WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
CITATION: R. v. K.M., 2011 ONCA 252
DATE: 20110401
DOCKET: C50312, C50313 and C50908
COURT OF APPEAL FOR ONTARIO
Moldaver, Armstrong and Rouleau JJ.A.
BETWEEN:
Her Majesty The Queen
Appellant
and
K.M., J.B., and D.R.
(young persons within the meaning of the Youth Criminal Justice Act)
Respondents
John McInnes and Janet Gallin, for the appellant
John Scarfe, for the respondent J.B.
Monte MacGregor, for the respondent K.M.
Brian Irvine, for the respondent D.R.
Nancy Dennison and Roy Lee, for the intervener Attorney General of Canada
David Rose and Graeme Norton for the intervener Canadian Civil Liberties Association
Jill R. Presser and Apple Newton-Smith, for the intervener Criminal Lawyers’ Association
Andrea Luey and Martha Mackinnon, for the intervener Justice for Children and Youth
Heard: November 8 and 9, 2010
On appeal from the judgment of Justice Marion Cohen of the Ontario Court of Justice, Youth Justice Court, dated March 5, 2009, declaring that s. 487.051(1) of the Criminal Code, R.S.C. 1985, c. C-46 is unconstitutional as it relates to young offenders, with reasons dated March 17, 2009 and reported at (2009), 2009 ONCJ 114, 246 C.C.C. (3d) 77, and from her judgments dated March 30, 2009 and July 16, 2009 refusing to make DNA collection orders in respect of the respondents.
Moldaver J.A.:
INTRODUCTION
[1] These Crown appeals involving three young offenders raise the issue of the constitutionality of ss. 487.051(1) and (2) of the Criminal Code, R.S.C. 1985, c. C-46, which provide for the collection of DNA samples from both adult and young offenders. The question to be determined is whether these provisions are constitutional as they apply to young persons who have been found guilty under the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA) or the Young Offenders Act, R.S.C. 1985, c. Y-1 (YOA) of certain offences identified by Parliament as primary designated offences.
[2] The impugned provisions were proclaimed in force on January 1, 2008. Section 487.051(1) mandates the collection of DNA samples from a class of offenders who have been found guilty of one or more offences from a subset of primary designated offences commonly referred to as “super-primary” offences. The reach of s. 487.051(1) is not limited to adult offenders. It specifically includes young persons found guilty under the YCJA or the YOA.
[3] Section 487.051(2) provides for the presumptive collection of DNA samples from another class of offenders, including young persons, who have been found guilty of one or more offences from another subset of primary designated offences commonly referred to as “primary” offences. In the case of such offenders, the sentencing court retains a limited discretion to decline to make a collection order.
[4] The respondents are three young persons who, in unrelated cases, pleaded guilty to one or more super-primary offences before Cohen J. of the Ontario Court of Justice, Youth Justice Court. At their sentencing hearings, which began in April 2008, the trial Crown informed the sentencing judge of a recent amendment to the Criminal Code (s. 487.051(1)) which provided for the automatic collection of the respondents’ DNA samples for purposes of inclusion in the National DNA Data Bank (NDDB). Prior to that amendment, such collection orders were presumptively required, but the court retained a limited discretion to refuse them. Upon learning that DNA collection orders were now mandatory in respect of super-primary offences, the sentencing judge remarked that she “would be interested in whether that raises a constitutional issue”.
[5] Counsel for the respondents took up the challenge and eventually moved to have s. 487.051(1) declared unconstitutional. The sentencing judge also had before her several other young persons who were awaiting sentencing for offences that came within the purview of s. 487.051(2). Their counsel joined the challenge and moved to have that provision declared unconstitutional as well.
[6] The constitutional challenges resulted in a lengthy hearing that continued intermittently for the better part of a year. As the record discloses, the sentencing judge played an active role in the proceedings. Among other things, after seeking and obtaining the consent of the parties, she invited various organizations to intervene and ultimately granted intervener status to the Criminal Lawyers’ Association and Justice for Children and Youth. She also took steps to assist counsel in obtaining legal aid funding. In addition, she compelled the Crown to call evidence about the workings of the NDDB, even though the respondents bore the onus of showing that the impugned provisions were unconstitutional.
[7] On March 17, 2009, the sentencing judge delivered reasons in which she found that s. 487.051(1) infringes the privacy and security rights of the respondents under ss. 7 and 8 of the Charter of Rights and Freedoms.[^1] She further found that the breaches were not justified under s. 1 of the Charter and therefore declared the provision unconstitutional. The sentencing judge reached the same conclusions in respect of s. 487.051(2).
[8] By way of remedy, rather than striking down the offending provisions, the sentencing judge chose to read them down and incorporate the test under s. 487.051(3) of the Code for the collection of DNA samples from offenders found guilty of offences identified as secondary designated offences. In doing so, she conferred upon herself a discretion to refuse to make a collection order unless the Crown could satisfy her that such an order was in “the best interests of the administration of justice” viewed through the lens of the principles that animate the YCJA. Applying that test to the cases before her, she refused to issue DNA orders in respect of any of the respondents.
[9] The Crown appeals from those decisions and seeks to have the respondents provide DNA samples in accordance with s. 487.051(1) of the Code. The appeals hinge on the Crown’s submission that the sentencing judge erred in declaring s. 487.051(1) unconstitutional insofar as it relates to young persons. However, in respect of the respondent, J.B., there is an initial issue relating to the jurisdiction of the court to hear the appeal.
[10] J.B. was originally charged with aggravated assault. Pursuant to a plea resolution agreement, the Crown accepted a plea to the lesser offence of assault causing bodily harm and proceeded summarily. Although the Crown submits that this court has jurisdiction over the appeal involving J.B., I disagree. In my view, R. v. P.R.F. (2001), 57 O.R. (3d) 475 (C.A.) is dispositive. As Rosenberg J.A. explained, at para. 5, in summary conviction proceedings, the appeal should be taken in accordance with Part XXVII of the Criminal Code, which means that the appeal lies to a judge of the Superior Court of Justice. Thus, the Crown’s appeal in respect of J.B. is quashed.
[11] For reasons that follow, I would allow the Crown’s appeal in respect of K.M. and D.R. and order these respondents to provide DNA samples in accordance with s. 487.051(1) of the Code. In the case of D.R., because of his medical condition, I would order that buccal swabbing be used to obtain samples from him.
BACKGROUND FACTS
[12] In view of my conclusion that s. 487.051(1) is constitutional, the respondents K.M. and D.R. must provide DNA samples for the NDDB. Accordingly, I see no need to dwell on their backgrounds or the circumstances surrounding their crimes. The following brief description will suffice. It includes the outcome of the DNA hearings conducted by the sentencing judge in conformity with the test she considered to be constitutional.
K.M.
[13] K.M. pleaded guilty on February 28, 2008 to one count of robbery (a super-primary offence).
[14] On November 17, 2007, K.M. and two other youths approached C.D. at a subway station and stole his Play Station game system. K.M. held C.D. and tried to prevent him from calling for help. C.D. found the incident very upsetting. The game system was a costly gift from his parents who could ill afford it. K.M. was eventually apprehended as a result of images retrieved from a surveillance video.
[15] K.M. was 15 years old. He had a youth record for assault and breaking and entering and was on probation for those offences when he committed the robbery. He regretted having robbed C.D. and recognized that his actions were harmful.
[16] K.M. was sentenced on April 11, 2008 to probation for 18 months with conditions.
[17] At the DNA hearing on May 16, 2008, K.M. testified and again expressed his remorse. He described the incident as a momentary lapse and said he felt badly for the victim.
[18] Regarding his understanding of the significance of providing a DNA sample, K.M. stated that “DNA is basically your blueprint of … who you are”; it is “the genetic structure you’re built of”; it is “unique” and “comes ... from our different parents.” K.M. objected to providing a DNA sample not because he wanted to “commit a crime and just not get caught” but because he was concerned that if he “spit somewhere” and “someone got stabbed there”, then they could “see … my DNA there … and come to my door … and I’ll be a suspect of something I never did.” He also described it as his “privacy”, but he did not elaborate on this, other than to say that “it’s just who I am” and “I don’t really have a big idea, but just know I don’t want my DNA taken.”
[19] K.M. acknowledged in cross-examination that the police already had his fingerprints but he did not consider that process “as extreme as taking” his blood. He was unhappy about the police having his fingerprints and would have contested that as well were it not compulsory.
[20] The sentencing judge refused to make a DNA order. The offence was relatively minor in nature and there was no gratuitous violence. Despite his prior youth record, K.M. was doing well. She saw no entrenched pattern of anti-social behaviour and she wanted to avoid him “self-labelling” as a criminal. Noting that he did not want to provide a sample and that the public would be protected by his rehabilitation, the sentencing judge found it was not in the best interests of the administration of justice to make a DNA order.
D.R.
[21] D.R. pled guilty on June 20, 2008 to four counts of robbery (super-primary offences). The robberies occurred in the summer of 2007 and involved “swarming” incidents in which D.R. and others surrounded various young men in their late teens and early 20’s and searched them for cash, cell phones and other items. In one instance, the victim was punched (not by D.R.) and had a tooth dislodged. In another incident, D.R. stole a cell phone from the victim.
[22] D.R. had no youth record. He was 17 years old. He was reputed to have made considerable progress following the robberies. D.R. had positive references. His pre-sentence report was relatively positive, although it noted that he had a history of aggressive and impulsive behaviour. After spending 10 or 11 days in pre-trial custody, D.R. had returned to school and was progressing well. He suffered from hemophilia for which he gave himself injections two times a week.
[23] D.R. was sentenced to probation for 24 months with conditions.
[24] The DNA hearing extended over several days because the sentencing judge was concerned about D.R.’s hemophilia. The Crown provided medical evidence establishing that blood samples could safely be taken from him. Alternatively, the Crown suggested that samples could be taken using buccal swabs.
