IpsofactoJ.com: International Cases [2007] Part 1 Case 7 [SCC]


SUPREME COURT OF CANADA

Coram

R.W.C.

(a young person within the meaning of

the Youth Criminal Justice Act)

- vs -

Canada

McLACHLIN CJ

ABELLA J

BASTARACHE J

BINNIE J

CHARRON J

DESCHAMPS J

FISH J

LEBEL J

MAJOR J

28 OCTOBER 2005


Judgment

Fish J

(with whom McLachlin CJ, Major J, Binnie J & Deschamps J joined, delivered the judgment of the court)

I

  1. R.W.C. stabbed his mother in the foot with a pen that lay on the floor beside his bed – after his mother had dumped dirty laundry on him because he refused to rise, dress and go off to school. For this he was charged with “assault with a weapon” and breach of an undertaking. R.W.C. had no previous convictions of any kind and pleaded guilty to both offences. He was 13 years old at the time.

  2. Assault with a weapon is one of the offences for which the trial court must make an order permitting DNA samples to be taken from anyone found guilty unless the person found guilty establishes that the effect of doing so would be “grossly disproportionate to the public interest”, within the meaning of s. 487.051(2) of the Criminal Code, R.S.C. 1985, c. C-46.

  3. The issue in this case is whether Gass J., of the Supreme Court of Nova Scotia (Family Division), erred in concluding that the appellant had discharged that burden ((2003), 215 N.S.R. (2d) 164, 2003 NSSF 31). This in turn depends on whether Gass J. misinterpreted or misapplied the governing statutory provisions. The Nova Scotia Court of Appeal held, on three grounds, that she had ((2004), 222 N.S.R. (2d) 41, 2004 NSCA 30). In my respectful view, the Court of Appeal erred with regard to all three grounds.

  4. I would therefore allow the appeal, set aside the judgment of the Court of Appeal and affirm the decision of Gass J.

    II

  5. When he committed the offence that concerns us here, R.W.C., as I have already mentioned, was 13 years old and therefore a “young person” within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”).

  6. That morning, his mother, D.C. stood yelling at his bedside and tried in vain to get him out of bed and off to school. Evidently frustrated by his recalcitrance, D.C. fetched a laundry basket from the hallway, dumped its dirty contents on R.W.C. and told him, as reported by Crown counsel, “that if he wasn’t going to go to school he could lay there in his dirty laundry”. At that point, R.W.C. grabbed a pen from the floor beside his bed and stabbed his mother in the foot.

  7. His mother then left the room to rest, but soon returned in a renewed effort to get R.W.C. out of bed. R.W.C. did rise, but did not shine.  Instead, with arms flailing, he struck his mother with a closed fist in the eye and jaw, and kept swinging until his uncle entered the room and separated them.

  8. R.W.C. pleaded guilty to assault with a weapon (the pen), and to breach of an undertaking. A predisposition report was prepared for the guidance of the trial judge. Counsel on both sides referred to the report in their submissions on sentence and again in their submissions regarding the need for a DNA order. The observations and conclusions of the report were not contested. Understandably, the trial judge relied explicitly and implicitly on the contents of the report, both in fashioning an individualized sentence and in declining to make a DNA order.

  9. Because of its central importance to a fair appreciation of the trial judge’s reasons, I shall return to this aspect of the matter later.  For the moment, I think it sufficient to emphasize that the predisposition report and the submissions of counsel on sentence were treated by all concerned as part of the record on the Crown’s application for a DNA order.

  10. And with that in mind, I find it helpful to reproduce here two extracts from the predisposition report that are in my view of particular interest:

    OFFENDER PROFILE

    The offender reported for the Predisposition Report interview as directed and accompanied by his father. He presented as mature, cooperative and polite during the interview. He described himself as “pretty intelligent, funny and usually happy.”  The offender informed he had a disagreement with his mother, which resulted in anger and out of control behaviour and, ultimately, actions which put him before the Court. The offender acknowledged his behaviour as inappropriate and stated “I do really regret it” because “no one should hit their parent, especially their mother.” According to the offender, he really appreciates everything his mother does for him and stated “she’s always been in my life” indicating that, on occasion, his father has left the home. The offender reported he is willing to accept the consequences imposed by the Court and participate in an anger management program.

    ...

    ASSESSMENT OF COMMUNITY ALTERNATIVES/RESOURCES

    [R.W.C.] is a 13 year old, first time offender. Information obtained in preparing this Predisposition Report indicates a cycle of violence. The offender is in need of an anger management program to address his issues of being a victim and a perpetrator of violence.  Services to address the offender’s needs can be assessed in the community.  Overall, in the home and school, the offender’s behaviour appears to be compliant with the exception of the occasional outburst in which the offender loses control of his behaviour. With appropriate support and programs to address the offender’s needs, it appears he will be a suitable candidate for community supervision.

  11. After reviewing the predisposition report and considering counsel’s submissions, Gass J. sentenced R.W.C. to four months’ probation with conditions, including that he cooperate in a referral to an anger management or youth violence reduction program. She declined, however, to authorize the taking of bodily samples from R.W.C. for the purpose of forensic DNA analysis.

  12. Gass J. recognized that R.W.C. had committed a primary designated offence, assault with a weapon, and that DNA orders were mandatory in such cases pursuant to s. 487.051(1)(a) unless they fall within s. 487.051(2). In virtue of s. 487.051(2), the court need not make an order if it is satisfied that the offender has demonstrated that the impact of doing so would be grossly disproportionate to the public interest thereby served.

  13. In holding that the statutory conditions of s. 487.051(2) were satisfied, Gass J. considered the facts and circumstances of the case in light of the principles and objectives set out in the YCJA. The Court of Appeal held that she had erred in so doing. In its view, the principles and purposes of youth criminal justice legislation do not inform or affect the application to young offenders of the DNA provisions of the Criminal Code.

  14. The Court of Appeal also found that Gass J. had failed to consider certain information that was relevant to the analysis required under s. 487.051(2), and that there was no evidentiary foundation for her refusal to make an order. 

  15. It allowed the Crown’s appeal, directed the issuance of a DNA order, and remitted the matter to the Family Division for settlement of its terms.

    III

  16. Since 1995, Parliament has enacted two complementary schemes regulating the collection and use of DNA in the criminal justice system: DNA search warrants and the DNA Data Bank. 

  17. The constitutionality of DNA search warrants was considered and upheld by this Court in R. v S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60.  At issue here is the second legislative scheme, the Data Bank contemplated by ss. 487.051 to 487.055 of the Criminal Code and the DNA Identification Act, S.C. 1998, c. 37 (“DNA Act”). The Criminal Code provisions allow a court to order the collection of bodily substances from certain convicted offenders for inclusion in the Data Bank. The DNA Act, on the other hand, regulates the use of those substances once collected.

