Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Appellant is a repeat sex offender on parole from a lengthy prison term when he was served with a summons to attend to provide bodily substances for DNA analysis. The DNA sample was sought for inclusion in the National DNA databank and not as part of an ongoing investigation of a crime. He had been convicted prior to the proclamation of the DNA Identification Act, S.C. 1998, c. 37, and so was not ordered to provide a sample when sentenced. The DNA warrant was issued under s. 487.055(1)( c) of the Criminal Code. The Appellant had been sentenced to 4 years in prison for a sexual assault in 1997, committed while he was on probation on a conviction for sexual interference. His 4 year sentence was to expire in February 2001. He also had two prior convictions for failing to appear. He was not aware of the Crown's ex parte application for DNA warrants on 4 December 2000 and first learned of the proceeding when served with his summons.

The Appellant applied for a declaration that s. 487.055 of the Criminal Code breached his rights under s. 7 of the Charter and was of no force and effect because the DNA warrant application was heard ex parte and there was no appeal. He also sought to quash the authorization on the basis that the authorizing judge had lost jurisdiction in the circumstances by proceeding ex parte. On consent, the sampling was completed and the results were sealed pending final resolution of the issues. The application for relief was dismissed and he appealed. The Court of Appeal allowed the appeal in part. It upheld the constitutionality of s. 487.055 but held that the authorizing judge had lost jurisdiction in the circumstances by proceeding ex parte. The Court of Appeal quashed the authorization and remitted the matter to the Ontario Court of Justice for determination on its merits with notice to the Appellant or his counsel. It ordered the samples should be held until the matter is resolved and destroyed if a fresh authorization is not granted.