[25] The sentencing judge refused to make a DNA order even though she thought it was “reasonable” and “certainly arguable” that a DNA sample should be taken in D.R.’s case. Nonetheless, she was concerned about medical issues which she felt the Crown had not satisfactorily addressed and she decided not to make the order because the interests of the state did not outweigh D.R.’s security of the person.
CONSTITUTIONALITY OF SS. 487.051(1) AND (2) OF THE CRIMINAL CODE
The Statutory Regime
[26] Before considering the sentencing judge’s reasons for declaring ss. 487.051(1) and (2) unconstitutional, it might be useful to outline the statutory regime that governs the collection of DNA samples for inclusion in the NDDB, with particular emphasis on the safeguards that exist to protect the privacy interests of all those affected by collection orders, as well as the safeguards that relate specifically to young persons.
Relevant Provisions of the Criminal Code
[27] Sections 487.04 to 487.055 of the Criminal Code provide for three ways in which DNA samples may be obtained for forensic purposes:
• DNA investigative warrants under s. 487.05;
• post-conviction DNA collection orders under s. 487.051; and
• retroactive DNA authorizations under s. 487.055.
[28] The present appeals relate to post-conviction DNA collection orders. There are three provisions within s. 487.051 under which post-conviction DNA collection orders can be made:
• s. 487.051(1), pursuant to which DNA collection orders are mandatory in respect of super-primary designated offences;
• s. 487.051(2), pursuant to which DNA collection orders are presumptive in relation to primary designated offences; and
• s. 487.051(3), pursuant to which DNA collection orders are discretionary in respect of secondary designated offences.
[29] Given the importance of these provisions to the appeals, they are set out in full:
487.051 (1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged.
(2) The court shall make such an order in Form 5.03 in relation to a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of any of paragraphs (a.1) to (d) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged. However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.
(3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to
(a) a person who is found not criminally responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or
(b) a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced or discharged.
In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.
[30] Primary designated offences and secondary designated offences are defined terms in s. 487.04 of the Code. In subsection (a) of the definition of “primary designated offence” in s. 487.04, there is an itemized list of 19 offences that are a subset of primary designated offences. These offences, which are listed at Appendix “A” to these reasons, are commonly referred to as “super-primary” offences. Overall, they consist of serious crimes that involve the use of violence, threats of violence and/or the use of firearms or other weapons.
[31] In subsections (a.1)-(d) of the definition of “primary designated offence”, there is an itemized list of offences referred to as “primary” designated offences, which are listed at Appendix “B” to these reasons. They too consist of serious offences, including terrorism, hijacking, hostage-taking, sexual offences, offences involving child pornography, and breaking and entering into a dwelling-house.
[32] Other Criminal Code provisions deal with the manner in which DNA samples may be taken, as well as their use and destruction. Section 487.06(1) sets out the three ways in which a DNA sample may be taken, namely: the plucking of individual hairs, buccal swabbing and taking blood by pricking the skin surface. Section 487.06(2) authorizes the court to include terms and conditions in the order that it considers advisable “to ensure that the taking of the samples ... is reasonable in the circumstances”. Section 487.08(1.1) prohibits the use of DNA samples obtained pursuant to a collection order except to transmit them to the Commissioner of the RCMP “for the purpose of forensic DNA analysis in accordance with the DNA Identification Act”. Anyone who breaches that provision is guilty of a hybrid offence under s. 487.08(4) and liable to imprisonment for two years if the Crown proceeds by way of indictment.
[33] The DNA samples sent to the RCMP for analysis are used to create a DNA profile that is stored in the NDDB and is available for comparison with evidence obtained from other police investigations: R. v. P.R.F., at para. 3.
Retention Periods for DNA Profiles and Samples of Young Offenders
[34] The YCJA and the DNA Identification Act, S.C. 1998, c. 37 (DNAIA) establish retention periods for DNA profiles and samples in various situations involving young offenders. The length of the retention period varies depending on whether an offence is prosecuted by way of indictment or by summary conviction, and depending on the nature of the offence and whether the offender commits a further offence. Included as Appendix “C” to these reasons is a chart prepared by the Crown that sets out the various retention periods created by the interaction of the DNAIA and the YCJA.
[35] For purposes of the constitutional analysis, the following discussion of the interaction of the provisions in these Acts will suffice.
The DNA Identification Act
[36] The DNAIA was enacted in 1998. Section 3 came into force on May 8, 2000. It defines the purpose of the Act as follows:
- The purpose of this Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.
[37] Section 4 of the Act came into force on June 30, 2000. It defines the principles of the Act as follows:
- It is recognized and declared that
(a) the protection of society and the administration of justice are well served by the early detection, arrest and conviction of offenders, which can be facilitated by the use of DNA profiles;
(b) the DNA profiles, as well as samples of bodily substances from which the profiles are derived, may be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose; and
(c) to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on
(i) the use and communication of, and access to, DNA profiles and other information contained in the national DNA data bank, and
(ii) the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act. [^2]
[38] Most of the provisions of the DNAIA relate to a series of rules and procedures that govern the day-to-day operation of the NDDB. They include prohibitions on the use of samples and profiles, and provide for criminal sanctions for those who fail to comply with those prohibitions.
[39] For present purposes, ss. 9.1 and 10.1 of the DNAIA are of particular importance. They focus on access to youth records and the removal and destruction of bodily
substances that have been collected from young persons for purposes of inclusion in the NDDB. Both sections provide that in the case of young persons, the information in the NDDB shall be permanently removed and the bodily substances destroyed “when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act”.
[40] The relevant provisions of the DNAIA, including s. 9(1) of that Act, are as follows:
- (1) Subject to subsection (2), section 9.1 and the Criminal Records Act, information in the convicted offenders index shall be kept indefinitely.
9.1 (1) Access to information in the convicted offenders index in relation to a young person who has been found guilty under the Young Offenders Act or under the Youth Criminal Justice Act of a designated offence shall be permanently removed without delay when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.
(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to
(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or
(b) a record to which subsection 120(6) of that Act applies.
10.1(1) The Commissioner shall, without delay, destroy stored bodily substances of a young person who has been found guilty of a designated offence under the Young Offenders Act or under the Youth Criminal Justice Act when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.
(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to
(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or
(b) a record to which subsection 120(6) of that Act applies.
The definition of “presumptive offence” within the meaning of s. 2(1) of the YCJA is explained below.
The YCJA
[41] Part 6 of the YCJA contains an elaborate set of rules designed to protect the identity of young persons and any records that may have been generated as a result of their involvement in the Youth Criminal Justice System. It addresses the manner in which youth court records are to be kept and by whom; the people who can access them and under what circumstances; how long the records are to be kept; and when and by whom they are to be removed and destroyed.
[42] The term “presumptive offence” found in ss. 9.1(2) and 10.1(2) of the DNAIA is a defined term in the YCJA. For present purposes, it applies to young persons age 14 years or older who have committed murder, attempted murder, manslaughter, aggravated sexual assault or a third “serious violent offence” as defined in s. 2(1) of the YCJA. In such cases, Part 6 of the YCJA does not apply and the young person’s DNA is treated like that of an adult.
[43] Section 120(6) of the YCJA relates to situations where, during the period of access to a record kept in respect of a young person, the person is convicted of certain scheduled offences under the YCJA after the young person becomes an adult. In such circumstances, Part 6 of the YCJA no longer applies and the youth records for the scheduled offences become adult records.
[44] While acknowledging the complexity of the record retention periods created by the interaction of the DNAIA and the YCJA, what is relevant for present purposes is that DNA samples and profiles are removed and destroyed in similar fashion as fingerprints and photographs taken routinely in respect of young persons under s. 113 of the YCJA.
Overview of Legislative Safeguards
[45] At the DNA hearing, the Crown led evidence from three expert witnesses who described the legislative checks and balances designed to ensure that DNA samples collected from young persons for the NDDB are used solely for identification purposes and are removed and destroyed in accordance with the provisions set out in Part 6 of the YCJA. The three witnesses were:
• Detective Sergeant Brian Borg, a homicide officer with the Toronto Police Service, who was qualified to give expert evidence in “the gathering of DNA evidence” and the “operation of the DNA data bank”;
• Robert Murray, a civilian employee of the RCMP and Manager of the Pardons and Purge Services (PPS), who gave evidence about the safeguards in place to protect the privacy and anonymity of DNA data bank samples and profiles and the system for severing and destroying youth DNA data bank information in accordance with legislative requirements; and
• Isabelle Trudel, a civilian member of the RCMP in charge of the NDDB, who gave evidence about the reception, handling and destruction of DNA samples at the NDDB.
[46] The evidence of these witnesses plays a significant role in the constitutional analysis. It provides the context against which to measure the reasonableness of ss. 487.051(1) and (2) and, in particular, the degree of impact that DNA collection orders have on the privacy interest of young persons. A useful summary of their evidence is contained at pp. 11-13 of the Crown’s factum as follows:
• The DNA collection kit contains two parts, one with the DNA sample and the other with the offender’s identification information. Both parts of the kit have the same unique barcode number (Sample Unique Number or “SUN”). When the kit arrives at the data bank, the two forms are separated with the sample being retained by the databank and the identification form being sent to the RCMP records unit. From this point on, the processing of the sample at the data bank is anonymous. The donor’s identity remains unknown and no personal information is retained or entered into any DNA data base.
• The “profile” is derived from analysis of the DNA sample. A 1.6 millimetre portion of the sample card is punched out and used to generate the profile. At the DNA data bank they look at 13 regions of the DNA that are anonymous, that do not code for any particular genes or any particular disease. The profile is a series of numbers. Each region of the DNA has an “allele” which will be translated into a number (for example 1415). When you look at all thirteen regions you will have a string of numbers (26 digits long), which is the profile that is put into CODIS [the computer software that is used to store and compare DNA profiles] for comparison with other profiles, which are also in numeric form. Except for identical twins or triplets etc. each person’s profile is unique. The Sample Unique Number (SUN) is also kept in CODIS.
