Law Times

Law TiMes • May 30, 2011 FOCUS Youth DNA collection a burning issue Question may go to SCC as party considers seeking leave BY KENNETH JACKSON For Law Times ing automatic DNA collection for certain youth criminals to be constitutional will go all the way to the Supreme Court of Canada. Th e appeal court released its T decision in April in the cases of three convicted youths, K.M., J.B., and D.R. It followed ar- guments last November in a constitutional challenge of the mandatory collection of DNA from youth convicted of certain crimes such as robbery and as- sault causing bodily harm. Th e court ruled the practice is constitutional and thereby overthrew a decision by Justice Marion Cohen of the Ontario Court of Justice in 2009 in which she, after lengthy court proceedings, eventually ruled it infringes the privacy and se- curity rights of youth. Cohen refused to make DNA collec- tion orders in respect to the convicted youth. Cohen "said it was unconsti- tutional when it comes to young persons because young persons have certain statutory rights and enhanced privacy rights diff erent from adults," says Da- vid Rose, who represented the Canadian Civil Liberties As- sociation in the appeal. "What happens now if you are a young person found guilty of assault causing bodily harm or rob- bery and, for example, you were given a discharge, there would be no discretion on the judge to deny DNA data-banking." Rose notes a 2008 ruling made the practice automatic. Prior to that, the issue was up to the judge. Cohen's decision threw a stick in the spokes. But the appeal court pulled the stick out through its majority ruling. Monte MacGregor, who represented K.M., says he's cur- rently waiting to hear from Le- gal Aid Ontario on whether it'll fund an appeal to the Supreme Court to stay the DNA order. MacGregor hopes to know within the month and expects the top court to hear the case. If it does, he expects people from every province to be involved as he's been getting calls from across the country. "It's becoming a national is- sue," says MacGregor, adding there are several similar cases. Th e CCLA confi rms that, as an intervener, it won't be seek- ing leave to appeal the decision. "We will, however, continue to take an interest in the case should one of the parties seek leave to appeal to the Supreme Court of Canada," said Graeme Norton, who also represented the CCLA. Norton was unable to com- ment further on the case. But in a press release, the CCLA said the Court of Appeal found that the manner in which DNA samples are used reduces Untitled-1 1 here's a good chance that an Ontario Court of Appeal ruling deem- the privacy interests associ- ated with their collection and retention. Th e court also held that because the youth in question had been convicted of criminal off ences, further judicial au- thorization wasn't necessary in order to take the DNA. "Th ese considerations were central to the court's ruling that manda- tory DNA orders for youth, as required by the Criminal Code, are not unconstitution- al," said the CCLA. Th e CCLA had argued that the DNA provisions of the Criminal Code need to be seen in a diff erent light than those related to adults because of the unique situation and vulnera- bility of young off enders. It also argued the courts should have some discretion and not have their hands forced. "Th is is the only way that both the state's in- terest in the collection of DNA and the young off ender's privacy David Rose believes the appeal court erred in its decision because society treats youth differently than adults in court. interests can be appropriately balanced on a case-by-case ba- sis," said the CCLA. Th e ruling got the attention of Law Times columnist Alan Shanoff who, writing for Sun Media in April, said the Court of Appeal made the right deci- sion. Th e appeal court "got it right," he wrote. "Justice Co- hen got it wrong, but it's the way she got it wrong that forms the basis of my criticism." According to Shanoff , Co- hen goaded lawyers to chal- lenge the mandatory rule when, as the appeal court noted, she said she "would be interested in whether [the mandatory collection of DNA for certain off ences] raises a constitutional issue." Cohen then invited various organizations to get involved and granted intervener status to two of them. Th e Court of Ap- peal noted she also took steps to help lawyers obtain legal aid. Rose believes the Court of Appeal erred in its decision be- cause society treats youth diff er- ently than adults in the courts. In an interview, Rose refer- ences two diff erent Supreme Court of Canada cases: R. v. R.C. in 2005 and R. v. Rodgers in 2006. "In R.C., the Supreme Court said youth have an enhanced privacy interest when it comes to DNA data-banking diff erent from adults. But six months later, the Supreme Court of Canada came down with a decision [in- volving Dennis Rodgers] . . . that said DNA data-banking is no diff erent in many respects than digital fi ngerprints," says Rose. "Th e argument is there should be some ability to have a judge deny seizure of a bodily sample. Th e legislation doesn't allow that. Th e Ontario Court of Ap- peal disagreed, and they found it wasn't necessary and didn't off end Charter principles." As a result, some lawyers believe the top court needs to hear the case and put the issue to rest. PAGE 9 www.lawtimesnews.com 5/20/11 9:41:45 AM Photo: Billy-Jack Kimmerly

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