DATE: 20050425
DOCKET: C40709 and C40710
COURT OF APPEAL FOR ONTARIO
WEILER, GOUDGE and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
John McInnes for the appellant
Appellant
- and -
KULDIP SINGH SAMRA and VLADO MALJKOVICH
Ricardo G. Federico and Vincenzo Rondinelli
for the respondents
Respondents
Heard: February 18, 2005
On appeal from an order of Justice J. David McCombs of the Superior Court of Justice dated August 28, 2003, reported at [2003] O.J. No. 3289, quashing two Authorizations for the Taking of Bodily Substances for Forensic DNA Analysis by Justice Lauren E. Marshall of the Ontario Court of Justice dated January 22, 2002.
WEILER J.A.:
[1] Marshall J. granted the Crown’s application for authorizations to take DNA from Vlado Maljkovich and Samra Singh Kuldip pursuant to s. 487.055(1) of the Criminal Code. That subsection gives a provincial judge the power to authorize taking a reasonable number of bodily substances for forensic DNA analysis from a person who was convicted of “more than one murder committed at different times” before the section came into force. McCombs J. allowed the respondents’ application for certiorari, quashed the authorizations, and ordered that the samples taken be removed from the databank.
[2] The issue in this appeal is whether Mc Combs J. correctly interpreted the meaning of the phrase “more than one murder committed at different times”.
[3] The facts underlying the appeals can be briefly summarized. In 1993, Samra was convicted of two counts of first-degree murder and one count of attempted murder for a shooting that took place in Osgoode Hall. He was an interested party in an appeal at the Divisional Court. After the presiding judge read out an unfavourable decision, Samra pulled out a gun and began firing it. He shot at and missed one respondent, shot and wounded another respondent, then shot and killed that respondent’s lawyer and the lawyer’s associate.
[4] In 1995, Maljkovich was convicted of two counts of second-degree murder and one count of attempted murder. He killed his wife, left the room, locked the door, and met his daughter in the hallway. He killed his daughter. The daughter’s boyfriend heard her screams, went to her aid, and Maljkovich tried unsuccessfully to kill him.
[5] On the Crown’s ex parte application for a DNA authorization respecting both Samra and Maljkovich, Marshall J. heard submissions and granted the order holding at paras. 5-8:
I was challenged as to why there is a phrasing of more than one murder committed at different times. Given that murder requires a specific intent for that offence, and if the person is prepared to kill more than once, it is of no consolation to that victim or their families as to how far apart in time it is. Parliament has said different times, however, and given the intent of the legislation, the very minor inconvenience to the accused, the very minor infringement on their bodily integrity for the providing of the sample, and the common good that can come from it, I am interpreting different times as the killing of more than one person by separate acts.
I’m almost reluctant to give an example in case it is seen as inclusive, but for example, a car bomb deliberately placed with an intent to kill when there happens to be more than one person in the car, would be more than one murder at the same time by the same act. In looking at the facts of these cases, there was a very specific and deliberate killing of a number of people. They were each murdered at a different time and although in close proximity, these accused were convicted of these as separate counts.
Parliament chose to say “time” as opposed to “transaction” and it is for that reason that I am determining that…the circumstances fit within the definition of the statute and I am signing orders today that the authorities may take the necessary blood sample for analysis.
[6] Samra and Maljkovich successfully applied to McCombs J. for a certiorari order quashing the authorizations issued by the provincial judge. He held, “In my opinion, established rules of statutory interpretation lead to the conclusion that s. 487.055(1)(b) does not extend to multiple murders committed as part of the same transaction.”
[7] The application judge gave two reasons for his conclusion. First, he stated, “If Parliament had intended that the section apply to all multiple murderers, there would have been no need to include the qualifying phrase ‘committed at different times’”. Second, he referred to the legislative objectives of the DNA provisions identified in R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417 (C.A.) at para. 22. Although one of the objectives is the prevention of crime, the objectives are broader than that. In considering the objectives of the legislation, the application judge referred to the hearings conducted by the House of Commons Standing Committee on Justice and Human Rights, which identified the purpose of the DNA provisions as collecting the DNA of “serial or ‘career’ murderers with a high potential for recidivism”. McCombs J. concluded that s. 487.055(1) is “not meant to apply to multiple murders committed during the same transaction” or to a “series of connected acts extending over a period of time” that “can encompass multiple complainants”.