• If there ever is a “match” between a profile in the convicted offenders index and a profile in the crime scene index, staff at the NDDB itself never know the identity of the convicted offender. Instead, the NDDB notifies the RCMP fingerprint section of the barcode number associated with the convicted offender sample and the RCMP use that barcode number to go back to the original documentation to find the identity of the offender. The RCMP fingerprint section then notifies the forensic laboratory that submitted the crime scene sample who in turn notifies the police investigators. The DNA profile or sample is never released – the investigating agency is simply informed that the profile of a certain offender has generated a “hit” in relation to the submitted crime scene sample.
• When criminal records files are established or updated, a criminal records analyst in the RCMP assigns an archival date to the file (based on legislative requirements). Criminal analysts have supervisors do periodic checks of their work, depending on their seniority and their error rate, which is required to be less than one percent.
• When the retention period has been met, PPS severs the SUN link between the NDDB and the criminal record data bank two or three days prior to the expiration of the retention period. Once the SUN tie has been severed between the two data banks, it is impossible to make any link between the DNA data bank and the information indicating whose DNA it is.
• After they have severed the identification link, PPS notifies the DNA data bank which then removes the DNA profile from the data bank and destroys the biological sample card. Both the removal of the profile and the destruction of the sample are witnessed by more than one employee, each of whom signs off on the destruction, as does the Officer in Charge of the DNA data bank. Ms. Trudel in particular, repeatedly and clearly stated that the NDDB removes the profile from the data bank and destroys all of the remaining biological sample that was used to generate the profile.
[47] Against that backdrop, I turn to the sentencing judge’s ruling that ss. 487.051(1) and (2) of the Criminal Code are unconstitutional.
THE SENTENCING JUDGE’S RULING
[48] The sentencing judge provided lengthy reasons for concluding that ss. 487.051(1) and (2) violate ss. 7 and 8 of the Charter insofar as they apply to young persons.
Section 8 of the Charter
[49] Commencing with s. 8, the sentencing judge identified the constitutional issue as follows:
Is the law reasonable which authorizes the taking of DNA samples from young persons found guilty of primary designated offences?
[50] The sentencing judge answered that question as follows in respect of s. 487.051(1):
Section 487.051(1) authorizes mandatory orders. Where a court is required to impose a mandatory order upon a finding of guilt, it has no possibility of balancing the interests involved through the lens of the Youth Criminal Justice Act. This mandatory procedure is unfair and unreasonable. Indeed, it is a strange circumstance that requires a Youth Justice Court to determine a DNA application, but prevents that court from considering the principles of the Youth Criminal Justice Act when doing so. In the result, I find that s. 487.051(1) is an unreasonable law and violates the applicants’ rights under s. 8 of the Charter.
[51] In arriving at that conclusion, the sentencing judge considered La Forest J.’s observation in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 428, that in balancing the importance of the state objective against the degree of impact on an individual’s privacy interest, the court should find “some means of identifying those situations where we should be most alert to privacy considerations”, referred to by some as “zones or realms of privacy”. Taking her cue from that comment, the sentencing judge determined that the YCJA “mandates a zone or realm of privacy for young persons, which requires that the court be alert to privacy considerations in the case of young people found guilty of criminal offences”. This meant that in assessing “the existence of a reasonable expectation of privacy”, the court had to “recognize a distinction between the case of adults found guilty of designated offences and those of young persons”.
[52] The sentencing judge then considered various provisions of the YCJA that illustrate the “high expectation of privacy within the criminal justice system” enjoyed by young people. Among them, Part 6 represents “perhaps the most cogent expression of this philosophy”, the intent of which is “to avoid labelling and stigmatization of young people who have committed criminal offences”, lest their “prospects for rehabilitation” be damaged. While recognizing, per Charron J. in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 43, that adults convicted of designated offences could not “reasonably expect to retain any degree of anonymity vis-à-vis law enforcement authorities after their conviction”, the same did not necessarily follow in respect of young persons, particularly in view of Part 6 of the YCJA which “protects the identity of young people before, during, and after they are subject to proceedings under the Act”.
[53] Having determined that young people “found guilty of designated offences have a reasonable expectation of privacy in their DNA”, the sentencing judge explained the effect of s. 487.051(1) on the privacy interest of young offenders as follows:
I find it fair to state that in making DNA orders against a young person found guilty of a designated offence, the court is compelling persons who have arguably the highest right to privacy in the criminal justice system to produce to the state the highest level of personal and private information. [Emphasis added.]
[54] Viewed through the lens of the YCJA, including s. 3(1)(d), which entitles young persons “to participate in the processes ... that lead to decisions that affect them”, and s. 140, which states that “the provisions of the Criminal Code apply [to the YCJA] with any modifications that the circumstances require”, the sentencing judge stated:
I take these sections to mean that despite the specific procedure provided in the DNA legislation, the Youth Justice Court must deal with DNA applications by taking into account the principles and characteristics of the Youth Criminal Justice Act. To the extent that the DNA legislation prevents or obstructs the court from engaging in this reasoning it fails to meet constitutional standards.
[55] The sentencing judge applied similar reasoning to s. 487.051(2) in concluding that it also failed to meet minimal constitutional standards. In her view, placing “the burden on the young person ... to demonstrate an impact on his privacy which is grossly higher than that protected by the Youth Justice legislation” creates “a standard which would be almost impossible to meet”. As such, s. 487.051(2) “prevents a fair balancing” of the young person’s privacy rights against the state interests and results in a “procedure” that is “unfair and unreasonable”.
[56] Before turning to s. 7 of the Charter, the sentencing judge referred to the “substantial expansion in the nature and number of designated offences” that Parliament had chosen to identify as primary designated offences. She noted that ss. 487.051(1) and (2) capture a wide variety of offences such as robbery, assault causing bodily harm and breaking and entering into a dwelling house – offences that “are commonly committed by young persons” and that may be “relatively minor on the facts”. The result of these legislative changes meant that “there would be a substantial increase in DNA orders involving young persons”. She also took these changes to mean that Charron J.’s description of designated offences at para. 43 of Rodgers as “the more serious offences under the Code and offences in respect of which it may reasonably be expected that DNA may be left behind by the offender” was no longer an accurate description.
[57] The sentencing judge next turned to the evidence of the Crown expert witnesses concerning the removal and destruction of DNA records in accordance with the governing legislative provisions. In doing so, she quoted from Ms. Trudel’s testimony as follows:
Ms. Trudel also testified that the DNA sample used to generate the DNA profiles of a young person for comparative purposes forms only a portion of the total bodily substance provided by the person. The remaining bodily substances, which contain the entire genetic makeup of the sample providers, are not destroyed. They are maintained indefinitely in the National DNA Data Bank, in the same manner as the bodily substances and DNA profiles of adults, which are retained indefinitely.
The sentencing judge then continued as follows:
It may be argued that the numerous safeguards incorporated in the DNA legislation are a complete answer to the privacy concerns of young persons. I would disagree. First of all, I am not satisfied that removal of access to and destruction of samples of DNA taken from young persons is actually taking place in accordance with the legislation. Secondly, it has been established in evidence before me that, while access to the DNA profile may have been severed in a very small percentage of cases, the DNA sample containing the entire genetic make-up of the young person is never destroyed. There may be good scientific reasons for retaining DNA samples rather than profiles, but the fact remains that by retaining the DNA samples, a young person’s privacy is vulnerable to future changes to the legislation, or to the handling of DNA samples. [Emphasis added.]
[58] I pause here to note that these passages reveal two serious factual errors.
[59] First, Ms. Trudel did not state that “[t]he remaining bodily substances, which contain the entire genetic make-up of the sample providers, are not destroyed.” On the contrary, she said precisely the opposite.
[60] Second, the record does not support the sentencing judge’s finding that “removal of access to and destruction of samples of DNA taken from young persons is [not] actually taking place in accordance with the legislation.” That finding is a product of the sentencing judge’s misunderstanding of the statistical evidence before her and is patently wrong, as will be explained below.
[61] Notably, in this court, the respondents made no attempt to uphold these factual errors. I will have more to say about them in due course.
Section 7 of the Charter
[62] The sentencing judge also concluded that ss. 487.051(1) and (2) violate “the psychological security” of young persons, contrary to s. 7 of the Charter, for the following reasons:
Although the DNA Identification Act strictly controls the release of the information acquired through DNA sampling, this privacy safeguard does not protect a young person from the psychological impact of knowing he has surrendered to the state his most basic and extensive personal information. I believe that for a young person to carry with him or her into adulthood the knowledge that this private information is in a police data bank is a serious psychological burden, and one that is contrary to the anti-labelling philosophy of the Youth Criminal Justice Act.
[63] Having found a “threshold violation of the young persons’ rights to privacy and security of the person under s. 7”, the sentencing judge moved to the second stage of the analysis and found that the violations were inconsistent with the principles of fundamental justice:
The application of s. 487.051(1) and (2) to young persons breaches the presumption of reduced culpability of young persons. This presumption is a principle of fundamental justice.
[64] The sentencing judge completed her s. 7 analysis as follows:
I find that s. 487.051(1) does not permit the court to consider the implications of the presumption of the diminished moral blameworthiness of young persons in the DNA context and thereby undermines [the] entire rationale of the Youth Criminal Justice Act as I have explained it in these reasons. I find further that s. 487.051(2), which contains a rebuttable presumption that the order should be made, unfairly deprives the young person of the benefit of this presumption.
Constitutional Remedy
[65] After holding that ss. 487.051(1) and (2) are not saved by s. 1 of the Charter because the means chosen to achieve the objectives of the DNA legislation do not minimally impair the constitutional rights in question, the sentencing judge turned to the issue of remedy.