  18. When a DNA order is made, a sample of one or more bodily substances — blood, hair or buccal cells — is taken and sent to the National DNA Data Bank of Canada, where it is assigned a bar code and separated from information identifying the offender. The biological sample is processed and a profile created from the non-coding portions of the DNA sequence.  This profile is put in a database known as the Convicted Offenders Index.  A separate index, the Crime Scene Index, contains DNA profiles from unsolved crime scenes. The two indices are routinely compared and, when a match is found, investigators are alerted to the discovery of a match. 

  19. Orders for taking DNA samples are made under either s. 487.051 or s. 487.052 of the Criminal Code. Section 487.052 applies to offences committed before the DNA Act was in force, while s. 487.051, which applies here, reads:

    (1)

    Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of a designated offence, the court

    (a)

    shall, subject to subsection (2), in the case of a primary designated offence, make an order in Form 5.03 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1); or

    (b)

    may, in the case of a secondary designated offence, make an order in Form 5.04 authorizing the taking of such samples if the court is satisfied that it is in the best interests of the administration of justice to do so.

    (2)

    The court is not required to make an order under paragraph (1)(a) if it is satisfied that the person or young person has established that, were the order made, the impact on the person’s or young person’s 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)

    In deciding whether to make an order under paragraph (1)(b), the court shall consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person’s or young person’s privacy and security of the person and shall give reasons for its decision.

  20. Parliament has thus drawn a sharp distinction between “primary” and “secondary” designated offences, which are defined in s. 487.04 of the Criminal Code. Where the offender is convicted of a secondary designated offence, the burden is on the Crown to show that an order would be in the best interests of the administration of justice. Where an offender is convicted of a  primary designated offence, however, ss. 487.051(1)(a) and (2), read together, provide that a DNA order must be made unless the judge is satisfied that the offender has established that  s. 487.051(2) should apply instead.

  21. Much like the provision at issue in R. v Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, s. 487.051(2) can be described as a “constitutional compromise” that seeks to strike an appropriate balance between individual rights and societal interests. In applying this provision, courts must determine whether a DNA order would adversely affect the individual’s privacy and security interests in a manner that is grossly disproportionate to the public interest. We are neither invited nor required in this case to decide whether s. 487.051(2) passes constitutional muster.

  22. By its very terms, s. 487.051(2) implies that the public interest in a DNA order lies in the protection of society through the early detection, arrest and conviction of offenders. Section 3 of the DNA Act, for example, states that the purpose of the legislation is to assist in the identification of persons alleged to have committed designated offences.

  23. Other objectives include deterring potential repeat offenders, detecting serial offenders, streamlining investigations, solving “cold cases”, and protecting the innocent by eliminating suspects and exonerating the wrongly convicted: see R. v Briggs (2001), 157 C.C.C. (3d) 38 (Ont. C.A.) at para. 22, leave to appeal dismissed [2001] 2 S.C.R. xii; R. v Jordan (2002), 162 C.C.C. (3d) 385, 2002 NSCA 11, at paras. 32-39; and R. v T. (T.N.) (2004), 186 C.C.C. (3d) 543, 2004 ABCA 238, at para. 2.

  24. These objectives, however laudable, may be seen to conflict with privacy and security interests that warrant judicial protection.  Although the public interest is presumed to outweigh privacy interests in the case of primary designated offences, the exception in s. 487.051(2) recognizes that this is a rebuttable presumption.

  25. The making of a DNA order clearly engages two aspects of privacy protected by the Canadian Charter of Rights and Freedoms. The first relates to the person, and the second arises in what has been called the “informational context”: S.A.B., at para. 40; R v Dyment, [1988] 2 S.C.R. 417, at pp. 428-30.

  26. The physical intrusion caused by the taking of a DNA sample is minimal.  In this regard, the comments of Arbour J. in S.A.B. are apposite [paras. 44, 45 and 47]:

    With regards to privacy related to the person, the taking of bodily samples under a DNA warrant clearly interferes with bodily integrity. However, under a properly issued DNA warrant, the degree of offence to the physical integrity of the person is relatively modest (R. v F. (S.) (2000), 141 C.C.C. (3d) 225 (Ont. C.A.), at para. 27). A buccal swab is quick and not terribly intrusive. Blood samples are obtained by pricking the surface of the skin – a procedure that is, as conceded by the appellant (at para. 32 of his factum), not particularly invasive in the physical sense. With the exception of pubic hair, the plucking of hairs should not be a particularly serious affront to privacy or dignity.

    Importantly, s. 487.07(3) of the legislation requires that the person who is authorized to take samples do so in a manner that respects the offender's privacy and is “reasonable in the circumstances”.  Thus, as Weiler J.A. articulated in R. v Briggs ... at para. 35, “a person would not ordinarily be required to expose a part of the body that is not ordinarily exposed to view”.

    ...

    In my view, the statutory framework alleviates any concern that the collection of DNA samples pursuant to a search warrant under ss. 487.04 to 487.09 of the Criminal Code constitutes an intolerable affront to the physical integrity of the person.

    The same is true of samples taken pursuant to an order under s. 487.051(1)(a).

  27. Of more concern, however, is the impact of an order on an individual’s informational privacy interests. In R. v Plant, [1993] 3 S.C.R. 281, at p. 293, the Court found that s. 8 of the Charter protected the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”. An individual’s DNA contains the “highest level of personal and private information”: S.A.B., at para. 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological makeup.

  28. Without constraints on the type of information that can be extracted from bodily substances, the potential intrusiveness of a DNA analysis is virtually infinite. Comprehensive safeguards have therefore been put in place to regulate the use of the bodily substances and of the information contained in a profile: see S.A.B., at paras. 49-50; see also Briggs, at para. 39.

  29. The court must consider the impact of a DNA order on each of these interests to determine whether privacy and security of the person are affected in a grossly disproportionate manner. This inquiry is highly contextual, taking into account not only that the offence is a primary designated offence, but also the particular circumstances of the offence and the character and profile of the offender. 

  30. Some of the factors that may be relevant to this inquiry are set out in s. 487.051(3): the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission, and the impact such an order would have on the offender's privacy and security of the person (Jordan, at para. 62). 

  31. This is by no means an exhaustive list. The inquiry is necessarily individualized and the trial judge must consider all the circumstances of the case. What is required is that the offender show that the public interest is clearly and substantially outweighed by the individual’s privacy and security interests.

  32. The central controversy in this case is whether a youth court judge may, in contemplating a DNA order with respect to a young person, take into account the underlying principles and defining characteristics of criminal justice legislation adopted by Parliament specifically for dealing with young persons. 

