R. v. R.C., (2005) 340 N.R. 53 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 28, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 340 N.R. 53 (SCC);2005 SCC 61;237 NSR (2d) 204;135 CRR (2d) 109;201 CCC (3d) 321;67 WCB (2d) 92;EYB 2005-96964;JE 2005-1961;[2005] 3 SCR 99;[2005] SCJ No 62 (QL);340 NR 53;259 DLR (4th) 1;AZ-50339866;32 CR (6th) 201

R. v. R.C. (2005), 340 N.R. 53 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.R. TBEd. OC.045

R.W.C., a young person within the meaning of the Youth Criminal Justice Act (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta and Canadian Foundation for Children, Youth and the Law (intervenors)

(30302; 2005 SCC 61; 2005 CSC 61)

Indexed As: R. v. R.C.

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

October 28, 2005.

Summary:

A 13 year old youth pleaded guilty to as­sault with a weapon after stabbing his mother in the foot with a pen. The youth was sentenced to four months' probation and the Crown applied under s. 487.051 of the Criminal Code for an order authorizing the taking of a DNA sample. Assault with a wea­pon was a primary designated offence, mak­ing a DNA sample order mandatory un­less the youth established that the impact 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 (s. 487.051(2)).

The Nova Scotia Supreme Court, Family Di­vi­sion, in a judgment reported (2003), 215 N.S.R.(2d) 164; 675 A.P.R. 164, declined to make the order, finding that the youth estab­lished that this was one of those rare cases under s. 487.051(2) where a DNA sample or­der was inappropriate. The Crown ap­pealed.

The Nova Scotia Court of Appeal, in a judgment reported (2004), 222 N.S.R.(2d) 41; 701 A.P.R. 41, allowed the appeal and granted an order authorizing the taking of a DNA sample. The youth appealed.

The Supreme Court of Canada, Abella, LeBel, Charron and Bastarache, JJ., dissent­ing, allowed the appeal and restored the trial judge's decision declining to make the DNA sample order.

Criminal Law - Topic 3080

Special powers - Forensic DNA analysis - When DNA sample order available or ap­pro­priate - A 13 year old youth pleaded guilty to assault with a weapon (stabbed mother in foot with pen), a "primary desig­nated offence" under s. 487.051(a) of the Criminal Code - Section 487.051(a) re­quired the making of a DNA sample order unless, under s. 487.051(2), the youth es­tablished that the impact of the order on his privacy and security of the person was grossly disproportionate to the public in­terest in the protection of society and the proper administration of justice - The judge declined to make the order, finding that this was one of those rare cases where the youth met the burden imposed by s. 487.051(2) - The Court of Appeal held that the judge erred in refus­ing to make the mandatory DNA sample order absent a suf­ficient factual underpinning; erred in speculating that the impact on the youth's privacy and security of the person was grossly disproportionate to the public interest in the protection of society and administration of justice; and erred, in determining whether to impose the manda­tory order, that a distinction should be made between youths and adults - The Su­preme Court of Canada restored the trial judge's decision - Absent error in prin­ciple, failure to consider relevant infor­mation or overemphasis of an appropriate factor (none of which were present here), the Court of Appeal erred in intervening where the trial judge's decision was not "clearly unreasonable".

Criminal Law - Topic 3081.2

Special powers - Forensic DNA analysis - Appeals - Scope of review (incl. court's powers on appeal) - [See Criminal Law - Topic 3080 ].

Criminal Law - Topic 3082

Special powers - Forensic DNA analysis - DNA sample order - Criteria - A 13 year old youth pleaded guilty to assault with a weapon (stabbed mother in foot with pen), a "primary designated offence" under s. 487.051(a) of the Criminal Code - Section 487.051(a) required the making of a DNA sample order unless, under s. 487.051(2), the youth established that the impact of the order on his privacy and security of the person was grossly disproportionate to the public interest in the protection of society and the proper administration of justice - The Supreme Court of Canada held that the principles and purposes of youth crimi­nal justice legislation informed and af­fected the application of the DNA provi­sions to young offenders - In considering whether to impose a DNA sample order, there was a distinction between adult and young offenders - A minority of the Court (four of nine judges) opined that "notwith­standing the special principle and pro­tec­tions for young persons that are found in young offender legislation, the test set out in s. 487.051(2) of the Criminal Code ought to operate in the same way for adults and young persons".

Cases Noticed:

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 17].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 21].

R. v. Briggs (W.) (2001), 149 O.A.C. 244; 157 C.C.C.(3d) 38 (C.A.), leave to appeal refused [2001] 2 S.C.R. xii; 292 N.R. 193; 165 O.A.C. 45, refd to. [paras. 23, 108].

R. v. Jordan (P.S.) (2002), 200 N.S.R.(2d) 371; 627 A.P.R. 371; 162 C.C.C.(3d) 385; 2002 NSCA 11, refd to. [para. 23].

R. v. T.N.T. (2004), 354 A.R. 88; 329 W.A.C. 88; 186 C.C.C.(3d) 543; 2004 ABCA 238, refd to. [para. 23].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 25].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 27].

F.N., Re, [2000] 1 S.C.R. 880; 255 N.R. 250; 191 Nfld. & P.E.I.R. 181; 577 A.P.R. 181; 2000 SCC 35, refd to. [para. 42].

Southam Inc. v. R. (1984), 48 O.R.(2d) 678 (H.C.), affd. (1986), 12 O.A.C. 394; 53 O.R.(2d) 663 (C.A.), leave to appeal denied [1986] 1 S.C.R. xiv; 68 N.R. 398; 16 O.A.C. 80, refd to. [para. 43].

R. v. K.B. and S.W. (2003), 176 O.A.C. 317; 179 C.C.C.(3d) 413 (C.A.), refd to. [para. 44].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 49].

R. v. B.V.C. (2003), 233 Sask.R. 270; 2003 SKQB 219, refd to. [para. 108].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.051 [para. 19].

Counsel:

Chandra Gosine, for the appellant;

Peter P. Rosinski and William D. Delaney, for the respondent;

John S. McInnes, for the intervenor, Attor­ney General of Ontario;

Kathleen M. Ker, for the intervenor, Attor­ney General of British Columbia;

James C. Robb, Q.C., for the intervenor, Attorney General of Alberta;

Martha MacKinnon and Lee Ann Chap­man, for the intervenor, Canadian Foun­dation for Children, Youth and the Law.

Solicitors of Record:

Nova Scotia Legal Aid, Halifax, N.S., for the appellant;

Public Prosecution Service, Halifax, N.S., for the respondent;

Attorney General of Ontario, Toronto, On­tario, for the intervenor, Attorney Gener­al of Ontario;

Ministry of the Attorney General, Van­couver, B.C., for the intervenor, Attorney General of British Columbia;

Alberta Justice, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;

Justice for Children and Youth, Toronto, Ontario, for the intervenor, Canadian Foun­dation for Children, Youth and the Law.

This appeal was heard on April 20, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Can­ada.

On October 28, 2005, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Fish, J. (McLachlin, C.J.C., Major, Bin­nie and Deschamps, JJ., concurring) - see paragraphs 1 to 71;

Abella, J. (LeBel and Charron, JJ., con­curring), dissenting - see paragraphs 72 to 101;

Bastarache, J., dissenting - see para­graphs 102 to 112.