -- Issuing judge losing jurisdiction by proceeding ex parte on Crown applications for DNA order where Crown did not demonstrate need to proceed ex parte -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.055(1).
Charter of Rights and Freedoms -- Search or seizure -- DNA order -- Section 487.055 of Criminal Code not violating s. 8 of Charter -- Canadian Charter of Rights and Freedoms, s. 8 -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.055.
Criminal law -- Search and seizure -- DNA order -- Issuing judge losing jurisdiction by proceeding ex parte on Crown applications for DNA order where Crown did not demonstrate need to proceed ex parte -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.055(1).
The Crown brought two ex parte applications under s. 487.055(1) of the Criminal Code seeking orders authorizing the taking of bodily substances from the appellants for the purpose of obtaining a DNA profile for storage in the national DNA databank. The appellants were repeat sexual offenders who were on parole at the time of the applications. The DNA orders were granted. The appellants brought motions to quash the authorizations and to prohibit the taking of the samples. The motions were heard together. The motions judge dismissed the appellants' argument that the relevant statutory provisions were unconstitutional and held that the issuing judge did not lose jurisdiction by proceeding ex parte. The motions were dismissed. The appellants appealed.
Held, the appeals should be allowed.
Section 487.055(1) of the Code does not infringe s. 8 of the Canadian Charter of Rights and Freedoms.
The DNA orders did not violate the appellants' rights under s. 11(i) of the Charter on the basis that s. 487.055 was not in effect when they committed their offences. The taking of bodily samples did not constitute "punishment". [page98 ]
Section 487.055(1) of the Code does not violate s. 7 of the Charter by granting the issuing judge a discretion to proceed ex parte. The power to proceed ex parte where circumstances warrant is an integral component of the proper administration of justice. That power cannot in and of itself run afoul of the principles of fundamental justice. However, the conclusion that s. 487.055 is not unconstitutional because it permits the judge to proceed ex parte does not place the manner in which the judge exercises that discretion beyond the pale of constitutional review. The judge must exercise that discretion in a manner which is consistent with Charter principles and specifically in a manner which ensures that the individual's right to liberty and security of the person will not be denied except in accordance with the principles of fundamental justice.
In determining how the procedural discretion described in s. 487.055(1) should be exercised, the court should begin with the general rule that a person whose right to liberty or security may be affected by a court order, is entitled to notice of the application for that order, the material relied on in support of that application and an opportunity to be heard. It is open to the Crown to rebut the presumption of notice with evidence that, in the particular circumstances, notice would frustrate the process contemplated by s. 487.055. Evidence showing a real risk of flight if notice was given would clearly justify a decision to proceed ex parte.
In this case, the appeal judge held that proceeding ex parte was necessary on the facts before the issuing judge because the appellants had multiple convictions for failing to appear. The Crown offered no details of any of the failure to appear convictions. Apart from reference to the convictions in the appellants' criminal records, no mention was made of them in the affidavits filed in support of the applications. The mere possibility, unsupported by any material referable to the circumstances of the specific individual, that a target of a s. 487.055(1) application may fear that the sample could connect him to a prior crime cannot justify an inference of flight that is sufficiently strong to warrant proceeding ex parte. The Crown must be able to personalize flight concerns so that the judge has reason to believe, based on the material placed before him or her, that there is a reasonable possibility that this particular offender may attempt to frustrate any DNA databank order that may be made by fleeing the jurisdiction before the application is brought if notice is given to that person. The material before the issuing judge did not address the need to proceed ex parte. Nothing in the affidavit material hinted that either appellant might flee the jurisdiction if made aware of the application. The issuing judge lost jurisdiction when he proceeded ex parte in the absence of any basis in the material which would justify proceeding in that manner. Absent any justification for proceeding ex parte, the failure to give the appellants notice of the applications amounted to a denial of natural justice resulting in a loss of jurisdiction.
The issuing judge's adoption of the reasons proposed by the Crown did not raise a reasonable apprehension of bias. There is a strong presumption in favour of the impartiality of the judiciary. There was no reason to think that the issuing judge did not read the reasons and come to the conclusion that they accurately described why he had chosen to grant the authorization. As a general rule, however, it would be preferable that a party not prepare the proposed reasons for making an order. The appearance of justice is best served by leaving the reasons to the judge.
APPEAL from orders dismissing applications to quash DNA orders.
