R. v. B.R., 2011 NLCA 23

Date: 20110323 Docket: 10/02 Citation: R. v. B.R., 2011 NLCA 23 Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. Section 111(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : B.R.

RESPONDENT Coram: Green, C.J.N.L., Welsh and White, JJ.A. Court Appealed From: Provincial Court of Newfoundland & Labrador , Natuashish Appeal Heard: January 12, 2011 Judgment Rendered: March 23, 2011 Reasons for Judgment by White, J.A. Concurred in by Green, C.J.N.L. and Welsh, J.A.

Counsel for the Appellant: Jeff Summers Counsel for the Respondent: Derek Hogan White, J.A.: [ 1 ] This is an appeal against a decision of the sentencing judge declining to order that a young offender provide a DNA sample pursuant to s. 487.051 of the Criminal Code . [ 2 ] The respondent (B.R.), an Innu youth, pleaded guilty to a breach of s. 348(1) (

d) of the Criminal Code (breaking and entering a dwelling house) and two breaches of s. 137 (breach of probation) of the Youth Criminal Justice Act . He was sentenced to twelve months probation and thirty hours of community service. The sentencing judge refused to make a DNA order although he was expressly requested to do so by the Crown. FACTS [ 3 ] The facts before the sentencing judge were undisputed and were read into the record. B.R., along with two other people, broke into a home in the community of Natuashish and stole a number of items from the house.

B.R. was the individual responsible for the initial entrance into the house through an unlocked front window. He then opened the rear door for the other two to enter. B.R. was responsible for stealing a number of DVDs from the house which were then sold and not recovered. The other individuals present stole items which were eventually recovered with the exception of one item. There was no suggestion of property damage and all three made statements to the police admitting responsibility for the offence. ISSUES [ 4 ] The issues are:

(1) Did the sentencing judge err by declining to make a DNA order pursuant to s. 487.051(2) of the Criminal Code , and, if so, (2) should this Court grant the DNA order or remit the question back to the sentencing judge for a new hearing? LEAVE TO APPEAL [ 5 ] Leave to appeal is required when an appeal relates to an aspect of sentence only. “Sentence” is defined in s. 673 of the Criminal Code , and does not include any reference to orders made pursuant to s. 487.051 . While the definition is not exhaustive, it has generally been held that DNA orders are not part of a sentence. As noted by Fish J., in R. v.

R.C. , 2005 SCC 61 at para. 39 : A DNA order, while it is not a sentence, is undoubtedly a serious consequence of conviction … . [ 6 ] In R. v. North , 2002 ABCA 134 , an order under s. 487.052 was not considered to be a sanction but an “investigative tool” that is not necessarily part of sentence. The court concluded that “… a DNA order under s. 487.052 is not part of sentence, and an appeal from a refusal or the making of a DNA order is not a sentence appeal”. [ 7 ]

Section 487.054 of the Criminal Code provides: The offender or the prosecutor may appeal from a decision of the court under any of subsections 487.051(1) to (3). [ 8 ] The British Columbia Court of Appeal concluded that s. 487.054 gives rise to an appeal from the making of a DNA order as of right. (See R. v.

D.P , 2006 BCCA 409 at para. 2 .) [ 9 ] Since leave is required only where the appeal is against sentence alone, since a DNA order is not a sentence, and since the Criminal Code specifically provides a right of appeal without mention of a leave requirement, it follows that leave is not required to appeal a DNA order. THE SENTENCING JUDGE’S DECISION [ 10 ] In his oral decision the sentencing judge, in declining to impose a DNA order, stated: THE COURT: […] I’m not going to grant a DNA order, I note that from all the other convictions on your record there [has] never been a DNA order.

I have to say that I was the Judge in all of those cases. I am taking into account you are a youth, also taking into account the relatively minor nature of this offence. Also the significant punishment that you got on all of those, while I recognize the Crown said the DNA order is not necessary punishment there is an element that restricts your freedom and it has impact on on, there is something; I don’t know I find it something offensive that you will be taking a DNA sample from a 14 year old.

I could see it in an appropriate offence particularly a violent offence that that makes sense. … It might make sense if it was particularly violent offence or even a more serious threatening. Another thing that I am going to say about this too is if we get a fair number of break and enters and I know that the culture change and I do remember the lawyer when I first came up to Davis Inlet and Natuashish and we has [sic] a lot of break and enters and part of the argument and that time was that young people often went from one house to another.

