R. v. Fortomaris, 2010 ONCJ 180

COURT FILE No. Toronto Citation: R. v. Fortomaris , 2010 ONCJ 180 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. S. Heeney ) for the Crown ) — AND — ) ) ) MICHAEL FORTOMARIS ) Mr. R. Miu ) for the Defendant ) ) Heard: May 4, 2010 ) ) NAKATSURU J.: [ 1 ] The accused pleaded guilty to one count of assault and one count of mischief to private property. He was given a conditional discharge. I declined to make an order pursuant to s. 487.051(3) for the taking of bodily substances for forensic DNA analysis. As required by the Criminal Code , these are my reasons. A.

OVERVIEW [ 2 ] On August 10, 2009, the complainant in this case, Mr. Christopher Fortomaris, the accused’s father, received a phone call from his son’s ex-girlfriend’s parents. The latter were concerned about the offender continually calling. When Mr. Christopher Fortomaris spoke to his son about this, this lead to an argument. The offender became angry and started to break items in the home. When the father tried restraining his son, grabbing the backpack he was wearing, a struggle ensued. During the struggle, the offender became angrier and punched his father.

As the offender was leaving the home, he picked up a rock and smashed a glass patio table. Later that evening, the offender returned, took his bike and cycled away. No injuries were sustained by the father. [ 3 ] Mr. Fortomaris is now 20 years of age and has no prior criminal or youth record. He presently lives with his grandparents. However, he has resumed contact with his father in the intervening period. He has worked for his father, a custodian, in order to pay him back for the damage he has caused. At present, Mr.

Fortomaris is on social assistance but he plans on working or furthering his education. [ 4 ] During the course of the sentencing proceeding, I heard from Mr. Christopher Fortomaris. He stated that his son was now doing great. Their relationship was much improved. According to Mr. Christopher Fortomaris, this was an isolated incident and he now regrets the matter having come so far. Ever since they were laid, he has been trying to have the charges dropped. Mr. Christopher Fortomaris stated that his son has never been in trouble before and does not have anysubstance abuse problems.

He asked for leniency for his young son. [ 5 ] When the accused was given an opportunity to speak, Mr. Fortomaris apologized for his behaviour. With refreshing candour, when asked about whether he had anything to say about the DNA order, Mr. Fortomaris stated it did not matter much to him since he was never going to be before a criminal court again. [ 6 ] The Crown and defence jointly submitted that a conditional discharge was appropriate. I agreed. Mr. Fortomaris was given a conditional discharge and placed on probation with conditions. [ 7 ] The only outstanding matter is the DNA order. B.

THE ISSUES AND THE POSITION OF THE PARTIES [ 8 ] The offence of assault is a secondary designated offence under the DNA provisions of the Criminal Code . The Crown submitted that an order should go requiring Mr. Fortomaris to provide a sample of his DNA. In fairness to the Crown, he did not vigorously press this point. [ 9 ] The defence objected to such an order. She submitted that the offence was minor and isolated. There was no likelihood that Mr. Fortomaris would ever commit such an offence in the future. In addition, the offender has no prior criminal or youth record.

On the charges before the court, it was pointed out that the offender received conditional discharges. Thus, in all the circumstances, it was submitted that a DNA order should not be visited upon the head of the offender.

C. THE LAW [ 10 ]

Section 487.051(3) of the Criminal Code states:

(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 person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision. [ 11 ] With respect to the predecessor sections, ss . 487.051(1)(

b) and s. 487.052, in R. v. Briggs (2001), 2001 CanLII 24113 (ON CA) , 157 C.C.C. (3d) 38 (Ont. C.A.), Weiler J.A. dealt with many of the issues in interpreting these provisions. She held:

(1) Whether or not there is evidence at the scene of the crime of which the offender was convicted that would likely yield a DNA profile of the perpetrator is not necessarily a relevant consideration.

(2) The phrase "best interests of the administration of justice" does not import as a prerequisite to making the order that there be reasonable and probable grounds to believe a further offence will be committed.