[66] In arriving at what she considered to be an appropriate remedy, the sentencing judge stated:
[A] court considering a DNA application must have the discretion to consider the principles of the Youth Criminal Justice Act in arriving at a determination. Judicial discretion is constitutionally required in order to provide a mechanism for balancing the rights of the young person and those of the state. Section 487.051(1) deprives the court of discretion and cannot be saved. Section 487.051(2) places an unconstitu-tional burden on the young person, cannot be reworded, and therefore cannot be saved.
[67] Faced with these difficulties, the sentencing judge turned to s. 140 of the YCJA[^3] and found that it could be applied to modify and save the legislative scheme. In particular, the sentencing judge declared that for “purposes of process”, the test set out in s. 487.051(3) for secondary designated offences should be applied in the case of youths found guilty of primary designated offences.
[68] The sentencing judge concluded this aspect of her reasons as follows:
Section 487.051(3) permits an individualized inquiry in which the trial judge is able to consider the application “through the lens” of the youth justice legislation. Under s. 487.051(3), the onus is on the Crown to make the application and thus the Crown bears the burden of persuasion. Shifting the onus is consistent with recognizing the presumption of diminished culpability. The public interest is protected because “the best interests of the administration of justice” includes a consideration of the valid purposes of the DNA legislation. The enumerated factors allow the court to consider the youth’s youth criminal justice record, and the nature and circumstances of the offence, factors which courts have always considered in relation to DNA orders. In addition, the court can consider the impact of the order on the young person’s privacy and security interests as they are understood in the particular case and in the Youth Criminal Justice Act. This solution respects the intention of parliament as expressed in the Youth Criminal Justice Act, and the important purposes served by the DNA legislative scheme.
ISSUES
[69] On the facts of the two appeals before us, the only live constitutional issue is whether s. 487.051(1) is constitutional as it relates to young offenders. This is because both respondents were found guilty as young offenders of “super-primary” designated offences, thereby triggering the application of s. 487.051(1).
[70] However, the sentencing judge also declared s. 487.051(2) unconstitutional as it relates to young offenders because some of the offenders - who are not involved in these appeals - were found guilty of “primary” designated offences. Although the constitutionality of s. 487.051(2) is not strictly before us, similar constitutional considerations apply in respect of both provisions. In the interests of judicial economy, I will also address the correctness of the sentencing judge’s ruling that s. 487.051(2) is unconstitutional.
[71] Accordingly, I frame the two issues as follows:
• Is s. 487.051(1) constitutional as it relates to young offenders?
• Is s. 487.051(2) constitutional as it relates to young offenders?
Issue 1: Is s. 487.051(1) constitutional as it relates to young offenders?
[72] The majority decision of the Supreme Court of Canada in Rodgers frames the analytical approach to the constitutional issues. In Rodgers, at para. 23, Charron J. agreed with the Crown’s position that, in assessing the constitutionality of a DNA seizure order under s. 487.055 of the Criminal Code, it was unnecessary to conduct a constitutional analysis under both ss. 7 and 8 of the Charter “not because s. 7 is not triggered, but because s. 8 provides a more specific and complete illustration of the s. 7 right in this particular context, making any s. 7 analysis redundant.” See also R. v. Mills, [1999] 3 S.C.R. 668, at para. 88.
[73] Similarly, the interests at stake in this case, including procedural fairness, psychological security and the presumption of reduced culpability for young persons, are protected by the reasonableness inquiry mandated by s. 8 of the Charter. Hence, I believe it was unnecessary for the sentencing judge to engage in a separate s. 7 analysis.
[74] Turning to the analytical approach to be taken to the alleged s. 8 violation, the central issue is whether s. 487.051(1), which authorizes the mandatory collection of DNA samples in certain limited circumstances, is a reasonable law. In Rodgers, Charron J. observed, at para. 27, that drawing the constitutional line of reasonableness becomes a function of both the importance of the state objective and the degree of impact on the individual’s privacy interest.
[75] After citing the seminal s. 8 decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, Charron J. noted, at paras. 35-37, that the specific Hunter criteria for assessing the reasonableness of a search[^4] are inapplicable in the present context. That is because unlike in the context of investigative searches conducted with or without a warrant, a provision authorizing a post-conviction seizure of DNA does not target suspected offenders in respect of particular offences. Rather, it targets offenders who have been convicted of a specified category of offences solely for the purpose of creating DNA profiles for inclusion in the NDDB. I therefore propose to consider the reasonableness of the impugned provision by balancing the competing state and individual interests against the backdrop of the majority’s s. 8 analysis in Rodgers.
[76] The respondents maintain that s. 487.05(1) is not reasonable primarily because it does away with prior judicial authorization. According to the respondents, prior judicial authorization is a constitutional prerequisite to the collection of DNA samples for NDDB purposes, be it from adults or young persons.
[77] The Crown disagrees. It submits that when s. 487.051(1) is considered in context, it does not overstep the constitutional line of “reasonableness”. According to the Crown, society’s interest in collecting DNA samples from the limited class of persons affected greatly overshadows the degree of impact that collection orders have on their privacy interests. Hence, the need for prior judicial authorization may safely be eliminated without offending minimal constitutional standards.
[78] Before addressing these competing positions, I wish to make two observations.
The importance of the state objective
[79] Little need be said about the importance of DNA evidence and the positive impact it has had on law enforcement and the administration of justice as a whole. In Rodgers, at para. 4, Charron J. succinctly explained its value to society as follows:
There is no question that DNA evidence has revolutionized the way many crimes are investigated and prosecuted. The use of this new technology has not only led to the successful identification and prosecution of many dangerous criminals, it has served to exonerate many persons who were wrongfully suspected or convicted. The importance of this forensic development to the administration of justice can hardly be overstated. [Emphasis added.]
[80] One of the first appellate decisions to address the constitutionality of the DNA data bank legislative scheme was this court’s decision in R. v. Briggs (2001), 55 O.R. (3d) 417 (C.A.). On behalf of the court, Weiler J.A., at para. 22, recognized that the purpose of the scheme went well beyond the immediacy of a particular investigation into a specific crime:
In this case, the state’s interest is not simply one of law enforcement vis-à-vis an individual – it has a much broader purpose. The DNA data bank will: (1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).
[81] Weiler J.A.’s description of the many benefits that society derives from the collection of DNA samples has received universal approval and was described at para. 32 of Rodgers as a correct articulation of the broader “purpose of the legislative scheme”.
[82] In light of Briggs and Rodgers, the importance of the state objective in enacting the DNA data bank legislative scheme, both as it relates to adults and young offenders, can scarcely be doubted. Indeed, I would describe its worth as inestimable in cases such as where the NDDB facilitates the apprehension of a serial sexual predator, or the exoneration of a person who has been wrongfully convicted.
[83] Accepting that the state objective in collecting DNA for data bank purposes ranks extremely high on the importance scale, a law that authorizes its collection must nonetheless be tested against the degree of impact it has on the individual’s privacy interest. Only then can one determine whether the law impermissibly crosses the “constitutional line of reasonableness”.
The degree of impact of s. 487.051(1) on an individual’s privacy interest
[84] Rodgers is especially helpful in identifying the degree of impact that a collection order has on the privacy interest of an individual who has been found guilty of a serious crime and whose DNA is being collected solely for identification purposes. While Rodgers involved an adult offender, in my view, Charron J.’s analysis must inform a consideration of the impact of a mandatory DNA collection order on the privacy interest of a young offender, even though additional considerations will be brought to bear in this context.
[85] At issue in Rodgers was the constitutionality of s. 487.055 of the Code, a provision that allowed the Crown to apply ex parte for a DNA collection order from certain offenders who were convicted and sentenced prior to the proclamation of the DNAIA. In general terms, the targeted offenders consisted of dangerous offenders, multiple murderers and multiple sex offenders who were still serving lengthy prison terms at the time of the application.
[86] In assessing the impact of DNA sampling on the privacy interest of the affected individuals, Charron J. observed, at para. 39, that sampling interferes only “modestly” with a person’s physical integrity and “raises no greater constitutional concern in respect of the physical security of the person than does fingerprinting or the other identification procedures considered in Beare [R. v. Beare, [1988] 2 S.C.R. 387].”
[87] Turning to the informational component of privacy, while Charron J. recognized at para. 40 that the impact from obtaining DNA samples was potentially “far more significant” than with fingerprinting, she found the risk of misuse had been addressed by legislative safeguards[^5] that strictly limit the use of samples collected for data bank purposes:
The potential impact on the informational component of privacy, however, is far more significant. It was also discussed in S.A.B. [2003] 2 S.C.R. 678 and the Court recognized that “[t]here is undoubtedly the highest level of personal and private information contained in an individual’s DNA” (para. 48). It is mainly for that reason that Mr. Rodgers submits that the analogy to fingerprinting does not assist in assessing the constitutionality of the DNA data bank regime. Mr. Rodgers correctly notes that DNA can reveal personal information that goes far beyond the identity of the person. However, his argument ignores the legislative provisions enacted in furtherance of the statement of principle contained in s. 4 of the DNA Identification Act where Parliament expressly recognizes and declares that safeguards must be placed to protect the privacy of individuals. These safeguards, described earlier in this judgment, strictly limit the use that can be made of samples obtained for inclusion in the data bank to the comparison of offender profiles with crime scene profiles for identification only. [Emphasis in original.]
[88] Thus, in Mr. Rodgers’ case, although he retained “a residual privacy interest in the information contained in his DNA samples”, Charron J. was satisfied, at para. 42, that in restricting the use of such samples to an “identification tool only, Parliament has
adequately answered any heightened concern about the potentially powerful impact that DNA sampling has on the informational privacy interests of the individual” (emphasis in original).