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.), apld [page99 ] Other cases referred to A.G. of Nova Scotia v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, 49 N.S.R. (2d) 609, 132 D.L.R. (3d) 385, 40 N.R. 181, 96 A.P.R. 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193 (sub nom. MacIntyre and R. Re); Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, 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. B. (S.A.), 2003 SCC 60, [2003] 2 S.C.R. 678, 231 D.L.R. (4th) 602, 311 N.R. 1, [2004] 2 W.W.R. 199, 112 C.R.R. (2d) 155, 178 C.C.C. (3d) 193, 14 C.R. (6th) 205, 21 Alta. L.R. (4th) 207, [2003] S.C.J. No. 61 (QL); R. v. Canadian Broadcasting Corp. (2001), 2001 24044 (ON CA), 52 O.R. (3d) 757, 42 C.R. (5th) 290 (C.A.); R. v. Carrignan (2003), 2003 19233 (ON CA), 172 C.C.C. (3d) 1, [2003] O.J. No. 349 (QL) (C.A.); R. v. Compton (1978), 1978 2472 (BC SC), 42 C.C.C. (2d) 163, 3 C.R. (3d) S7, 1978 2576 (BC SC), [1978] 5 W.W.R. 473 (B.C.S.C.); 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.); R. v. Murrins (2002), 201 N.S.R. (2d) 288, 629 A.P.R. 288, 92 C.R.R. (2d) 285, 162 C.C.C. (3d) 412, 2002 NSCA 12, 1 C.R. (6th) 166 (C.A.); R. v. F. (S.) (2000), 2000 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 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)); Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 219 D.L.R. (4th) 385, 295 N.R. 353, 99 C.R.R. (2d) 324, 22 C.P.R. (4th) 289, 2002 SCC 75, 7 C.R. (6th) 88, [2002] S.C.J. No. 73 (QL) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(i) Criminal Code, R.S.C. 1985, c. C-46, ss. 487.04, 487.05-487.09 DNA Identification Act, S.C. 1998, c. 37, ss. 3, 4
Janet Gallin and Michal Fairburn, for respondent. Craig Parry, for appellant Jackpine. Greg Lafontaine and Tanya Kranjc, for appellant Rodgers.
The judgment of the court was delivered by
DOHERTY J.A.: --
I
[1] The Crown brought two ex parte applications under s. 487.055(1) of the Criminal Code, R.S.C. 1985, c. C-46 seeking orders authorizing the taking of bodily substances from the appellants for forensic DNA analysis. Section 487.055 is part of the DNA databank scheme set out in the Criminal Code. That scheme allows the Crown to obtain DNA samples from certain categories of convicted persons. The samples are analyzed for the purpose of obtaining a DNA profile which is stored in the national DNA databank.
[2] Justice Glaude of the Ontario Court of Justice granted the authorizations. The appellants, who were on parole, were each [page100] served with a summons directing them to attend at the police station on the specified date to give the required samples.
[3] Prior to the return date on the summons, the appellants retained counsel and brought motions to quash the authorizations and to prohibit the taking of the samples. Since the applications raised similar issues, they were argued together before Trainor J. The appellants contended that the relevant statutory provisions were unconstitutional. In the alternative, they argued that Justice Glaude had lost jurisdiction by proceeding ex parte on the applications. The late Justice Trainor dismissed the motions to quash and to prohibit. The appellants appeal from that dismissal. [See Note 1 at end of the document]
[4] On the appeals, the appellants renewed their challenge to the constitutionality of s. 487.055 arguing that it infringed ss. 7, 8 and 11(i) of the Canadian Charter of Rights and Freedoms. The appellants also argued that even if the legislation was constitutional, Trainor J. erred in holding that the court had not lost jurisdiction when it heard the applications ex parte.
[5] Counsel for the appellant Jackpine also contends that the order of Glaude J. should have been quashed on the basis of a reasonable apprehension of bias. In advancing this argument, counsel relies on the fact that the reasons for granting the authorization signed by Glaude J. were drafted by the Crown prior to the application.
[6] I would reject the constitutional arguments and the appellant Jackpine's bias claim. I would, however, give effect to the argument that Trainor J. erred in holding that Glaude J. had not lost jurisdiction by proceeding with the applications ex parte. As I read the legislation, the court can hear an application under s. 487.055(1) on an ex parte basis, where the Crown demonstrates the need to proceed ex parte. The material filed by the Crown on the applications before Glaude J. did not address the need to proceed ex parte. Consequently, there was no basis upon which Glaude J., acting judicially, could conclude that it was appropriate to proceed on an ex parte basis. He lost jurisdiction by doing so. [page101]
II
[7] DNA evidence has become a mainstay in the investigation and prosecution of serious crimes. The power of DNA evidence to convict the guilty and free the innocent can hardly be overstated. DNA evidence is, without question, the most important forensic development since fingerprint comparison evidence came into use. At the same time, government seizure and use of personal DNA samples has profound implications on personal privacy and the individual security of the person.
[8] Parliament has moved to make DNA evidence available to those investigating crime and at the same time to protect legitimate individual privacy interests. In 1995, DNA search warrant legislation came into effect. A DNA search warrant allows the police to obtain bodily substances for DNA analysis from individuals suspected to have committed specified offences. The DNA warrant provisions found in s. 487.05 to s. 487.09 of the Criminal Code are similar to, but somewhat more stringent than, the provisions relating to traditional search warrants. Those provisions are not in issue on these appeals. Their constitutionality was recently upheld in the Supreme Court of Canada: see R. v. B. (S.A.), 2003 SCC 60, [2003] 2 S.C.R. 678, 178 C.C.C. (3d) 193.
