Court File and Parties

Citation: R. v. Wagner, 2009 ONCA 588 Date: 2009-07-23 Docket: C49764

Court of Appeal for Ontario Simmons, Rouleau and Watt JJ.A.

Between: Her Majesty the Queen (Appellant) and Stephanie Wagner (Respondent)

Counsel: Brad Greenshields, for the appellant Stephanie Wagner, not represented and not present in court

Heard and released orally: July 21, 2009

On appeal from the order of Justice William R. Wolski of the Ontario Court of Justice, dated November 17, 2008, refusing to impose a DNA data bank order.

Endorsement

[1] After convicting the respondent of robbery, the sentencing judge declined to make the mandatory order under s. 487.051(1) of the Criminal Code authorizing DNA samples to be taken from the respondent, apparently because an order authorizing DNA samples to be taken had previously been made against the respondent as a result of a prior conviction.

[2] The Crown submits that the sentencing judge erred in law. We agree.

[3] The current DNA sampling order regime makes sampling authorization orders mandatory for some offences, including robbery. However, the legislation does not require that a DNA sample be taken pursuant to a sampling authorization order where a DNA sample already exists in the convicted offenders index of the national DNA data bank. Rather, the legislation requires persons charged with executing a sampling authorization order to confirm in writing on the new order receipt of advice that the offender’s DNA profile is already in the DNA data bank and to transmit notice of the new order to the data bank authorities so that an existing sample will not be destroyed in the event of a successful appeal of a prior sampling authorization order. See s. 487.071 of the Criminal Code and s. 10(7) of the DNA Identification Act. Note also that former s. 487.053 of the Criminal Code was repealed and an unrelated provision was substituted as the new s. 487.053. The sentencing judge should not have refused to make the mandatory order.

[4] Accordingly, the appeal is allowed, the sentencing judge's order declining to order DNA sampling is set aside and an order under s. 487.051(1) is substituted in its place.

Signed: "Janet Simmons J.A." "Paul Rouleau J.A." "David Watt J.A."