



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

111. (1)
Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138. (1)
Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985,

(a)       is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)       is guilty of an
    offence punishable on summary conviction.






CITATION:
R. v. K.M., 2011
          ONCA 252



DATE: 20110401



DOCKET: C50312, C50313 and C50908



COURT OF APPEAL FOR ONTARIO



Moldaver, Armstrong and Rouleau JJ.A.



BETWEEN:



Her Majesty The Queen



Appellant



and



K.M.,
          J.B., and D.R.

(young persons within the
          meaning of the
Youth Criminal Justice
          Act
)



Respondents



John McInnes and Janet Gallin, for the appellant



John Scarfe, for the respondent J.B.

Monte MacGregor, for the respondent K.M.

Brian Irvine, for the respondent D.R.

Nancy Dennison and Roy Lee, for the intervener Attorney
          General of Canada

David Rose and Graeme Norton for the intervener Canadian Civil
          Liberties Association

Jill R. Presser and Apple Newton-Smith, for the intervener
          Criminal Lawyers Association

Andrea Luey and Martha Mackinnon, for the intervener Justice
          for Children and Youth



Heard: November 8 and 9, 2010



On appeal from the judgment of Justice Marion Cohen of the
          Ontario Court of Justice, Youth Justice Court, dated March 5, 2009, declaring
          that s. 487.051(1) of the
Criminal Code
,
          R.S.C. 1985, c. C-46 is unconstitutional as it relates to young offenders,
          with reasons dated March 17, 2009 and reported at (2009), 246 C.C.C. (3d) 77,
          and from her judgments dated March 30, 2009 and July 16, 2009  refusing to make DNA collection orders in
          respect of the respondents.



Moldaver J.A.:



INTRODUCTION

[1]

These Crown appeals involving three young offenders raise
    the issue of the constitutionality of ss. 487.051(1) and (2) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    which provide for the collection of DNA samples from both adult and young
    offenders. The question to be determined is whether these provisions are
    constitutional as they apply to young persons who have been found guilty under
    the
Youth Criminal Justice Act
, S.C.
    2002, c. 1 (
YCJA
) or the
Young Offenders Act
, R.S.C. 1985, c.
    Y-1 (
YOA
) of certain offences identified
    by Parliament as primary designated offences.

[2]

The impugned provisions were proclaimed in force on
    January 1, 2008. Section 487.051(1) mandates the collection of DNA samples from
    a class of offenders who have been found guilty of one or more offences from a
    subset of primary designated offences commonly referred to as super-primary
    offences. The reach of s. 487.051(1) is not limited to adult offenders. It
    specifically includes young persons found guilty under the
YCJA
or the
YOA
.

[3]

Section 487.051(2) provides for the presumptive
    collection of DNA samples from another class of offenders, including young
    persons, who have been found guilty of one or more offences from another subset
    of primary designated offences commonly referred to as primary offences. In
    the case of such offenders, the sentencing court retains a limited discretion
    to decline to make a collection order.

[4]

The respondents are three young persons who, in
    unrelated cases, pleaded guilty to one or more super-primary offences before
    Cohen J. of the Ontario Court of Justice, Youth Justice Court. At their
    sentencing hearings, which began in April 2008, the trial Crown informed the sentencing
    judge of a recent amendment to the
Criminal Code
(s. 487.051(1)) which provided for the automatic collection
    of the respondents DNA samples for purposes of inclusion in the National DNA Data
    Bank (NDDB). Prior to that amendment, such collection orders were presumptively
    required, but the court retained a limited discretion to refuse them.  Upon learning that DNA collection orders were
    now mandatory in respect of super-primary offences, the sentencing judge remarked
    that she would be interested in whether that raises a constitutional issue.

[5]

Counsel for the respondents took up the challenge and
    eventually moved to have s. 487.051(1) declared unconstitutional. The
    sentencing judge also had before her several other young persons who were
    awaiting sentencing for offences that came within the purview of s. 487.051(2).
    Their counsel joined the challenge and moved to have that provision declared
    unconstitutional as well.

[6]

The constitutional challenges resulted in a lengthy
    hearing that continued intermittently for the better part of a year. As the
    record discloses, the sentencing judge played an active role in the proceedings.
    Among other things, after seeking and obtaining the consent of the parties, she
    invited various organizations to intervene and ultimately granted intervener
    status to the Criminal Lawyers Association and Justice for Children and Youth.
    She also took steps to assist counsel in obtaining legal aid funding. In
    addition, she compelled the Crown to call evidence about the workings of the NDDB,
    even though the respondents bore the onus of showing that the impugned
    provisions were unconstitutional.

[7]

On March 17, 2009, the sentencing judge delivered
    reasons in which she found that s. 487.051(1) infringes the privacy and
    security rights of the respondents under ss. 7 and 8 of the
Charter of Rights and Freedoms
.
[1]
She further found that the breaches were not justified under s. 1 of the
Charter
and therefore declared the
    provision unconstitutional. The sentencing judge reached the same conclusions
    in respect of s. 487.051(2).

[8]

By way of remedy, rather than striking down the
    offending provisions, the sentencing judge chose to read them down and incorporate
    the test under s. 487.051(3) of the
Code
for the collection of DNA samples from offenders found guilty of offences
    identified as secondary designated offences. In doing so, she conferred upon
    herself a discretion to refuse to make a collection order unless the Crown
    could satisfy her that such an order was in the best interests of the
    administration of justice viewed through the lens of the principles that
    animate the
YCJA
. Applying that test
    to the cases before her, she refused to issue DNA orders in respect of any of
    the respondents.

[9]

The Crown appeals from those decisions and seeks to
    have the respondents provide DNA samples in accordance with s. 487.051(1) of
    the
Code
.  The appeals hinge on the Crowns submission
    that the sentencing judge erred in declaring s. 487.051(1) unconstitutional
    insofar as it relates to young persons.  However, in respect of the respondent, J.B., there is an initial issue
    relating to the jurisdiction of the court to hear the appeal.

[10]

J.B. was originally charged with aggravated
    assault.  Pursuant to a plea resolution
    agreement, the Crown accepted a plea to the lesser offence of assault causing
    bodily harm and proceeded summarily.  Although
    the Crown submits that this court has jurisdiction over the appeal involving J.B.,
    I disagree.  In my view,
R. v. P.R.F.
(2001), 57 O.R. (3d) 475
    (C.A.) is dispositive.  As Rosenberg J.A.
    explained, at para. 5, in summary conviction proceedings, the appeal should be
    taken in accordance with Part XXVII of the
Criminal
    Code
, which means that the appeal lies to a judge of the Superior Court of
    Justice.  Thus, the Crowns appeal in
    respect of J.B. is quashed.

[11]

For reasons that follow, I would allow the Crowns appeal
    in respect of K.M. and D.R. and order these respondents to provide DNA samples
    in accordance with s. 487.051(1) of the
Code
.
    In the case of D.R., because of his medical condition, I would order that buccal
    swabbing be used to obtain samples from him.

BACKGROUND FACTS

[12]

In view of my conclusion that s. 487.051(1) is
    constitutional, the respondents K.M. and D.R. must provide DNA samples for the NDDB.  Accordingly, I see no need to dwell on their
    backgrounds or the circumstances surrounding their crimes. The following brief
    description will suffice. It includes the outcome of the DNA hearings conducted
    by the sentencing judge in conformity with the test she considered to be
    constitutional.

K.M.

[13]

K.M. pleaded guilty on February 28, 2008 to one count
    of robbery (a super-primary offence).

[14]

On November 17, 2007, K.M. and two other youths
    approached C.D. at a subway station and stole his Play Station game system.
    K.M. held C.D. and tried to prevent him from calling for help. C.D. found the
    incident very upsetting. The game system was a costly gift from his parents who
    could ill afford it. K.M. was eventually apprehended as a result of images
    retrieved from a surveillance video.

[15]

K.M. was 15 years old. He had a youth record for
    assault and breaking and entering and was on probation for those offences when he
    committed the robbery. He regretted having robbed C.D. and recognized that his
    actions were harmful.

[16]

K.M. was sentenced on April 11, 2008 to probation for
    18 months with conditions.

[17]

At the DNA hearing on May 16, 2008, K.M. testified and
    again expressed his remorse. He described the incident as a momentary lapse and
    said he felt badly for the victim.

[18]

Regarding his understanding of the significance of providing
    a DNA sample, K.M. stated that DNA is basically your blueprint of  who you
    are; it is the genetic structure youre built of; it is unique and comes ...
    from our different parents. K.M. objected to providing a DNA sample not
    because he wanted to commit a crime and just not get caught but because he
    was concerned that if he spit somewhere and someone got stabbed there, then
    they could see  my DNA there  and come to my door  and Ill be a suspect of
    something I never did. He also described it as his privacy, but he did not
    elaborate on this, other than to say that its just who I am and I dont
    really have a big idea, but just know I dont want my DNA taken.

[19]

K.M. acknowledged in cross-examination that the police
    already had his fingerprints but he did not consider that process as extreme
    as taking his blood. He was unhappy about the police having his fingerprints
    and would have contested that as well were it not compulsory.

[20]

The sentencing judge refused to make a DNA order. The
    offence was relatively minor in nature and there was no gratuitous violence.
    Despite his prior youth record, K.M. was doing well. She saw no entrenched
    pattern of anti-social behaviour and she wanted to avoid him self-labelling
    as a criminal. Noting that he did not want to provide a sample and that the
    public would be protected by his rehabilitation, the sentencing judge found it
    was not in the best interests of the administration of justice to make a DNA
    order.

D.R.

[21]

D.R. pled guilty on June 20, 2008 to four counts of
    robbery (super-primary offences). The robberies occurred in the summer of 2007
    and involved swarming incidents in which D.R. and others surrounded various
    young men in their late teens and early 20s and searched them for cash, cell
    phones and other items. In one instance, the victim was punched (not by D.R.)
    and had a tooth dislodged. In another incident, D.R. stole a cell phone from
    the victim.

[22]

D.R. had no youth record. He was 17 years old. He was
    reputed to have made considerable progress following the robberies. D.R. had
    positive references. His pre-sentence report was relatively positive, although
    it noted that he had a history of aggressive and impulsive behaviour. After
    spending 10 or 11 days in pre-trial custody, D.R. had returned to school and
    was progressing well. He suffered from hemophilia for which he gave himself
    injections two times a week.

[23]

D.R. was sentenced to probation for 24 months with
    conditions.

[24]

The DNA hearing extended over several days because the
    sentencing judge was concerned about D.R.s hemophilia. The Crown provided
    medical evidence establishing that blood samples could safely be taken from
    him.  Alternatively, the Crown suggested
    that samples could be taken using buccal swabs.

[25]

The sentencing judge refused to make a DNA order even
    though she thought it was reasonable and certainly arguable that a DNA
    sample should be taken in D.R.s case. Nonetheless, she was concerned about
    medical issues which she felt the Crown had not satisfactorily addressed and
    she decided not to make the order because the interests of the state did not
    outweigh D.R.s security of the person.

CONSTITUTIONALITY OF SS. 487.051(1)
    AND (2) OF THE
CRIMINAL CODE

The Statutory Regime

[26]

Before considering the sentencing judges reasons for
    declaring ss. 487.051(1) and (2) unconstitutional, it might be useful to
    outline the statutory regime that governs the collection of DNA samples for inclusion
    in the NDDB, with particular emphasis on the safeguards that exist to protect
    the privacy interests of all those affected by collection orders, as well as
    the safeguards that relate specifically to young persons.

