Ricardo G. Federico In The News

Judges refuse to force convicts to give DNA

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FEATURED: Globe & Mail| WRITTEN BY: CHRISTIE BLATCHFORD |   March 18, 2009

Canadian judges across the country are regularly failing, or outright refusing, to order those they convict to give DNA samples.

With the establishment of the National DNA Data Bank almost four years ago, the Criminal Code was amended to make such orders mandatory (in the case of serious crimes, called “primary offences,” such as murder and sexual assault) or discretionary (in the case of lesser, or “secondary offences,” such as property crimes, assault and impaired driving).

For mandatory offences, for instance, Section 487 of the code reads that the judge “shall” make a DNA order unless he finds the offender’s privacy considerations outweigh the protection of society — arguably a tough standard to meet given that most DNA samples are now taken via a minimally intrusive simple mouth swab.

For lesser crimes, the language is different: Judges “may” make the order if satisfied that it is in the “best interests of the administration of justice,” with the onus effectively on the prosecutor to make the case that it is.

But it is clear that what in theory ought to be happening isn’t in practice, either with judges or prosecutors, and that the legislation and in turn the data bank arguably have been rendered paper tigers.

George Thomson, executive director of the National Judicial Institute, which serves the Canadian judiciary, said yesterday in an e-mail interview — Mr. Thomson is in China — that while the percentage of mandatory orders is “low,” compliance is “growing steadily.”

He said that because the DNA legislation was enacted quickly, “the education programming for judges came after the fact.”

In addition, Mr. Thomson said there was initial uncertainty about “whether a mandatory system would be seen to comply with the Charter,” but he agreed that issue was settled a couple of years ago.
DNA is often described as a genetic fingerprint, and has proven itself an invaluable crime-fighting tool, as well as a useful one for vindicating the wrongly accused and convicted.

As the DNA Data Bank Advisory Committee has regularly bemoaned in its annual reports, including its most current one for the year ending March of 2003, the submission rate of samples is only 50 per cent for the most serious crimes and less than 10 per cent for secondary offences.

Even Ontario, which contributes more than half of the offender samples, “is probably realizing only half of the potential sample entries,” the report says.

The result is that the data is underutilized, “and running at much less than its expected sample processing capacity”.

According to a 1998 study, in Canada there are about 18,600 primary offences and at least 94,000 secondary offences every year that are at least eligible for entry into the data bank.

Yet as of February this month, it has received only 30,186 primary offence samples, and 24,854 secondary samples, for a total of 55,040 samples over the almost four years of its existence.

Indeed, Toronto criminal lawyers Ricardo Federico and Enzo Rondinelli have set up a newsletter devoted to DNA case law on sample collection, and list 43 cases from all over Canada where judges in provincial and higher courts have declined to issue DNA orders.

The list of refusals, updated to last December, on Federico & Rondinelli’s DNA NetLetter includes nine sexual assaults and a murder, as well as secondary offences such as possession of child pornography, assault and burglaries.

One of the sexual assaults, from the British Columbia Provincial Court in Port Coquitlam, dates back to 2001.

It involved a man in his 40s, identified only as JMS, who pleaded guilty to sexually assaulting his stepdaughter from age 8 to 14, with acts that ranged from touching to repeated acts of intercourse.

Because the offence occurred before the data bank was established, though it fell into the primary category, a DNA order was considered retroactive, and thus discretionary.

The Crown didn’t push for one, but the subject was raised by Judge Deirdre Pothecary and promptly opposed by the defence lawyer, Henry Sarava, who said, “This DNA registry business is for, generally speaking, people who might be predators to strangers.”

Judge Pothecary agreed, saying, “notwithstanding everything evil about what happened here, it was not predatory behaviour in a sense, but was grooming behaviour to a large degree.” She declined to make the DNA order, and sentenced the man to two years less a day in jail, and probation for three more.

Judges’ reasons for refusing appear to be all over the map.

The Federico & Rondinelli list, for instance, has a Nova Scotia judge refusing an order in a serious assault involving a young offender because the fight was “consensual;” an Alberta provincial court judge failing to order DNA in a breaking and entering offence because the taking of a sample “will simply mean that another individual will be added to a data bank;” an Alberta Provincial Court judge declining to make an order in a child pornography case because of the impact the order would have on the offender; and an Ontario judge refusing an order in a case of a woman convicted of second-degree murder in the death of her infant daughter simply because he wasn’t satisfied it was “in the best interests of the administration of justice.”

Perhaps the most high-profile DNA-sample case involved Mr. Federico himself, who last year convinced Ontario Superior Court’s Mr. Justice David McCombs to quash DNA orders against two convicted murderers, one of them notorious in legal circles.

That was the case of Kuldip Singh Samra, who in March of 1982 came into an Osgoode Hall courtroom and gunned down three men, killing two of them.

Mr. Samra was later convicted on two counts of first-degree murder and one of attempted murder, and when the DNA Identification Act came into effect in June of 2000, one of the categories of offenders for whom “retroactive” DNA orders could be sought was those “convicted of more than one murder committed at different times.”

In January of 2002, a judge ordered Mr. Samra to provide a sample, but last year Judge McCombs found the language was designed for multiple murderers who killed in different “transactions,” and that Mr. Samra’s killings were part of the same one.

That judges are not routinely issuing orders, in a system with already tough restrictions, is a source of frustration to police. As Toronto Police Chief Julian Fantino said yesterday, “We have such an extraordinary preoccupation with the rights of accused persons in this country. We need to balance that out with the rights of victims’ families, and community safety.” As for suggestions that the laws be eased, Chief Fantino said, “What’s the point of more legislation if it’s not enforced?”

In Canada, even if the sample collection system was working properly, offenders are required to provide samples only after conviction.

In England, DNA samples are taken at the time an offender is charged, and a new law, making DNA sampling as routine as fingerprinting and done at the same time — upon arrest — is slated to be proclaimed in April. A British expert with the Home Office, Robert Green, is in Toronto this week for the 18th Toronto Police Forensic Identification Conference.

He was the opening speaker yesterday, and said that on average, the British data bank gets matches on nine murders, eight sexual assaults, 164 violent crimes and 2,351 so-called minor offences, such as drug and property-related crime, every week.

Proving the efficacy of taking DNA for less serious offences is the British case of Brian Lunn Field, who was arrested on a drinking-and-driving charge. His DNA matched semen taken, and frozen, from a murdered 14-year-old boy named Roy Tutill more than three decades before.

Mr. Lunn Field later pleaded guilty and was sentenced to life in prison.