  33. Section 487.051(1)(a) applies expressly to a “person” or “young person”. Accordingly, the question is not whether youth criminal justice legislation supercedes or displaces the DNA order provisions, or governs the making or rejection of DNA orders under their auspices.  Rather, the question is whether legislation designed specifically and exclusively for dealing with young persons who commit criminal offences may be considered in applying to them the provisions of the Criminal Code that govern the making of DNA orders.

  34. There has been some dispute whether, in answering this question, we should look to the now-repealed Young Offenders Act, R.S.C. 1985, c. Y-1 (“YOA”), or to the new YCJA. The latter came into force April 1, 2003, after R.W.C. had pleaded guilty to the offence. Its transitional provisions stipulate that, where proceedings are commenced under the YOA, the YOA applies (s. 159 of the YCJA), except for sentencing (s. 161). The Crown submits that the appeal in this case is governed by the YOA. 

  35. In my view, the result in this case does not turn at all on whether the YOA or the YCJA is held to apply. In all relevant aspects, the two Acts share the same basic assumptions and governing principles: some are simply spelled out in greater detail in the YCJA. 

  36. Most significantly, both the YOA and the YCJA extend to youth justice courts exclusive jurisdiction in respect of offences alleged to have been committed by young persons, and stipulate that, notwithstanding any other Act of Parliament, the young person shall be dealt with according to their terms (s. 14 YCJA; s. 5(1) YOA). Both Acts incorporate the provisions of the Criminal Code with “any modifications that the circumstances require” (s. 140 YCJA; similar wording in s. 51 YOA). While no specific provision of either Act modifies s. 487.051(1)(a) or (2) of the Code, it is clear that Parliament intended their shared principles to be respected whenever young persons are brought within the Canadian system of criminal justice.

  37. In particular, Parliament has taken care to ensure that the consequences of conviction for young persons are imposed in a manner that advances the objectives of youth criminal justice legislation. This legislative policy is apparent in both Acts. To disregard it is to frustrate Parliament’s will.

  38. The YOA, for example, declared in s. 3(1)(a.1) that “young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults”, recognized in s. 3(1)(c) their “state of dependency and level of development and maturity”, and held in s. 3(1)(f) that young persons have “a right to the least possible interference with freedom that is consistent with the protection of society”. Likewise, the YCJA, states in s. 3 that the criminal justice system for young persons must be separate from that of adults and must “emphasize . . . enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected”.

  39. A DNA order, while it is not a sentence, is undoubtedly a serious consequence of conviction. This is evident from the comprehensive procedural protections that are woven into the scheme of the DNA Data Bank.  The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject’s right to personal and informational privacy.

  40. Both the YOA and the YCJA protect young persons from publication of their identities. Both emphasize rehabilitation rather than punishment.  And both require the destruction of youth records after a finite time period.

  41. In creating a separate criminal justice system for young persons, Parliament has recognized the heightened vulnerability and reduced maturity of young persons. In keeping with its international obligations, Parliament has sought as well to extend to young offenders enhanced procedural protections, and to interfere with their personal freedom and privacy as little as possible: see the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, incorporated by reference in the YCJA.

  42. In protecting the privacy interests of young persons convicted of criminal offences, Parliament has not seen itself as compromising, much less as sacrificing, the interests of the public. Rather, as Binnie J. noted in F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35, protecting the privacy interests of young persons serves rehabilitative objectives and thereby contributes to the long-term protection of society [para. 14]:

    Stigmatization or premature “labelling” of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. A young person once stigmatized as a lawbreaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy.

  43. Moreover, Parliament has recognized in enacting youth criminal justice legislation that “most young offenders are one-time offenders only and, the less harm brought upon them from their experience with the criminal justice system, the less likely they are to commit further criminal acts” (Re Southam Inc. and The Queen (1984), 48 O.R. (2d) 678 (H.C.), at p. 697, per J. Holland J., aff'd (1986), 53 O.R. (2d) 663 (C.A.), leave to appeal refused, [1986] 1 S.C.R. xiv).

  44. It is not surprising, then, that the Court of Appeal for Ontario has held that the balancing of factors under the discretionary prong of s. 487.051(1)(b) must take into account the age of the young person and the principles of youth criminal justice legislation. In R. v B. (K.) (2003), 179 C.C.C. (3d) 413, the Court of Appeal (Catzman, Abella and Gillese JJ.A.) explained [paras. 7-9]:

    The Code ... makes no distinction between young and adult offenders respecting the three factors the court should consider in determining whether to order a DNA sample.

    The application of these factors, however, will necessarily be different between young and adult offenders. In [R. v Hendry (2001), 161 C.C.C. (3d) 275], this court held (at para. 25) that “in the vast majority of cases, it would be in the best interests of the administration of justice to make the order”. No such assumption can be made in the case of a young offender. All legislation dealing with young offenders and, in particular, the Young Offenders Act, R.S.C. 1985, c. Y-1, recognize that young offenders are to be treated differently by the courts because of differences in vulnerability, maturity, experience and other factors related to their youth. The Declaration of Principle heading that precedes s. 3(1) and 3(2) of the YOA and the principles addressed in those sections support the proposition that young persons, in principle, are to be treated differently from adults who are prosecuted under the Criminal Code. We cannot assume, for example, as with an adult offender, that there will be minimal impact on a young person's privacy and security of the person.

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

    [emphasis added]

  45. The same holds true for decisions made pursuant to s. 487.051(1)(a) and (2): In determining whether the young person has established that the public interest in the protection of society and the proper administration of justice is clearly and substantially inferior to his or her privacy and security interests, the sentencing judge must examine both sides of the equation through the lens of the applicable youth criminal justice legislation.

    IV

  46. The Nova Scotia Court of Appeal held that it owed no deference to the decision of Gass J. in this case because that decision was made pursuant to a mandatory provision of the Criminal Code. 

  47. With respect, I prefer the view taken on this point by the Court of Appeal for Ontario in Briggs, where Weiler J.A. (Austin and Borins JJ.A. concurring) recognized that “a judge has a discretion to make an order authorizing the taking of a sample of DNA with respect to both primary and secondary offences although that discretion would appear to be more limited with respect to primary offences” (para. 3). 

  48. Subsection (1)(a) of s. 487.051 of the Criminal Code, which is framed in mandatory terms, cannot be read in isolation from subs. (2). Read together, these provisions make the issuance of a DNA order mandatory only where

    1. a person or young person has been convicted of a primary designated offence and

    2. the burden cast upon that person or young person by s. 487.051(2) has not been discharged.

    Put differently, the court is not required to make the order if it is satisfied that the person or young person has established gross disproportionality. Such is the language of discretion.