[89] Having addressed the limited impact of DNA sampling on the informational component of the right to privacy, Charron J. turned to the remaining question, namely, whether Mr. Rodgers had any reasonable expectation of privacy in respect of his identity in the circumstances. She found that he did not. The DNA collection scheme was confined to offenders who had been convicted of designated offences under s. 487.04 of the Code – offences which Charron J. described at para. 43 as generally “the more serious offences under the Code and offences in respect of which it may reasonably be expected that DNA may be left behind by the offender.” In Charron J.’s view, persons convicted of designated offences could not expect to retain any degree of anonymity vis-à-vis law enforcement authorities after their conviction. In this respect, she agreed with the following observation of Bateman J.A. in R. v. Murrins (2002), 201 N.S.R. (2d) 288 (C.A.), at para. 41:
A person convicted of a designated offence would reasonably expect the authorities to gather and retain identifying information, such as fingerprints, distinctive body markings, or eye color. The bodily sample here is simply another form of identification.
[90] Charron J. concluded this aspect of her reasons, at para. 43, by observing that, as a result of his crimes, Mr. Rodgers had “become a matter of state interest” and he had “lost any reasonable expectation of privacy in the identifying information derived from DNA sampling in the same way he has lost any expectation of privacy in his fingerprints, photograph or any other identifying measures taken under the authority of the Identification of Criminals Act” (emphasis in original). In the result, she held, at para. 44, that the data bank provisions in issue “strike an appropriate balance between the public interest in the effective identification of persons convicted of serious offences and the rights of individuals to physical integrity and the right to control the release of information about themselves.”
[91] Charron J.’s reasons in Rodgers make it clear that the degree of impact of a DNA collection order on the privacy interest of an adult offender who has been found guilty of a serious offence and whose DNA is collected solely for forensic identification purposes is negligible, whereas the state interest in requiring DNA sampling is significant. In light of Rodgers, the issue for present purposes is whether the features of s. 487.051(1) that were not considered in that case – namely, the mandatory nature of the DNA collection order, and the impact of such an order on the privacy interest of young offenders – alter the constitutional outcome.
[92] Against that backdrop, I turn to the reasons of the sentencing judge with a view to discussing what I believe, with respect, are errors that she made in the course of her s. 8 analysis.
Errors in the sentencing judge’s s. 8 analysis
[93] The sentencing judge concluded that the mandatory quality of s. 487.051(1) and the nature and extent of its impact on the privacy interest of young offenders distinguish Rodgers and result in a finding that the provision violates s. 8 of the Charter. In my view, the sentencing judge erred in this regard. As I will explain, the sentencing judge significantly overstated the gravity of the impact of mandatory DNA collection orders on the privacy interest of young offenders and failed to pay adequate regard to the state interest advanced by the impugned provision.
[94] The first difficulty I have with the sentencing judge’s analysis relates to the way in which she characterized the nature of the privacy interest at stake in the case of young offenders. She began her s. 8 analysis by citing Dyment, in which La Forest J. spoke of finding “zones or realms of privacy”. Taking her cue from that comment, the sentencing judge made a finding that the YCJA “mandates a zone or realm of privacy for young persons”.
[95] With respect, the sentencing judge erred in this regard. Describing a group of similarly-situated individuals as benefitting from a “zone” of privacy in the sense intended by La Forest J. in Dyment is conceptually misconceived. The concept of “zones” or “realms” of privacy is designed to shed light on all of the legal interests that fall under the rubric of “privacy”. La Forest J. identified three sets of zones: territorial, personal and informational. Each describes an aspect of privacy that is applicable to anyone. The categories assist in identifying the full range of privacy interests that are engaged in any particular factual and legal set of circumstances. They do not, and were never meant to, catalogue group entitlements. And yet, that is precisely what the sentencing judge did in finding that the YCJA mandates “a zone or realm of privacy” for young persons.
[96] The Crown submits that the sentencing judge’s error was not inconsequential. It had ramifications in respect of her legal analysis. I agree, and adopt as correct, the following submission at para. 102 of the Crown’s factum:
Because the zones of privacy refer to constitutionally protected privacy interests, [the sentencing judge’s] finding that the YCJA created a zone of privacy effectively transmuted the YCJA into a constitutional instrument. By means of this legal alchemy, [the sentencing judge] posited an a priori “distinction between the cases of adults found guilty of designated offences and those of young persons”. The principles animating the YCJA thus became the yardstick for Charter compliance so that “[t]o the extent the DNA legislation prevents or obstructs the court from” examining whether an order is appropriate “through the lens” of the YCJA, “it fails to meet constitutional standards.” [Emphasis in original.]
[97] To be clear, my concern lies in the fact that the sentencing judge “transmuted the YCJA into a constitutional instrument”. By doing so, she effectively pre-empted the debate as to whether a mandatory law affecting the privacy interests of a young person can ever meet minimal constitutional standards. That is a very different proposition from one which recognizes the heightened expectation of privacy that young persons are clearly afforded under the YCJA. No one questions that. The issue to be decided is whether Parliament has adequately accounted for those heightened expectations in the DNA data bank legislation under review.
[98] A second error committed by the sentencing judge, in my respectful view, is that she overstated the impact of DNA collection orders on the privacy interests of young offenders by failing to consider the legislative safeguards that restrict the use to which information about a young offender’s identity may be put. The sentencing judge found, at para. 29, that “in making DNA orders against [young persons], the court is compelling persons who have arguably the highest right to privacy in the criminal justice system to produce to the state the highest level of personal and private information” (emphasis added).
[99] While that statement may be technically accurate, it fails to recognize the impact of the legislative safeguards described by Charron J. in Rodgers in para. 11 (c) to (l), which Parliament has put in place to ensure that DNA samples taken from young persons (as well as adults) are used solely for forensic identification purposes by law enforcement officials and nothing else. In the face of those safeguards, to suggest that young persons are being forced to give up the “highest level of personal and private information” about themselves presents an incomplete picture. As Charron J. concluded in Rodgers, while DNA is capable of revealing personal information that goes “far beyond the identity of the person”, the legislative safeguards protect the privacy of individuals by strictly limiting “the use that can be made of samples obtained for inclusion in the data bank to the comparison of offender profiles with crime scene profiles for identification only” (emphasis in original).
[100] Moreover, there are additional legislative safeguards in the young offender context which are aimed at protecting the informational privacy of young offenders who are subject to an order under s. 487.051(1). These safeguards apply only to young offenders and were thus not discussed in Rodgers because that case dealt with adult offenders. The additional safeguards are described in detail above at paras. 39-44 and relate to the retention period for DNA samples and profiles obtained from young offenders. The applicable legislation requires the removal and destruction of DNA records relating to young persons from the NDDB in accordance with the provisions of Part 6 of the YCJA[^6], which governs the removal and destruction of all records relating to young persons who come into contact with the youth criminal justice system.
[101] In enacting specific retention periods for DNA records in respect of young offenders, Parliament obviously had in mind the special privacy concerns that apply to young persons. By incorporating “youth-specific” safeguards into the legislation, Parliament made sure that the retention of DNA records would be treated no differently than other identification procedures in connection with young persons, such as fingerprinting and photographs.
[102] The sentencing judge did not view the additional legislative safeguards applicable to the DNA records of young offenders in this light. On the contrary, the sentencing judge concluded that the application of Part 6 of the YCJA, which “protects the identity of young people before, during, and after they are subject to proceedings under the Act”, distinguishes a key finding in Rodgers, at para. 43, that persons convicted of designated offences could not “reasonably expect to retain any degree of anonymity vis-à-vis law enforcement authorities” and that such persons had “lost any reasonable expectation of privacy in the identifying information derived from DNA sampling” (emphasis in original). According to the sentencing judge, no such finding could be made in respect of young offenders who are protected by Part 6 of the YCJA. In her view: “[Y]oung persons do not lose a reasonable expectation of privacy in their identity after a finding of guilt, and the reasoning in Rodgers is distinguishable.”
[103] With respect, young persons who have been found guilty of designated offences do lose a reasonable expectation of privacy in their identity vis-à-vis law enforcement authorities while their records remain current under Part 6 of the YCJA. While I agree that different considerations apply once those records are removed and destroyed, the fact that the governing legislation may impose a shorter timeframe within which law enforcement agencies can access the DNA profiles of young offenders for forensic identification purposes does not tell against the constitutionality of s. 487.051(1). In my view, it does precisely the opposite.
[104] The sentencing judge also made erroneous findings of fact regarding the degree of official compliance with these legislative safeguards. In concluding that s. 487.051(1) is unconstitutional in respect of young persons, the sentencing judge was clearly influenced by her factual findings that:
• the DNA sample which contains the entire genetic make-up of the young person is never destroyed; and
• the authorities are not removing and destroying DNA samples taken from young persons in accordance with the governing legislative provisions.
[105] While I need not decide the matter, it seems to me that a systemic failure on the part of those responsible for implementing the legislative safeguards designed to protect the privacy interests of all DNA donors, and those of young persons in particular, could call into question the constitutionality of the entire DNA data bank regime.[^7] Certainly, in the case of young persons, the removal and destruction of their DNA samples and related records in accordance with Part 6 of the YCJA is vital and one of the key features of the DNA data bank legislative scheme that distinguishes the treatment of young persons from adults.
[106] In any event, I am satisfied that the sentencing judge misapprehended the evidence in reaching the two factual findings noted above. The sentencing judge’s finding that the young offender’s DNA sample is never destroyed conflicts with the evidence of Isabelle Trudel of the NDDB, who testified that when the prescribed retention period expires, the biological collection card associated with the offender is destroyed and the profile is deleted from CODIS.
[107] The sentencing judge’s other factual finding to the effect that authorities are not complying with the legislated timeframes for destroying DNA records was based on her interpretation of statistical evidence that, between June 30, 2000 and January 7, 2009, the NDDB received 21,169 DNA samples from young persons, and by the end of this period, only 535 of these samples had been destroyed. After expressing doubt that 97.5% of young people had re-offended in a way that would extend the records retention period, the sentencing judge interpreted these figures as “evidence of a failure to comply with the provisions of the DNA Identification Act”.