Relevant Provisions
    of the Criminal Code

[27]

Sections 487.04 to 487.055 of the
Criminal Code
provide for three ways in which DNA samples may be
    obtained for forensic purposes:

·

DNA investigative warrants under s. 487.05;

·

post-conviction DNA collection orders under s.
    487.051; and

·

retroactive DNA authorizations under s. 487.055.

[28]

The present appeals relate to post-conviction DNA
    collection orders.  There are three
    provisions within s. 487.051 under which post-conviction DNA collection orders
    can be made:

·

s. 487.051(1), pursuant to which DNA collection
    orders are mandatory in respect of super-primary designated offences;

·

s. 487.051(2), pursuant to which DNA collection
    orders are presumptive in relation to primary designated offences; and

·

s. 487.051(3), pursuant to which DNA collection
    orders are discretionary in respect of secondary designated offences.

[29]

Given the importance of these provisions to the
    appeals, they are set out in full:

487.051 (1) The court shall make an order in Form
    5.03 authorizing the taking of the number of samples of bodily substances that
    is reasonably required for the purpose of forensic DNA analysis from a person
    who is convicted, discharged under section 730 or found guilty under the
Youth Criminal Justice Act
or the
Young Offenders Act
, of an offence
    committed at any time, including before June 30, 2000, if that offence is a
    primary designated offence within the meaning of paragraph (
a
) of the definition primary designated
    offence in section 487.04 when the person is sentenced or discharged.

(2) The court shall make such an order in Form 5.03
    in relation to a person who is convicted, discharged under section 730 or found
    guilty under the
Youth Criminal Justice
    Act
or the
Young Offenders Act
,
    of an offence committed at any time, including before June 30, 2000, if that
    offence is a primary designated offence within the meaning of any of paragraphs
    (
a.1
) to (
d
) of the definition primary designated offence in section 487.04
    when the person is sentenced or discharged. However, the court is not required
    to make the order if it is satisfied that the person has established that the
    impact of such an order on their privacy and security of the person would be
    grossly disproportionate to the public interest in the protection of society
    and the proper administration of justice, to be achieved through the early
    detection, arrest and conviction of offenders.

(3) The court may, on application by the prosecutor
    and if it is satisfied that it is in the best interests of the administration
    of justice to do so, make such an order in Form 5.04 in relation to

(
a
) a person who is found not criminally responsible on account of
    mental disorder for an offence committed at any time, including before June 30,
    2000, if that offence is a designated offence when the finding is made; or

(
b
) a person who is convicted, discharged under section 730 or found
    guilty under the
Youth Criminal Justice
    Act
or the
Young Offenders Act
,
    of an offence committed at any time, including before June 30, 2000, if that
    offence is a secondary designated offence when the person is sentenced or
    discharged.

In deciding whether to make the order, the court
    shall consider the persons 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 persons privacy and
    security of the person and shall give reasons for its decision.

[30]

Primary designated offences and secondary designated
    offences are defined terms in s. 487.04 of the
Code
.  In subsection (a) of
    the definition of primary designated offence in s. 487.04, there is an
    itemized list of 19 offences that are a subset of primary designated offences.
    These offences, which are listed at Appendix A to these reasons, are commonly
    referred to as super-primary offences.  Overall, they consist of serious crimes that involve the use of
    violence, threats of violence and/or the use of firearms or other weapons.

[31]

In subsections (a.1)-(d) of the definition of primary
    designated offence, there is an itemized list of offences referred to as
    primary designated offences, which are listed at Appendix B to these
    reasons. They too consist of serious offences, including terrorism, hijacking,
    hostage-taking, sexual offences, offences involving child pornography, and breaking
    and entering into a dwelling-house.

[32]

Other
Criminal
    Code
provisions deal with the manner in which DNA samples may be taken, as
    well as their use and destruction.  Section
    487.06(1) sets out the three ways in which a DNA sample may be taken, namely: the
    plucking of individual hairs, buccal swabbing and taking blood by pricking the
    skin surface. Section 487.06(2) authorizes the court to include terms and
    conditions in the order that it considers advisable to ensure that the taking
    of the samples ... is reasonable in the circumstances.  Section 487.08(1.1) prohibits the use of DNA
    samples obtained pursuant to a collection order except to transmit them to the
    Commissioner of the RCMP for the purpose of forensic DNA analysis in
    accordance with the
DNA Identification
    Act
. Anyone who breaches that provision is guilty of a hybrid offence
    under s. 487.08(4) and liable to imprisonment for two years if the Crown
    proceeds by way of indictment.

[33]

The DNA samples sent to the RCMP for analysis are used
    to create a DNA profile that is stored in the NDDB and is available for
    comparison with evidence obtained from other police investigations:
R. v. P.R.F.
,
    at para. 3.

Retention Periods for DNA Profiles and Samples of Young Offenders

[34]

The
YCJA
and
    the
DNA Identification Act
, S.C.
    1998, c. 37 (
DNAIA
) establish
    retention periods for DNA profiles and samples in various situations involving
    young offenders.  The length of the
    retention period varies depending on whether an offence is prosecuted by way of
    indictment or by summary conviction, and depending on the nature of the offence
    and whether the offender commits a further offence.  Included as Appendix C to these reasons is
    a chart prepared by the Crown that sets out the various retention periods
    created by the interaction of the
DNAIA
and
    the
YCJA
.

[35]

For purposes of the constitutional analysis, the
    following discussion of the interaction of the provisions in these Acts will
    suffice.

The
DNA Identification Act

[36]

The
DNAIA
was
    enacted in 1998. Section 3 came into force on May 8, 2000.  It defines the purpose of the Act as follows:

3. The purpose of this Act is to establish a
    national DNA data bank to help law enforcement agencies identify persons
    alleged to have committed designated offences, including those committed before
    the coming into force of this Act.

[37]

Section 4 of the Act came into force on June 30,
    2000.  It defines the principles of the
    Act as follows:

4. It is recognized and declared that

(
a
) the
    protection of society and the administration of justice are well served by the
    early detection, arrest and conviction of offenders, which can be facilitated
    by the use of DNA profiles;

(
b
) the
    DNA profiles, as well as samples of bodily substances from which the profiles
    are derived, may be used only for law enforcement purposes in accordance with
    this Act, and not for any unauthorized purpose; and

(
c
) to
    protect the privacy of individuals with respect to personal information about
    themselves, safeguards must be placed on

(i) the use and
    communication of, and access to, DNA profiles and other information contained
    in the national DNA data bank, and

(ii) the use of, and
    access to, bodily substances that are transmitted to the Commissioner for the
    purposes of this Act.

[2]

[38]

Most of the provisions of the
DNAIA
relate to a series of rules and procedures that govern the
    day-to-day operation of the NDDB. They include prohibitions on the use of
    samples and profiles, and provide for criminal sanctions for those who fail to
    comply with those prohibitions.

[39]

For present purposes, ss. 9.1 and 10.1 of the
DNAIA
are of particular importance. They
    focus on access to youth records and the removal and destruction of bodily


substances that have been
    collected from young persons for purposes of inclusion in the NDDB.  Both sections provide that in the case of
    young persons, the information in the NDDB shall be permanently removed and the
    bodily substances destroyed when the record relating to the same offence is
    required to be destroyed, sealed or transmitted to the National Archivist of
    Canada under Part 6 of the
Youth Criminal
    Justice Act
.

[40]

The relevant provisions of the
DNAIA
, including s. 9(1) of that Act, are as follows:

9. (1) Subject to subsection (2), section 9.1 and
    the
Criminal Records Act
, information
    in the convicted offenders index shall be kept indefinitely.

9.1 (1) Access to information in the convicted
    offenders index in relation to a young person who has been found guilty under
    the
Young Offenders Act
or under the
Youth Criminal Justice Act
of a
    designated offence shall be permanently removed without delay when the record
    relating to the same offence is required to be destroyed, sealed or transmitted
    to the National Archivist of Canada under Part 6 of the
Youth Criminal Justice Act
.

(2) Section 9 nevertheless applies to information
    in the convicted offenders index in relation to

(
a
) a presumptive offence within the meaning of subsection 2(1) of
    the
Youth Criminal Justice Act
; or

(b) a record to which
    subsection 120(6) of that Act applies.

10.1(1) The Commissioner shall, without delay,
    destroy stored bodily substances of a young person who has been found guilty of
    a designated offence under the
Young
    Offenders Act
or under the
Youth
    Criminal Justice Act
when the record relating to the same offence is
    required to be destroyed, sealed or transmitted to the National Archivist of
    Canada under Part 6 of the
Youth Criminal
    Justice Act
.

(2) Subsections 10(6) and
    (7) nevertheless apply to the destruction of stored bodily substances of a
    young person that relate to

(
a
) a presumptive offence within the meaning of subsection 2(1) of
    the
Youth Criminal Justice Act
; or

(
b
)  a record to which
    subsection 120(6) of that Act applies.



The definition of presumptive offence within the meaning of
    s. 2(1) of the
YCJA
is explained
    below.

The
YCJA

[41]

Part 6 of the
YCJA
contains an elaborate set of rules designed to protect the identity of young
    persons and any records that may have been generated as a result of their involvement
    in the Youth Criminal Justice System.  It
    addresses the manner in which youth court records are to be kept and by whom;
    the people who can access them and under what circumstances; how long the
    records are to be kept; and when and by whom they are to be removed and
    destroyed.

[42]

The term presumptive offence found in ss. 9.1(2) and
    10.1(2) of the
DNAIA
is a defined
    term in the
YCJA
.  For present purposes, it applies to young
    persons age 14 years or older who have committed murder, attempted murder,
    manslaughter, aggravated sexual assault or a third serious violent offence as
    defined in s. 2(1) of the
YCJA
. In
    such cases, Part 6 of the
YCJA
does
    not apply and the young persons DNA is treated like that of an adult.

[43]

Section 120(6) of the
YCJA
relates to situations where, during the period of access to a
    record kept in respect of a young person, the person is convicted of certain
    scheduled offences under the
YCJA
after
    the young person becomes an adult. In such circumstances, Part 6 of the
YCJA
no longer applies and the youth
    records for the scheduled offences become adult records.

[44]

While acknowledging the complexity of the record
    retention periods created by the interaction of the
DNAIA
and the
YCJA
, what
    is relevant for present purposes is that DNA samples and profiles are removed
    and destroyed in similar fashion as fingerprints and photographs taken
    routinely in respect of young persons under s. 113 of the
YCJA
.

Overview of Legislative Safeguards

[45]

At the DNA hearing, the Crown led evidence from three
    expert witnesses who described the legislative checks and balances designed to ensure
    that DNA samples collected from young persons for the NDDB are used solely for
    identification purposes and are removed and destroyed in accordance with the
    provisions set out in Part 6 of the
YCJA
.
    The three witnesses were:

·

Detective Sergeant Brian Borg, a homicide
    officer with the Toronto Police Service, who was qualified to give expert
    evidence in the gathering of DNA evidence and the operation of the DNA data
    bank;

·

Robert Murray, a civilian employee of the RCMP
    and Manager of the Pardons and Purge Services (PPS), who gave evidence about
    the safeguards in place to protect the privacy and anonymity of DNA data bank
    samples and profiles and the system for severing and destroying youth DNA data
    bank information in accordance with legislative requirements; and

·

Isabelle Trudel, a civilian member of the RCMP in
    charge of the NDDB, who gave evidence about the reception, handling and
    destruction of DNA samples at the NDDB.