  49. Accordingly, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a decision to either make or refuse to make a DNA Data Bank order if the decision was clearly unreasonable: see, in the sentencing context, R. v M. (C.A.), [1996] 1 S.C.R. 500.

    V

  50. The Court of Appeal intervened in this instance on three grounds. 

  51. First, it found that Gass J. had erred in holding that “the principles and purposes of the [YCJA] inform or otherwise modify the application of s. 487.051(1)(a) and (2)” (para. 17). In my respectful view, Gass J. did not err at all in this regard. In balancing the governing factors under s. 487.051(2) in cases involving young offenders, I have already explained why sentencing judges commit no error in taking into account the principles and objectives of youth criminal justice legislation, such as the YOA or the YCJA. 

  52. Second, the Court of Appeal held that Gass J. failed to deal with certain circumstances that ought to have informed the balancing of factors under s. 487.051(2). In dealing with this branch of the matter, it is essential to bear in mind that all of the relevant circumstances were canvassed by counsel and considered by the trial judge cumulatively at the DNA stage. That is to say, the hearing on sentence was incorporated by reference into the DNA hearing that followed immediately afterward.  There was no confusion at all regarding the different legal considerations applicable to each of the two distinct decisions – one relating to sentence, the other to the DNA order. But the facts were not in dispute and the predisposition report, relevant at both stages, was not challenged by either side.

  53. Quite properly, Crown counsel thus acknowledged in this Court that, at trial, the submissions on sentencing, the sentencing disposition, the DNA hearing, and the DNA order in this matter all proceeded more or less simultaneously, without objection.

  54. It must be borne in mind as well that the trial judge, when asked by defence counsel whether she required more facts for the purposes of the DNA hearing, replied:

    I’m certainly satisfied that the Court has ample facts before it based on the facts that were given prior to the disposition or the sentencing hearing and the information provided in the pre-sentence report and the submissions of counsel.

  55. In this light, I am not prepared to hold that the trial judge failed to consider the facts to which she thus adverted compendiously. Nor am I prepared to fault the appellant’s counsel taking the judge at her word.

  56. More specifically, the Court of Appeal reproached Gass J. for relying only on the age of the offender, the absence of a criminal record and the nature of the offence in refusing the DNA order. In its view, she had failed to address this additional information in the record:

    • at the time of the commission of this assault offence the young person was on an undertaking to keep the peace and be of good behaviour;

    • the only evidence of the young offender’s remorse came through his father’s report on the PSR interview;

    • his school attendance has been an ongoing problem and precipitated this assault;

    • the young offender’s latest academic school report was not good;

    • the young offender had a history of using illicit drugs and alcohol, although he maintained such use was in his past;

    • the young offender has an anger management problem with a tendency to lose control of his behaviour as evidenced by this offence;

    • there is a history of violence in the young offender’s family;

    • the assault against the mother continued after the stabbing with the pen, until it was stopped by the intervention of the young offender’s uncle. [para. 23]

  57. The Court of Appeal’s finding that Gass J. had failed to consider this “relevant information” cannot be reconciled with the record as we have it. The opposite is in fact true. Gass J. mentioned specifically that R.W.C. was bound by an undertaking at the time of the offence. She specifically mentioned as well R.W.C.’s anger management issues in her reasons on the DNA order, and on at least three separate occasions in her reasons for sentence. She stated that she did not wish to minimize them, but found that they were being addressed appropriately through the conditions she had imposed as part of R.W.C.’s probation order. That conclusion has not been attacked by the Crown.

  58. Likewise, Gass J. expressly considered R.W.C.’s history of family violence, both in her reasons on the DNA order and her reasons for sentence. And she mentioned at least twice that the assault was precipitated by a dispute regarding his attendance at school.

  59. The Court of Appeal erred as well in stating that the only evidence of R.W.C.’s remorse came from his father’s interview for the predisposition report. As appears from the extract of the probation report reproduced above, R.W.C. had personally expressed his remorse to the probation officer, who also noted R.W.C.’s willingness to accept the consequences imposed upon him for his actions. Moreover, in her submissions on sentencing, Crown counsel acknowledged R.W.C.’s remorse in these terms:

    In fact, there is an indication that the defendant accepts, certainly, responsibility for his involvement in this particular matter and that he indicates because he has shared quite a close relationship with his mother that hitting one’s parents or becoming physically aggressive with one parent is not to be tolerated. And he says that he really regrets this because no one should hit their parents, especially their mother. So certainly we must accept those statements at face value.

    [emphasis added]

  60. Again, the Court of Appeal reproached Gass J. for failing to mention R.W.C.’s “ongoing problem” with “school attendance” and an academic report that was “not good”. These purported omissions by the trial judge should cause no surprise: In her representations on sentence, Crown counsel had expressly adopted the probation officer’s assessment that “[o]verall in the home and school, the offender’s behaviour appears to be compliant”. [emphasis added]

  61. Other omissions imputed to Gass J. by the Court of Appeal were either included in the predisposition report, which Gass J. said that she had considered, or  had been drawn to her attention moments earlier during counsels’ submissions, or referred to by Gass J. herself in her judgment on sentence. 

  62. With respect, I am satisfied for all of these reasons that the Court of Appeal erred in holding that Gass J. had failed to consider relevant information in declining to make a DNA order. And I turn now to the third ground upon which the Court of Appeal set aside her decision at trial.

  63. The Court of Appeal held that Gass J. had failed to particularize her decision: In its view, she had “apparently concluded that taking a DNA sample from a young offender was, prima facie, an impermissible violation of the young person’s privacy and security interests” (para. 16), and had “lacked an evidentiary foundation upon which to base a denial of the presumptively mandatory order” (para. 13). 

  64. With respect, I find this reproach as well to be unwarranted. 

  65. Gass J. instructed herself impeccably in law on several occasions.  She noted that the young person had been found guilty of a primary designated offence and that a DNA order could therefore be refused only if the conditions of s. 487.051(2) were met by R.W.C. The Nova Scotia Court of Appeal in Jordan, she noted, had held that “cases where an order that is properly sought under [s. 487.051(1)(a)] may be refused will be very rare indeed” (para. 5), and that “the young person ... bears the burden of persuading the court that he falls within that exception. That has to be established by evidence on the record” (para. 21).

  66. Gass J. went on to deal in very specific terms with the circumstances of this case. She noted that R.W.C. was 13 years of age, had no criminal record, and was involved in a fight with his mother in which he stabbed her with a pen in the foot. Gass J. did not conclude that taking a DNA sample from young persons constituted, prima facie, an impermissible violation of their rights, but took care to explain that she saw R.W.C.’s circumstances as “significantly different than the minimal infringement involved in the taking of a sample from a 35 year old individual with an extensive criminal record or even of the taking of a bodily sample from a 17 year old with an extensive criminal record” (para. 31). 

