R. v. Jiang, 2011 ABQB 514

Court of Queen ’ s Bench of Alberta Citation: R. v. Jiang, 2011 ABQB 514 Date: 20110816 Docket: 090560111Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Xutao Jiang Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Xutao Jiang seeks a stay of an order requiring her to provide a DNA sample pursuant to s. 487.051 of the Criminal Code pending the determination of her appeal to the Court of Appeal from her conviction in these proceedings.

I granted the stay at the conclusion of submissions and advised I would provide my reasons later. [ 2 ] On March 23, 2011 Ms. Jiang was convicted of aggravated assault contrary to s. 268 of the Criminal Code following trial by judge and jury. She was sentenced to 45 days imprisonment to be served intermittently followed by 12 months probation. She was ordered to provide a DNA sample. [ 3 ] The

section of the Criminal Code which provides for the taking of a DNA sample from a convicted person, s. 487.056, provides that it applies even if the order authorizing the taking of the sample is appealed. It is silent with respect to appeals from conviction or sentence. Ms. Jiang submits, and the Crown accepts, that the Court has jurisdiction to stay the order where the accused has appealed from conviction.

[4] Ms. Jiang applied in the Court of Appeal for judicial interim release pending appeal. Ms. Hatch has provided me with a copyof the memorandum she filed in support of that application. It sets out the grounds of appeal on which Ms. Jiang relies. [5] The memorandum quotes a passage from the sentencing decision of the trial judge in which the judge briefly describes thecircumstances surrounding the charge on which Ms. Jiang was convicted: . . . this case is particularly difficult, as the complainant was attempting to commit a sexual assault on Ms. Jiang.

A person should beable to defend herself from an attempted assault that violates her sexual integrity. However, this court is not in a position to question thejury’s finding that Ms. Jiang committed an aggravated assault on Mr. Hon. The jury found Ms. Jiang not guilty of possession of a weapon for a purpose dangerous to the public peace and assault with a weapon. She was convicted of a third charge on the indictment, aggravated assault. [6] The judicial interim release memorandum indicates that the grounds of appeal relate to the trial judge’s charge concerningself-defence. [7] Ms.

Jiang was granted judicial interim release pending appeal. The Crown consented to that order. [8] On this application the Crown submitted that the test articulated by the Supreme Court of Canada in RJR MacDonald (SCC), [1994] 1 S.C.R. 311 applies to this application. The three elements of that test are:

a) Is there a serious issue to be determined?

b) If the stay is not granted, will there be irreparable harm to the Applicant?

c) Which of the parties would suffer greater harm from the granting or refusing of the stay? (i.e. Where does the balance ofconvenience lie?) The Crown submitted that in the context of the third element, the Court must consider the public interest. [9] The Crown conceded that the first element of the test is satisfied. The Crown also conceded, in the context of the secondelement of the test, that the harm Ms. Jiang would suffer if the stay is not granted would be irreparable. But, the Crown submitted, itwould be minimal. The testing technique is physically minimally invasive. And if Ms.

Jiang’s appeal is granted, the law requires thatthe DNA sample taken be destroyed. The interference with her privacy interest would be of short duration. [10] As to the third element of the test, the Crown submitted that the inconvenience of a stay would be that the public interest inthe valuable tool of criminal investigation represented by the DNA data bank would be frustrated, at least for the period during whichthe appeal remains undetermined. [11] My assessment of the elements of the test is the same as Ms. Jiang’s. The issue on the appeal is clearly very serious. Thoughthe possible physical harm to Ms.

Jiang is minimal and the harm to her privacy interest would be of short duration if she succeeds on theappeal, neither form of harm is reparable.

[ 12 ] As to the balance of convenience, the inconvenience which a stay will cause to the public is of exceedingly small degree. To be deprived of the ability to use Ms. Jiang’s DNA to investigate crimes during the time it takes to have the appeal determined is, in my estimation, a very minor inconvenience. [ 13 ] I accept that in law Ms. Jiang is a convicted criminal whose privacy interest is diminished from what it was before she was convicted.

But given her circumstances, which include the fact that she has no prior criminal record, that she has a strong argument to make on her appeal, and that she has been granted liberty pending her appeal with Crown consent, in my view, the implications that flow from her legal status as a convicted person, are significantly outweighed.

Her privacy interest, even though theoretically diminished compared to that of a person not convicted of a crime, still significantly outweighs the minimal inconvenience to the Crown in having to wait for the Court of Appeal’s determination before having access to her DNA. [ 14 ] In my view the balance of convenience favours granting the stay. [ 15 ] These are the reasons for the order I made in Court on June 24, 2011. Heard on the 24 th day of June 2011. Dated at the City of Edmonton, Alberta this 16 th day of August 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Joanne B. Dartana for the Crown Deborah R.

Hatch for the Accused