[8] Because the application judge concluded that the murders committed by Maljkovich and Samra formed single transactions, he ordered that the authorizations issued by the provincial judge be quashed. He further ordered that the DNA profiles of Maljkovich and Samra be removed from the DNA Databank and destroyed. Pending the decision in this appeal that order was stayed pursuant to s. 784 of the Criminal Code.
[9] The question is, therefore, whether the application judge correctly equated the phrase “more than one murder committed at different times” with a requirement that more than one transaction resulting in murder occur.
[10] Because the interpretation of s. 487.055(1)(b) depends on the meaning of the section as a whole, I set out the section here:
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,
(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).
[11] Section 487.055 authorizes taking DNA samples from three groups of offenders who were convicted before the section came into force: offenders declared to be dangerous offenders; offenders convicted of more than one murder committed at different times; and offenders convicted of more than one specified sexual offence who were serving a sentence of at least two years for at least one of those offences.
[12] To interpret this section, the words must “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”. See Re Rizzo & Rizzo Shoes Ltd, 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21. Therefore, the meaning of paragraph (a) relating to dangerous offenders and paragraph (c) relating to sexual offenders will assist in interpreting paragraph (b) and the phrase “more than one murder committed at different times”. Because I conclude that neither paragraph (a) nor paragraph (c) excludes offences that occur in the same transaction, I must reject the use of the transaction concept in interpreting s. 487.055(1)(b).
[13] Part XXIV of the Criminal Code sets out the dangerous offender provisions. A dangerous offender is an offender convicted of a “serious personal injury offence” as partially defined in s. 752. Serious personal injury offences include two categories of offences. The first is indictable offences other than first-degree or second-degree murder that may result in more than a ten-year sentence and that involved either violence or conduct that was or was likely to endanger the life, safety, or psychological integrity of another person. Before an offender can be declared dangerous, a court must be satisfied under s. 753(1)(a) that the offender poses a threat to the safety of other persons. This threat is established by showing one of three items: (i) a pattern of behaviour; (ii) a pattern of persistently aggressive behaviour; and (iii) an act associated with the offence that is so brutal as to compel the conclusion that the offender will not likely be inhibited by normal standards of restraint.
[14] The second category of serious personal injury offence includes sexual assault, sexual assault with a weapon, or aggravated sexual assault. Before a court can find such an offender to be dangerous, it must find under s. 753(1)(b) that the offender’s sexual conduct shows a failure to control sexual impulses indicating a likelihood of recidivism.
[15] The requirements within ss. 753(1)(a) and (b) are not cumulative and must be considered separately. The focus of ss. 753(1)(a)(i) and (ii) is on a past pattern of behaviour. This focus excludes the possibility of offences occurring within one transaction satisfying the dangerous offender provisions. However, s. 753(1)(a)(iii) focuses on the brutal nature of the offence and the resulting likelihood of the offender being unable to control his behaviour. Similarly, s. 753(1)(b) emphasises the likelihood of the offender being unable to control his or her sexual impulses in the future. Both of these sections are met by offences that can occur in one transaction. Therefore, s. 487.055(1)(a) allows offences that comprise one transaction to justify a DNA order.
[16] For s. 487.055(1)(c), relating to sexual offenders, a sexual offence is defined as sexual interference, invitation to sexual touching, sexual exploitation, incest, an offence related to juvenile prostitution, sexual assault, sexual assault with a weapon or threats to a third party, and aggravated sexual assault. Parliament did not require that the second sexual offence be part of a different series of events. Given that a “sexual offence” includes invitation to sexual touching, an offence often associated with sexual assault, the opposite seems true. Thus, paragraph (c) also does not require more than one transaction.