[46]

The evidence of these witnesses plays a significant
    role in the constitutional analysis.  It
    provides the context against which to measure the reasonableness of ss.
    487.051(1) and (2) and, in particular, the degree of impact that DNA collection
    orders have on the privacy interest of young persons.  A useful summary of their evidence is
    contained at pp. 11-13 of the Crowns factum as follows:

·

The DNA collection kit contains two parts, one
    with the DNA sample and the other with the offenders identification
    information.  Both parts of the kit have
    the same unique barcode number (Sample Unique Number or SUN).  When the kit arrives at the data bank, the
    two forms are separated with the sample being retained by the databank and the
    identification form being sent to the RCMP records unit.  From this point on, the processing of the
    sample at the data bank is anonymous.  The donors identity remains unknown and no personal information is
    retained or entered into any DNA data base.

·

The profile is derived from analysis of the
    DNA sample.  A 1.6 millimetre portion of
    the sample card is punched out and used to generate the profile.  At the DNA data bank they look at 13 regions
    of the DNA that are anonymous, that do not code for any particular genes or any
    particular disease.  The profile is a
    series of numbers.  Each region of the
    DNA has an allele which will be translated into a number (for example 1415).  When you look at all thirteen regions you
    will have a string of numbers (26 digits long), which is the profile that is
    put into CODIS [the computer software that is used to store and compare DNA
    profiles] for comparison with other profiles, which are also in numeric
    form.   Except for identical twins or
    triplets etc. each persons profile is unique.  The Sample Unique Number (SUN) is also kept in CODIS.

·

If there ever is a match between a profile in
    the convicted offenders index and a profile in the crime scene index, staff at
    the NDDB itself never know the identity of the convicted offender. Instead, the
    NDDB notifies the RCMP fingerprint section of the barcode number associated
    with the convicted offender sample and the RCMP use that barcode number to go
    back to the original documentation to find the identity of the offender.  The RCMP fingerprint section then notifies
    the forensic laboratory that submitted the crime scene sample who in turn
    notifies the police investigators. The DNA profile or sample is never released
     the investigating agency is simply informed that the profile of a certain
    offender has generated a hit in relation to the submitted crime scene sample.

·

When criminal records files are established or
    updated, a criminal records analyst in the RCMP assigns an archival date to the
    file (based on legislative requirements). Criminal analysts have supervisors do
    periodic checks of their work, depending on their seniority and their error
    rate, which is required to be less than one percent.

·

When the retention period has been met, PPS
    severs the SUN link between the NDDB and the criminal record data bank two or
    three days prior to the expiration of the retention period. Once the SUN tie
    has been severed between the two data banks, it is impossible to make any link
    between the DNA data bank and the information indicating whose DNA it is.

·

After they have severed the identification link,
    PPS notifies the DNA data bank which then removes the DNA profile from the data
    bank and destroys the biological sample card.  Both the removal of the profile and the destruction of the sample are
    witnessed by more than one employee, each of whom signs off on the destruction,
    as does the Officer in Charge of the DNA data bank.  Ms. Trudel in particular, repeatedly and
    clearly stated that the NDDB removes the profile from the data bank and destroys
    all of the remaining biological sample that was used to generate the profile.

[47]

Against that backdrop, I turn to the sentencing judges
    ruling that ss. 487.051(1) and (2) of the
Criminal Code
are unconstitutional.

THE SENTENCING JUDGES RULING

[48]

The sentencing judge provided lengthy reasons for
    concluding that ss. 487.051(1) and (2) violate ss. 7 and 8 of the
Charter
insofar as they apply to young
    persons.

Section 8 of the
Charter

[49]

Commencing with s. 8, the sentencing judge identified
    the constitutional issue as follows:

Is the law reasonable which authorizes the taking of
    DNA samples from young persons found guilty of primary designated offences?

[50]

The sentencing judge answered that question as follows
    in respect of s. 487.051(1):

Section 487.051(1) authorizes mandatory orders.
    Where a court is required to impose a mandatory order upon a finding of guilt,
    it has no possibility of balancing the interests involved through the lens of
    the
Youth Criminal Justice Act
. This
    mandatory procedure is unfair and unreasonable. Indeed, it is a strange
    circumstance that requires a Youth Justice Court to determine a DNA
    application, but prevents that court from considering the principles of the
Youth Criminal Justice Act
when doing
    so. In the result, I find that s. 487.051(1) is an unreasonable law and
    violates the applicants rights under s. 8 of the
Charter
.

[51]

In arriving at that conclusion, the sentencing judge
    considered La Forest J.s observation in
R.
    v. Dyment
, [1988] 2 S.C.R. 417, at p. 428, that in balancing the importance
    of the state objective against the degree of impact on an individuals privacy
    interest, the court should find some means of identifying those situations
    where we should be most alert to privacy considerations, referred to by some
    as zones or realms of privacy.  Taking
    her cue from that comment, the sentencing judge determined that the
YCJA
mandates a zone or realm of
    privacy for young persons, which requires that the court be alert to privacy
    considerations in the case of young people found guilty of criminal offences.
    This meant that in assessing the existence of a reasonable expectation of
    privacy, the court had to recognize a distinction between the case of adults
    found guilty of designated offences and those of young persons.

[52]

The sentencing judge then considered various provisions
    of the
YCJA
that illustrate the high
    expectation of privacy within the criminal justice system enjoyed by young
    people.  Among them, Part 6 represents
    perhaps the most cogent expression of this philosophy, the intent of which is
    to avoid labelling and stigmatization of young people who have committed
    criminal offences, lest their prospects for rehabilitation be damaged. While
    recognizing, per Charron J. in
R. v. Rodgers
,
    [2006] 1 S.C.R. 554, at para. 43, that adults convicted of designated offences
    could not reasonably expect to retain any degree of anonymity
vis-à-vis
law enforcement authorities
    after their conviction, the same did not necessarily follow in respect of
    young persons, particularly in view of Part 6 of the
YCJA
which protects the identity of young people before, during,
    and after they are subject to proceedings under the Act.

[53]

Having determined that young people found guilty of
    designated offences have a reasonable expectation of privacy in their DNA, the
    sentencing judge explained the effect of s. 487.051(1) on the privacy interest
    of young offenders as follows:

I find it fair to state that in making DNA orders
    against a young person found guilty of a designated offence, the court is compelling
    persons who have arguably the highest right to privacy in the criminal justice
    system to produce to the state the
highest
    level of personal and private information
. [Emphasis added.]

[54]

Viewed through the lens of the
YCJA
, including s. 3(1)(d), which entitles young persons to
    participate in the processes ... that lead to decisions that affect them, and
    s. 140, which states that the provisions of the
Criminal Code
apply [to the
YCJA
]
    with any modifications that the circumstances require, the sentencing judge
    stated:

I take these sections to mean that despite the
    specific procedure provided in the DNA legislation, the Youth Justice Court
    must deal with DNA applications by taking into account the principles and
    characteristics of the
Youth Criminal Justice
    Act
. To the extent that the DNA legislation prevents or obstructs the court
    from engaging in this reasoning it fails to meet constitutional standards.

[55]

The sentencing judge applied similar reasoning to s.
    487.051(2) in concluding that it also failed to meet minimal constitutional
    standards. In her view, placing the burden on the young person ... to
    demonstrate an impact on his privacy which is grossly higher than that
    protected by the Youth Justice legislation creates a standard which would be
    almost impossible to meet. As such, s. 487.051(2) prevents a fair balancing
    of the young persons privacy rights against the state interests and results in
    a procedure that is unfair and unreasonable.

[56]

Before turning to s. 7 of the
Charter
, the sentencing judge referred to the substantial
    expansion in the nature and number of designated offences that Parliament had
    chosen to identify as primary designated offences. She noted that ss.
    487.051(1) and (2) capture a wide variety of offences such as robbery, assault
    causing bodily harm and breaking and entering into a dwelling house  offences
    that are commonly committed by young persons and that may be relatively
    minor on the facts. The result of these legislative changes meant that there
    would be a substantial increase in DNA orders involving young persons. She
    also took these changes to mean that Charron J.s description of designated
    offences at para. 43 of
Rodgers
as
    the more serious offences under the
Code
and offences in respect of which it may reasonably be expected that DNA may be
    left behind by the offender was no longer an accurate description.

[57]

The sentencing judge next turned to the evidence of the
    Crown expert witnesses concerning the removal and destruction of DNA records in
    accordance with the governing legislative provisions. In doing so, she quoted
    from Ms. Trudels testimony as follows:

Ms. Trudel also testified that the DNA sample used
    to generate the DNA profiles of a young person for comparative purposes forms
    only a portion of the total bodily substance provided by the person. The
    remaining bodily substances, which contain the entire genetic makeup of the
    sample providers, are not destroyed. They are maintained indefinitely in the
    National DNA Data Bank, in the same manner as the bodily substances and DNA
    profiles of adults, which are retained indefinitely.

The sentencing judge then continued as follows:

It may be
    argued that the numerous safeguards incorporated in the DNA legislation are a
    complete answer to the privacy concerns of young persons. I would disagree
.
    First of all, I am not satisfied that removal of access to and destruction of
    samples of DNA taken from young persons is actually taking place in accordance
    with the legislation. Secondly, it has been established in evidence before me
    that, while access to the DNA profile may have been severed in a very small
    percentage of cases, the DNA sample containing the entire genetic make-up of
    the young person is never destroyed. There may be good scientific reasons for
    retaining DNA samples rather than profiles, but the fact remains that by
    retaining the DNA samples, a young persons privacy is vulnerable to future
    changes to the legislation, or to the handling of DNA samples. [Emphasis
    added.]

[58]

I pause here to note that these passages reveal two
    serious factual errors.

[59]

First, Ms. Trudel did not state that [t]he remaining
    bodily substances, which contain the entire genetic make-up of the sample
    providers, are not destroyed. On the contrary, she said precisely the
    opposite.

[60]

Second, the record does not support the sentencing
    judges finding that removal of access to and destruction of samples of DNA
    taken from young persons is [not] actually taking place in accordance with the
    legislation. That finding is a product of the sentencing judges
    misunderstanding of the statistical evidence before her and is patently wrong,
    as will be explained below.

[61]

Notably, in this court, the respondents made no attempt
    to uphold these factual errors.  I will
    have more to say about them in due course.

Section 7 of the
Charter

[62]

The sentencing judge also concluded that ss. 487.051(1)
    and (2) violate the psychological security of young persons, contrary to s. 7
    of the
Charter
, for the following
    reasons:

Although the
DNA
    Identification Act
strictly controls the release of the information
    acquired through DNA sampling, this privacy safeguard does not protect a young
    person from the psychological impact of knowing he has surrendered to the state
    his most basic and extensive personal information. I believe that for a young
    person to carry with him or her into adulthood the knowledge that this private
    information is in a police data bank is a serious psychological burden, and one
    that is contrary to the anti-labelling philosophy of the
Youth Criminal Justice Act
.