  67. Gass J. took into consideration the principles of the YCJA, the level of development of an early adolescent, and the young person’s circumstances as they were described in the predisposition report.  Though counsel for R.W.C. had offered to call the young person to testify on his own behalf, Gass J. was satisfied that the court had ample facts before it. I am not prepared to say that she erred in this regard.

  68. In the circumstances, the offence committed by R.W.C. was clearly at the low end of the spectrum of primary designated offences. I should not be understood to be minimizing the gravity of his offence: R.W.C. committed a reprehensible assault on his mother. But it was committed in the course of dispute between a 13-year-old boy and his mother about going to school and as a reflexive response to the humiliation of having his dirty laundry dumped on him in his bed. His need for anger management, evidenced by this unacceptable attack on his mother, was addressed appropriately by Gass J.

  69. R.W.C. was a first-time offender. Gass J. weighed the public interest in ordering that a DNA sample be taken from him and retained in the DNA Data Bank against the impact of such an order on his privacy and security interests. She conducted this exercise in light of the principles and objects of youth criminal justice legislation, and found that the impact of the order would be grossly disproportionate. 

  70. Her finding was reasonable in the circumstances and should not have been set aside by the Court of Appeal.

    VI

  71. For the foregoing reasons, I would allow the appeal and restore the order of the Supreme Court of Nova Scotia (Family Division).

    Abella J

    (with whom LeBel J & Charron J join, dissenting)

  72. I have had the benefit of reading the reasons of Fish J. With respect, I do not agree with his conclusion that the trial judge appropriately declined to make the DNA data bank order anticipated by s. 487.051(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

  73. Section 487.051(1)(a) requires that a DNA order be made in the case of a primary designated offence, such as the one in this case, unless the offender has established a grossly disproportionate impact on his or her “privacy and security of the person”. The statutory onus is on the offender to rebut the presumption that a DNA order should issue.

  74. The data bank provisions explicitly extend their grasp to young offenders found guilty of a designated offence under either the Young Offenders Act, R.S.C. 1985, c.Y-1, or the Youth Criminal Justice Act, S.C. 2002, c. 1. While I agree with Fish J. that the principles of the Young Offenders Act and the Youth Criminal Justice Act are theoretically relevant to this determination, I am unable to see how they can be applied, as they were by the trial judge, so as to neutralize the clear language of the Code.

    Background

  75. On November 26, 2002, R.W.C., who was 13 at the time, beat and punched his mother in the face and stabbed her in the foot with a pen during an argument. The police were contacted and R.W.C. was charged with four offences: two assaults with a weapon (a pen and a glass); failure to comply with an undertaking to keep the peace and be of good behaviour; and failure to comply with an undertaking not to possess a weapon. 

  76. R.W.C. pleaded guilty in the Supreme Court of Nova Scotia (Family Division) to assault with a weapon and breach of an undertaking ((2003), 215 N.S.R. (2d) 164, 2003 NSSF 31). The following facts were presented by the Crown, illuminating violent conduct:

    [T]he facts of this particular situation are that on November 26, 2002, the Halifax Regional Police received a call in relation to - initially a dispute involving a mother who was being beaten by her 13-year-old son, the accused, that being Mr. RWC.

    Upon arrival on the scene at approximately 9 o'clock on that Tuesday morning, the mother of the accused was crying and was very upset, complaining that her son, that being RWC, had assaulted her upstairs in his bedroom.

    She had a large bruise and swelling on her right eye which she was holding a bag of frozen strawberries on. And she showed the constable, that being Cst. McDonald, her left common peroneal area on her leg as well there was a large red mark. And as well, the constable noted that there was a stab mark from a pen on the top of her right foot near her toe.

    The victim and mother, the complainant and mother of the accused, that being Ms. [C], indicated that at 7:20 that morning she had tried to get her son out of bed on the second floor of the duplex. She indicated that she was trying to get him out of bed and, in fact, he wouldn't move.

    There was a concern with respect to his attendance at school and she wanted him to go to school. She was yelling at him at his bedside trying to get him to get up. And he refused.

    Finally, the complainant went into the hallway, got a laundry basket, came in, threw the dirty laundry on the accused and indicated that if he wasn't going to go to school he could lay there in his dirty laundry. At which point the accused stabbed her with a pen that was lying on the floor. He grabbed it and stabbed her in the foot with it.

    Ms. [C], the complainant, went and laid down for a few moments. Then she went back in to try to get Mr. RWC up to go to school again, at which point he stood up and started swinging. He close-fist punched her in the eye and kept swinging at her head, hitting her in the jaw, scratching her in the face and punching her in the eye.

    And the altercation continued until her brother came into the room and separated the two. It was at that point that the accused wouldn't back away from his mother and he kept punching her.

    In fact, the accused was on an undertaking dated July 6th, 2003 [sic]. The undertaking was to an officer in charge. And the condition of that undertaking was that he keep the peace and be of good behaviour – excuse me, that he not possess any weapon or ammunition.

    My Lady, as indicated to the Court, there had been a guilty plea entered to the Section 267(a), that being an assault with a pen on the person of [Ms. C]. And as well, to the Section 145(5.1) being an undertaking to an officer in charge, the conditions that he keep the peace and be of good behaviour.

    I believe that should suffice for purposes of the fact finding.

    THE COURT

    Any comment on the facts?

    MR. GOSINE

    Just that Mr. RWC admits to having struck his mother with a pen and being released on an undertaking. As a result of that charge, if he's found guilty, he failed to keep the peace.

    THE COURT

    The facts the Crown has recited do support the charge of assault with a weapon or an imitation thereof, contrary to Section 267(a) of the Criminal Code. And I therefore make a finding of guilty.

    And in this case I think it is pursuant to Section 19 of the Young Offenders Act still. And with respect to the charge under Section 145(5.1), the facts do support a charge of breach of an undertaking to keep the peace and be of good behaviour and (inaudible) him guilty pursuant to Section (inaudible).

    [emphasis added]

  77. R.W.C. did not dispute the Crown’s description of the circumstances surrounding the commission of the offence. 

  78. The trial judge also received a pre-disposition report, which noted that  R.W.C. admitted having a history of involvement with drugs and alcohol and problems with school attendance, but presented as cooperative, polite, and regretful of his behaviour.

  79. Significantly, the report also quoted the Vice-Principal of R.W.C.’s junior high school who, while describing him as a “bright and nice kid”, nonetheless acknowledged that he had “blown a gasket” on a few occasions. The author of the pre-disposition report noted that several unsuccessful attempts had been made to contact the mother. The report concluded that R.W.C. was in need of an anger management program to address his violence.