(3) The state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by this offender. Rather, the provisions have much broader purposes including the following: 1. Deter potential repeat offenders; 2. Promote the safety of the community; 3. Detect when a serial offender is at work; 4. Assist in the solving of "cold" crimes; 5. Streamline investigations; and 6. Most importantly, assist the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.

(4) Provisions in the Criminal Code and the DNA Identification Act restricting the use that can be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender's privacy.

(5) The procedures for seizures of bodily substances authorized by the provisions are of short duration and involve no, or minimal, discomfort. There is a minimal intrusion with no unacceptable affront to human dignity.

(6) A person convicted of a crime has a lesser expectation of privacy.

(7) The trial judge is entitled to look at the offender's entire record, not just the crimes that may be designated offenses. [ 12 ] These principles were affirmed by Rosenberg J.A. in R. v. Hendry (2001), 2001 CanLII 21168 (ON CA) , 161 C.C.C. (3d) 275 (Ont. C.A.). They lead the learned jurist to conclude at paragraph 25: 25 On balance, I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s. 487.051(1)(

b) and s. 487.052, as the case may be. This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations [ 13 ] Subsequent to these decisions, the Supreme Court of Canada in R. v. B.(S.A.) , 2003 SCC 60 (CanLII) , [2003] 2 S.C.R. 678 found the DNA warrant and companion provisions in the Forensic DNA Analysis

section of the Criminal Code to be constitutionally sound. It held that the provisions struck an appropriate balance between the public interest in effective law enforcement and the privacy interests of individuals to control the release of personal information. In so doing, echoing Weiler J.A.’s sentiments in Briggs , the court recognized that the power of DNA analysis comes from its ability to exonerate as much as its ability to inculpate suspects. The court held at paragraph 51: 51. Effective law enforcement benefits society as a whole.

Subsumed under the larger head of “law enforcement” is the interest in arriving at the truth in order to bring offenders to justice and to avoid wrongful convictions. The enormous utility and power of DNA

evidence as an investigative tool has been documented both by the trial judge in Brighteyes , supra , and by the Ontario Court of Appeal in F. (S.) , supra . Indeed, “a DNA match will in many cases, with virtual certainty, eliminate the person as a suspect . . . [or] provide evidence that it was his bodily substance(

s) that was found at one or more of the places set out in s. 487.05(1)( b )” ( Brighteyes , supra , at para. 110). This is an identification tool of great value to the criminal process. [ 14 ] Thus, an effective and comprehensive DNA databank serves the greater societal good in ensuring that miscarriages of justice are avoided. This favours a liberal

interpretation of s. 487.051(3). [ 15 ] At the same time, both Parliament and the courts have appreciated that individual privacy rights should not be automatically sacrificed whenever an accused is found guilty or not criminally responsible for designated criminal offences. In R. v.

R.C., 2005 SCC 61 (CanLII) , [2005] 3 S.C.R. 99 the Supreme Court of Canada, while recognizing that the physical intrusion in the taking of a DNA sample was minimal, had the following comments to make about informational privacy: 27 Of more concern, however, is the impact of an order on an individual's informational privacy interests. In R. v.

Plant , 1993 CanLII 70 (SCC) , [1993] 3 S.C.R. 281 , at p. 293, the Court found that s. 8 of the Charter [page112] protected the "biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state". An individual's DNA contains the "highest level of personal and private information": S.A.B. , at para. 48 .

Unlike a fingerprint, it is capable of revealing the most intimate details of a person's biological makeup. 28 Without constraints on the type of information that can be extracted from bodily substances, the potential intrusiveness of a DNA analysis is virtually infinite.

Comprehensive safeguards have therefore been put in place to regulate the use of the bodily substances and of the information contained in a profile: see S.A.B. , at paras. 49-50 ; see also Briggs , at para. 39 . 29 The court must consider the impact of a DNA order on each of these interests to determine whether privacy and security of the person are affected in a grossly disproportionate manner.

This inquiry is highly contextual, taking into account not only that the offence is a primary designated offence, but also the particular circumstances of the offence and the character and profile of the offender. 30 Some of the factors that may be relevant to this inquiry are set out in s. 487.051(3) : the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission, and the impact such an order would have on the offender's privacy and security of the person ( Jordan , at para. 62). 31 This is by no means an exhaustive list.