[63]

Having found a threshold violation of the young
    persons rights to privacy and security of the person under s. 7, the
    sentencing judge moved to the second stage of the analysis and found that the
    violations were inconsistent with the principles of fundamental justice:

The application of s. 487.051(1) and (2) to young
    persons breaches the presumption of reduced culpability of young persons. This
    presumption is a principle of fundamental justice.

[64]

The sentencing judge completed her s. 7 analysis as
    follows:

I find that s. 487.051(1) does not permit the court
    to consider the implications of the presumption of the diminished moral
    blameworthiness of young persons in the DNA context and thereby undermines
    [the] entire rationale of the
Youth
    Criminal Justice Act
as I have explained it in these reasons. I find
    further that s. 487.051(2), which contains a rebuttable presumption that the
    order should be made, unfairly deprives the young person of the benefit of this
    presumption.

Constitutional Remedy

[65]

After holding that ss. 487.051(1) and (2) are not saved
    by s. 1 of the
Charter
because the
    means chosen to achieve the objectives of the DNA legislation do not minimally
    impair the constitutional rights in question, the sentencing judge turned to
    the issue of remedy.

[66]

In arriving at what she considered to be an appropriate
    remedy, the sentencing judge stated:

[A] court considering a DNA application must have
    the discretion to consider the principles of the
Youth Criminal Justice Act
in arriving at a determination. Judicial
    discretion is constitutionally required in order to provide a mechanism for
    balancing the rights of the young person and those of the state. Section
    487.051(1) deprives the court of discretion and cannot be saved. Section
    487.051(2) places an unconstitu-tional burden on the young person, cannot be
    reworded, and therefore cannot be saved.

[67]

Faced with these difficulties, the sentencing judge
    turned to s. 140 of the
YCJA
[3]
and found that it could be applied to modify and save the legislative scheme. In
    particular, the sentencing judge declared that for purposes of process, the
    test set out in s. 487.051(3) for secondary designated offences should be
    applied in the case of youths found guilty of primary designated offences.

[68]

The sentencing judge concluded this aspect of her
    reasons as follows:

Section 487.051(3) permits an individualized
    inquiry in which the trial judge is able to consider the application through
    the lens of the youth justice legislation. Under s. 487.051(3), the onus
    is on the Crown to make the application and thus the Crown bears the burden of
    persuasion. Shifting the onus is consistent with recognizing the presumption of
    diminished culpability. The public interest is protected because the best
    interests of the administration of justice includes a consideration of the
    valid purposes of the DNA legislation. The enumerated factors allow the court
    to consider the youths youth criminal justice record, and the nature and
    circumstances of the offence, factors which courts have always considered in
    relation to DNA orders. In addition, the court can consider the impact of the
    order on the young persons privacy and security interests as they are
    understood in the particular case and in the
Youth Criminal Justice Act
. This solution respects the intention of
    parliament as expressed in the
Youth
    Criminal Justice Act
, and the important purposes served by the DNA
    legislative scheme.

ISSUES

[69]

On the facts of the two appeals before us, the only
    live constitutional issue is whether s. 487.051(1) is constitutional as it
    relates to young offenders. This is because both respondents were found guilty as
    young offenders of super-primary designated offences, thereby triggering the
    application of s. 487.051(1).

[70]

However, the sentencing judge also declared s.
    487.051(2) unconstitutional as it relates to young offenders because some of
    the offenders - who are not involved in these appeals - were found guilty of primary
    designated offences. Although the constitutionality of s. 487.051(2) is not
    strictly before us, similar constitutional considerations apply in respect of
    both provisions. In the interests of judicial economy, I will also address the
    correctness of the sentencing judges ruling that s. 487.051(2) is
    unconstitutional.

[71]

Accordingly, I frame the two issues as follows:

·

Is s. 487.051(1) constitutional as it relates to
    young offenders?

·

Is s. 487.051(2) constitutional as it relates to
    young offenders?

Issue 1:  Is s. 487.051(1)
    constitutional as it relates to young offenders?

[72]

The majority decision of the Supreme Court of Canada in
Rodgers
frames the analytical
    approach to the constitutional issues.  In
Rodgers
, at para. 23,
    Charron J. agreed with the Crowns position that, in assessing the
    constitutionality of a DNA seizure order under s. 487.055 of the
Criminal Code
, it was unnecessary to
    conduct a constitutional analysis under both ss. 7 and 8 of the
Charter
not because s. 7 is not
    triggered, but because s. 8 provides a more specific and complete illustration
    of the s. 7 right in this particular context, making any s. 7 analysis
    redundant.  See also
R. v. Mills
, [1999] 3 S.C.R. 668, at
    para. 88.

[73]

Similarly, the interests at stake in this case,
    including procedural fairness, psychological security and the presumption of
    reduced culpability for young persons, are protected by the reasonableness
    inquiry mandated by s. 8 of the
Charter
.
    Hence, I believe it was unnecessary for the sentencing judge to engage in a
    separate s. 7 analysis.

[74]

Turning to the analytical approach to be taken to the
    alleged s. 8 violation, the central issue is whether s. 487.051(1), which
    authorizes the mandatory collection of DNA samples in certain limited
    circumstances, is a reasonable law.  In
Rodgers
, Charron J. observed, at para.
    27, that drawing the constitutional line of reasonableness becomes a function
    of both the importance of the state objective and the degree of impact on the
    individuals privacy interest.

[75]

After citing the seminal s. 8 decision in
Hunter v. Southam Inc.
, [1984] 2
    S.C.R. 145, Charron J. noted, at paras. 35-37, that the specific
Hunter
criteria for assessing the
    reasonableness of a search
[4]
are inapplicable in the present context. That is because unlike in the context
    of investigative searches conducted with or without a warrant, a provision
    authorizing a post-conviction seizure of DNA does not target suspected
    offenders in respect of particular offences. Rather, it targets offenders who
    have been convicted of a specified category of offences solely for the purpose
    of creating DNA profiles for inclusion in the NDDB. I therefore propose to
    consider the reasonableness of the impugned provision by balancing the
    competing state and individual interests against the backdrop of the majoritys
    s. 8 analysis in
Rodgers
.

[76]

The respondents maintain that s. 487.05(1) is not
    reasonable primarily because it does away with prior judicial authorization.
    According to the respondents, prior judicial authorization is a constitutional
    prerequisite to the collection of DNA samples for NDDB purposes, be it from
    adults or young persons.

[77]

The Crown disagrees. It submits that when
    s. 487.051(1) is considered in context, it does not overstep the
    constitutional line of reasonableness.  According to the Crown, societys interest in collecting DNA samples
    from the limited class of persons affected greatly overshadows the degree of
    impact that collection orders have on their privacy interests. Hence, the need
    for prior judicial authorization may safely be eliminated without offending
    minimal constitutional standards.

[78]

Before addressing these competing positions, I wish to
    make two observations.

The importance of the
    state objective

[79]

Little need be said about the importance of DNA evidence
    and the positive impact it has had on law enforcement and the administration of
    justice as a whole. In
Rodgers
, at
    para. 4, Charron J. succinctly explained its value to society as follows:

There is no question that DNA evidence has
    revolutionized the way many crimes are investigated and prosecuted. The use of
    this new technology has not only led to the successful identification and
    prosecution of many dangerous criminals, it has served to exonerate many
    persons who were wrongfully suspected or convicted.
The importance of this forensic development to the administration of
    justice can hardly be overstated.
[Emphasis added.]

[80]

One of the first appellate decisions to address the
    constitutionality of the DNA data bank legislative scheme was this courts
    decision in
R. v. Briggs
(2001), 55
    O.R. (3d) 417 (C.A.). On behalf of the court, Weiler J.A., at para. 22, recognized
    that the purpose of the scheme went well beyond the immediacy of a particular
    investigation into a specific crime:

In this case, the states interest is not simply
    one of law enforcement
vis-à-vis
an
    individual  it has a much broader purpose. The DNA data bank will: (1) deter
    potential repeat offenders; (2) promote the safety of the community; (3) detect
    when a serial offender is at work; (4) assist in solving cold crimes; (5)
    streamline investigations; and most importantly, (6) assist the innocent by
    early exclusion from investigative suspicion (or in exonerating those who have
    been wrongfully convicted).

[81]

Weiler J.A.s description of the many benefits that
    society derives from the collection of DNA samples has received universal
    approval and was described at para. 32 of
Rodgers
as a correct articulation of the broader purpose of the legislative scheme.

[82]

In light of
Briggs
and
Rodgers
, the importance of the
    state objective in enacting the DNA data bank legislative scheme, both as it
    relates to adults and young offenders, can scarcely be doubted. Indeed, I would
    describe its worth as inestimable in cases such as where the NDDB facilitates the
    apprehension of a serial sexual predator, or the exoneration of a person who
    has been wrongfully convicted.

[83]

Accepting that the state objective in collecting DNA
    for data bank purposes ranks extremely high on the importance scale, a law that
    authorizes its collection must nonetheless be tested against the degree of
    impact it has on the individuals privacy interest. Only then can one determine
    whether the law impermissibly crosses the constitutional line of
    reasonableness.

The degree of impact of
    s. 487.051(1) on an individuals privacy interest

[84]

Rodgers
is
    especially helpful in identifying the degree of impact that a collection order has
    on the privacy interest of an individual who has been found guilty of a serious
    crime and whose DNA is being collected solely for identification purposes. While
Rodgers
involved an adult offender,
    in my view, Charron J.s analysis must inform a consideration of the impact of a
    mandatory DNA collection order on the privacy interest of a young offender,
    even though additional considerations will be brought to bear in this context.

[85]

At issue in
Rodgers
was the constitutionality of s. 487.055 of the
Code
, a provision that allowed the Crown to apply
ex parte
for a DNA collection order from
    certain offenders who were convicted and sentenced prior to the proclamation of
    the
DNAIA
. In general terms, the
    targeted offenders consisted of dangerous offenders, multiple murderers and
    multiple sex offenders who were still serving lengthy prison terms at the time
    of the application.

[86]

In assessing the impact of DNA sampling on the privacy
    interest of the affected individuals, Charron J. observed, at para. 39, that
    sampling interferes only modestly with a persons physical integrity and
    raises no greater constitutional concern in respect of the physical security
    of the person than does fingerprinting or the other identification procedures
    considered in
Beare
[
R. v. Beare
, [1998] 2 S.C.R. 387].

[87]

Turning to the informational component of privacy,
    while Charron J. recognized at para. 40 that the impact from obtaining DNA
    samples was potentially far more significant than with fingerprinting, she
    found the risk of misuse had been addressed by legislative safeguards
[5]
that strictly limit the use of samples collected for data bank purposes:

The potential impact on the informational component
    of privacy, however, is far more significant. It was also discussed in
S.A.B.
[[2003] 2 S.C.R. 678] and the
    Court recognized that [t]here is undoubtedly the highest level of personal and
    private information contained in an individuals DNA (para. 48). It is mainly
    for that reason that Mr. Rodgers submits that the analogy to fingerprinting
    does not assist in assessing the constitutionality of the DNA data bank regime.
    Mr. Rodgers correctly notes that DNA can reveal personal information that goes
    far beyond the identity of the person. However, his argument ignores the legislative
    provisions enacted in furtherance of the statement of principle contained in s.
    4 of the
DNA Identification Act
where
    Parliament expressly recognizes and declares that safeguards must be placed to
    protect the privacy of individuals. These safeguards, described earlier in this
    judgment, strictly limit the use that can be made of samples obtained for
    inclusion in the data bank to the comparison of offender profiles with crime
    scene profiles for
identification
only. [Emphasis in original.]