  80. The trial judge found that there was entrenched family violence which held the potential for future violence if not addressed. She sentenced R.W.C. to four months’ probation with conditions, including that he cooperate with any referral to an anger management or violence program.

  81. Because assault with a weapon is a primary designated offence, there is a statutory presumption in s. 487.051(1)(a) of the Code that a DNA order be made. The trial judge, however, exercising her discretion under s. 487.051(2), found that the impact of a DNA data bank order on R.W.C. would be grossly disproportionate to the “public interest in the protection of society and the proper administration of justice”, concluding that the public benefits paled in comparison to the implications for the privacy and security interests of a 13 year old in the circumstances of this case.

  82. In a telling passage, the trial judge contrasted the implications of taking a DNA sample for a 13 year old and a 35 year old [para. 31]:

    It seems to me that when we are talking about the bodily integrity of a 13 year old in the context of his age, his level of development, his understanding and appreciation of the offence committed and the implications of the taking of a DNA sample, that is significantly different than the minimal infringement involved in the taking of a sample from a 35 year old individual with an extensive criminal record or even of the taking of a bodily sample from a 17 year old with an extensive criminal record.

  83. The issue in this appeal is whether the trial judge, on the record before her, erred in concluding that R.W.C. had rebutted the presumption.   For the following reasons, I agree with the conclusion of Bateman J.A. that the trial judge lacked an evidentiary foundation for refusing to make the presumptively mandatory order.

    Analysis

  84. As Fish J. points out (at para. 20), s. 487.051 of the Code draws a “sharp distinction” between DNA orders made in respect of those who commit offences designated as primary, such as in this case, and those designated as secondary. The relevant provisions are:

    (1)

    Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of a designated offence, the court

    (a)

    shall, subject to subsection (2), in the case of a primary designated offence, make an order in Form 5.03 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1); or

    (b)

    may, in the case of a secondary designated offence, make an order in Form 5.04 authorizing the taking of such samples if the court is satisfied that it is in the best interests of the administration of justice to do so.

    (2)

    The court is not required to make an order under paragraph (1)(a) if it is satisfied that the person or young person has established that, were the order made, the impact on the person’s or young person’s 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)

    In deciding whether to make an order under paragraph (1)(b), the court shall consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person’s or young person’s privacy and security of the person and shall give reasons for its decision.

  85. Sections 487.051(1)(a) and (2) provide that when someone is convicted of a primary designated offence, a DNA order must be made unless the judge is satisfied that the offender has established that the impact of the order on his or her privacy and security of the person would be grossly disproportionate to the public’s interest in the early detection, arrest and conviction of offenders. Any refusal would, based on the language of the provision, be exceptional.

  86. Three points bear emphasis: the onus is on the offender to satisfy the court that the order should not be made; the threshold for discharging the onus is gross disproportionality; and both adult and young offenders are explicitly made subject to the provisions. 

  87. Section 487.051(1)(b) of the Code deals with secondary designated offences. It too makes specific reference to young persons being embraced by the provision’s scope. The test, however, is completely different. If the offence is designated as secondary, a DNA order is not presumptively required. A discretion is given to the trial judge, who may make the order if satisfied that it is in the best interests of the administration of justice to do so based on the factors set out in s. 487.051(3): the criminal record, 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. In other words, the best interests of the administration of justice are determined by balancing these factors. 

  88. The test for primary designated offences, on the other hand, makes no reference to these factors and there is significantly less scope for discretion. The test, moreover, is not what is in the best interests of the administration of justice, as it is in the case of secondary offences.  Instead, in the case of more serious offences Parliament has already codified  the public interest and proper administration of justice as requiring a DNA order to achieve  the early detection, arrest, and conviction of offenders. That is the articulated basis for carving out those more serious offences from the scheme, making a DNA data bank order presumptively mandatory and making the hurdle for avoiding the order far more onerous.  Only if an offender, youthful or adult, can demonstrate that the impact of such an order on his or her privacy and security is grossly disproportionate to the public interest in the protection of society, can a court refuse to make the order. 

  89. And this, in turn, is a question of evidence. Factors such as the offender’s age, record and personal circumstances may well be advanced as part of the offender’s evidentiary package if they relate to the question of impact on the offender’s privacy and security of the person, but, unlike the case of secondary offences, they are not the focus of the inquiry. What is being weighed, instead, is whether the offender has discharged his burden of showing that the impact on his or her privacy and security interests is so overwhelming as to grossly outweigh society’s interest in its own protection. 

  90. Is this burden different for young offenders? As previously indicated, not only is no distinction drawn in s. 487.051(1) between adult and young offenders, young persons are specifically included.  By expanding the operation of the provision to include young persons without words of limitation, Parliament has signalled its view that DNA data banks orders can or should be made even where the offender is not an adult. In the case of less serious offences, it has formulated a balancing test and, in the case of serious offences, designed a highly stringent one. Both tests apply to both adult and young offenders.  

  91. This is not to say that Parliament has failed to recognize the unique privacy and security needs of young persons. On the contrary, there are a number of provisions in both the DNA Identification Act, S.C. 1998, c. 37, and the Code that explicitly recognize them. For example, s. 9.1 of the DNA Identification Act, provides that “[a]ccess to information in the convicted offenders index” will be “permanently removed without delay” once the young offender’s record is destroyed under the Young Offenders Act. Similarly, s. 10.1 of the DNA Identification Act provides for the destruction of bodily substances collected from a young offender “when the last part of the record in relation to the same offence is ... required to be destroyed”. Section 487.07(4) of the Code provides that a young person against whom a DNA warrant is executed has, in addition to any other rights arising from his or her detention under the warrant, the right to a reasonable opportunity to consult with, and have the warrant executed in the presence of, counsel and a parent, adult relative or other appropriate adult.

  92. That means, as for adult offenders, that a court can only decline to make a DNA data bank order in respect of a primary designated offence where there is evidence that the impact on  the young person’s privacy and security interests is grossly disproportionate to the public interest in the early detection, arrest and conviction of offenders. The court cannot simply infer a disproportionate impact on the basis that the offender is a young person. Such an approach would effectively turn the presumption on its head.

  93. While young offender legislation contains principles and protections to which all young offenders are always entitled, I have difficulty seeing how those principles and protections assist in any meaningful way in this case.  The question is whether there was evidence that the impact of the order on this particular young person’s privacy and security was so overwhelming as to be grossly disproportionate to the public’s interest in protecting itself from potentially violent offenders. The test is the same for adult and young persons because the crime solving and public protection concerns that motivated Parliament are the same for both – both can be victims of wrongful convictions, both can be wrongfully accused, and both risk re-offending. 

