|
Criminal - DNA Identification Act. R. v. Vu
In R. v. Vu (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here regarding orders for a DNA sample under the DNA Identification Act.
Here the court applies, interprets and summarizes provisions of the DNA Identification Act:[1] The respondent, who had no prior criminal record, pleaded guilty to one count of assault arising from an altercation over the state of his neighbour’s lawn. The neighbour sustained a laceration to his chin, which required stitches, and bruising to the left side of his face near his eyebrow. The sentencing judge imposed a conditional discharge with 18 months’ probation. She also ordered the respondent to provide samples of his bodily substances (the “DNA samples”) that are reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act, S.C. 1998, c. 37 (the “Act”). On appeal, the summary conviction appeal judge (the “SCAJ”) set aside the DNA order, noting that the sentencing judge had failed to take into account the harsher treatment the Act imposed on discharged offenders as compared to convicted offenders concerning the treatment and retention of DNA samples.
[2] The Crown, already granted leave to appeal by a different panel of this court, asks that we make a new order authorizing the taking of DNA samples from the respondent. The Crown argues that the SCAJ misinterpreted the Act and overemphasized the presumed privacy impact by failing to consider all of the factors a sentencing judge must consider when making a DNA order for a secondary designated offence.
[3] In my view, there is a meaningful legislative difference between the treatment and retention of DNA samples taken from convicted offenders, and those taken from discharged offenders under the Act. While a convicted offender can apply for a record suspension, following which their DNA sample is sequestered and unavailable for future forensic DNA analysis, a discharged offender cannot. As the SCAJ concluded, this should be taken into account when deciding whether to make a DNA order for a discharged offender. The sentencing judge failed to do so.
[4] Accordingly, I would dismiss the appeal.
....
III. Brief Overview of the Act
[13] The Act received royal assent on December 10, 1998 and came into force on June 30, 2000. It provided for the establishment of a national DNA data bank to be maintained by the Commissioner of the RCMP, and amended the Criminal Code to authorize the collection of DNA samples from which DNA profiles could be derived and included in the national DNA data bank. While s. 487.051(3) of the Criminal Code allows a sentencing judge to make an order for the collection of DNA samples, the Act “on the other hand, regulates the use of those substances once collected”: R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 17.
[14] Section 487.051(3) of the Criminal Code sets out the criteria a court is to consider and apply when determining whether a DNA order should be made for a secondary designated offence:[T]he 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. [Emphasis added.] [15] The Act defines “DNA profile” in s. 2 as “the results of forensic DNA analysis of a bodily substance.” The Act also creates several indices (databases), including the convicted offenders index which contains DNA profiles that have been derived from the DNA samples of offenders convicted, discharged, or found guilty of designated offences. A DNA sample is used to generate a DNA profile that can be compared against DNA profiles located in other indices such as the crime scene index to identify a potential match. To protect an individual’s privacy, the Act has several safeguards limiting the use and communication of, and access to, information in the national DNA data bank. In R. v. Roche, 2023 ONCA 396, at para. 13, citing R. v. Briggs, (2001) 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417 (C.A.), at para. 22, leave to appeal refused, [2002] S.C.C.A. No. 31, this court noted that the national DNA data bank was designed to:(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). [16] Substantial amendments to the Act came into force on March 6, 2018, which, among other things, expanded the purpose of the Act to include helping law enforcement find missing persons and identify human remains. The purpose of the Act, as set out in s. 3, is to “establish a national DNA data bank to help”:(a) law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act; and
(b) law enforcement agencies — as well as coroners, medical examiners or persons and organizations with similar duties or functions — find missing persons and identify human remains. [17] Briggs was “[o]ne of the first appellate decisions to address the constitutionality of the DNA data bank legislative scheme”: R. v. K.M., 2011 ONCA 252, 232 C.R.R. (2d) 152, at para. 80. In Briggs, this court discussed what prompted Parliament to introduce the Act, highlighting two things: i) that prior to 1995 the Criminal Code did not authorize the taking of DNA samples from individuals accused of a crime for the purposes of DNA analysis, and ii) the Supreme Court’s decision in R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, which held that the seizure of DNA evidence from the accused in that case, who had been charged with sexual assault, was illegal as there was no legislative provision that authorized the seizure and the accused’s consent was not validly obtained.
[18] Parliament introduced the Act in the wake of Borden.
1. Overview of Specific Provisions in the Act
[19] For the purposes of this appeal, ss. 9(1), 9(2), and 10(6) to 10(8) are of particular importance. Before addressing these, I think it important to note that the amendments to the Act that came into force in March 2018 repealed ss. 9(2)(c) and 10(7)(c), which dealt with access to information in the convicted offenders index and the destruction of DNA samples of discharged offenders, respectively.
[20] Section 9(1) of the Act provides that the DNA profiles for adult offenders in the convicted offenders index shall be kept indefinitely subject to s. 9(2),[1] which states:Access to information in the convicted offenders index shall be permanently removed
(a) without delay after every order or authorization for the collection of bodily substances from the person to whom the information relates is finally set aside; or
(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted.