[88]

Thus, in Mr. Rodgers case, although he retained a
    residual privacy interest in the information contained in his DNA samples,
    Charron J. was satisfied, at para. 42, that in restricting the use of such
    samples to an 
identification tool only
,
    Parliament has


adequately answered any heightened
    concern about the potentially powerful impact that DNA sampling has on the
    informational privacy interests of the individual (emphasis in original).

[89]

Having addressed the limited impact of DNA sampling on
    the informational component of the right to privacy, Charron J. turned to the
    remaining question, namely, whether Mr. Rodgers had any reasonable expectation
    of privacy in respect of his identity in the circumstances. She found that he
    did not. The DNA collection scheme was confined to offenders who had been
    convicted of designated offences under s. 487.04 of the
Code
 offences which Charron J. described at para. 43 as generally
    the more serious offences under the
Code
and offences in respect of which it may reasonably be expected that DNA may be
    left behind by the offender. In Charron J.s view, persons convicted of
    designated offences could not expect to retain any degree of anonymity
vis-à-vis
law enforcement authorities
    after their conviction. In this respect, she agreed with the following
    observation of Bateman J.A. in
R. v.
    Murrins
(2002), 201 N.S.R. (2d) 288 (C.A.), at para. 41:

A person convicted of a designated offence would
    reasonably expect the authorities to gather and retain identifying information,
    such as fingerprints, distinctive body markings, or eye color. The bodily
    sample here is simply another form of identification.

[90]

Charron J. concluded this aspect of her reasons, at
    para. 43, by observing that, as a result of his crimes, Mr. Rodgers had become
    a matter of state interest and he had lost any reasonable expectation of
    privacy in the
identifying information
derived from DNA sampling in the same way he has lost any expectation of
    privacy in his fingerprints, photograph or any other identifying measures taken
    under the authority of the
Identification
    of Criminals Act
 (emphasis in original).  In the result, she held, at para. 44, that the data bank provisions in
    issue strike an appropriate balance between the public interest in the
    effective identification of persons convicted of serious offences and the
    rights of individuals to physical integrity and the right to control the
    release of information about themselves.

[91]

Charron J.s reasons in
Rodgers
make it clear that the degree of impact of a DNA collection
    order on the privacy interest of an adult offender who has been found guilty of
    a serious offence and whose DNA is collected solely for forensic identification
    purposes is negligible, whereas the state interest in requiring DNA sampling is
    significant.  In light of
Rodgers
, the issue for present purposes
    is whether the features of s. 487.051(1) that were not considered in that case
     namely, the mandatory nature of the DNA collection order, and the impact of
    such an order on the privacy interest of young offenders  alter the
    constitutional outcome.

[92]

Against that backdrop, I turn to the reasons of the
    sentencing judge with a view to discussing what I believe, with respect, are
    errors that she made in the course of her s. 8 analysis.

Errors in the sentencing judges
    s. 8 analysis

[93]

The sentencing judge concluded that the mandatory
    quality of s. 487.051(1) and the nature and extent of its impact on the privacy
    interest of young offenders distinguish
Rodgers
and result in a finding that the provision violates s. 8 of the
Charter
. In my view, the sentencing
    judge erred in this regard. As I will explain, the sentencing judge significantly
    overstated the gravity of the impact of mandatory DNA collection orders on the
    privacy interest of young offenders and failed to pay adequate regard to the
    state interest advanced by the impugned provision.

[94]

The first difficulty I have with the sentencing judges
    analysis relates to the way in which she characterized the nature of the
    privacy interest at stake in the case of young offenders. She began her s. 8
    analysis by citing
Dyment,
in which
    La Forest J. spoke of finding zones or realms of privacy. Taking her cue from
    that comment, the sentencing judge made a finding that the
YCJA
mandates a zone or realm of privacy for young persons.

[95]

With respect, the sentencing judge erred in this
    regard. Describing a group of similarly-situated individuals as benefitting
    from a zone of privacy in the sense intended by La Forest J. in
Dyment
is conceptually misconceived. The
    concept of zones or realms of privacy is designed to shed light on all of
    the legal interests that fall under the rubric of privacy. La Forest J. identified
    three sets of zones: territorial, personal and informational. Each describes an
    aspect of privacy that is applicable to anyone. The categories assist in
    identifying the full range of privacy interests that are engaged in any
    particular factual and legal set of circumstances. They do not, and were never
    meant to, catalogue group entitlements. And yet, that is precisely what the
    sentencing judge did in finding that the
YCJA
mandates a zone or realm of privacy for young persons.

[96]

The Crown submits that the sentencing judges error was
    not inconsequential.  It had
    ramifications in respect of her legal analysis. I agree, and adopt as correct,
    the following submission at para. 102 of the Crowns factum:

Because the zones of privacy refer to
constitutionally
protected privacy
    interests, [the sentencing judges] finding that the
YCJA
created a zone of privacy effectively transmuted the
YCJA
into a constitutional instrument.
    By means of this legal alchemy, [the sentencing judge] posited an
a priori
distinction between the cases
    of adults found guilty of designated offences and those of young persons. The
    principles animating the
YCJA
thus
    became the yardstick for
Charter
compliance so that [t]o the extent the DNA legislation prevents or obstructs
    the court from examining whether an order is appropriate through the lens of
    the
YCJA
, it fails to meet
    constitutional standards. [Emphasis in original.]

[97]

To be clear, my concern lies in the fact that the
    sentencing judge transmuted the
YCJA
into a constitutional instrument. By doing so, she effectively pre-empted the
    debate as to whether a mandatory law affecting the privacy interests of a young
    person can ever meet minimal constitutional standards. That is a very different
    proposition from one which recognizes the heightened expectation of privacy
    that young persons are clearly afforded under the
YCJA
.  No one questions that.
    The issue to be decided is whether Parliament has adequately accounted for
    those heightened expectations in the DNA data bank legislation under
    review.

[98]

A second error committed by the sentencing judge, in my
    respectful view, is that she overstated the impact of DNA collection orders on
    the privacy interests of young offenders by failing to consider the legislative
    safeguards that restrict the use to which information about a young offenders
    identity may be put.  The sentencing
    judge found, at para. 29, that in making DNA orders against [young persons],
    the court is compelling persons who have arguably the highest right to privacy
    in the criminal justice system
to produce
    to the state the highest level of personal and private information
 (emphasis
    added).

[99]

While that statement may be technically accurate, it fails
    to recognize the impact of the legislative safeguards described by Charron J. in
Rodgers
in para. 11 (c) to (l), which
    Parliament has put in place to ensure that DNA samples taken from young persons
    (as well as adults) are used solely for forensic identification purposes by law
    enforcement officials and nothing else.  In
    the face of those safeguards, to suggest that young persons are being forced to
    give up the highest level of personal and private information about
    themselves presents an incomplete picture.  As Charron J. concluded in
Rodgers
,
    while DNA is capable of revealing personal information that goes far beyond
    the identity of the person, the legislative safeguards protect the privacy of
    individuals by strictly limiting the use that can be made of samples obtained
    for inclusion in the data bank to the comparison of offender profiles with
    crime scene profiles for
identification
only (emphasis in original).

[100]

Moreover, there are additional legislative safeguards
    in the young offender context which are aimed at protecting the informational
    privacy of young offenders who are subject to an order under s. 487.051(1).
    These safeguards apply only to young offenders and were thus not discussed in
Rodgers
because that case dealt with
    adult offenders. The additional safeguards are described in detail above at
    paras. 39-44 and relate to the retention period for DNA samples and profiles
    obtained from young offenders. The applicable legislation requires the removal
    and destruction of DNA records relating to young persons from the NDDB in
    accordance with the provisions of Part 6 of the
YCJA
[6]
,
    which governs the removal and destruction of all records relating to young
    persons who come into contact with the youth criminal justice system.

[101]

In enacting specific retention periods for DNA records
    in respect of young offenders, Parliament obviously had in mind the special
    privacy concerns that apply to young persons. By incorporating youth-specific
    safeguards into the legislation, Parliament made sure that the retention of DNA
    records would be treated no differently than other identification procedures in
    connection with young persons, such as fingerprinting and photographs.

[102]

The sentencing judge did not view the additional
    legislative safeguards applicable to the DNA records of young offenders in this
    light.  On the contrary, the sentencing
    judge concluded that the application of Part 6 of the
YCJA
, which protects the identity of young people before, during,
    and after they are subject to proceedings under the Act, distinguishes a key
    finding in
Rodgers
, at para. 43, that
    persons convicted of designated offences could not reasonably expect to retain
    any degree of anonymity
vis-à-vis
law
    enforcement authorities and that such persons had lost any reasonable
    expectation of privacy in the
identifying
    information
derived from DNA sampling (emphasis in original).  According to the sentencing judge, no such
    finding could be made in respect of young offenders who are protected by Part 6
    of the
YCJA
.  In her view: [Y]oung persons do not lose a reasonable expectation of privacy in
    their identity after a finding of guilt, and the reasoning in
Rodgers
is distinguishable.

[103]

With respect, young persons who have been found guilty
    of designated offences
do
lose a
    reasonable expectation of privacy in their identity
vis-à-vis
law enforcement authorities while their records remain
    current under Part 6 of the
YCJA
.  While I agree that different considerations
    apply once those records are removed and destroyed, the fact that the governing
    legislation may impose a shorter timeframe within which law enforcement
    agencies can access the DNA profiles of young offenders for forensic identification
    purposes does not tell against the constitutionality of s. 487.051(1).  In my view, it does precisely the opposite.

[104]

The sentencing judge also made erroneous findings of
    fact regarding the degree of official compliance with these legislative
    safeguards. In concluding that s. 487.051(1) is unconstitutional in respect of
    young persons, the sentencing judge was clearly influenced by her factual findings
    that:

·

the DNA sample which contains the entire genetic
    make-up of the young person is never destroyed; and

·

the authorities are not removing and destroying
    DNA samples taken from young persons in accordance with the governing
    legislative provisions.

[105]

While I need not decide the matter, it seems to me that
    a systemic failure on the part of those responsible for implementing the
    legislative safeguards designed to protect the privacy interests of all DNA
    donors, and those of young persons in particular, could call into question the
    constitutionality of the entire DNA data bank regime.
[7]
Certainly, in the case of young persons, the removal and destruction of their
    DNA samples and related records in accordance with Part 6 of the
YCJA
is vital and one of the key
    features of the DNA data bank legislative scheme that distinguishes the
    treatment of young persons from adults.

[106]

In any event, I am satisfied that the sentencing judge
    misapprehended the evidence in reaching the two factual findings noted above. The
    sentencing judges finding that the young offenders DNA sample is never
    destroyed conflicts with the evidence of Isabelle Trudel of the NDDB, who testified
    that when the prescribed retention period expires, the biological collection
    card associated with the offender is destroyed and the profile is deleted from CODIS.

