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Criminal - DNA Testing. R. v. Roche
In R. v. Roche (Ont CA, 2023) the Court of Appeal considered the legal test for DNA sampling of a person found to be not criminally-responsible (NCR):[10] Under section 487.051(3)(a) of the Code, a judge may make an order authorizing the taking of a sample of the DNA of a person found NCR where the judge is satisfied that it is in the best interests of the administration of justice to do so and the offence committed by the NCR is a designated offence.[1] The Code sets out factors a judge is to consider.
[11] The order is discretionary in nature. The unique status of an NCR offender is reflected in the discretionary nature of the statutory provision.
[12] Absent an error in principle, a failure to consider a relevant factor, or an overemphasis of an appropriate factor, an appellate court should only intervene if the discretionary decision under review was clearly unreasonable: R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at paras. 46-49.
[13] As described by Weiler J.A. in R. v. Briggs, (2001) 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417 (C.A.), at para. 22, the DNA data bank is designed to:(1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).
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