R. v. Churchill, 2020 NLSC 144

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Churchill , 2020 NLSC 144 Date : November 20, 2020 Docket : 202001G5364 Her Majesty The Queen v. Kurt Churchill Before: Justice Vikas Khaladkar Reasons for Judgment Given Orally On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0119A00945 dated the 5th day of November, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 16, 2020 Date of Oral Judgment: November 16, 2020

Summary: The Applicant was convicted of uttering threats against a police officer. He was ordered to provide a DNA sample. He has appealed his conviction and has applied to have the Order for the DNA sample and his Probation Order set aside pending the outcome of his appeal. The application was granted. Appearances:

Michael G. Murray Appearing on behalf of the Crown (Respondent) Robby D. Ash Appearing on behalf of the Offender (Applicant/Appellant) Authorities Cited: CASES CONSIDERED: R. v. Gibson , 2011 BCSC 324 ; R. v. Zurowski , 2003 ABCA 174 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] The Applicant was convicted of uttering threats against a police officer. He was given a conditional discharge and ordered to provide a DNA sample.

He has appealed his conviction and made an application to set aside the Probation Order and the Order for the provision of a DNA sample pending the outcome of his appeal. [ 2 ] The sole question to be decided on this application is whether or not the Supreme Court of Newfoundland and Labrador has the inherent jurisdiction to make the Order that the Applicant requests. [ 3 ] The Supreme Court of British Columbia, in R. v. Gibson , 2011 BCSC 324 found that

section 487.056(4) of the Criminal Code , R.S.C. 1985, c. C-46 did not oust the inherent jurisdiction of that Court to stay, pending determination of an appeal from conviction, an Order that bodily substances be taken for DNA samples. [ 4 ] The Supreme Court of Newfoundland and Labrador, like the Supreme Court of British Columbia, is a superior Court of criminal and civil jurisdiction with inherent powers recognized by the constitution of Canada. [ 5 ]

Section 487.056(4) of the Criminal Code indicates that the process of collection of DNA samples is not to be impeded even if the Order to take the bodily substances necessary for analysis is appealed. The predecessor to this

section was more broadly worded and, in 2001, did not restrict appeals to those concerning the DNA Order only but covered all appeals. [ 6 ] Parliament has, therefore, purposely narrowed the circumstances under which samples are to be taken to those where the DNA Order itself is being appealed. In this case the Applicant is appealing his conviction – not the determination that he provide a DNA sample. [ 7 ] Courts of Appeal have come to differing conclusions concerning this issue.

Some have held that they have the inherent jurisdiction to stay orders for the provision of DNA samples while others have held that they do not. Courts of Appeal do not have the same inherent powers as superior Courts of criminal and civil jurisdiction. Courts of Appeal are statutory Courts whose powers derive from the statutes that create, organize and empower them while superior Courts of criminal and civil jurisdiction are not so constrained. [ 8 ] R. v. Gibson , therefore, is the only precedent available to me in deciding the outcome of this application.

Williamson, J. cited with approval the dissenting dicta of Berger, J.A. in R. v. Zurowski , 2003 ABCA 174 . Berger, J.A. wrote: It is true that the DNA sample may be destroyed following the quashing of a conviction on appeal and that access to a successful appellant’s information in the convicted offenders index may be permanently removed. But during the time that an appeal is extant, if the DNA sample is utilized and relied upon, absent an efficacious remedy, the damage will already have been done. By judicial order the appellant will have been conscripted against himself.

Conviction of a secondary designated offence is the foundational condition precedent for a DNA order. If the foundation for that conscription evaporates (if and when the appeal from conviction is allowed and the conviction quashed), the result is that without the benefit of a DNA warrant the subject will have been irretrievably prejudiced if the DNA sample were taken and utilized in the period preceding the hearing of the appeal. In the absence of the ability to stay the DNA order pending appeal, the statutorily conferred jurisdiction of the Court is frustrated.

The Court is powerless to intervene and the appeal, at least in part, is rendered nugatory. It follows that a stay is necessary to prevent the frustration of the appeal. [ 9 ] As noted by Williamson, J., the issue for this Court is not the frustration of a statutorily conferred jurisdiction, but, rather, the suggested curtailing of an inherent jurisdiction.

[ 10 ] Like Williamson, J., I conclude that

section 487.056(4) does not oust the inherent jurisdiction of this Court to stay, pending determination of an appeal from conviction, an Order that bodily substances be taken for DNA samples. [ 11 ] In the circumstances of this case the Order for the provision of DNA samples should be stayed. [ 12 ] The application is granted. _____________________________ Vikas Khaladkar Justice