[108] However, the sentencing judge failed to consider reasons other than recidivism to explain why a young offender’s DNA records would still be in the NDDB at the end of the period she was considering. As the Crown points out, the reason why so many of the DNA records of young offenders remained in the NDDB was simply because the retention period for the majority of the 21,169 DNA samples received had not yet expired.
[109] The importance of the sentencing judge’s erroneous factual findings can scarcely be overstated. Following the release of her constitutional ruling, the Standing Senate Committee on Legal and Constitutional Affairs received an Order of Reference from the Senate to study the provisions and operations of the DNAIA. See Debates of the Senate, 40th Parl., 2nd Sess., Vol. 146, No. 13 (26 February 2009) at p. 285. One task undertaken by the Standing Committee was to look into the retention and destruction of young offenders’ DNA samples and profiles stored at the NDDB. At p. 45 of the resulting report, the Committee explained its reason for doing so:
In certain recent cases involving DNA collection from young offenders, courts have expressed serious concerns about the fact that they had evidence before them to indicate that neither the DNA samples nor the DNA profiles of young offenders convicted of designated offences were being destroyed or archived by the Data Bank as required. The Committee decided, as a result, to inquire further into this matter during its statutory review.[^8]
[110] At pp. 45-47 of its report, the Committee reviewed the statutory regime relating to the retention and destruction of DNA samples from young persons. It explained the steps it had taken to investigate the concerns raised by the courts and the results of its findings:
While the above rules are certainly complex, and therefore likely challenging to administer, we are of the view that the Data Bank should nevertheless be required to comply with its own enabling statute. Accordingly, during our study, we asked representatives from the Department of Justice and the Data Bank to provide the committee with any available statistics regarding the retention of DNA samples and profiles of young offenders, and an explanation of why so many samples were being retained. We wished to learn whether the concerns expressed by judges in certain cases were valid, and whether there were problems with respect to recordkeeping at the Data Bank that needed to be addressed. On 18 June 2009, we received a letter from the then Minister of Public Safety, the Honourable Peter Van Loan, summarizing the results of an internal review the Data Bank conducted of all DNA samples and profiles it had received from convicted young offenders between 1 June 2000 and 6 April 2009. Of the 21,743 samples and profiles received by the Data Bank during that period, we were advised that:
• 20,865 were linked to criminal records that had not yet reached the end of their retention periods (10,403 being still within their original 3 or 5 year retention period, 2,619 having been archived for an additional five years because they were taken in relation to a schedule offence, 7,569 having been converted to an adult file because the individual committed an offence as an adult within the retention period, and 256 having been retained in accordance with other provisions of the YCJA); and
• 878 records had reached the end of their retention periods, with the samples and profiles either having already been removed or destroyed, or in the process of being removed or destroyed, by 6 April 2009.
It would appear, based on the above information, that the Data Bank is retaining and destroying the samples of young offenders convicted of designated offences in accordance with the requirements outlined in sections 9, 9.1, 10 and 10.1 of the DNA Identification Act. The committee was gratified to learn that this is the case, particularly given the emphasis that section 3(1)(b)(iii) of the YCJA places on the need to provide enhanced procedural protections for the privacy rights of young persons. If the courts that had expressed concerns about retention of DNA samples and profiles at the Data Bank had had this information, it might well have influenced their decisions. For this reason, the committee recommends that the Data Bank publish, in its annual reports, statistics on the number of DNA samples and profiles of adult and young offenders contained in the Data Bank, as well as the reasons for why they are being retained, as was done for us in the letter we received from the former Public Safety Minister. This should help to avoid any future confusion, by the courts or by Parliament, regarding how the Data Bank is implementing its records retention and destruction policies.
[111] In sum, I am respectfully of the view that because of the erroneous factual findings regarding record retention practices, the sentencing judge failed to properly consider in the s. 8 analysis the important legislative safeguards protecting the privacy interests of young offenders under the DNA data bank regime and significantly overstated the degree of impact that DNA sampling has on the privacy interests of young persons.
How the competing state and individual interests should be balanced under s. 8
[112] As was explained by Charron J. in Rodgers, at para. 39, rather than viewing DNA sampling as a serious intrusion on privacy interests: “a useful analogy can be drawn between DNA sampling and fingerprinting in considering the impact on the privacy interest of the concerned individuals”. As I understand her reasons, Charron J. felt that the analogy was apposite because fingerprinting and DNA sampling share many of the same defining characteristics, including:
• they serve an important societal interest having regard to the wide variety of reasons for which they may legitimately be used (para. 41);
• they interfere minimally with the physical security of the individual (para. 39);
• their use is restricted to that of an identification tool only (para. 42);
• they are obtained from persons who have committed or, in the case of fingerprints, are alleged to have committed, an indictable offence and thus, have a greatly reduced expectation of privacy (paras. 41 and 42); and
• the identity of persons who have been found guilty of certain serious crimes is a matter of state interest and such persons lose any reasonable expectation of privacy in the identifying information derived from DNA sampling and fingerprinting (para. 43).
[113] Once it is accepted that DNA sampling is analogous to fingerprinting in terms of its impact on a person’s privacy interest, the answer to the first issue left open in Rodgers – whether prior judicial authorization is a constitutional prerequisite to collecting bodily samples for DNA data bank purposes – becomes relatively straightforward.
[114] Prior judicial authorization is not a constitutional prerequisite to the taking of fingerprints. This was made clear in Beare, where the legislation requiring a person to appear for fingerprinting under the Identification of Criminals Act, R.S.C. 1970, c. I-1 following a charge but before conviction, was challenged on the ground that it contravened ss. 7 and 8 of the Charter, among other Charter provisions.
[115] At para. 41 of Rodgers, Charron J. noted that “[t]he impact on the privacy interest of the person resulting from being subjected to fingerprinting, observation, photographing, and other measurements was considered as part of the Court’s s. 7 analysis.” The following excerpts from p. 413 of Beare, quoted by Charron J. in Rodgers, are applicable here:
It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it.
I am unable to accept that a provision providing for fingerprinting as an incident of being taken into custody for a serious crime violates the principles of fundamental justice. While a search of one’s premises requires a prior authorization based on reasonable and probable grounds to believe both that the offence has been committed and that evidence will be found, the custodial fingerprinting process is entirely different. It involves none of the probing into an individual’s private life and effects that mark a search.
[116] I recognize that Beare must be approached with caution. Just because prior judicial authorization is not a constitutional prerequisite for fingerprinting does not mean that it is not a constitutional prerequisite for DNA sampling. Manifestly, the analogy between the two is not exact.
[117] Unlike fingerprinting, DNA sampling involves some penetration or probing into the body and the removal of a substance from it. Unlike fingerprinting, DNA has an informational component that could reveal “the highest level of personal and private information” about an individual: R. v. S.A.B., [2003] 2 S.C.R. 678, at para. 48 and R. v. R.C., [2005] 3 S.C.R. 99, at para. 27.
[118] But those differences, in my view, are either inconsequential or are more than adequately made up for by the highly important societal interests served by DNA evidence, as well as by the legislative safeguards restricting the use of DNA information and by the stringent preconditions that must be met to bring about a mandatory collection order under s. 487.051(1) of the Code.
[119] In terms of what I consider to be inconsequential differences between fingerprinting and DNA sampling, the probing involved in the collection of DNA is minimal and, as Charron J. observed in Rodgers, at para. 39, it “raises no greater constitutional concern in respect of the physical security of the person than does fingerprinting”.
[120] Charron J. recognized that DNA sampling raises informational concerns that do not exist with other identifying procedures such as fingerprinting. However, at para. 40, she concluded that these concerns do not undercut the analogy to fingerprinting “in assessing the constitutionality of the DNA data bank regime.” The legislative safeguards that strictly limit the use of information obtained from DNA samples to identification purposes in the law enforcement context protect the privacy interests of individuals, including young offenders.
[121] I accept that young persons who have been charged and/or found guilty of a serious criminal offence retain an expectation of privacy in their identity vis-à-vis the public at large that adults do not. In my view, however, they are in the same position as adults when it comes to retaining an expectation of privacy in their identity vis-à-vis law enforcement authorities, subject of course to the special provisions that call for the eventual removal and destruction of their records under Part 6 of the YCJA.
[122] In addition, a comparison between the prerequisites needed for a mandatory collection order under s. 487.051(1) and the prerequisites needed for fingerprinting reveals that there are much more stringent requirements that must be met before a mandatory DNA collection order will be imposed. Fingerprints may be taken from a young person where there are reasonable and probable grounds to believe that the person has committed an indictable offence. Proof of guilt is not required. And because indictable offences include hybrid offences, fingerprints can be taken upon arrest for relatively minor offences such as shoplifting or common assault.
[123] By comparison, under s. 487.051(1), mandatory DNA collection orders may only be made in respect of young offenders who have been found guilty, in accordance with the criminal standard of proof, of one or more serious crimes as designated by Parliament and referred to as “super-primary” offences.
[124] This observation leads to another concern expressed by the sentencing judge during the course of her reasons. According to the sentencing judge, the legislative expansion of the list of designated offences means that such offences can no longer be characterized as “the more serious offences” under the Criminal Code; nor can it be said that they involve offences for which it could reasonably be expected that the offender would leave DNA behind. The list of offences caught by s. 487.051(1) includes offences such as murder, aggravated sexual assault, kidnapping, robbery, and extortion: see Appendix A for the full list. Pointing to the offence of robbery, the sentencing judge expressed concern that this offence in the young offender context could be committed in relation to a relatively minor incident, and yet the offender would be required to surrender his or her DNA to the state.