Just in the same way that when they are out in the gathering the community go from one tent to another and there was some sense that the property of one individual belonged to everyone. But those times are changing and people have a stronger sense of property and I am sure adults and I am sure Rita Rich will remember what it was like years ago. And while there is something about that attitude towards property that those attitudes have changed, I am sure your grandmother would not appreciate it if some of her friends came into her house and took some of her things. But that cultural history in, still there is some

lingering some part of that is still around. [Transcript, pp. 12-14] [11] A review of the above reasons indicates that the sentencing judge, in declining to grant the DNA order, considered thefollowing: - that no previous DNA order had been made despite “all the other convictions on your record”; - that he was the judge in relation to all previous convictions; - the age of the offender: “you are a youth”; - the “relatively minor nature” of the offence; - that there was “significant punishment” imposed on previous convictions; - that while a DNA order is not punishment, there is an element that restricts freedom; - that it is “offensive” to take a DNA sample from a 14 year old person; - that a DNA order might be justified for an “appropriate offence,” particularly a “violent offence” or a “more serious threatening”;and, - that there is a lingering aspect of cultural history (notion of community property). [12] While the sentencing judge mused that some “lingering part” of the cultural history of community property may remain inNatuashish, his views are stated in a highly qualified manner.

These statements did not form a basis for his decision to decline to order aDNA sample. LAW AND ANALYSIS - declining to make the DNA order [13] The first issue is whether the sentencing judge erred in principle in his application of s. 487.051(2) of the Criminal Codewhich specifies how discretion shall be exercised in making a DNA order. The section, which clearly applies to an offender under theYouth Criminal Justice Act, states:

(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 foundguilty 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 “primarydesignated offence” in

section 487.04 when the person is sentenced or discharged. However, the court is not required to make the orderif it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would begrossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved throughthe early detection, arrest and conviction of offenders. (Underlining added) [14] The offence of “breaking and entering a dwelling house” involved in this appeal is a “primary designated offence” undersection 487.04(a.1)(ix) of the Criminal Code.

Section 487.051 is, therefore, engaged. [15] The caveat, or exception, set out in subsection (2) which grants discretion to the court to decline to make a DNA order, requiresthe offender to show that the impact of an order on his or her privacy or security of the person would be grossly disproportionate to thepublic interest in the protection of society and the proper administration of justice to be achieved through early detection, arrest andconviction of offenders. [16] Where, as here, a young person has been found guilty of a primary designated offence, the court “shall” make a DNA orderunless the convicted person establishes that such an order is in his or her case “grossly disproportionate”. [17] The test to be applied in assessing the sentencing judge’s decision is set out in R. v.

R.C. Fish J., for the majority states, atparas. 48-49: … the court is not required to make the order if it is satisfied that the person or young person has established gross disproportionality. Such is the language of discretion. Accordingly, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a courtof appeal should only intervene to vary a decision to either make or refuse to make a DNA data bank order if the decision was clearlyunreasonable: see, in the sentencing context, R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500. [18] In this case, the Crown’s submission is that the trial judge erred in principle. This submission requires an analysis of thepurpose and effect of the DNA provision. [19] The Supreme Court of Canada in upholding the constitutionality of the DNA provisions of the Criminal Code commented onthe privacy component of the analysis in R. v. Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554. Charron J., for the majority,stated at para. 42:

… in restricting the use of DNA sampling for data bank purposes 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. … [ 20 ] As to identification privacy, Charron J. discussed the use made of DNA evidence at para. 37: Unlike the warrant provisions, the DNA data bank provisions do not target suspected offenders in respect of particular offences. Rather, they target offenders who have been convicted of different categories of offences.

They do not provide for the gathering of evidence for use in a specific prosecution. Rather, they provide for the collection of samples solely for the purpose of creating DNA profiles for inclusion in the data bank. In any future investigation, a comparison between DNA evidence obtained at a crime scene and the data bank DNA profile will either serve to exonerate or identify a suspect. However, if a crime scene DNA profile matches an existing profile in the data bank, the sample is not released.

Usual investigative methods, including DNA warrants, must be resorted to in order to gather evidence in pursuit of the investigation. … [ 21 ] The privacy concern was also addressed by this Court in R. v. Newell , 2009 NLCA 18 per Barry J.A. at para. 50: Release of information regarding a match does not reveal intimate details about the lifestyle and personal choices of the individual. [ 22 ] Charron J. also noted that the primary designated offences to which

section 487.051(2) applies are generally the more serious offences and those “in respect of which it may reasonably be expected that DNA may be left behind by the offender” (para. 43). [ 23 ] In view of these considerations, the courts have held, in respect of adult offenders, that the Crown’s request for a DNA order will only rarely be refused. [ 24 ] However, in the context of young offenders, the principles underlying the Youth Criminal Justice Act must also be considered. In R. v.

R.C. , Fish J. referred to conducting the analysis “through the lens of the applicable youth criminal justice legislation” (para. 45), taking account of the goals sought to be achieved by that legislation. Of particular relevance is the purpose of promoting the young offender’s rehabilitation and reintegration into society ( Youth Criminal Justice Act , s. 38).

The test, however, remains the same: has the offender established that the impact of a DNA order on his 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. Relevant factors to be considered would include the offender’s age, any relevant criminal record, the nature of the offence and circumstances surrounding its commission. Regarding the nature of the offence, in R. v.

Jordan , 2002 NSCA 11 , Cromwell J.A., for the Court, opined that a relevant consideration may be that “in the particular circumstances, [the offence] is not typical of the general nature of the listed [designated] offences or is such that the risk of recidivism appears to be low” (para. 68). [ 25 ] B.R. had five prior convictions for breaking and entering a dwelling house.

While the sentencing judge noted that he was also the judge in all previous matters and did not then order a DNA sample, this cannot form a principled basis to decline to do so in a new sentencing matter before him. [ 26 ] As to the nature of the offence and the circumstances surrounding it, the sentencing judge, in considering the specifics of B.R.’s offence, notes that there was no violence or damage to the dwelling, but does not consider that B.R. was the person who facilitated the offence by entering the house and opening the door for the others.

He further makes the general observation that the offence is “relatively minor” but does not indicate that it would be considered atypical in the context of the listed designated offences. [ 27 ] The sentencing judge in the instant case also failed to expressly address whether the impact of a DNA order on B.R.’s privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. [ 28 ] Counsel for B.R. nevertheless submitted that the sentencing judge’s references to B.R.’s young age and to the “minor” nature of the offence implicitly involved a consideration of proportionality because rehabilitation and privacy are particular concerns when a person is young.

By focusing on these matters, counsel suggested the sentencing judge was in effect saying that the impact of the loss of privacy on B.R. outweighed public interest considerations. [ 29 ] In like manner, it was argued that the sentencing judge’s reference to the taking of a sample being “offensive” in relation to a person so young amounted to a further recognition that the sentencing judge was engaging in a proportionality analysis.

While acknowledging that the sentencing judge’s language was not “impeccable”, counsel submitted that the reference should be read in the sense that privacy and rehabilitation are particular concerns given B.R.’s youth. [ 30 ] I am not persuaded by these submissions. Since the onus is on the offender to show that the impact of an order is grossly disproportionate to him or her, the inquiry must be individualized. The comments by the sentencing judge, particularly that it was “offensive” to take a DNA sample from a 14 year old, display a general antipathy towards making DNA orders in such circumstances.

They do not address why in this particular case, considering B.R.’s specific circumstances (as opposed to circumstances generally) the impact on B.R. would be grossly disproportionate. [ 31 ] The bar to decline an order is high. As Fish, J. wrote in R. v. R.C. at para. 31 , “what is required is that the offender show that the public interest is clearly and substantially outweighed by the individual’s privacy and security interests” (underlining added).

The making of such an order specifically applies to young offenders so, while age is a factor to be considered, it is not enough to decline an order based simply on age. While it may be offensive to some to order young offenders to submit to a DNA order, that is not a sufficient reason in itself to decline to make an order. [ 32 ] Further, the significant criminal record of B.R. for the same sort of offence must be considered.

The sentencing judge’s reference to the fact that he sentenced B.R. on five previous occasions without imposing a DNA order does not address the significance of B.R.’s criminal record as part of the analysis of proportionality.

[33] The sentencing judge’s reasoning is primarily directed to the view that taking a DNA sample from a 14 year old offender is justnot appropriate. Since the provisions of the Criminal Code do mandate taking the sample for the particular offence involved andspecifically permit taking it from a young offender, the only basis to decline granting the order would be individualized reasons clearlyestablishing gross disproportionality in relation to this offender. As the sentencing judge did not engage in the proper analysis, he erredin principle. - grant the DNA order or remit back [34]

Section 487.054 is silent as to the powers of an appellate court in dealing with an appeal from a DNA order. In R. v. Hendry(2001), (ON CA), 161 C.C.C. (3d) 275 (Ont. C.A.), Rosenberg J.A. observed that while the appellate court must atleast have the power to make the order that should have been made by the sentencing court, “it may be that the appellate court also hasthe power to remit the matter back …” (para. 12). He also observed that if this power did exist, it would be a “highly unusual order”.

Subsequent cases in Ontario, nevertheless, have made such orders, especially in young offender cases where there was concern that allrelevant information on the issue was not available. See, R. v. K.B. (2003), (ON CA), 179 C.C.C. (3d) 413 (Ont.C.A.) and R. v. J.J.R. (2003), (ON CA), 181 C.C.C. (3d) 7 (Ont. C.A.). [35] To like effect in Alberta, see R. v. J.M.G. (2004), 2004 ABCA 214 , 187 C.C.C. (3d) 52 (Alta. C.A.) where it washeld that the sentencing judge failed to give reasons for making the order, as then required by s. 487.052(2) of the Code and in NovaScotia, see R. v.

Murrins (2002), 2002 NSCA 12 , 162 C.C.C. (3d) 412 (NSCA), where the court remitted the matter because itwas unable to say what criteria the judge considered in arriving at his decision to make the order. See also R. v.

Turnbull (2006), 2006NLCA 66 , 261 Nfld. & P.E.I.R. 241 (NLCA) where this Court, in the context of an appeal from a Sexual OffenderInformation Registration Act (SOIRA) order under s. 490.012(4), which the Court analogized to a DNA order (para. 21), remitted thedetermination of whether there should be a SOIRA order to the sentencing judge because the parties had not been given a reasonableopportunity at the original hearing to adduce relevant evidence on the issue. [36] Other appellate courts have considered the matter afresh and made the appropriate order where the record was completeenough to enable the court to make the order itself and was therefore “in as good a position as the sentencing judge to make adetermination” (per Huddart J.A. in R. v.

M.(S.A.) (2003), 2003 BCCA 561 , 179 C.C.C. (3d) 131 (BCCA) at para. 18). Seealso R. v. Young, [2002] O.J. No. 4359 (Ont. C.A.). [37] The British Columbia Court of Appeal concluded in R. v. M.(S.A.) that where the record on appeal is adequate, an appeal courtcan make the order that should have been made. [38] The Crown argues that where the record is complete, the appeal court should provide the remedy on appeal.

Counsel for B.R.argues that, while the record is not deficient, the sentencing judge remains in the best position to make a disposition because he residesin the community. [39] As set out in these reasons, I am of the view that the sentencing judge founded his decision, not on an individual review ofproportionality, but on a general opinion that taking of a DNA sample should not be ordered because it was not appropriate in relation toa 14 year old. This despite numerous previous convictions for the same type of primary designated offence.

While some reasons for thedecision may be found, the core issue of why the order would impact the privacy and security of B.R. in a manner grosslydisproportionate to the stated public interest in the protection of society and proper administration of justice was not addressed. As this isan error in principle, deference to the sentencing judge is not required. [40] There is an extensive criminal record, nothing substantial to suggest that the offence is not typical, and neither the age norcultural background of B.R. form a basis under

section 487.051(2) to apply the exception. Parliament has specifically mandated that thesection apply to young offenders and has not provided (as it does elsewhere) for special consideration for aboriginal offenders. All thenecessary information was before the sentencing judge and is before this Court. It has been reviewed above. I am satisfied there is nobasis to refuse the Crown’s request for a DNA order. CONCLUSION [41] Accordingly, the appeal is allowed and a DNA order under s. 487.051(2) of the Criminal Code shall issue. _______________________ C.W. White, J.A. I concur: ______________________ J.D. Green, C.J.N.L. I concur: ______________________ B.G. Welsh, J.A.