[17] Because offences in the same transaction can justify DNA orders under paragraphs (a) and (c), it seems unlikely that Parliament would exclude the taking of DNA samples for murders committed as part of the same transaction or series of events. This is especially true given that one “transaction” could encompass a significant lapse of time.
[18] The multiple purposes of the DNA provisions and of s. 487.055(1)(b) also support rejecting the transaction analysis. These purposes are not limited to recidivism, suggesting that offences that constitute a transaction in the legal sense may justify a DNA order.
[19] The evidence of the official with the Department of Justice before the Standing Committee contained an example of a situation that Parliament intended to exclude and an example of a situation Parliament intended to include. In reference to the former, he commented that it was unfortunate but possible “by one simple gesture to kill more than one person with one shot”. In reference to the latter, the official indicated that the provision would include recidivists like a “Clifford Olson” and contract killers. I do not read his testimony as saying, however, that the legislation is intended to apply only to these persons. Although his comments apply only to first-degree murder, the legislation explicitly applies to second-degree murder. Also, his testimony was directed to one of the purposes but did not encompass all of the purposes of the DNA provisions. Therefore, the legislation is broader than the example the official presented.
[20] Furthermore, Parliament has used the word “transaction” in several sections of the Criminal Code. Had Parliament meant “transaction” in s. 487.055(1)(b), it would have used the words “murders not part of the same transaction” rather than murders “at different times”. Parliament did not do so.
[21] Finally, the ordinary meaning of the phrase “more than one murder committed at different times” does not support the transaction theory. The word “different” is defined in the Canadian Oxford Dictionary as “unlike, distinguishable in nature, form or quality (from another)”. The noun “time” is defined in Black’s Law Dictionary, 7th. ed. as:
a measure of duration;
a point in or period of duration at or during which something is alleged.
[22] The phrase “more than one murder committed at different times” has a twofold meaning. First, time is divisible by time periods such as days, weeks, months, years. Second, time is also divisible by events that differ in nature or quality. An example of the first meaning occurs when a contract killer agrees to kill two people and kills one person in January and the other in February. This meaning is not in issue. An example of the second occurs when two persons are taken hostage by a terrorist in an office in downtown Toronto. One person attempts to escape and is shot dead by the terrorist. Ten minutes later the police rush the office and, as they do so, the second hostage tries to overpower the terrorist and is shot dead by him. The murders are committed at different times because they are distinguishable in nature or quality and did not occur simultaneously.
[23] I must now apply this definition to the cases before us. The murders committed by Samra were not committed at “different times” because they were committed immediately after the court’s decision was read out in court and are not distinguishable in nature or quality. I would therefore dismiss the Crown’s appeal in relation to Samra.
[24] Given the proximity in time of Maljkovich’s two murders, he may also not have committed more than one murder at different times. Because Maljkovich exited the bedroom and closed and locked the door to it, arguably, however, the murders were committed at different points. I will therefore examine the nature and quality of those murders. In the transcript of the guilty plea and sentencing proceedings, Then J. commented on defence counsel’s submissions that Maljkovich saw his marriage deteriorating and had to face the fact that he was going to lose much of what he had worked to achieve. He also lost his ability to work for himself. He could no longer provide for his family and was losing his place within the family structure. His children were becoming increasingly independent. He was losing his marriage, his wife, his children, and his financial security. Then J. found that the evidence suggested Maljkovich became alienated from his family. He further found Maljkovich suffered from various unresolved mental health problems. As Then J. stated, “The reason for this tragedy will also, no doubt, lie somewhere in the darkness of the depression and personality difficulties which the accused has experienced and will continue to experience into the future”. On this record, the murders of Maljkovich’s wife and daughter are not distinguishable in nature or quality. Accordingly, I would also dismiss the Crown’s appeal in relation to Maljkovich.
[25] I would affirm the order of the application judge.
RELEASED: April 25, 2005 (“KMW”)
“Karen M. Weiler J.A.”
“I agree S. T. Goudge J.A.”
“I agree E. E. Gillese J.A.”