[125] While the sentencing judge made this observation without tying it to either her s. 8 or s. 7 analysis, I wish to briefly explain why the list of super-primary designated offences chosen by Parliament does not detract from the reasonableness of the impugned provision for purposes of s. 8. Virtually all of the super-primary designated offences involve the use of significant violence, threats of violence, and/or the use of weapons. As well, in the case of most of these offences, there is reason to expect that the offender may leave his or her DNA evidence at the crime scene.
[126] I acknowledge that, as a result of the changes made to the DNA data bank legislation in January 2008, more offenders, adult and young persons alike, will be required to provide DNA samples in relation to offences that may on occasion embrace relatively minor conduct. These changes reflect Parliament’s concern about the under-inclusion of DNA records in the NDDB from persons convicted of designated offences, a problem that has existed since the inception of the NDDB.[^9]
[127] The problem of under-inclusion can be explained by a number of factors. These include Crown oversight in seeking DNA orders as well as a failure on the part of judges to make DNA orders when they are warranted. On February 24, 2009, more than a year after the impugned legislation had been enacted, the Honourable Peter Cory, in his capacity as a member of the NDDB Advisory Panel, testified before the Standing Committee on Public Safety and National Security. He expressed concern that DNA orders were not always being made as required:
Yes. Some things I cannot comprehend. If you take the original designated offences, very serious crimes, there should be an automatic 100% filing of the sample on the conviction of the individual, and there isn't. I don't know how to explain that. It may be a working of judicial independence, I don't know, but that sort of thing is worrisome. That's why if there were to be something done that would be helpful, it would say that once there is a conviction there would be an automatic taking in those offences that are referred to, and that it would be done probably at the penitentiary. It shouldn't rest in the courtroom, or with the judge or the crown to make sure that he or she requested that the sample be taken. It should be something that's purely automatic.
Justification, if that should be needed, is other independent democratic countries that follow the system, certainly Britain, France, Germany, and the European community, and most of the states in the U.S. It's something that could improve, because the magic is the more samples within the data bank, the more hits that are obtained, the more crimes solved.[^10]
[128] Although the compulsory and presumptive orders contemplated by ss. 487.051(1) and (2) do not go as far as the Honourable Mr. Cory suggests they should, they go some distance towards correcting the problem of under-inclusion. The state interest in expanding the reach of the NDDB must be given substantial weight in assessing the reasonableness of the impugned legislation.
[129] It must also be remembered that it is of no consequence to the constitutional analysis that Parliament may have legislated beyond minimal constitutional requirements in its earlier legislation by requiring prior judicial authorization and by defining more narrowly the list of offences in relation to which a DNA collection order could be made. As Charron J. observed in Rodgers, at para. 49:
Parliament and the legislatures can, and often do, legislate beyond minimal constitutional requirements on matters engaging constitutionally guaranteed rights and freedoms. It would be an unfortunate result if legislators became hesitant to do so for fear of expanding their constitutional obligations.
[130] In summary, s. 487.051(1) allows the state to obtain DNA samples from young persons who have committed one or more offences that will typically involve the use of violence, threats of violence and/or the use of weapons. As well, in the case of many, if not most of these offences, there is good reason to expect that DNA will be left behind by the offender. Requiring young persons to provide DNA samples in these circumstances for a limited purpose and for a limited period of time[^11] is, in my view, eminently reasonable.
[131] Far from amounting to a gross invasion of privacy that forces young persons “to produce to the state the highest level of personal and private information” and affords the state “virtually infinite” access to “the most intimate details of a person’s biological make-up”, the reality is that for young persons, DNA sampling does not even lead to a general loss of their identity, much less the intimate details of their biological make-up. The Crown puts the matter correctly at para. 69 of its factum:
[I]nclusion in the data bank does not, in fact, result in a general and pervasive loss of privacy in one’s identity. Only DNA left at the scene of designated crimes is entered into the crime scene index. Accordingly, what differentiates someone whose DNA profile is included in the convicted offender index from everyone else is that he has lost the right to retain his anonymity in relation to bodily substances he leaves at certain crime scenes. The impact of the order on his informational privacy interest is co-extensive with that loss of anonymity. [Emphasis added.]
[132] On the other side of the balancing exercise is the state interest in enacting the impugned provision. I have already described the important state objectives served by the NDDB. Suffice it to say that the societal interests served by the collection of DNA samples for inclusion in the NDDB are many and varied and the importance of the state objective in enacting the data bank scheme ranges from very high to incalculable.
[133] Viewed through the lens of the safeguards that provide special protection to the privacy interests of young persons, I am satisfied that s. 487.051(1) provides a reasonable balance between the important state interests served by the legislation and the privacy interests of young persons. That being so, I conclude that judicial authorization may safely be done away with, and the list of offences expanded to the current list of “super-primary” offences, without offending minimal constitutional standards.
Issue 2: Is s. 487.051(2) constitutional as it relates to young persons?
[134] I would apply similar reasoning to uphold the constitutionality of s. 487.051(2). Many, if not most, of the primary designated offences to which s. 487.051(2) applies are also serious and again, there is good reason to expect that DNA will be left behind by the offender in a large number of cases. That said, Parliament has, for the time being, chosen to legislate from the perspective that there may be instances where the impact on the privacy and security interest of a particular offender grossly exceeds the interest of society in the collection of that person’s DNA for data bank purposes. To that end, it has conferred on the court a limited discretion to refuse to make such an order.
[135] For the reasons already provided, I am not at all persuaded that the impact that presumptively-required DNA sampling may have on the privacy interests of young persons outweighs the state interest in achieving the law enforcement goals served by the NDDB.
Section 7 Considerations
[136] The s. 7 considerations taken into account by the sentencing judge do not alter my view of the constitutionality of the two impugned provisions as they relate to young offenders. Nor would these considerations alter my conclusion on the reasonableness of the impugned provisions for s. 8 purposes. These issues may be dealt with briefly.
Psychological Impact
[137] The sentencing judge found that DNA data bank orders impose “a serious psychological burden [on young persons] and one that is contrary to the anti-labelling philosophy of the YCJA.” She based these findings on the fact that the privacy safeguards built into the legislation do “not protect a young person from the psychological impact of knowing he has surrendered to the state his most basic and extensive personal information.”
[138] With respect, the sentencing judge either misstated or overstated the effect of DNA orders. Given the safeguards that exist, it is simply wrong to suggest that young persons are required to surrender their most basic and extensive personal information to the state. As explained, young persons are required to surrender their DNA to the state only for identification purposes and in most cases, only for a limited timeframe. That knowledge would, in my view, go a long way towards reducing, if not removing, any psychological impact that DNA sampling may cause.
[139] Moreover, even if some degree of concern persists in the minds of some young persons, s. 7 of the Charter protects against state action having “a serious and profound … impact on the psychological integrity of a person of reasonable sensibility.” It does not protect against “the ordinary stresses and anxieties” that such a person “would suffer as a result of government action”. See New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at paras. 58-60.
[140] In the final analysis, if there is any psychological stigma that is likely to persist and affect the minds of young persons, surely it is the stigma that arises from being found guilty of one or more of the serious crimes identified in ss. 487.051(1) and (2). Requiring a young person to provide a DNA sample as a consequence of being found guilty of one or more of those crimes pales in comparison: see Rodgers, at para. 64.
Presumption of Diminished Moral Culpability
[141] The sentencing judge’s finding that the mandatory and presumptive orders contemplated by ss. 487.051(1) and (2) breach “the presumption of reduced culpability of young persons” is equally misconceived. The concept of “diminished moral blameworthiness or culpability” relates to questions of punishment. DNA orders are not a form of punishment. They are not contingent on moral blameworthiness. Hence the sentencing judge’s references to the majority decision in R. v. D.B., [2008] 2 S.C.R. 3 are misplaced.
[142] The fact that DNA sampling may deter offenders from committing further crimes does not transform it into a punishment: see Rodgers, at paras. 63-64. In the case of young persons, one of the objectives of the YCJA is to rehabilitate them and reintegrate them into society. To the extent that DNA data bank orders may deter young persons from committing further crimes because of the increased risk of detection, such orders actually promote the important goals of rehabilitation and reintegration.
[143] For these reasons, I conclude that the sentencing judge’s concerns about the constitutionality of ss. 487.051(1) and (2) under s. 7 of the Charter were misplaced.
CONCLUSION
[144] Sections 487.051(1) and (2) are reasonable laws. They achieve a proper balance between the interests of the state and the privacy interests of young offenders. In my view, they do not contravene s. 8 of the Charter.
[145] Accordingly, I would allow the Crown’s appeals in respect of K.M. and D.R. and order them to provide DNA samples in accordance with s. 487.051(1) of the Code. In the case of D.R., because of his medical condition, I would order that his samples be taken by buccal swab.
Signed: “M.J. Moldaver J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree Paul Rouleau J.A.”
RELEASED: “MJM” APRIL 1, 2011
APPENDIX A – List of “Super-Primary” Designated Offences
Criminal Code, R.S.C. 1985, c. C-46, s. 487.04
“primary designated offence”[^12] “primary designated offence” means
(a) an offence under any of the following provisions, namely,
(i) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years),
(ii) section 235 (murder),
(iii) section 236 (manslaughter),
(iv) section 239 (attempt to commit murder),
(v) section 244 (discharging firearm with intent),
(vi) section 244.1 (causing bodily harm with intent — air gun or pistol),
(vi.1) section 244.2 (discharging firearm — recklessness),
(vii) paragraph 245(a) (administering noxious thing with intent to endanger life or cause bodily harm),
(viii) section 246 (overcoming resistance to commission of offence),
(ix) section 267 (assault with a weapon or causing bodily harm),
(x) section 268 (aggravated assault),
(xi) section 269 (unlawfully causing bodily harm),
(xi.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm),
(xi.2) section 270.02 (aggravated assault of peace officer),
(xii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
(xiii) section 273 (aggravated sexual assault),
(xiv) section 279 (kidnapping),
(xv) section 344 (robbery), and
(xvi) section 346 (extortion) [.]
