R. v. R.C.

R. v. R.C.
Collection
Supreme Court Judgments
Date
2005-10-28
Neutral citation
2005 SCC 61
Report
[2005] 3 SCR 99
Case number
30302
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 30302
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. R.C., [2005] 3 S.C.R. 99, 2005 SCC 61
Date: 20051028
Docket: 30302
Between:
R.W.C. (a young person within the meaning of the Youth Criminal Justice Act )
Appellant
and
Her Majesty the Queen
Respondent
‑ and ‑
Attorney General of Ontario, Attorney General of British Columbia
Attorney General of Alberta and Canadian Foundation for
Children, Youth and the Law
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 71)
Dissenting reasons:
(paras. 72 to 101)
Dissenting reasons:
(paras. 102 to 112)
Fish J. (McLachlin C.J. and Major, Binnie and Deschamps JJ. concurring)
Abella J. (LeBel and Charron JJ. concurring)
Bastarache J.
______________________________
R. v. R.C., [2005] 3 S.C.R. 99, 2005 SCC 61
R.W.C. (a young person within the meaning of the
Youth Criminal Justice Act ) Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Attorney General of British Columbia,
Attorney General of Alberta and Canadian Foundation for
Children, Youth and the Law Interveners
Indexed as: R. v. R.C.
Neutral citation: 2005 SCC 61.
File No.: 30302.
2005: April 20; 2005: October 28.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the nova scotia court of appeal
Criminal law — Forensic DNA analysis — Order authorizing taking of bodily substances for DNA analysis — Exception — Whether trial judge erred by applying exception and declining to make DNA data bank order with respect to young person guilty of primary designated offence — Criminal Code, R.S.C. 1985, c. C‑46, s. 487.051 .
The 13‑year‑old accused stabbed his mother in the foot with a pen after she dumped dirty laundry on him during an argument about getting out of bed and going to school. He later struck her in the face with his fist and kept swinging until his uncle intervened. He pleaded guilty to assault with a weapon and breach of an undertaking. Assault with a weapon is a primary designated offence. Pursuant to s. 487.051(1) (a) of the Criminal Code , a court is required to authorize the taking of DNA samples from an accused convicted of a primary designated offence unless it is satisfied under s. 487.051(2) that the accused has established that the impact of the order on his privacy and security interests “would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice”. The trial judge applied the exception and declined to issue a DNA order. The Court of Appeal allowed the Crown’s appeal and directed that a DNA order be issued.
Held (Bastarache, LeBel, Abella and Charron JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Major, Binnie, Deschamps and Fish JJ.: The trial judge’s order should be restored. In applying s. 487.051(2), a court 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. The s. 487.051(2) inquiry is highly contextual and necessarily individualized. Some of the factors that may be relevant to the 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. A trial judge has the discretion not to make a DNA order with respect to both primary and secondary designated offences although the discretion appears to be more limited in the case of primary offences. 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 if the trial judge’s decision was clearly unreasonable. [21] [29-31] [47] [49]
In this case, the trial judge did not err by taking into account the underlying principles and objectives of the youth criminal justice legislation in balancing the governing factors under s. 487.051(2). The taking and retention of a DNA sample constitutes a grave intrusion on a person’s right to personal and informational privacy. While no specific provision of the youth criminal justice legislation modifies s. 487.051 , Parliament clearly intended that this legislation would be respected whenever young persons are brought within the criminal justice system. In creating a separate criminal justice system for young persons, Parliament has recognized their heightened vulnerability and has sought to extend enhanced procedural protections to them, and to interfere with their personal freedom as little as possible. [36] [39] [41] [51]
The record does not support the Court of Appeal’s finding that the trial judge failed to consider relevant information in declining to make the DNA order. 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. The purported omissions were either included in the predisposition report considered by the trial judge or were drawn to her attention at the sentencing hearing. [9] [57] [61-62]
Lastly, the trial judge did not fail to particularize her decision and did not conclude that taking a DNA sample from young persons constituted, prima facie, an impermissible violation of their rights. She instructed herself impeccably in law and dealt in very specific terms with the circumstances of the case. Her conclusions were reasonable in the circumstances and should not have been set aside by the Court of Appeal. [63-66] [70]
Per LeBel, Abella and Charron JJ. (dissenting): The trial judge lacked an evidentiary foundation for refusing a DNA order and should have issued an order authorizing the taking of DNA samples from the accused. Unlike the test set out in s. 487.051(1) (b) for secondary designated offences, the test for primary designated offences in s. 487.051(1) (a) makes no reference to the factors listed in s. 487.051(3). There is therefore significantly less scope for discretion not to make a DNA order with respect to primary designated offences. The onus is on the offender pursuant to s. 487.051(2) to rebut the presumption in s. 487.051(1) (a) and to satisfy the court that an order should not be made. The threshold for discharging this onus is gross disproportionality. Whether the impact of a DNA order on an accused’s privacy and security is grossly disproportionate to the public interest is a question of evidence. The test is the same for both adults and young persons and a court cannot simply infer a disproportionate impact based on age alone. The factors in s. 487.051(3) may be advanced if they relate to the impact of the DNA order but they are not the focus of the test for primary designated offences. [73] [83] [86-93]
Here, the trial judge, on the record before her, erred in concluding that the accused had rebutted the presumption. While young offender legislation contains principles and protections to which all young offenders are always entitled, they cannot be applied, as they were by the trial judge, so as to neutralize the clear language of the Code. The defence conceded that no evidence was adduced with respect to the impact of a DNA order on the accused. Rather, it 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. The trial judge erred by basing her conclusion on generic considerations, effectively turning a presumptively mandatory order into one presumptively inapplicable to young offenders. This was a violent domestic incident involving a weapon and the potential for future violence. It is this very potential that the DNA data bank is meant to address and a DNA order ought to have been made. [74] [83] [93-94]
[97] [99]
Per Bastarache J. (dissenting): The trial judge erred in declining to make the DNA order. 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.
[102] [112]
An offender’s criminal record should not be considered in the course of an assessment under s. 487.051(2) . First, the fact that Parliament explicitly directed a court in s. 487.051(3) to consider this factor with respect to secondary designated offences, but not primary designated offences, indicates that it is not a factor to be considered for primary designated offences. Second, to consider this factor in the course of an assessment under s. 487.051(2) would frustrate Parliament’s attempt to make a clear distinction between the tests for making DNA orders for primary and secondary designated offences. Third, an accused’s criminal record is not relevant because it does not raise any privacy or security of the person interests. [102-103] [107] [109-110]
Cases Cited
By Fish J.
Referred to: 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 dismissed, [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.
By Bastarache J. (dissenting)
R. v. Briggs (2001), 157 C.C.C. (3d) 38, leave to appeal dismissed, [2001] 2 S.C.R. xii; R. v. B.V.C. (2003), 233 Sask. R. 270, 2003 SKQB 219.
Statutes and Regulations Cited
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 487.055, 487.07(4).
DNA Identification Act, S.C. 1998, c. 37, ss. 3 , 9.1 , 10.1 .
Young Offenders Act, R.S.C. 1985, c. Y‑1 [rep. 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 Other International Instruments
Convention on the Rights of the Child, Can. T.S. 1992 No. 3.
APPEAL from a judgment of the Nova Scotia Court of Appeal (Roscoe, Bateman and Hamilton JJ.A.) (2004), 222 N.S.R. (2d) 41, 701 A.P.R. 41, 183 C.C.C. (3d) 347 (sub nom. R. v. C. (R.W.)), [2004] N.S.J. No. 53 (QL), 2004 NSCA 30, allowing an appeal from a judgment of Gass J. (2003), 215 N.S.R. (2d) 164, 675 A.P.R. 164, [2003] N.S.J. No. 243 (QL), 2003 NSSF 31, dismissing the Crown’s application for an order authorizing the taking of bodily substances for DNA analysis. Appeal allowed, Bastarache, LeBel, Abella and Charron JJ. dissenting.
Chandra Gosine, for the appellant.
Peter P. Rosinski and William D. Delaney, for the respondent.
John S. McInnes, for the intervener the Attorney General of Ontario.
Kathleen M. Ker, for the intervener the Attorney General of British Columbia.
James C. Robb, Q.C., for the intervener the Attorney General of Alberta.
Lee Ann Chapman and Martha Mackinnon, for the intervener the Canadian Foundation for Children, Youth and the Law.
The judgment of McLachlin C.J. and Major, Binnie, Deschamps and Fish JJ. was delivered by
Fish J. —
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. 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. 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: (2003), 215 N.S.R. (2d) 164, 2003 NSSF 31.
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: (2004), 222 N.S.R. (2d) 41, 2004 NSCA 30.
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:
487.051 (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:
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. [paras. 44-45 and 47]
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:
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. [para. 14]
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 dismissed, [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:
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; paras. 7-9.]
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 presentence report and the submissions of counsel.
55 In this light, I am not prepared to hold th