[9] On June 30, 2000, the DNA Identification Act, S.C. 1998, c. 37 (the "Act") came into force. Section 3 identified the purpose of the Act:
- The purpose of this Act is to establish a national DNA databank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.
[10] Section 4 of the Act sets out the principles governing the Act. These include the protection of society and the administration of justice through the early detection, arrest and conviction of offenders, the use of DNA profiles for law enforcement purposes identified in the Act, and the protection of the privacy of individuals and their personal information.
[11] It is unnecessary to describe the taking of DNA samples for databank purposes or the operation of the databank in any detail. A helpful summary of the provisions and the process can be found in R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417, 157 C.C.C. (3d) 38 (C.A.) at pp. 423-39 O.R., pp. 48-54 C.C.C., leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 31. It is sufficient for present purposes to note that the Criminal Code provides for judicial orders authorizing the collection of DNA samples from certain convicted persons. The samples are collected for the purpose of an analysis which yields a DNA profile. That profile is stored in the convicted offender's index of the DNA databank. Profiles in [page102] that index can be compared with DNA profiles obtained by the analysis of substances found at unsolved crime scenes and stored in the crime scenes index of the DNA databank. If a DNA profile from a convicted offender matches a DNA profile from a substance taken from a crime scene, this match can be used as the basis for obtaining a DNA warrant authorizing the taking of a bodily sample from the individual whose DNA profile matched the profile from the substance taken from the crime scene.
[12] As of October 2003, law enforcement agencies had found some 1,100 matches between DNA profiles kept in the convicted offenders index and DNA profiles kept in the crime scenes index.
[13] The Criminal Code identifies three categories of offenders who may be required to provide a DNA sample for DNA databank purposes following conviction:
-- persons who committed a designated offence as defined in s. 487.04 after the proclamation of the DNA Identification Act in June 2000 (s. 487.051);
-- persons who committed a designated offence prior to the proclamation of the DNA Identification Act, but were still before the trial court when the Act was proclaimed (s. 487.052; R. v. F. (P.R.) (2001), 2001 21168 (ON CA), 57 O.R. (3d) 475, 161 C.C.C. (3d) 275 (C.A.) at pp. 484-85 O.R., p. 286 C.C.C.; and
-- certain identified offenders who were convicted and sentenced prior to the proclamation of the DNA Identification Act (s. 487.055).
[14] Although both appellants fall into the third category, a brief description of the first two categories is necessary. Offenders who fall into the first category committed a designated offence after the proclamation of the Act. Designated offences are identified in s. 487.04 and are divided into primary designated offences and secondary designated offences. Both subcategories are also set out in s. 487.04. Broadly speaking, primary designated offences are the most serious offences in the criminal law and secondary designated offences, while still serious, are somewhat less serious than those classified as primary designated offences. If an accused is convicted of a primary designated offence committed after the proclamation of the Act and the Crown brings a DNA databank application, the judge must order the taking of a sample for DNA databank purposes subject to the limited discretion to decline the order if the offender establishes that the impact on his or her privacy and security of the person would be grossly disproportionate to the public interest in [page103] the protection of society and the proper administration of justice: s. 487.051(1)(a), s. 487.051(2).
[15] If the offender has been convicted of a secondary designated offence committed after the proclamation of the Act and the Crown applies for a DNA databank order, the judge must, according to s. 487.051(b), determine whether he or she is satisfied that the making of the order is in the best interests of the administration of justice. In exercising that discretion, the judge must consider, among other relevant factors, those factors identified in s. 487.051(3).
[16] When the DNA databank order is sought against the second category of offender, persons who were charged with a designated offence committed before the Act came into force but were still before the trial court when the Act was proclaimed, the court must determine whether the making of the order is in the best interests of the administration of justice. Section 487.052(2) directs the judge to consider the same factors outlined in s. 487.051(3). In the case of these offenders, there is no distinction made between primary designated offences and secondary designated offences.
[17] Applications for DNA databank orders in respect of the first and second categories of offenders are made at the time of sentence. The offender is normally present and entitled to make submissions on the application. Section 487.054 gives offenders in the first two categories and the Crown a right of appeal from the disposition of the DNA databank application.
[18] Unlike the first two categories of offenders, those who fall into the third category are not before the courts when the application is brought. They have been convicted and sentenced. This third category, sometimes referred to as retroactive offenders, has a much more limited application than either of the first two categories. It reaches only:
-- persons declared dangerous offenders;
-- some multiple murderers; and
-- repeat sex offenders who are serving a penitentiary sentence for a sexual offence when the application is brought.