[107]

The sentencing judges other factual finding to the
    effect that authorities are not complying with the legislated timeframes for
    destroying DNA records was based on her interpretation of statistical evidence
    that, between June 30, 2000 and January 7, 2009, the NDDB received 21,169 DNA
    samples from young persons, and by the end of this period, only 535 of these
    samples had been destroyed. After expressing doubt that 97.5% of young people
    had re-offended in a way that would extend the records retention period, the
    sentencing judge interpreted these figures as evidence of a failure to comply
    with the provisions of the
DNA
    Identification Act
.

[108]

However, the sentencing judge failed to consider
    reasons other than recidivism to explain why a young offenders DNA records
    would still be in the NDDB at the end of the period she was considering.  As the Crown points out, the reason why so
    many of the DNA records of young offenders remained in the NDDB was simply
    because the retention period for the majority of the 21,169 DNA samples
    received had not yet expired.

[109]

The importance of the sentencing judges erroneous factual
    findings can scarcely be overstated. Following the release of her constitutional
    ruling, the Standing Senate Committee on Legal and Constitutional Affairs
    received an Order of Reference from the Senate to study the provisions and
    operations of the
DNAIA
. See
Debates of the Senate
, 40
th
Parl., 2nd Sess., Vol. 146, No. 13 (26 February 2009) at p. 285. One task
    undertaken by the Standing Committee was to look into the retention and
    destruction of young offenders DNA samples and profiles stored at the NDDB. At
    p. 45 of the resulting report, the Committee explained its reason for doing so:

In certain recent cases involving DNA collection
    from young offenders, courts have expressed serious concerns about the fact
    that they had evidence before them to indicate that neither the DNA samples nor
    the DNA profiles of young offenders convicted of designated offences were being
    destroyed or archived by the Data Bank as required. The Committee decided, as a
    result, to inquire further into this matter during its statutory review.
[8]

[110]

At pp. 45-47 of its report, the Committee reviewed the
    statutory regime relating to the retention and destruction of DNA samples from
    young persons. It explained the steps it had taken to investigate the concerns
    raised by the courts and the results of its findings:

While the above rules are certainly complex, and
    therefore likely challenging to administer, we are of the view that the Data
    Bank should nevertheless be required to comply with its own enabling statute.
    Accordingly, during our study, we asked representatives from the Department of
    Justice and the Data Bank to provide the committee with any available
    statistics regarding the retention of DNA samples and profiles of young
    offenders, and an explanation of why so many samples were being retained. We
    wished to learn whether the concerns expressed by judges in certain cases were
    valid, and whether there were problems with respect to recordkeeping at the
    Data Bank that needed to be addressed. On 18 June 2009, we received a letter
    from the then Minister of Public Safety, the Honourable Peter Van Loan,
    summarizing the results of an internal review the Data Bank conducted of all
    DNA samples and profiles it had received from convicted young offenders between
    1 June 2000 and 6 April 2009. Of the 21,743 samples and profiles received by
    the Data Bank during that period, we were advised that:

·

20,865 were linked to criminal records that had
    not yet reached the end of their retention periods (10,403 being still within
    their original 3 or 5 year retention period, 2,619 having been archived for an
    additional five years because they were taken in relation to a schedule
    offence, 7,569 having been converted to an adult file because the individual
    committed an offence as an adult within the retention period, and 256 having
    been retained in accordance with other provisions of the
YCJA
); and

·

878 records had reached the end of their
    retention periods, with the samples and profiles either having already been
    removed or destroyed, or in the process of being removed or destroyed, by 6
    April 2009.

It would appear, based
    on the above information, that the Data Bank is retaining and destroying the
    samples of young offenders convicted of designated offences in accordance with
    the requirements outlined in sections 9, 9.1, 10 and 10.1 of the
DNA Identification Act
. The committee
    was gratified to learn that this is the case, particularly given the emphasis
    that section 3(1)(b)(iii) of the
YCJA
places on the need to provide enhanced procedural protections for the privacy
    rights of young persons. If the courts that had expressed concerns about
    retention of DNA samples and profiles at the Data Bank had had this
    information, it might well have influenced their decisions. For this reason,
    the committee recommends that the Data Bank publish, in its annual reports,
    statistics on the number of DNA samples and profiles of adult and young
    offenders contained in the Data Bank, as well as the reasons for why they are
    being retained, as was done for us in the letter we received from the former
    Public Safety Minister. This should help to avoid any future confusion, by the
    courts or by Parliament, regarding how the Data Bank is implementing its
    records retention and destruction policies.

[111]

In sum, I am respectfully of the view that because of
    the erroneous factual findings regarding record retention practices, the
    sentencing judge failed to properly consider in the s. 8 analysis the important
    legislative safeguards protecting the privacy interests of young offenders under
    the DNA data bank regime and significantly overstated the degree of impact that
    DNA sampling has on the privacy interests of young persons.

How the competing state and
    individual interests should be balanced under s. 8

[112]


As was explained by Charron J. in
Rodgers
, at para. 39, rather than
    viewing DNA sampling as a serious intrusion on privacy interests: a useful
    analogy can be drawn between DNA sampling and fingerprinting in considering the
    impact on the privacy interest of the concerned individuals. As I understand
    her reasons, Charron J. felt that the analogy was apposite because
    fingerprinting and DNA sampling share many of the same defining
    characteristics, including:

·

they serve an important societal interest having
    regard to the wide variety of reasons for which they may legitimately be used (para.
    41);

·

they interfere minimally with the physical
    security of the individual (para. 39);

·

their use is restricted to that of an
    identification tool only (para. 42);

·

they are obtained from persons who have committed
    or, in the case of fingerprints, are alleged to have committed, an indictable
    offence and thus, have a greatly reduced expectation of privacy (paras. 41 and
    42); and

·

the identity of persons who have been found
    guilty of certain serious crimes is a matter of state interest and such persons
    lose any reasonable expectation of privacy in the identifying information
    derived from DNA sampling and fingerprinting (para. 43).

[113]

Once it is accepted that DNA sampling is analogous to
    fingerprinting in terms of its impact on a persons privacy interest, the
    answer to the first issue left open in
Rodgers
 whether prior judicial authorization is a constitutional prerequisite to
    collecting bodily samples for DNA data bank purposes  becomes relatively
    straightforward.

[114]

Prior judicial authorization is not a constitutional
    prerequisite to the taking of fingerprints. This was made clear in
Beare,
where the legislation requiring a
    person to appear for fingerprinting under the
Identification of Criminals Act
, R.S.C. 1970, c. I-1 following a
    charge but before conviction, was challenged on the ground that it contravened ss.
    7 and 8 of the
Charter
, among other
Charter
provisions.

[115]

At para. 41 of
Rodgers
,
    Charron J. noted that [t]he impact on the privacy interest of the person resulting
    from being subjected to fingerprinting, observation, photographing, and other
    measurements was considered as part of the Courts s. 7 analysis. The
    following excerpts from p. 413 of
Beare
,
    quoted by Charron J. in
Rodgers
, are  applicable here:

It seems to me that a person who is arrested on
    reasonable and probable grounds that he has committed a serious crime, or a
    person against whom a case for issuing a summons or warrant, or confirming an
    appearance notice has been made out, must expect a significant loss of personal
    privacy. He must expect that incidental to his being taken in custody he will
    be subjected to observation, to physical measurement and the like.
    Fingerprinting is of that nature. While some may find it distasteful, it is
    insubstantial, of very short duration, and leaves no lasting impression. There
    is no penetration into the body and no substance is removed from it.

...

I am unable to accept that a provision providing
    for fingerprinting as an incident of being taken into custody for a serious
    crime violates the principles of fundamental justice. While a search of ones
    premises requires a prior authorization based on reasonable and probable
    grounds to believe both that the offence has been committed and that evidence
    will be found, the custodial fingerprinting process is entirely different. It
    involves none of the probing into an individuals private life and effects that
    mark a search.

[116]

I recognize that
Beare
must be approached with caution. Just because prior judicial authorization is
    not a constitutional prerequisite for fingerprinting does not mean that it is
    not a constitutional prerequisite for DNA sampling. Manifestly, the analogy
    between the two is not exact.

[117]

Unlike fingerprinting, DNA sampling involves some
    penetration or probing into the body and the removal of a substance from it.
    Unlike fingerprinting, DNA has an informational component that could reveal
    the highest level of personal and private information about an
    individual:
R. v. S.A.B
., [2003] 2 S.C.R. 678, at para. 48 and
R. v. R.C.
, [2005] 3 S.C.R. 99, at para.
    27.

[118]

But those differences, in my view, are either
    inconsequential or are more than adequately made up for by the highly important
    societal interests served by DNA evidence, as well as by the legislative safeguards
    restricting the use of DNA information and by the stringent preconditions that
    must be met to bring about a mandatory collection order under
    s. 487.051(1) of the
Code
.

[119]

In terms of what I consider to be inconsequential
    differences between fingerprinting and DNA sampling, the probing involved in the
    collection of DNA is minimal and, as Charron J. observed in
Rodgers
, at para. 39, it raises no
    greater constitutional concern in respect of the physical security of the
    person than does fingerprinting.

[120]

Charron J. recognized that DNA sampling raises
    informational concerns that do not exist with other identifying procedures such
    as fingerprinting.  However, at para. 40,
    she concluded that these concerns do not undercut the analogy to fingerprinting
    in assessing the constitutionality of the DNA data bank regime. The
    legislative safeguards that strictly limit the use of information obtained from
    DNA samples to identification purposes in the law enforcement context protect
    the privacy interests of individuals, including young offenders.

[121]

I accept that young persons who have been charged and/or
    found guilty of a serious criminal offence retain an expectation of privacy in their
    identity
vis-à-vis
the public at
    large that adults do not. In my view, however, they are in the same position as
    adults when it comes to retaining an expectation of privacy in their identity
vis-à-vis
law enforcement authorities,
    subject of course to the special provisions that call for the eventual removal
    and destruction of their records under Part 6 of the
YCJA
.

[122]

In addition, a comparison between the prerequisites
    needed for a mandatory collection order under s. 487.051(1) and the prerequisites
    needed for fingerprinting reveals that there are much more stringent
    requirements that must be met before a mandatory DNA collection order will be
    imposed. Fingerprints may be taken from a young person where there are
    reasonable and probable grounds to believe that the person has committed an
    indictable offence. Proof of guilt is not required. And because indictable
    offences include hybrid offences, fingerprints can be taken upon arrest for
    relatively minor offences such as shoplifting or common assault.

[123]

By comparison, under s. 487.051(1), mandatory DNA
    collection orders may only be made in respect of young offenders who have been
    found guilty, in accordance with the criminal standard of proof, of one or more
    serious crimes as designated by Parliament and referred to as super-primary
    offences.

[124]

This observation leads to another concern expressed by
    the sentencing judge during the course of her reasons. According to the
    sentencing judge, the legislative expansion of the list of designated offences
    means that such offences can no longer be characterized as the more serious
    offences under the
Criminal Code
;
    nor can it be said that they involve offences for which it could reasonably be
    expected that the offender would leave DNA behind.  The list of offences caught by s. 487.051(1) includes
    offences such as murder, aggravated sexual assault, kidnapping, robbery, and
    extortion:  see Appendix A for the full
    list. Pointing to the offence of robbery, the sentencing judge expressed
    concern that this offence in the young offender context could be committed in
    relation to a relatively minor incident, and yet the offender would be required
    to surrender his or her DNA to the state.