  94. Counsel for R.W.C. conceded that no evidence had been adduced with respect to the impact on his client. Rather, he had urged the trial judge to take judicial notice of the probable and likely effect of a DNA data bank order on young people in general. His argument was that because of the offender’s age, lack of a criminal record and the domestic nature of the crime, the impact of a DNA order would be grossly disproportionate to R.W.C.

  95. The trial judge concluded that the case of R.W.C. was “so far removed from the usual situations contemplated by the legislative scheme” (para. 40) that the taking of the sample could not reasonably be justified. There was no evidence to support this, or any other conclusion about the impact on R.W.C. of such an order.

  96. The trial judge wisely expressed concern for the possibility that a DNA order could have a disproportionate impact on a young person. This is the kind of reality a judge dealing with young offenders is required to be sensitive to. But it ignores the legislative reality that Parliament has deemed the privacy and security interests of a young person convicted of a primary designated offence to be outweighed by the public interest in the protection of society and the proper administration of justice. 

  97. The trial judge’s error, with respect, was in basing her conclusion on generic considerations about impact, rather than on evidence of how disproportionate the impact was on this particular young offender. She essentially melted the test for primary offences into the one for secondary offences, turning an order that Parliament directed to be presumptively mandatory, into one  that was presumptively inapplicable in the case of young offenders, replacing the requirement for evidence of gross disproportionality with a presumption of gross proportionality.

  98. This was a violent domestic incident involving the use of a weapon.  The fact that the weapon was a pen does not diminish the fact that this was an offence designated to be primary and therefore governed by s. 487.051(1)(a).  The stabbing was part of an escalating conflict which culminated in R.W.C. striking repeatedly at his mother’s head with closed fists. Were it not for the intervention of a relative, the injuries sustained by the mother might have been far more serious.

  99. The trial judge made an express finding of fact that there was the potential for future violence if not addressed by remedial means. The record amply supports this finding. It is this very potential that the DNA data bank order is meant to address in the case of primary designated offences. 

  100. The denial of an otherwise mandatory order must have a factual underpinning. I agree with Bateman J.A. of the Court of Appeal that the youth court judge lacked such a foundation, concluding:

    The judge, in my view, lacked an evidentiary foundation upon which to base a denial of the presumptively mandatory order. In declining to order the sample, the judge relied upon the fact that this was a first-time offender who was only 13 years old at the time of the offence; that the stabbing of the mother with the pen was not typical of the primary designated offences; and that there was no identifiable risk of recidivism. The judge fell into error, in my respectful view, when, in the absence of evidence, she speculated about the impact of the sample taking upon the psyche of this young offender....

    There was no evidence about R.W.C.’s psychological, emotional or mental health, nor his level of development or understanding or appreciation of the offence committed. In particular, there was nothing before the court which addressed this young offender’s reaction to or anticipation of the prospect of the taking of the DNA ....

    ((2004), 222 N.S.R. (2d) 41, 2004 NSCA 30, at paras. 40-41)

  101. For these reasons, I would dismiss the appeal.

    Bastarache J

    (dissenting)

  102. I have had the benefit of reading the reasons of my colleagues Fish and Abella JJ. I agree with Abella J. that the test set out in s. 487.051(2) of the Criminal Code, R.S.C. 1985, c. C-46, ought to operate in the same way for adults and young persons. This test states that in the case of a primary designated offence a court is not required to make a DNA order if it is satisfied that the offender has established that the impact on his or her 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, which is to be achieved through the early detection, arrest and conviction of offenders. Notwithstanding my agreement with Abella J. on this issue, there is one issue on which she and I part company. I do not believe that an offender’s criminal record can be considered in the course of an assessment under s. 487.051(2) of the impact of a DNA order on an offender’s privacy and security of the person and I offer three reasons in support of my position.

  103. First, the only reference to an offender’s criminal record in s. 487.051 is found in subs. (3). This subsection provides that in deciding whether to make a DNA order in the case of a secondary designated offence a court must consider “the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person’s or young person’s privacy and security of the person”. The fact that Parliament has explicitly directed a court to consider an offender’s criminal record when deciding to make a DNA order for a secondary designated offence but has said nothing about whether this factor also ought to be considered when deciding whether the exception to otherwise mandatory DNA orders for primary designated offences set out in s. 487.051(2) applies leads me to believe that Parliament intended for an offender’s criminal record to be considered only in the former case and not in the latter.

  104. Of course, it can be argued that while s. 487.051(3) provides that in deciding to make a DNA order in the case of a secondary offence the court must consider the criminal record of the person or young person, as well as the nature of the offence and the circumstances surrounding its commission and the impact of a DNA order on the person’s or young person’s privacy and security of the person, nowhere in the statutory regime does it explicitly say that a court may not consider the first three of these factors in deciding whether the exception to otherwise mandatory DNA orders for primary designated offences set out in s. 487.051(2) applies (obviously, the last factor in s. 487.051(3) – i.e. the impact of the order on the offender’s privacy and security of the person – cannot possibly be a “factor to consider” under the test in s. 487.051(2) since it is already an integral part of the test itself). It is certainly true that the statute does not expressly prohibit a court from considering these three factors from s. 487.051(3) in the course of an assessment under s. 487.051(2); however, in my view, the manner in which s. 487.051 is drafted leads me to conclude that a court is in fact so prohibited. Let me explain.

  105. Section 487.051(2) provides that in the case of a primary designated offence a court is not required to make a DNA order if it is satisfied that the person or young person has established that the impact on his or her privacy or security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, which is to be achieved through the early detection, arrest and conviction of offenders. In contrast, s. 487.051(3) provides that in deciding whether to make a DNA order in the case of a secondary designated offence a court must consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission, as well as the impact such an order would have on the person’s or young person’s privacy and security of the person. This manner of legislative drafting begs the question: if we are to believe that Parliament intended that in the course of an assessment under s. 487.051(2) a court is to consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission, in addition to the impact such an order would have on the person’s or young person’s privacy and security of the person, why would it only expressly mention this last factor in the actual provision? This is especially curious given the fact that in the very next subsection (s. 487.051(3)) Parliament does in fact mention all of these factors, including the impact such an order would have on the person’s or young person’s privacy and security of the person, as factors to consider in deciding to make DNA orders for secondary designated offences.  The way in which Parliament has drafted these two adjacent subsections leads me to conclude that Parliament intended that the criminal record of the person or young person, along with the nature of the offence and the circumstances surrounding its commission, should only be considered in deciding whether to make a DNA order in the case of a secondary designated offence. To interpret s. 487.051 otherwise, in my opinion, would be to re-write this clear statutory provision.