[19] Section 487.055(1) reads:
487.055(1) A provincial court judge may, on ex parte application made in Form 5.05, authorize, in Form 5.06, the taking, from a person who
(a) before the coming into force of this subsection, had been declared a dangerous offender under Part XXIV, [page104]
(b) before the coming into force of this subsection, had been convicted of more than one murder committed at different times, or
(c) before the coming into force of this subsection, had been convicted of more than one sexual offence within the meaning of subsection (3) and, on the date of the application, is serving a sentence of imprisonment of at least two years for one or more of those offences,
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). [See Note 2 at end of the document]
(Emphasis added)
[20] As with all other databank orders, the judge has a discretion as to whether to make the DNA databank order sought under s. 487.055(1). Section 487.055(3.1) identifies the factors which must be taken into consideration by the judge. If the court decides to authorize the taking of a sample and the offender is on conditional release, a summons is issued directing the person to attend at the place, date and time identified for the purpose of providing the sample (s. 487.055(4)). If he fails to appear, a warrant may issue (s. 487.055(8)).
[21] Both appellants are repeat sexual offenders and fall under s. 487.055(1)(c). Jackpine was convicted of sexual assault in March 1999 and received a sentence of three years. He was serving that sentence, albeit on parole, when this application was brought against him. Jackpine had previous convictions for sexual assault in 1997 and 1993. Rodgers was convicted of sexual assault and sentenced to four years in February 1997. He was serving that sentence, also on parole, when this application was brought against him. Rodgers had previously been convicted of sexual interference in August 1993.
[22] As both appellants were on parole when the taking of the DNA samples was authorized, they were summonsed to attend at a local police station to provide the necessary samples. The summonses were returnable about three weeks after the order was made. It is not clear when they were served, although it would appear to have been well before the date on which they were to attend to provide the sample. The terms of the authorizations [page105] provided that the appellants were to be afforded a reasonable opportunity to consult with counsel.
III
Constitutional Arguments
[23] The appellants contend that s. 487.055(1) infringes s. 8 of the Charter in that it permits the seizing of bodily samples for the purpose of DNA analysis without the state first establishing that an offence was probably committed and that the sample will probably afford evidence in connection with that offence. In making this submission, counsel equate the taking of a DNA sample for databank purposes from convicted persons with the taking of a DNA sample pursuant to a DNA warrant from a suspect.
[24] Counsel acknowledge that this court rejected this argument in R. v. Briggs, supra, at pp. 428-34 O.R., pp. 53-59 C.C.C., where the constitutionality of s. 487.052 was challenged. Counsel accept that the analysis in Briggs has equal application to s. 487.055. We see no reason to reconsider Briggs, supra. In our view, it was correctly decided. Indeed, counsel did not suggest that we should reconsider Briggs, but advanced this argument to "preserve potential further appellate rights".
[25] Counsel for Jackpine, but not counsel for Rodgers, also submitted that s. 487.055(1) contravenes s. 8 of the Charter because it does not articulate a standard according to which the court should exercise its discretion in determining whether to authorize the taking of a DNA sample for databank purposes. Counsel submits that while s. 487.055(3.1) identifies factors to be considered by the judge in exercising his or her discretion, there is no articulated standard by which the competing interests of the individual and the State are to be measured. Counsel contends that in this respect, offenders subject to s. 487.055(1) are treated differently than offenders subject to the taking of DNA samples for databank purposes under the other provisions in the Criminal Code. Those provisions require that the competing interests be balanced on a best interests of the administration of justice scale.
[26] The factors which a judge must consider in determining whether to make a DNA databank order under s. 487.055(1) are set out in s. 487.055(3.1). They are:
-- the offender's criminal record;
-- the nature of the offence;
-- the circumstances of the offence; and [page106]
-- the impact of the order on the offender's privacy and security of the person.
[27] These are the same factors which must be considered in determining whether to make DNA databank orders for offenders falling under the other two categories described in the Act: Criminal Code, s. 487.051(3), s. 487.052(2). These factors considered in combination with the stated purpose (s. 3) and principles (s. 4) of the Act implicitly impose a best interests of the administration of justice standard into s. 487.055. Recognizing that a best interests of the administration of justice standard is implicit in s. 487.055 also renders it consistent with the other provisions relating to DNA databank orders. Counsel for Rodgers accepts this interpretation. The best interests of the administration of justice standard was held to be constitutional in R. v. Briggs, supra, at pp. 437-39 O.R., pp. 63-64 C.C.C. We agree with that finding.
[28] Both appellants next argue that an order requiring them to provide a sample for DNA databank purposes contravenes s. 11(i) of the Charter. That section provides that where the punishment for an offence has been altered between the time of the commission of the offence and the time of sentencing, the offender is entitled to the benefit of the lesser punishment. The appellants argue that the enactment of a provision providing for the taking of a DNA sample for databank purposes constitutes punishment and that since the provision was not in force when the appellants committed their offences, s. 11(i) forecloses resort to the section against them. The simple answer to this submission is that the taking of the sample is not a punishment anymore than would be the taking of fingerprints or the taking of a photograph of a convicted person: R. v. Briggs, supra, at p. 446 O.R., p. 72 C.C.C.; R. v. Murrins (2002), 2002 NSCA 12, 162 C.C.C. (3d) 412, 92 C.R.R. (2d) 285 (N.S.C.A.) at pp. 442-48 C.C.C.