[125]

While the sentencing judge made this observation
    without tying it to either her s. 8 or s. 7 analysis, I wish to briefly explain
    why the list of super-primary designated offences chosen by Parliament does not
    detract from the reasonableness of the impugned provision for purposes of s. 8.
    Virtually all of the super-primary designated offences involve the use of
    significant violence, threats of violence, and/or the use of weapons. As well,
    in the case of most of these offences, there is reason to expect that the
    offender may leave his or her DNA evidence at the crime scene.

[126]

I acknowledge that, as a result of the changes made to
    the DNA data bank legislation in January 2008, more offenders, adult and young
    persons alike, will be required to provide DNA samples in relation to offences
    that may on occasion embrace relatively minor conduct.  These changes reflect Parliaments concern
    about the under-inclusion of DNA records in the NDDB from persons convicted of
    designated offences, a problem that has existed since the inception of the NDDB.
[9]


[127]

The problem of under-inclusion can be explained by a
    number of factors.  These include Crown
    oversight in seeking DNA orders as well as a failure on the part of judges to
    make DNA orders when they are warranted. On February 24, 2009, more than a year
    after the impugned legislation had been enacted, the Honourable Peter Cory, in
    his capacity as a member of the NDDB Advisory Panel, testified before the Standing
    Committee on Public Safety and National Security. He expressed concern that DNA
    orders were not always being made as required:

Yes. Some
    things I cannot comprehend. If you take the original designated offences, very
    serious crimes, there should be an automatic 100% filing of the sample on the
    conviction of the individual, and there isn't. I don't know how to explain
    that. It may be a working of judicial independence, I don't know, but that sort
    of thing is worrisome. That's why if there were to be something done that would
    be helpful, it would say that once there is a conviction there would be an
    automatic taking in those offences that are referred to, and that it would be
    done probably at the penitentiary. It shouldn't rest in the courtroom, or with
    the judge or the crown to make sure that he or she requested that the sample be
    taken. It should be something that's purely automatic.

Justification,
    if that should be needed, is other independent democratic countries that follow
    the system, certainly Britain, France, Germany, and the European community, and
    most of the states in the U.S. It's something that could improve, because the
    magic is the more samples within the data bank, the more hits that are
    obtained, the more crimes solved.
[10]

[128]

Although the compulsory and presumptive orders
    contemplated by ss. 487.051(1) and (2) do not go as far as the Honourable Mr.
    Cory suggests they should, they go some distance towards correcting the problem
    of under-inclusion. The state interest in expanding the reach of the NDDB must
    be given substantial weight in assessing the reasonableness of the impugned
    legislation.

[129]

It must also be remembered that it is of no consequence
    to the constitutional analysis that Parliament may have legislated beyond
    minimal constitutional requirements in its earlier legislation by requiring
    prior judicial authorization and by defining more narrowly the list of offences
    in relation to which a DNA collection order could be made. As Charron J.
    observed in
Rodgers
, at para. 49:

Parliament and the legislatures can, and often do,
    legislate beyond minimal constitutional requirements on matters engaging
    constitutionally guaranteed rights and freedoms. It would be an unfortunate
    result if legislators became hesitant to do so for fear of expanding their
    constitutional obligations.

[130]

In summary, s. 487.051(1) allows the state to obtain
    DNA samples from young persons who have committed one or more offences that
    will typically involve the use of violence, threats of violence and/or the use
    of weapons. As well, in the case of many, if not most of these offences, there
    is good reason to expect that DNA will be left behind by the offender.
    Requiring young persons to provide DNA samples in these circumstances for a
    limited purpose and for a limited period of time
[11]
is, in my view, eminently reasonable.

[131]

Far from amounting to a gross invasion of privacy that
    forces young persons to produce to the state the highest level of personal and
    private information and affords the state virtually infinite access to the
    most intimate details of a persons biological make-up, the reality is that
    for young persons, DNA sampling does not even lead to a general loss of their
    identity, much less the intimate details of their biological make-up. The Crown
    puts the matter correctly at para. 69 of its factum:

[I]nclusion in the data bank does not, in fact,
    result in a general and pervasive loss of privacy in ones identity. Only DNA
    left at the scene of designated crimes is entered into the crime scene index.
Accordingly, what differentiates someone
    whose DNA profile is included in the convicted offender index from everyone
    else is that he has lost the right to retain his anonymity in relation to
    bodily substances he leaves at certain crime scenes. The impact of the order on
    his informational privacy interest is co-extensive with that loss of anonymity
.  [Emphasis added.]

[132]

On the other side of the balancing exercise is the
    state interest in enacting the impugned provision. I have already described the
    important state objectives served by the NDDB. Suffice it to say that the
    societal interests served by the collection of DNA samples for inclusion in the
    NDDB are many and varied and the importance of the state objective in enacting
    the data bank scheme ranges from very high to incalculable.

[133]

Viewed through
    the lens of the safeguards that provide special protection to the privacy
    interests of young persons, I am satisfied that s. 487.051(1) provides a
    reasonable balance between the important state interests served by the
    legislation and the privacy interests of young persons. That being so, I conclude
    that judicial authorization may safely be done away with, and the list of
    offences expanded to the current list of super-primary offences, without
    offending minimal constitutional standards.

Issue 2: Is s. 487.051(2) constitutional as it relates to young persons?

[134]

I would apply similar reasoning to uphold the
    constitutionality of s. 487.051(2). Many, if not most, of the primary
    designated offences to which s. 487.051(2) applies are also serious and again, there
    is good reason to expect that DNA will be left behind by the offender in a
    large number of cases. That said, Parliament has, for the time being, chosen to
    legislate from the perspective that there may be instances where the impact on the
    privacy and security interest of a particular offender grossly exceeds the
    interest of society in the collection of that persons DNA for data bank
    purposes. To that end, it has conferred on the court a limited discretion to
    refuse to make such an order.

[135]

For the reasons already provided, I am not at all
    persuaded that the impact that presumptively-required DNA sampling may have on
    the privacy interests of young persons outweighs the state interest in
    achieving the law enforcement goals served by the NDDB.

Section 7 Considerations

[136]

The s. 7 considerations taken into account by the
    sentencing judge do not alter my view of the constitutionality of the two
    impugned provisions as they relate to young offenders. Nor would these
    considerations alter my conclusion on the reasonableness of the impugned
    provisions for s. 8 purposes.  These
    issues may be dealt with briefly.

Psychological Impact

[137]

The sentencing judge found that DNA data bank orders
    impose a serious psychological burden [on young persons] and one that is
    contrary to the anti-labelling philosophy of the
YCJA
. She based these findings on the fact that the privacy
    safeguards built into the legislation do not protect a young person from the
    psychological impact of knowing he has surrendered to the state his most basic
    and extensive personal information.

[138]

With respect, the sentencing judge either misstated or
    overstated the effect of DNA orders. Given the safeguards that exist, it is
    simply wrong to suggest that young persons are required to surrender their most
    basic and extensive personal information to the state. As explained, young
    persons are required to surrender their DNA to the state only for identification
    purposes and in most cases, only for a limited timeframe. That knowledge would,
    in my view, go a long way towards reducing, if not removing, any psychological
    impact that DNA sampling may cause.

[139]

Moreover, even if some degree of concern persists in
    the minds of some young persons, s. 7 of the
Charter
protects against state action having a serious and
    profound  impact on the psychological integrity of a person of reasonable
    sensibility. It does not protect against the ordinary stresses and anxieties
    that such a person would suffer as a result of government action. See
New Brunswick (Minister of Health and
    Community Services) v. G. (J.)
, [1999] 3 S.C.R. 46, at paras. 58-60.

[140]

In the final analysis, if there is any psychological
    stigma that is likely to persist and affect the minds of young persons, surely
    it is the stigma that arises from being found guilty of one or more of the
    serious crimes identified in ss. 487.051(1) and (2). Requiring a young person
    to provide a DNA sample as a consequence of being found guilty of one or more
    of those crimes pales in comparison: see
Rodgers
,
    at para. 64.

Presumption of Diminished Moral Culpability

[141]

The sentencing judges finding that the mandatory and
    presumptive orders contemplated by ss. 487.051(1) and (2) breach the
    presumption of reduced culpability of young persons is equally misconceived.
    The concept of diminished moral blameworthiness or culpability relates to
    questions of punishment. DNA orders are not a form of punishment. They are not
    contingent on moral blameworthiness. Hence the sentencing judges references to
    the majority decision in
R. v. D.B
.,
    [2008] 2 S.C.R. 3 are misplaced.

[142]

The fact that DNA sampling may deter offenders from
    committing further crimes does not transform it into a punishment:  see
Rodgers
,
    at paras. 63-64. In the case of young persons, one of the objectives of the
YCJA
is to rehabilitate them and
    reintegrate them into society. To the extent that DNA data bank orders may deter
    young persons from committing further crimes because of the increased risk of
    detection, such orders actually promote the important goals of rehabilitation
    and reintegration.

[143]

For these reasons, I conclude that the sentencing
    judges concerns about the constitutionality of ss. 487.051(1) and (2) under s.
    7 of the
Charter
were misplaced.

CONCLUSION

[144]

Sections 487.051(1) and (2) are reasonable laws. They
    achieve a proper balance between the interests of the state and the privacy
    interests of young offenders. In my view, they do not contravene s. 8 of the
Charter
.


[145]

Accordingly, I would allow the Crowns appeals in
    respect of K.M. and D.R. and order them to provide DNA samples in accordance
    with s. 487.051(1) of the
Code
. In
    the case of D.R., because of his medical condition, I would order that his
    samples be taken by buccal swab.

Signed:           M.J. Moldaver J.A.

I
    agree Robert P. Armstrong J.A.

I
    agree Paul Rouleau J.A.

RELEASED:  MJM APRIL
    1, 2011


APPENDIX A  List of Super-Primary
    Designated Offences

Criminal Code,
R.S.C. 1985, c. C-46, s. 487.04

primary
    designated offence
[12]



primary
    designated offence means

(a)       an
    offence under any of the following provisions, namely,

(i)
    subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution
    of a person under the age of eighteen years),

(ii) section
    235 (murder),

(iii)
    section 236 (manslaughter),

(iv)
    section 239 (attempt to commit murder),

(v)
    section 244 (discharging firearm with intent),

(vi)
    section 244.1 (causing bodily harm with intent  air gun or pistol),

(vi.1)
    section 244.2 (discharging firearm  recklessness),

(vii)
    paragraph 245(
a
) (administering noxious thing with intent to endanger
    life or cause bodily harm),

(viii)
    section 246 (overcoming resistance to commission of offence),

(ix)
    section 267 (assault with a weapon or causing bodily harm),

(x)
    section 268 (aggravated assault),

(xi)
    section 269 (unlawfully causing bodily harm),

(xi.1)
    section 270.01 (assaulting peace officer with weapon or causing bodily harm),

(xi.2)
    section 270.02 (aggravated assault of peace officer),

(xii)
    section 272 (sexual assault with a weapon, threats to a third party or causing
    bodily harm),

(xiii)
    section 273 (aggravated sexual assault),

(xiv)
    section 279 (kidnapping),

(xv)
    section 344 (robbery), and

(xvi)
    section 346 (extortion) [.]