  106. Moreover, in s. 487.051(3) Parliament lists the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact a DNA order would have on the person’s or young person’s privacy and security of the person as distinct factors without any indication that they are to be connected in any way. I take this to mean that Parliament intended for these factors to be considered separately from one another. Therefore, since Parliament lists only the last factor from s. 487.051(3) in s. 487.051(2) – i.e. the impact of a DNA order on the person’s or young person’s privacy and security of the person –  I am of the view that it intended for only this factor and no other from s. 487.051(3) to be considered in the course of an assessment under s. 487.051(2). In my respectful view, to argue, as Abella J. does in her reasons, that an offender’s criminal record can “relate to the question of impact [of a DNA order on an] offender’s privacy and security of the person” and therefore can be considered in the course of an assessment under s. 487.051(2) even though it is not expressly mentioned, is to ignore Parliament’s intent for an offender’s criminal record and the impact of a DNA order on his or her privacy and security of the person, as well as the nature of the offence and the circumstances surrounding its commission, to be treated as distinct considerations.

  107. The second reason why I am opposed to considering an offender’s criminal record in the course of an assessment under s. 487.051(2) is that it would tend to blur the “sharp distinction”, as Fish J. describes it (at para. 20), between the tests for making DNA orders for primary and secondary designated offences. In the case of a secondary designated offence, a court may only make a DNA order if it is satisfied that it would be in the best interests of the administration of justice to do so, taking into account the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission and the impact a DNA order would have on the offender’s privacy and security of the person. As is apparent, this test is highly contextual and discretionary. Crafting the test in this way makes good sense, because secondary offences are generally less serious than primary offences; therefore, it will not always be appropriate to make a DNA order when a person or young person commits one of them.

  108. On the other hand, primary designated offences, which include murder and sexual offences, are the most serious offences in the Criminal Code: see R. v Briggs (2001), 157 C.C.C (3d) 38 (Ont. C.A.), at para. 3, leave to appeal dismissed, [2001] 2 S.C.R. v. Accordingly, Parliament, in its wisdom, elected to make a DNA order mandatory when a person or young person commits one of these offences unless he or she establishes to the court’s satisfaction that the impact of the order on his or her 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, which is to be achieved through the early detection, arrest and conviction of offenders. Obviously, this test affords the court much less discretion. Moreover, it is no longer a holistic inquiry that takes into account the circumstances of the offence and the offender, as is the case with the test for secondary designated offences; rather, this test involves a simple balancing of the impact of a DNA order on an offender’s privacy and security of the person against the interest of the public in the early detection, arrest and conviction of offenders. And, as astutely noted by Krueger J. in R. v B.V.C. (2003), 233 Sask. R. 270, 2003 SKQB 219, this particular public interest is very high and “does not vary with the age or the criminal record of the offender. Nor does it depend on the circumstances of the offence. As between primary and secondary offences it remains the same” (para. 10). Accordingly, for primary designated offences, the only consideration that will vary from case to case is the impact that a DNA order will have on an offender’s privacy and security of the person, and it is only when this impact would be grossly disproportionate to the very high public interest in the early detection, arrest and conviction of offenders that a court may avoid making a DNA order.

  109. However, if a court is permitted to consider an offender’s record in the course of an assessment under s. 487.051(2), this test for avoiding the otherwise mandatory DNA order for primary designated offences would become too similar to the test for making a DNA order in cases of secondary designated offences, because the former would be transformed from a simple balancing test between two factors (i.e. the impact of a DNA order on the offender’s privacy and security of the person versus the public interest in the early detection, arrest and conviction of offenders) into a somewhat more contextual inquiry. In my opinion, this change would frustrate Parliament’s attempt to make a clear distinction between the tests for making DNA orders for primary and secondary designated offences. At paragraph 87, Abella J. accepts that these tests are “completely different”. I agree; however, I am also of the view that these tests should remain that way. Therefore, I am opposed to considering an offender’s criminal record in the course of an assessment under s. 487.051(2).

  110. The third reason why I am of the view that an offender’s record ought not to be considered in the course of an assessment under s. 487.051(2) is that this factor does not raise any privacy or security of the person interests or concerns; therefore, it is not a relevant consideration in this context. For example, if an offender has a rare medical condition that would render the taking of DNA in any manner extraordinarily dangerous and/or painful, the fact that he or she also happens to have a criminal record  does not change this fact.

  111. In summary, for the three reasons set out above, it is my view that the clear statutory language of s. 487.051 indicates that an offender’s criminal record should only be considered in determining whether to make a DNA order in the case of a secondary designated offence. It has no place in the course of an assessment under s. 487.051(2). 

  112. Despite my difference of opinion with Abella J., I am still in agreement with her conclusion that, notwithstanding the special principle and protections for young persons that are found in young offender legislation, the test set out in s. 487.051(2) of the Criminal Code ought to operate in the same way for adults and young persons.


Cases

R. v S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60; R. v Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; R. v Briggs (2001), 157 C.C.C. (3d) 38, leave to appeal dismissed [2001] 2 S.C.R. xii; R. v Jordan (2002), 162 C.C.C. (3d) 385, 2002 NSCA 11; R. v T. (T.N.) (2004), 186 C.C.C. (3d) 543, 2004 ABCA 238; R. v Dyment, [1988] 2 S.C.R. 417; R. v Plant, [1993] 3 S.C.R. 281; F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35; Re Southam Inc. and The Queen (1984), 48 O.R. (2d) 678, aff’d (1986), 53 O.R. (2d) 663, leave to appeal refused [1986] 1 S.C.R. xiv; R. v B. (K.) (2003), 179 C.C.C. (3d) 413; R. v M. (C.A.), [1996] 1 S.C.R. 500; R. v B.V.C. (2003), 233 Sask.R. 270; 2003 SKQB 219.

Legislations

Canadian Charter of Rights and Freedoms.

Criminal Code, R.S.C. 1985, c. C-46, ss. 487.04 “primary designated offence”, “secondary designated offence”, 487.051 to 487.052, 487.07(4).

DNA Identification Act, S.C. 1998, c. 37, ss. 3, 9.1, 10.1.

Young Offenders Act, R.S.C., c. Y-1 (rep. S.C. 2002, c. 1, s. 199), ss. 3(1)(a.1), (c), (f), 5(1), 51.

Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 3, 14, 140, 159, 161.

Treaties and International Instruments

Convention on the Rights of the Child, Can. T.S. 1992 No. 3.

Representations

Chandra Gosine (instructed by Nova Scotia Legal Aid, Halifax), for the appellant

Peter P. Rosinski and William D. Delaney (instructec by Public Prosecution Service, Halifax), for the respondent.


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