[29] Counsel next submit that s. 487.055 offends s. 7 of the Charter by permitting the Crown to bring the application for a DNA databank order ex parte. In advancing this argument, counsel rely on both the individual interests effected by the order made under s. 487.055(1) and the nature of the decision which must be made under that section. Counsel contend that the application puts the liberty and security interests of the offender in jeopardy, thereby necessitating procedures governing the application which are consistent with the principles of fundamental justice. Counsel further submit that the discretion to be exercised under s. 487.055 requires an appreciation of both societal interests and competing individual interests. Counsel argue that the latter can only be properly placed before the court if the target of [page107] the application is given notice of the application and an opportunity to participate in it. Counsel submits that the nature of the individual rights affected and the nature of the discretion to be exercised define the scope of the procedural protections necessary to comport with the principles of fundamental justice. Counsel argue that the target of the application must receive notice of the application, notice of the material relied on by the Crown and an opportunity to respond to that application.
[30] I accept that the appellants' liberty and security interests were placed in jeopardy by the applications brought under s. 487.055(1). If the applications were successful, the appellants would be required to attend at a police station and would be detained there while bodily substances were seized from them. The execution of the procedures authorized under s. 487.055 would clearly infringe the appellants' rights to liberty and to the security of the person. The infringement of those interests requires that the processes governing the application comport with the principles of fundamental justice.
[31] Section 487.055(1) begins with the words "a provincial court judge may, on ex parte application". Identical words in s. 487.05, the DNA warrant section, have been interpreted as giving the judge a discretion to proceed ex parte or provide notice to an affected party: R. v. F. (S.) (2000), 2000 5627 (ON CA), 141 C.C.C. (3d) 225, 70 C.R.R. (2d) 41 (Ont. C.A.) at p. 244 C.C.C.; R. v. B. (S.A.), supra, at p. 702 S.C.R., p. 215 C.C.C. The appellants accept that s. 487.055(1) only permits and does not require an ex parte proceeding. They contend that as there are no circumstances under which proceeding ex parte could be justified, the discretion to proceed ex parte contravenes the principles of fundamental justice.
[32] The court's power to proceed ex parte with motions or applications brought under the Criminal Code is well- established where the failure to proceed ex parte would frustrate the administration of justice. For example, s. 487(1) authorizes the issuance of search warrants and makes no reference to proceeding ex parte. It is accepted, however, that judges hearing search warrant applications may proceed, and indeed usually will proceed ex parte: R. v. Canadian Broadcasting Corp. (2001), 2001 24044 (ON CA), 52 O.R. (3d) 757, 42 C.R. (5th) 290 (C.A.) at pp. 766-68 O.R. Section 487.055 expressly contemplates proceeding ex parte. In doing so, it does no more than recognize that a court may, as a matter of controlling the effectiveness of its own process and proceedings, allow an application to proceed without notice where the court is satisfied that notice would frustrate the purpose of the proceeding or render the due administration of justice impracticable: [page108] R. v. B. (S.A.), supra, at p. 702 S.C.R., p. 215 C.C.C.; A.G. (Nova Scotia) v. McIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, 65 C.C.C. (2d) 129 at pp. 187-89 S.C.R., pp. 147-49 C.C.C. The power to proceed ex parte where circumstances warrant is an integral component of the proper administration of justice. That power cannot in and itself run afoul of the principles of fundamental justice.
[33] The conclusion that s. 487.055 is not unconstitutional because it permits the judge to proceed ex parte, does not place the manner in which the judge exercises that discretion in an individual case beyond the pale of constitutional review. The judge must exercise that discretion in a manner which is consistent with Charter principles and specifically in a manner which ensures that the individual's right to liberty and security of the person will not be denied except in accordance with the principles of fundamental justice: see Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, 150 C.C.C. (3d) 1, at pp. 1192-94 S.C.R., p. 53 C.C.C.
[34] In determining how the procedural discretion described in s. 487.055(1) should be exercised, the court should begin with the general rule that a person whose right to liberty or security of the person may be affected by a court order, is entitled to notice of the application for that order, the material relied on in support of that application and an opportunity to be heard: Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, 219 D.L.R. (4th) 385, at pp. 24-25 S.C.R. That general rule, however, admits of exceptions. One exception involves applications for court approval of investigative orders such as search warrants. That kind of application is normally brought ex parte because of the very real risk that the target of the application, if given notice, would take steps to frustrate the investigative process, or flee the jurisdiction: R. v. B. (S.A.), supra, at p. 702 S.C.R., p. 215 C.C.C. The need to move quickly to seek, obtain and implement court orders referable to investigative procedures can sometimes provide an added reason for proceeding ex parte.