APPENDIX B  List of
    Primary Designated Offences

Criminal Code,
R.S.C. 1985, c. C-46, s. 487.04

primary
    designated offence


primary designated offence means []

(a.1)    an
    offence under any of the following provisions, namely,

(i) section 75 (piratical acts),

(i.01) section 76 (hijacking),

(i.02) section 77 (endangering safety of aircraft or airport),

(i.03) section 78.1 (seizing control of ship or fixed platform),

(i.04) subsection 81(1) (using explosives),

(i.05) section 83.18 (participation in activity of terrorist group),

(i.06) section 83.19 (facilitating terrorist activity),

(i.07) section 83.2 (commission of offence for terrorist group),

(i.08) section 83.21 (instructing to carry out activity for terrorist
    group),

(i.09) section 83.22 (instructing to carry out terrorist activity),

(i.1) section 83.23 (harbouring or concealing),

(i.11) section 151 (sexual interference),

(ii) section 152 (invitation to sexual touching),

(iii) section 153 (sexual exploitation),

(iii.1) section 153.1 (sexual exploitation of person with disability),

(iv) section 155 (incest),

(iv.1) subsection 163.1(2) (making child pornography),

(iv.2) subsection 163.1(3) (distribution, etc., of child pornography),

(iv.3) subsection 163.1(4) (possession of child pornography),

(iv.4) subsection 163.1(4.1) (accessing child pornography),

(iv.5) section 172.1 (luring a child),

(v) subsection 212(1) (procuring),

(v.1) subsection 212(2) (procuring),

(v.2) subsection 212(4) (offence  prostitution of person under
    eighteen),

(vi) section 233
    (infanticide),

(vii) section 271 (sexual
    assault),

(vii.1) section 279.01 (trafficking in persons),

(vii.11) section 279.011 (trafficking of a person under the age of
    eighteen years),

(viii) section 279.1 (hostage taking),

(ix) paragraph 348(1)(
d
) (breaking and entering a
    dwelling-house),

(x) section 423.1 (intimidation of a justice system participant or journalist),

(xi) section 431 (attack on premises, residence or transport of
    internationally protected person),

(xii) section 431.1 (attack on premises, accommodation or transport of
    United Nations or associated personnel),

(xiii) subsection 431.2(2) (explosive or other lethal device),

(xiv) section 467.11 (participation in activities of criminal
    organization),

(xv) section 467.12 (commission of offence for criminal organization),
    and

(xvi) section 467.13 (instructing commission of offence for criminal
    organization),

(xvi.1) to (xx) [Repealed, 2005, c. 25, s. 1]

(b) an offence under any of the following provisions of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as they read
    from time to time before January 4, 1983, namely,

(i)
    section 144 (rape),

(ii)
    section 146 (sexual intercourse with female under fourteen and between fourteen
    and sixteen),

(iii)
    section 148 (sexual intercourse with feeble-minded, etc.),

(iv)
    section 149 (indecent assault on female),

(v)
    section 156 (indecent assault on male), and

(vi)
    section 157 (acts of gross indecency),

(c) an offence under paragraph 153(1)(
a
) (sexual
    intercourse with step-daughter, etc.) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read from time to time before
    January 1, 1988,

(c.1) an offence under any of the following provisions of the
Security
    of Information Act
, namely,

(i)
    section 6 (approaching, entering, etc., a prohibited place),

(ii)
    subsection 20(1) (threats or violence), and

(iii)
    subsection 21(1) (harbouring or concealing), and

(
d
) an attempt to commit
    or, other than for the purposes of subsection 487.05(1), a conspiracy to commit
    an offence referred to in any of paragraphs (
a
) to (
c
);




Page:
    65

APPENDIX C  Chart of YCJA DNA Retention Periods
[13]





Absolute

Discharge

Conditional Discharge

Summary

Indictable

Scheduled
[14]
Indictable

Presumptive

(s.2 YCJA)



Retention period begins to run

Finding of Guilt

(s.119(e) YCJA)

Finding of Guilt

(s.119(f) YCJA)

Sentence Completion

(s119(g) YCJA)

Sentence Completion

(s119(h) YCJA)

End of the 119(g) or (h)
          retention period

(s.120(3) YCJA)

From sentence date

(s.9.1(2) and 10.1(2) DNAIA



Original Retention Length

1 year

3 years

3 years

5 years

5 additional years

Indefinitely



Subsequent Summary Conviction offence as youth

New retention period starts to run (if new DNA order made) and old
          retention period is not extended

New retention period starts to run (if new DNA order made) and old
          retention period is not extended

retention extended by later of:3 years after
          original retention date or3 years after sentence for subsequent offence
          completed

(DNAIA s. 9.1(1), 10.1(1))

YCJA s. 119(2)(i))

retention extended by later of:3 years after
          original retention date or3 years after sentence for subsequent offence
          completed

(DNAIA s. 9.1(1), 10.1(1))

YCJA s. 119(2)(i))

retention extended by later of:3 years after
          original retention date or3 years after sentence for subsequent offence
          completed

(DNAIA s. 9.1(1), 10.1(1))

YCJA s. 119(2)(i))

N/A  DNA retained indefinitely under original retention period



Subsequent Indictable offence as youth

New retention period starts to run (if new DNA order made) and old
          retention period is not extended

New retention period starts to run (if new DNA order made) and old
          retention period is not extended

retention extended by:5 years after sentence for
          subsequent offence completed.

(DNAIA s. 9.1(1)

YCJA s. 119(2)(j))

retention extended by:5 years after sentence for
          subsequent offence completed.

(DNAIA s. 9.1(1)

YCJA s. 119(2)(j))

retention extended by:5 years after sentence for
          subsequent offence completed.

(DNAIA s. 9.1(1)

YCJA s. 119(2)(j))

N/A  DNA retained indefinitely under original retention period



Subsequent offence as adult

New adult retention period starts to run (if new DNA order made) and
          old retention period is not extended

New adult retention period starts to run (if new DNA order made) and
          old retention period is not extended

Indefinite retention if convicted as an adult during
          the YCJA retention period

DNAIA s. 9.1(2)(b)

YCJA s. 119 (9) and 120(6).

Indefinite retention if convicted as an adult during
          the YCJA retention period

DNAIA s. 9.1(2)(b)

YCJA s. 119 (9) and 120(6).

Indefinite retention if convicted as an adult during
          the YCJA retention period

DNAIA s. 9.1(2)(b)

YCJA s. 119 (9) and 120(6).

N/A  DNA retained indefinitely under original retention period







[1]
Sections
    7 and 8 of the
Charter
state:

7. Everyone has the right to
    life, liberty and security of the person and the right not to be deprived
    thereof except in accordance with the principles of fundamental justice.

8.  Everyone has the right to be secure against
    unreasonable search or seizure.



[2]
The
    safeguards aimed at protecting the informational privacy of individuals in
    accordance with the principles expressed under s. 4 of the
DNAIA
are listed by Charron J. at para. 11 of
R. v. Rodgers
, [2006] 1 S.C.R. 554. Of the items on that list,
    items (a) [
ex parte
judicial
    authorization] and (b) [the class of offenders caught by s. 487.055(1) of the
Code
] do not apply to the present
    cases.  The list in
Rodgers
does not contain the added protections that Parliament has
    included for young persons.



[3]
Section
    140 of the
YCJA
provides:

140.  Except to the extent that it is inconsistent
    with or excluded by this Act, the provisions of the
Criminal Code
apply, with any modifications that the circumstances
    require, in respect of offences alleged to have been committed by young
    persons.



[4]
As
    summarized in
Rodgers
, at para. 29,
    the three
Hunter
criteria to which
    searches and seizures must generally conform are: (i) where possible, the
    search and seizure must have been approved by prior authorization; (ii) the
    person authorizing the search must be capable of acting judicially in
    assessing in a neutral and impartial fashion whether a search is appropriate in
    the circumstances; and (iii) the interests of the individual will yield to the
    interests of the state where there are reasonable and probable grounds,
    established under oath, to believe that an offence has been committed and that
    evidence of this is to be found through the search or seizure.



[5]
As noted
    above, the legislative safeguards aimed at protecting the informational privacy
    of individuals in accordance with the principles of s. 4 of the
DNAIA
are listed by Charron J. at para.
    11 of
Rodgers
. Of the items on that
    list, items (a) [
ex parte
judicial
    authorization] and (b) [the class of offenders caught by s. 487.055(1) of the
Criminal Code
] do not apply to the
    present cases.



[6]
With the
    limited exception of offenders convicted of a presumptive offence within the
    meaning of s. 2(1) of the
YCJA
or
    where s. 120(6) of the
YCJA
applies.



[7]
An across-the-board systemic failure to
    implement the legislative safeguards is to be distinguished from a failure to
    implement those safeguards on a sporadic basis. The latter situation would not
    render the legislation unconstitutional; rather, the constitutional inquiry
    would be directed at the conduct of the authorities in a particular case. See
Little Sisters Book and Art Emporium v.
    Canada (Minister of Justice)
, [2000] 2 S.C.R. 1120, at para. 71 and
R. v. Nicolosi
(1998), 40 O.R. (3d) 417
    (C.A.) at pp. 422-23.



[8]
Senate, Standing Committee on Legal and
    Constitutional Affairs,
Public
    Protection, Privacy and the Search for Balance: A Statutory Review of the
DNA
    Identification Act (June 2010) at p. 45 (Chair: The Hon. Joan Fraser).



[9]
See testimony of Greg Yost, House of Commons,
    Proceedings of the Standing Committee on Public Safety and National Security,
    40
th
Parl., 2nd Sess., No. 5, Evidence (24 February 2009) at 1025.



[10]
House
    of Commons, Proceedings of the Standing Committee on Public Safety and National
    Security, 40
th
Parl., 2nd Sess., No. 5, Evidence (24 February 2009)
    at 1025.



[11]
With
    the exception of certain repeat offenders and those who have committed the most
    serious crimes.



[12]
As
    indicated at para. 30 of these reasons, these offences are commonly referred to
    as super-primary designated offences.



[13]
YCJA
    DNA Data Bank retention periods are established by s. 9.1 and 10.1 of the DNA
    Identification Act.  Those sections
    require removal of access to the DNA profile and destruction of the sample
    when the record relating to the same offence is required to be destroyed,
    sealed or transmitted to the National Archivist of Canada under part 6 of the
    Youth Criminal Justice Act
except
when the offence is a
    presumptive offence (generally speaking murder, attempt murder, manslaughter
    and aggravated sexual assault and certain other rare circumstances) within the
    meaning of s. 2(1) of the YCJA or when s. 120(6) of the YCJA applies  (subsequent offence committed as an
    adult).  In those latter cases, the DNA
    profile and sample may be kept indefinitely.



[14]
See the
    Schedule at the end of the YCJA.  The
    Schedule only is relevant if 1) the offence is an indictable offence (other
    than a presumptive offence)
and
the young
    person was sentenced (not discharged).  Youth Records that are retained for the further 5 years as scheduled
    offences are available to fewer people than the usual s. 119 records, but for
    DNA data bank purposes the access is the same: access to the identity of the
    offender is only granted to the police if there is a hit to a crime scene
    sample.