The inquiry is necessarily individualized and the trial judge must consider all the circumstances of the case. [ 16 ] Thus in deciding whether a DNA order should go in Mr. Fortomaris’ case, all relevant factors should be considered, including factors not specifically mentioned in s. 487.051(3) . D. APPLICATION TO THE FACTS [ 17 ] First of all, I am to consider the nature of the offence. Mr. Fortomaris was found guilty of assault. Although not a designated offence, he was further found guilty of mischief to private property. Assault is an offence of violence. As such, this factor favours a DNA order being made.

Looking at some of the broader purposes behind these provisions, any offence of violence is of concern. Nonetheless, I am mindful that the offence of assault can be committed in a number of ways. This consideration was expounded upon by Rosenberg J.A. in Hendry , supra, at paragraph 23 : The legislation has already struck a balance by limiting the reach of the DNA data bank orders to persons convicted of serious offenses, being those designated as primary or secondary offenses. However, the description of some of these offenses can also embrace some relatively minor conduct.

For example, assaulting a police officer is a secondary designated offence, but this could include merely pushing a police officer who was in the execution of his or her duty. The trivial circumstances of the particular offence may be a factor favouring not making the order. [ 18 ] In this case, the circumstances regarding the commission of the assault are important. The assault was a minor one. No injuries were suffered and Mr. Fortomaris’ father was not in fear of him. Mr. Christopher Fortomaris was trying to restrain his son who had lost his temper and was acting out against household property.

In doing so, he grabbed his son’s backpack while it was still on his back. This did not likely help calm things. Mr. Fortomaris lashed out and struck his father. [ 19 ] This attack was neither pre-meditated nor sustained. It appears that Mr. Fortomaris’ anger got the better of him and it was largely directed against property. This does not excuse his lack of control, but it certainly mitigates the seriousness of the offence. Also I have had the benefit of hearing from the father. It is clear that he does not view his son’s actions as “criminal” and he now has misgivings for having involved the police.

There is no prior history of this type of behaviour by the offender and I accept it is an isolated event. Furthermore, the attack was not upon a vulnerable victim. Mr. Christopher Fortomaris is a mature, healthy, and strong individual who is capable of taking care of himself. [ 20 ] Another factor I find significant is that Mr. Fortomaris received a conditional discharge for the assault. Of course, I appreciate that a DNA order can be made when a person is discharged. Nonetheless, the fact that an offender meets the statutory test for a discharge is a relevant consideration under s. 487.051(3) .

Under s. 730, an accused is entitled to a discharge only when it is in his or her best interest and not contrary to the public interest. In granting Mr. Fortomaris a discharge, I was satisfied that specific and general deterrence as well as denunciation concerns did not preclude one. See R. v. Sanchez-Pino (1973), 1973 CanLII 794 (ON CA) , 11 C.C.C. (2d) 53 (Ont. C.A.). In this case, the mitigating circumstances were many, while there were little if any aggravating ones. It was uncontested that it would be inappropriate to burden this first time youthful offender with a criminal record.

Similar concerns support the conclusion that it is unnecessary to require this same young man to provide a sample of his DNA to a national databank.

[ 21 ] Thirdly, Mr. Fortomaris has no prior criminal or youth record. He has been convicted of a minor assault. Such circumstances lead Rosenberg J.A. to opine in Hendry , supra, at paragraph 24 : The court is also directed to consider the offender's record. If the offender has no prior record and the circumstances of the secondary designated offence are relatively minor, the court may be justified in not making the order [ 22 ] The final factor in the analysis is the relative youth of Mr. Fortomaris. He is not a young person and is not subject to the Youth Criminal Justice Act.