[35] The Crown submits that s. 487.055(1) applications fall within the investigative orders exception to the general rule requiring notice to potentially affected parties. The Crown acknowledges that destruction of evidence is not a concern on a DNA databank application, but argues that the risk of flight is a very real concern if the target of a s. 487.055(1) application who is at large, is given advance notice of the application. The Crown contends that in determining how to proceed under s. 487.055(1), the judge should presume that the proceeding will be ex parte subject to the exercise of his or her discretion in favour of giving notice to the target of the application. [page109]
[36] I reject the Crown's attempt to equate applications under s. 487.055(1) with applications for search warrants. Where a search warrant is sought, the police have reasonable and probable grounds to suspect that an individual has committed a specific crime and that the search warrant will produce evidence against that individual of that crime. Where a DNA databank order is sought under s. 487.055(1), the police have no reason to suspect that the target of the application has committed any crime or that the sample will connect the target of the application to any crime. Search warrants and wiretaps focus on individuals and specific past or ongoing crimes. Targets of search warrants and wiretaps know that the police are on their trail. DNA databank applications are not aimed at assisting in the investigation of any individual or any specific crime. Rather, they are a means of providing law enforcement agencies with a resource in the form of DNA profiles that may some day assist in solving a past or future crime. No doubt, some individuals who are served with notice of a DNA databank application might flee the jurisdiction. I do not think, however, that the same assumption about flight made with respect to targets of search warrants and wiretaps can be made about individuals who are subject to a s. 487.055(1) application.
[37] Section 487.055(4) is also inconsistent with the Crown's claim that the risk of flight by those subject to a s. 487.055(1) application is so real as to justify a presumptively ex parte proceeding. Section 487.055(4) provides that a person on parole who is subject to an order under s. 487.055(1) shall be summonsed to attend at an appropriate place to give the required sample. The use of a summons is inconsistent with a presumption that those subject to s. 487.055(1) should be presumed to be flight risks if given notice of the application itself.
[38] The Crown attempted to blunt the negative effect of s. 487.055(4) on their contention that the application should be presumptively ex parte by describing a process whereby the summons could demand the immediate attendance of the target of the application at the time and place set out in the summons, thereby allowing the officer serving the summons to require the individual to go with the officer to the place where the sample was to be taken. Without deciding whether the section contemplates a process whereby a summons becomes a de facto warrant, it is obvious that the process outlined by the Crown is not the process that was followed. Both appellants received their summonses well before the date on which they were to attend to provide samples.
[39] The Crown's submission that s. 487.055(1) applications should be presumptively ex parte is also inconsistent with the other provisions dealing with DNA databank orders. Individuals [page110] who fall into the other two categories of offenders who may be required to provide a DNA databank sample are entitled to be present when the application is made and have a right of appeal. For these offenders, the DNA databank application is part of the sentencing process. The only distinction between these two categories and offenders caught by s. 487.055(1) is that the latter are no longer before the courts. No doubt, because offenders in the first two categories are returning to the court for sentencing, it is administratively easier to provide those offenders with notice and to permit their participation in the application for a DNA databank order.
[40] I reject, however, any assertion that administrative efficiency or the mere inconvenience associated with providing notice can justify a presumption in favour of proceeding ex parte. It is always easier to proceed without notice to the party who may wish to oppose the application.
[41] The Crown also argued that applications under s. 487.055(1) should be treated as presumptively ex parte because in the vast majority of applications notice would serve no real purpose. The Crown submits that s. 487.055 is narrowly tailored to reach only a small group of persons: dangerous offenders, multiple murderers, and repeat sex offenders who are still serving a penitentiary sentence. Crown counsel contends that bearing in mind the limited group of offenders who are caught by this section, and the factors to be considered in deciding whether to make the DNA databank order, it will almost always be made when requested. I take the Crown to argue that notice is not necessary except in exceptional cases because s. 487.055(1) applications will almost inevitably be granted.
[42] This submission fails for two reasons. First, I do not think an individual's right to notice of a proceeding which may affect his or her liberty and security of the person should be tied to that person's ability to successfully resist the application. Procedural due process is afforded without regard to the merits or potential outcome of the proceeding. Second, I cannot accept the premise that the outcome of s. 487.055(1) applications is a foregone conclusion. An order cannot be made unless the preconditions set out in the section are met. Correctional records can be incorrect or incomplete. Even if the records are complete and accurate, it can be unclear as to whether an offender is serving a sentence for a sexual offence when the DNA databank application is brought: e.g. see R. v. Carrignan (2003), 2003 19233 (ON CA), 172 C.C.C. (3d) 1, [2003] O.J. No. 349 (C.A.). If an offender is given notice of the hearing and an opportunity to be heard, he or she may correct errors in the records placed before the court or provide additional information [page111] which would be relevant to whether the preconditions to the granting of the order exist.
