Docket: 1768 Her Majesty the Queen Appellant - v. -, 2010 SKCA 65

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 65 Date: 20100506 Between: Docket: 1768 Her Majesty the Queen Appellant - and - Hussein Mohammed Elmi Respondent Coram: Klebuc C.J.S., Gerwing & Smith JJ.A. Counsel: Kathy Grier for the Federal Crown Hussein Mohammed Elmi appearing on his own behalf

Appeal: From: Provincial Court for Saskatchewan Heard: May 6, 2010 Disposition: Dismissed (orally) Written Reasons: May 17, 2010 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Smith GERWING J.A. [ 1 ] The Crown appeals the refusal of a DNA order for the respondent who was convicted of possession of a controlled substance for purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [1] [ 2 ] This was the only aspect of the sentence appealed and it was clear from the Crown factum and from oral argument that the Crown’s principal concern was that this case might serve as a precedent if, as it was its submission, the trial judge had misdirected himself as to the test for imposing a DNA order. [ 3 ] The entirety of the judge’s comments on this point are: This is, as trafficking goes, a relatively low level operation.

I don’t see, and that may simply be my ignorance, but nonetheless, that’s what I have to operate on, I don’t see that DNA evidence is likely to help convict or exonerate an accused in similar circumstances. That is, similar circumstances to the trafficking offences in the future, and accordingly, with respect to Mr. Elmi and Mr. Salad, I am not going to make the DNA order. [2] [ 4 ] It is not clear to us that this was the sole consideration in the judge’s mind in refusing to impose a DNA order in this case. He may have had in mind other factors, such as the lack of record and his

interpretation of the facts, which would have led him to exercise his discretion as he did. [ 5 ] In our view, if he indeed was restricting himself solely to the one point in the above quoted paragraph he was in error. The test is broader than this.

He ought to have considered the respondent’s criminal record, the nature of the offence and the circumstances surrounding its commission, and the impact of the order on the respondent’s privacy and security of person balanced against the public interest in law enforcement and community safety. [ 6 ] There is, of course, ample authority, including Supreme Court authority, to state that the test is a nuanced one where several factors have to be weighed. [ 7 ] In this case, we are not persuaded the trial judge did indeed limit himself as the Crown contends and accordingly, the appeal is dismissed.