APPENDIX B – List of “Primary” Designated Offences
Criminal Code, R.S.C. 1985, c. C-46, s. 487.04
“primary designated offence” “primary designated offence” means […]
(a.1) an offence under any of the following provisions, namely,
(i) section 75 (piratical acts),
(i.01) section 76 (hijacking),
(i.02) section 77 (endangering safety of aircraft or airport),
(i.03) section 78.1 (seizing control of ship or fixed platform),
(i.04) subsection 81(1) (using explosives),
(i.05) section 83.18 (participation in activity of terrorist group),
(i.06) section 83.19 (facilitating terrorist activity),
(i.07) section 83.2 (commission of offence for terrorist group),
(i.08) section 83.21 (instructing to carry out activity for terrorist group),
(i.09) section 83.22 (instructing to carry out terrorist activity),
(i.1) section 83.23 (harbouring or concealing),
(i.11) section 151 (sexual interference),
(ii) section 152 (invitation to sexual touching),
(iii) section 153 (sexual exploitation),
(iii.1) section 153.1 (sexual exploitation of person with disability),
(iv) section 155 (incest),
(iv.1) subsection 163.1(2) (making child pornography),
(iv.2) subsection 163.1(3) (distribution, etc., of child pornography),
(iv.3) subsection 163.1(4) (possession of child pornography),
(iv.4) subsection 163.1(4.1) (accessing child pornography),
(iv.5) section 172.1 (luring a child),
(v) subsection 212(1) (procuring),
(v.1) subsection 212(2) (procuring),
(v.2) subsection 212(4) (offence — prostitution of person under eighteen),
(vi) section 233 (infanticide),
(vii) section 271 (sexual assault),
(vii.1) section 279.01 (trafficking in persons),
(vii.11) section 279.011 (trafficking of a person under the age of eighteen years),
(viii) section 279.1 (hostage taking),
(ix) paragraph 348(1)(d) (breaking and entering a dwelling-house),
(x) section 423.1 (intimidation of a justice system participant or journalist),
(xi) section 431 (attack on premises, residence or transport of internationally protected person),
(xii) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel),
(xiii) subsection 431.2(2) (explosive or other lethal device),
(xiv) section 467.11 (participation in activities of criminal organization),
(xv) section 467.12 (commission of offence for criminal organization), and
(xvi) section 467.13 (instructing commission of offence for criminal organization),
(xvi.1) to (xx) [Repealed, 2005, c. 25, s. 1]
(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,
(i) section 144 (rape),
(ii) section 146 (sexual intercourse with female under fourteen and between fourteen and sixteen),
(iii) section 148 (sexual intercourse with feeble-minded, etc.),
(iv) section 149 (indecent assault on female),
(v) section 156 (indecent assault on male), and
(vi) section 157 (acts of gross indecency),
(c) an offence under paragraph 153(1)(a) (sexual intercourse with step-daughter, etc.) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988,
(c.1) an offence under any of the following provisions of the Security of Information Act, namely,
(i) section 6 (approaching, entering, etc., a prohibited place),
(ii) subsection 20(1) (threats or violence), and
(iii) subsection 21(1) (harbouring or concealing), and
(d) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit an offence referred to in any of paragraphs (a) to (c);
APPENDIX C – Chart of YCJA DNA Retention Periods[^13]
| Absolute Discharge | Conditional Discharge | Summary | Indictable | Scheduled[^14] Indictable | Presumptive (s.2 YCJA) | |
|---|---|---|---|---|---|---|
| Retention period begins to run | Finding of Guilt (s.119(e) YCJA) | Finding of Guilt (s.119(f) YCJA) | Sentence Completion (s119(g) YCJA) | Sentence Completion (s119(h) YCJA) | End of the 119(g) or (h) retention period (s.120(3) YCJA) | From sentence date (s.9.1(2) and 10.1(2) DNAIA) |
| Original Retention Length | 1 year | 3 years | 3 years | 5 years | 5 additional years | Indefinitely |
| Subsequent Summary Conviction offence as youth | New retention period starts to run (if new DNA order made) and old retention period is not extended | New retention period starts to run (if new DNA order made) and old retention period is not extended | retention extended by later of: 3 years after original retention date or 3 years after sentence for subsequent offence completed (DNAIA s. 9.1(1), 10.1(1)) YCJA s. 119(2)(i)) | retention extended by later of: 3 years after original retention date or 3 years after sentence for subsequent offence completed (DNAIA s. 9.1(1), 10.1(1)) YCJA s. 119(2)(i)) | retention extended by later of: 3 years after original retention date or 3 years after sentence for subsequent offence completed (DNAIA s. 9.1(1), 10.1(1)) YCJA s. 119(2)(i)) | N/A – DNA retained indefinitely under original retention period |
| Subsequent Indictable offence as youth | New retention period starts to run (if new DNA order made) and old retention period is not extended | New retention period starts to run (if new DNA order made) and old retention period is not extended | retention extended by: 5 years after sentence for subsequent offence completed. (DNAIA s. 9.1(1) YCJA s. 119(2)(j)) | retention extended by: 5 years after sentence for subsequent offence completed. (DNAIA s. 9.1(1) YCJA s. 119(2)(j)) | retention extended by: 5 years after sentence for subsequent offence completed. (DNAIA s. 9.1(1) YCJA s. 119(2)(j)) | N/A – DNA retained indefinitely under original retention period |
| Subsequent offence as adult | New adult retention period starts to run (if new DNA order made) and old retention period is not extended | New adult retention period starts to run (if new DNA order made) and old retention period is not extended | Indefinite retention if convicted as an adult during the YCJA retention period DNAIA s. 9.1(2)(b) YCJA s. 119 (9) and 120(6). | Indefinite retention if convicted as an adult during the YCJA retention period DNAIA s. 9.1(2)(b) YCJA s. 119 (9) and 120(6). | Indefinite retention if convicted as an adult during the YCJA retention period DNAIA s. 9.1(2)(b) YCJA s. 119 (9) and 120(6). | N/A – DNA retained indefinitely under original retention period |
[^1]: Sections 7 and 8 of the Charter state:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right to be secure against unreasonable search or seizure.
[^2]: The safeguards aimed at protecting the informational privacy of individuals in accordance with the principles expressed under s. 4 of the DNAIA are listed by Charron J. at para. 11 of R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554. Of the items on that list, items (a) [ex parte judicial authorization] and (b) [the class of offenders caught by s. 487.055(1) of the Code] do not apply to the present cases. The list in Rodgers does not contain the added protections that Parliament has included for young persons.
[^3]: Section 140 of the YCJA provides:
- Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons.
[^4]: As summarized in Rodgers, at para. 29, the three Hunter criteria to which searches and seizures must generally conform are: (i) where possible, the search and seizure must have been approved by prior authorization; (ii) the person authorizing the search must be “capable of acting judicially” in assessing in a neutral and impartial fashion whether a search is appropriate in the circumstances; and (iii) the interests of the individual will yield to the interests of the state where there are reasonable and probable grounds, established under oath, to believe that an offence has been committed and that evidence of this is to be found through the search or seizure.
[^5]: As noted above, the legislative safeguards aimed at protecting the informational privacy of individuals in accordance with the principles of s. 4 of the DNAIA are listed by Charron J. at para. 11 of Rodgers. Of the items on that list, items (a) [ex parte judicial authorization] and (b) [the class of offenders caught by s. 487.055(1) of the Criminal Code] do not apply to the present cases.
[^6]: With the limited exception of offenders convicted of a “presumptive offence” within the meaning of s. 2(1) of the YCJA or where s. 120(6) of the YCJA applies.
[^7]: An across-the-board systemic failure to implement the legislative safeguards is to be distinguished from a failure to implement those safeguards on a sporadic basis. The latter situation would not render the legislation unconstitutional; rather, the constitutional inquiry would be directed at the conduct of the authorities in a particular case. See Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 71 and R. v. Nicolosi (1998), 40 O.R. (3d) 417 (C.A.) at pp. 422-23.
[^8]: Senate, Standing Committee on Legal and Constitutional Affairs, Public Protection, Privacy and the Search for Balance: A Statutory Review of the DNA Identification Act (June 2010) at p. 45 (Chair: The Hon. Joan Fraser).
[^9]: See testimony of Greg Yost, House of Commons, Proceedings of the Standing Committee on Public Safety and National Security, 40th Parl., 2nd Sess., No. 5, Evidence (24 February 2009) at 1025.
[^10]: House of Commons, Proceedings of the Standing Committee on Public Safety and National Security, 40th Parl., 2nd Sess., No. 5, Evidence (24 February 2009) at 1025.
[^11]: With the exception of certain repeat offenders and those who have committed the most serious crimes.
[^12]: As indicated at para. 30 of these reasons, these offences are commonly referred to as “super-primary” designated offences.
[^13]: YCJA DNA Data Bank retention periods are established by s. 9.1 and 10.1 of the DNA Identification Act. Those sections require removal of access to the DNA profile and destruction of the sample “when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under part 6 of the Youth Criminal Justice Act” except when the offence is a presumptive offence (generally speaking murder, attempt murder, manslaughter and aggravated sexual assault and certain other rare circumstances) within the meaning of s. 2(1) of the YCJA or when s. 120(6) of the YCJA applies (subsequent offence committed as an adult). In those latter cases, the DNA profile and sample may be kept indefinitely.
[^14]: See the Schedule at the end of the YCJA. The Schedule only is relevant if 1) the offence is an indictable offence (other than a presumptive offence) and the young person was sentenced (not discharged). Youth Records that are retained for the further 5 years as “scheduled offences” are available to fewer people than the usual s. 119 records, but for DNA data bank purposes the access is the same: access to the identity of the offender is only granted to the police if there is a “hit” to a crime scene sample.