Yet at the same time, taking a realistic view of the case, not only is the offender just out of his teens, but also the whole incident strikes me as an immature reaction by a young man to a father trying to offer parental advice and exercise some parental control. Clearly, Mr. Fortomaris reacted badly to this. But his reactions were juvenile and shaped undoubtedly by his relative youth. I find this to be a relevant factor to consider. [ 23 ] In R. v. R.C. , supra, t he Supreme Court of Canada recognized that special attention should be paid to young persons when addressing the issue of a DNA order.

The Court held that young persons who fall within the jurisdiction of the Youth Criminal Justice Act must be treated differently from adult offenders: 44 It is not surprising, then, that the Court of Appeal for Ontario has held that the balancing of factors under the discretionary prong of s. 487.051(1)(

b) must take into account the age of the young person and the principles of youth criminal justice legislation. In R. v. B. (K.) (2003), 2003 CanLII 13967 (ON CA) , 179 C.C.C. (3d) 413 , the Court of Appeal (Catzman, Abella and Gillese JJ.A.) explained: The Code ... makes no distinction between young and adult offenders respecting the three factors the court should consider in determining whether to order a DNA sample. The application of these factors, however, will necessarily be different between young and adult offenders. In [ R. v.

Hendry (2001), 2001 CanLII 21168 (ON CA) , 161 C.C.C. (3d) 275 ], this court held (at para. 25) that "in the vast majority of cases, it would be in the best interests of the administration of justice to make the order". No such assumption can be made in the case of a young offender. All legislation dealing with young offenders and, in particular, the Young Offenders Act , R.S.C. 1985, c. Y-1 , recognize that young offenders are to be treated differently by the courts because of differences in vulnerability, maturity, experience and other factors related to their youth .

The Declaration of Principle heading that precedes s. 3(1) and 3(2) of the YOA and the principles addressed in those sections support the proposition that young persons, in principle, are to be treated differently from adults who are prosecuted under the Criminal Code . We cannot assume, for example, as with an adult offender, that there will be minimal impact on a young person's privacy and security of the person.

In considering each of the three factors, the disposition judge must, in accordance with the principles of disposition set out in the young offenders legislation, look at each of them in terms of the goals sought to be achieved by that legislation. [Emphasis added; paras. 7-9.] 45 The same holds true for decisions made pursuant to s. 487.051(1)(

a) and (2): In determining whether the young person has established that the [page117] public interest in the protection of society and the proper administration of justice is clearly and substantially inferior to his or her privacy and security interests, the sentencing judge must examine both sides of the equation through the lens of the applicable youth criminal justice legislation. [ 24 ] Mr. Fortomaris is not subject to the Youth Criminal Justice Act . He is too old. Therefore, his case cannot be viewed through the lens of the youth criminal justice legislation.

Nevertheless, he still is a young man and a first offender. Youth has always been considered a mitigating factor on sentencing. This is so because there is the greatest potential for rehabilitation for the young. In addition, behaviour by young persons that leads to a conflict with the law is often a product of immature and impulsive judgment rather than hardened anti-social attitudes and values. For these reasons, in the appropriate case, leniency can be extended to the young when it comes to sentence.

Extending leniency is merely a product of the proper administration of justice as it relates to the individual case. [ 25 ] I see no reason why this principle, well-established in sentencing, should not be applied when considering the question under s. 487.051(3) of the Criminal Code whether I am satisfied it is in the best interests of the administration of justice to make the DNA order. The spirit that moved the Supreme Court of Canada in R. v. R.C. , supra, to treat young persons differently when it pertains to DNA orders should not instantly vanish when an offender turns 18 years of age.

In this case, I am of the view that Mr. Fortomaris is still immature and less experienced because of his age and this influenced his behaviour towards his father on the day in question. For Mr. Fortomaris, the impact of a DNA order on his privacy and security of the person cannot be assumed to be minimal. When an offender is in the comparatively nascent and still developing stage of his or her personal, social, and working life, the intrusion into his or her informational privacy will be over an extended period of time and all the possible ramifications of that intrusion cannot easily be foreseen.

It is therefore right that the factor of his youth militates against a DNA order being made. [ 26 ] In conclusion, I am satisfied that a DNA order is not in the best interests of the administration of justice. The Crown’s application is dismissed. Released: May 5, 2010 Signed: