In its 5-4 decision in R. v. R.C., the Supreme Court of Canada recently ruled that a young person convicted of assault with a weapon was exempt from the DNA collection order that normally follows such a conviction.
Section 487.051(1) of the Criminal Code provides that a person charged with a "primary designated offence" must provide a sample of DNA for inclusion in Canada's offender DNA databank. This order is to be made unless the offender can prove, as noted in s. 487.051(2), that the taking of the sample for inclusion in the databank would have an impact on the offender's security of the person and/or privacy interests that is grossly disproportionate to the public interests in collecting the sample.
Where the conviction is for a secondary designated offence, the onus is reversed: according to s. 487.051(1)(b), a sample is only to be taken from the perpetrator of such an offence if the Crown can show that it is in the best interests of justice to do so. In considering what is in the best interests of justice, the court is entitled to consider factors set out in s. 487.051(3), which include the accused's criminal record, the circumstances of the offence, and the impact on the accused's privacy and security of the person.
The assailant in R. v. R.C. was a 13-year-old boy.
"This assault arose out of a teenager's refusal to go to school. The boy's mother reacted by dumping a hamper of dirty clothes on him, which probably offended his dignity, and the boy responded by jabbing her in the foot with a pen," says Chandra Gosine, who represented the accused.
The fact that the accused used a pen in the attack turned the incident into assault with a weapon.
Says Gosine, "The definition of weapon is very broad; it can include almost anything."
After stabbing his mother with the pen, the young man continued to strike her until his uncle intervened, and the police were called. The youth was charged and convicted of the weapons offence.
Justice for Children and Youth, a youth advocacy and support organization, sought intervenor status.
"We did so because we strongly believe courts must consistently apply the principles enunciated in the Youth Criminal Justice Act [YCJA] and the UN Convention on the Rights of the Child," says spokesperson Lee Ann Chapman.
The application of the principles of the YCJA to the DNA collection provisions was the central focus of the Supreme Court's ruling. Writing for a five-member majority, Justice Morris J. Fish agreed that the principles of the YCJA should inform the application of section 487.051 to youths.
Chapman adds, "Perhaps one of the most significant aspects of this judgment is a recognition that the UN Convention on the Rights of the Child is incorporated by reference into the Youth Criminal Justice Act."
In upholding the trial judge's decision to exempt the youth from a DNA order, Fish rejected the respondents' view that the youth had presented insufficient evidence about the impact on his privacy and security of the person rights to rebut what Fish characterized as a "mandatory" order.
While the trial judge described having considered the accused's circumstances and the developmental characteristics of adolescents in general, "there was no evidence," says Halifax Crown prosecutor Peter Rosinski, "from [the boy] about the impact on [him]" of a DNA order.
"We can't just simply presume", says Rosinski, "that there's more of an impact on a young person [through being the subject of a DNA order] than there is on an older person."
Four justices agreed with this argument in two separate dissents (Justices Rosalie Abella, Louis LeBel, and Louise Charron in one, and Justice Michel Bastarache in a separate dissent). Rosinski also felt that the court gave insufficient weight to the safeguards already incorporated into the DNA collection system.
"The scientific information is separated from the identification information so even the people at the lab don't know who it is," he said.
He noted as well that DNA samples taken from a young person and included in the bank are required to be destroyed, along with the rest of the young person's criminal record, after a period of time stipulated by the YCJA, as long as the youth does not re-offend in the interval.
Toronto criminal lawyer Ricardo Federico expresses
concerns about the regime for destruction of DNA records. If the police say it's been removed, have all traces of the DNA information really been deleted from the system?
"I am informed that once DNA information is entered into the database, the completeness of its destruction is a live issue," he says.
Chapman is bothered about the impact on each youth's life.
"Young people have a greater sense of vulnerability when it comes to authority. They constantly question our lawyers as to how long the police can keep their records," she says. "The notion that someone can take a sample of DNA and keep it on file affects how they view themselves in a significant way. . . . They worry that . . . a 'stupid mistake' in their youth may impact school and work choices for the rest of their lives."
The issues raised by Chapman, however, relate to youth in general. Gosine acknowledges that concern about privacy "was not foremost in the mind" of his young client, who knew little about the implications of DNA collection.
The decision sends a clear message, however, that fairly general and theoretical evidence about youth privacy issues may be enough to prove gross disproportionality.
If the Supreme Court had not recognized [this general evidence], it would have placed an unfair burden on the young person by requiring them in each and every case [to provide] social science and other relevant evidence, to establish the additional impact on privacy and security of the person based on differences between adolescents and adults," says Chapman.
The divided decision, however, reflects the court's lack of agreement with respect to the appropriate role of such evidence where the offence is a primary designated offence and there is a presumption in favour of an order.
In her dissent, Abella expressed concern that the court had allowed a level of discretion into the analysis of s. 487.051(2) that was not contemplated by the legislation.
Rosinski says: "I do feel that the majority in R. v. R.C. changed the test for primary orders by virtue of introducing the factors from the discretionary context of section 487.051(3) into the test for primary orders. But if you really boil it down, Fish J. is careful to say that these are factors which may be relevant. To me, he's suggesting that it's a matter of evidence, not law."
Rosinski points out that Abella seems to echo this view in her dissent, noting that information relating to the s. 487.051(3) factors may be "part of the evidentiary package" that is relevant to the analysis in primary designated offence cases, even if they're not the focus of the inquiry.
"Fundamentally" says Rosinski, "my main problem with how the majority dealt with this case is that I can't see how the principles of the YCJA — which Abella J. acknowledges are 'theoretically relevant' — can be practically applied to a concrete decision like whether or not to make a DNA order."
He notes that principles such as those expressed in the YCJA are useful when conducting a "balancing" type of analysis — for example, the analysis required in the context of a secondary designated offence — but they are not particularly appropriate where the task is as expressed in s. 487.051(2) — to challenge an otherwise mandatory order. To do so, he believes, is to exercise a much wider discretion that was contemplated by the legislation.
Rosinski argues also that making DNA orders against youth can serve the public interest. Referring to a Saskatchewan decision, he notes that research suggests that "youth are most likely to be deterred not by sentences, but by the fear of detection. If a young person knows his or her DNA is in the databank, it's a fairly powerful incentive not to re-offend."
It's important to recognize that this case was influenced by its facts.
Says Gosine: "the accused's extreme youth, his lack of a record, and the [fact that the] offence . . . resulted in no noticeable injuries were very important consideration in the judges' minds when they addressed the issues."
He adds that this particular accused's success in obtaining an exemption from a DNA order "will not likely much influence the making of orders in other cases," because of a general perception by judges and the Crown, and acknowledged by the majority in R. v. R.C., that such orders are mandatory and appropriate in the great majority of cases.