(c) [Repealed, 2014, c. 39, s. 241] [21] Prior to the amendments coming into force in March 2018, s. 9(2)(c) provided that three years after the day on which an offender was conditionally discharged under s. 730 of the Criminal Code, access to their DNA profile would be permanently removed:(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period. [Emphasis added.] [22] As well, prior to the amendments coming into force in March 2018, s. 10(7) provided that three years after the day on which an offender is conditionally discharged under s. 730 of the Criminal Code, their DNA sample would be destroyed in accordance with the now repealed s.10(7)(c):(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period. [Emphasis added.] [23] With respect to the destruction of DNA samples, s. 10(7) of the Act currently provides that:The Commissioner shall destroy the stored bodily substances of a person,
(a) without delay after every order or authorization for the collection of bodily substances from the person is finally set aside; or
(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted.
(c) [Repealed, 2014, c. 39, s. 243] [24] Section 10(6) of the Act confers on the RCMP Commissioner the discretionary power to “at any time destroy any or all of the stored bodily substances”, including those of a conditionally discharged offender, if the Commissioner considers that it is “no longer required for the purpose of forensic DNA analysis.” Furthermore, under s. 10(8) of the Act, the DNA sample of an offender with a record suspension is kept separate and apart from other DNA samples and can be neither used for forensic DNA analysis nor communicated to any person:[S]tored bodily substances of a person in respect of whom a record suspension, as defined in subsection 2(1) of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person. [25] Section 3(1) of the Criminal Records Act provides that “a person who has been convicted of an offence under an Act of Parliament may apply to the [Parole Board of Canada] for a record suspension” (emphasis added). A discharged offender under s. 730 of the Criminal Code is not “a person who has been convicted” and is therefore not eligible to apply for a record suspension.
[26] The net effect of this is that a convicted offender is eligible to apply for a record suspension which, if granted, triggers s. 10(8) of the Act; s. 10(8) directs that the offender’s DNA samples be kept separate and apart, and prohibits the samples from being used for further forensic DNA analysis. By contrast, a discharged offender is not eligible for a record suspension, and therefore s. 10(8) does not apply to them.
[27] A discharged offender can only rely on s. 10(6), which gives the Commissioner discretionary authority to have DNA samples destroyed if they are “no longer required for the purpose of forensic DNA analysis.”
....
[29] In my view, the SCAJ did not misapprehend the Act’s provisions and therefore did not commit a legal error. There is, as he found, a meaningful legislative difference between the treatment and retention of DNA samples taken from convicted offenders and those taken from discharged offenders. A convicted offender can apply for a record suspension, following which their DNA sample is sequestered and unavailable for future forensic DNA analysis. However, a discharged offender cannot apply for a record suspension in accordance with s. 3(1) of the Criminal Records Act, which provides that “a person who has been convicted” may apply for a record suspension.
[30] Instead, discharged offenders are governed by s. 6.1(1)(b) of the Criminal Records Act, which provides that no record of the conditional discharge nor the existence of the record or fact of the conditional discharge shall be disclosed to any person beyond three years after it was imposed, unless prior approval of the Minister of Public Safety and Emergency Preparedness is obtained. For discharged offenders, the Act does not explicitly provide for either the destruction of the DNA samples under s. 10(7) or for the DNA samples to be kept separate and apart and unavailable for future forensic DNA analysis, as is the case for convicted offenders with record suspensions under s. 10(8).
[31] Therefore, subject only to the Commissioner’s discretionary authority under s. 10(6), the DNA sample of a discharged offender remains in the national DNA data bank and can potentially be used for further forensic analysis even though their record has been automatically purged under the Criminal Records Act.
[32] It is true that even after a record suspension a DNA profile previously developed from a sequestered DNA sample remains in the convicted offenders index. However, s. 10(8) of the Act ensures that no further DNA profiles, including those produced through different or novel techniques, can be developed from the DNA samples. This is not the case for discharged offenders, whose DNA sample remains available indefinitely in the convicted offenders index and thus could be subject to further testing and analysis, subject to s. 10(6). This is a legislative lacuna which the sentencing judge did not seem to appreciate when she imposed sentence.
[33] The SCAJ’s reasons demonstrate an understanding that, while neither a discharged offender nor a convicted offender who receives a record suspension can have an already-developed DNA profile removed, an individual’s privacy interest in their DNA samples is not co-extensive with their privacy interest in a DNA profile developed from the DNA sample at some earlier point. That is because, by retaining access to a DNA sample, the state retains access to the highest level of personal and private information contained in an individual’s DNA and “[u]nlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological makeup” R.C., at para. 27. As the retained DNA samples remain available for testing, the respondent’s DNA sample is subject to yet-to-be developed methods of testing and analysis pursuant to s. 10(2) of the Act. A DNA profile, on the other hand, is the end product of forensic DNA analysis and is not the biological sample itself.
[34] Clearly appreciating that the respondent has an administrative remedy under s. 10(6) of the Act, the SCAJ was of the view that the respondent “should not be burdened with the obligation of seeking an administrative remedy to deal with this issue”, noting also the difference between s. 10(6) and an application for a record suspension for convicted offenders.
[35] The SCAJ did not, as the Crown submits, base his decision on what he believed to be the differences in how the Act treated already developed DNA profiles. He based it on a correct understanding of how DNA samples are treated, and on his assessment of how that information would have affected the sentencing judge’s decision. In my view, the sentencing judge’s failure to take the differential treatment of DNA samples into account opened the door to appellate intervention.
|