[43] Even if the preconditions of s. 487.055(1) are met, the section requires the judge to exercise a discretion which balances individual and societal concerns on an interests of the administration of justice scale. The existence of that discretion presupposes that there will be cases where the balance will favour the individual and lead to the denial of the application. Even if those cases are in the minority, that is no justification for a presumption that the proceeding should be ex parte. To the contrary, a discretion which requires the balancing of individual rights against societal interests invites the participation on the application of both the individual and the Crown. The nature of the discretion to be exercised points towards the giving of notice, unless notice would defeat the purpose of the application.
[44] Finally, the Crown argues that the availability of judicial review by certiorari justifies a presumptively ex parte procedure on the application. I see no merit to this argument. The availability of after-the-fact review of an order can assist in meeting procedural fairness requirements where the order was granted ex parte. The availability of judicial review cannot, however, justify proceeding on an ex parte basis. The availability of certiorari only assists the Crown in demonstrating procedural fairness if it can first justify proceeding without notice.
[45] The discretion granted by s. 487.055(1) to proceed ex parte should be exercised in a manner that is consistent with Charter principles. Those principles require notice to the individual whose liberty and security of the person interests are potentially affected by the order unless the Crown can establish legitimate grounds (e.g. a real risk of flight) for proceeding without notice. [See Note 3 at end of the document]
[46] A judge hearing a s. 487.055(1) application should start from the assumption that the target of the application whose liberty and security of the person will be significantly affected if the order is granted should receive notice of the application. It is open to the Crown to rebut the presumption of notice with evidence that in the particular circumstances, notice could frustrate [page112] the process contemplated by s. 487.055. Evidence showing a real risk of flight if notice was given, would clearly justify a decision to proceed ex parte.
[47] In holding that notice should generally be given to the subject of the application, I do not mean to suggest that a proceeding under s. 487.055(1) should take on the trappings of a criminal trial. I see no place for the strict application of the rules of evidence, the assigning of burdens of proof or the re-litigation of factual or legal issues decided in previous proceedings involving the offender who is the subject of the application. A summary form of procedure would be appropriate as long as it would allow for the effective exercise of the discretion called for under the section, and would be responsive to the particular issues that arise on the specific application. I would think that in most cases the judge can rely on transcripts from prior proceedings, pre-sentence reports, victim impact statements and criminal records unless the subject of the application, having been given an opportunity to do so, can show cause why the material should not be relied on by the judge. The manner in which the subject of the application can challenge the Crown material should depend on the nature of the challenge and the nature of the material. I do not think that cross-examination will always be necessary to afford the requisite procedural fairness. Procedural matters will have to be worked out on a case-by-case basis.
IV
The Decision to Proceed Ex Parte in These Cases
[48] Trainor J. held that s. 487.055(1) gave the judge a discretion to proceed ex parte but did not foreclose notice in cases where the judge deemed it appropriate. In holding that notice was unnecessary in the appellants' cases, Trainor J. said:
The facts of this case illustrate the legislative reasoning in making this section ex parte. Both accused have records. Both were convicted of at least one brutal assault for which lengthy terms of imprisonment were imposed. Both have multiple convictions for failing to appear in court. It is not speculation to think these men may not want to provide DNA. Only they know whether they have anything to fear from DNA identification. The facts before Justice Glaude called out for an ex parte order.
If the evidence was that either or both of the applicants were in custody and therefore had little opportunity to defeat the application, the judge could and probably would order notice.
[49] As Trainor J. indicates, both appellants had convictions for failure to appear, although Rodgers' two convictions for that offence were entered at the same time almost 15 years before the [page113] application. The Crown offered no details of any of the failure to appear convictions. Apart from reference to those convictions in the appellants' criminal records, no mention was made of them in the affidavits filed in support of the applications.
[50] The mere possibility, unsupported by any material referable to the circumstances of the specific individual, that a target of a s. 487.055(1) application may fear that the sample could connect him to a prior crime cannot justify an inference of flight that is sufficiently strong to warrant proceeding ex parte. On the view Trainor J. took, the only individuals entitled to notice would be those in the penitentiary. The Crown must go further if it seeks to proceed ex parte. The Crown must be able to personalize flight concerns so that the judge has reason to believe, based on the material placed before him or her, that there is a reasonable possibility that this particular offender may attempt to frustrate any DNA databank order that may be made by fleeing the jurisdiction before the application is brought if notice is given to that person.
[51] The material before Glaude J. did not address the need to proceed ex parte. Nothing in the affidavit material hinted that either appellant might flee the jurisdiction if made aware of the application. To the contrary, the material disclosed that both appellants were under parole supervision, identified their current address, and indicated that if the application was granted, each appellant would be served with a summons requiring him to attend at the appropriate police station to provide the sample. I think it is obvious from the affidavits that it was intended that the appellants would be given some advance notice of the time and place at which they were to appear to provide the sample. This mode of proceeding is inconsistent with any flight concern.
[52] A reading of the material filed on the applications drives me to the conclusion that it was simply assumed that the proceedings before Glaude J. would be ex parte and that there was no need to justify that mode of procedure. The reasons of Glaude J. confirm this assessment. They make no reference to the fact that the applications proceeded ex parte or to any justification for proceeding in that manner.
[53] Glaude J. lost jurisdiction when he proceeded ex parte in the absence of any basis in the material which could justify proceeding in that manner. Absent any justification for proceeding ex parte, the failure to give the appellants notice of the applications amounted to a denial of natural justice resulting in a loss of jurisdiction: R. v. Compton (1978), 1978 2472 (BC SC), 42 C.C.C. (2d) 163, 3 C.R. (3d) S7 (B.C.S.C.) at p. 165 C.C.C.
[54] It is no answer to a finding that Glaude J. proceeded without jurisdiction, to argue, as the Crown does, that the [page114] orders were properly made. A "correct" result does not cure a loss of jurisdiction.
V
The Bias Claim
[55] Section 487.055(3.1) requires that a judge give reasons for granting a DNA databank order under s. 487.055(1). The Crown routinely provides proposed reasons for judgment in the material provided to judges on ex parte application. For example, on the application pertaining to Jackpine, the Crown provided a draft authorization for the taking of bodily substances for DNA analysis. That draft was in Form 5.06 as provided for in the Criminal Code. Attached as Appendix "B" to the authorization was a document entitled "Reasons for Decisions to Grant the Authorization". The document contained six paragraphs which in generic terms outlined the reasons for granting the authorization against the appellant Jackpine. For example, para. 1 read:
This Authorization may help law enforcement agencies to identify Rodney T. Jackpine as a person responsible for the commission of designated offences under the DNA Identification Act, including those that he may have committed prior to the coming into force of the DNA Identification Act.
[56] The heading "Other Reasons" followed by a space appears under the six paragraphs described above. In the case of the authorization made against Jackpine, the space was left empty. No additional reasons were give for granting the authorization. The reasons for decision were signed by Glaude J.
[57] Counsel for Jackpine submits that the trial judge's unqualified adoption of the reasons prepared in advance by the Crown for granting the authorization creates a reasonable apprehension of bias.
[58] There is a strong presumption in favour of the impartiality of the judiciary. Glaude J. signed the reasons. I have no reason to think that he did not read them and come to the conclusion that they accurately described why he had chosen to grant the authorization. The appellant Jackpine has not met the heavy onus on him of demonstrating a reasonable apprehension of bias.
[59] Although I am satisfied that the trial judge's adoption of the reasons proposed by the Crown does not raise a reasonable apprehension of bias, I confess some unease with the practice. It is one thing for a party to prepare the proposed order of the court, but quite another for a party to prepare the proposed reasons for making the order. I think the appearance of justice is best served by leaving the reasons to the judge. [page115]
VI
Conclusion
[60] I would allow the appeals and quash the authorizations for the taking of the appellants' bodily substances made by Glaude J. The applications for the authorizations were, however, properly commenced. I would remit the applications to the Ontario Court of Justice for a determination on their merits. As there can be no argument at this stage that the appellants should not receive notice, they should be given notice either personally or through counsel.
[61] The samples taken from the appellants but not analyzed, should be held pending the conclusion of the application. If authorizations are granted, those samples may be used for the purposes of analysis. If the applications are refused, the samples should be destroyed.
Appeals allowed.
Notes
Pending the outcome of the motion before Trainor J., the appellants and the Crown agreed that the appellants would provide the required samples, but they would not be analyzed or placed in the DNA databank. The samples were sealed pending the result of the motion before Justice Trainor. They remain sealed pending the outcome of the appeal.
Persons caught by this section are a finite group. As time passes, fewer and fewer individuals will be caught by this section. It is estimated that there were some 2,500 potential retroactive cases when the Act was proclaimed. The court was informed that as of October 2003, some 1,770 DNA profiles of retroactive offenders had been put into the DNA databank. The Attorney General had assigned a team of Crown Attorneys to identify those offenders who were subject to s. 487.055(1) and to proceed with the applications against those individuals.
I have analyzed the procedural due process claim under s. 7, the section relied on by the appellants. Procedural due process claims seem most at home under s. 7 of the Charter. It may be, as the Crown contends, that after R. v. B. (S.A.), supra, at pp. 693-95 S.C.R., pp. 208-09 C.C.C., the claim should be considered as part of the s. 8 analysis. In my view, the analysis is the same under both sections. A provision allowing for ex parte applications does not offend either s. 7 or s. 8. An interpretation of the discretion in the section which requires notice unless the Crown establishes cause to proceed ex parte, is consistent with both sections.