HMTQ v. Burden

Parties

Procedural Posture

Criminal Appeal (sentence Review) / Judicial Review of Provincial Court Decision Regarding DNA Order

Legal Issues

1. 1 Whether the trial judge erred in refusing to order a DNA sample under section 487.051 of the Criminal Code
2. 2 Whether the trial judge properly considered the accused's criminal record and the circumstances of the offences
3. 3 Whether the invasiveness and privacy implications of a DNA buccal swab or pinprick outweigh the state's interest in obtaining DNA

Ratio Decidendi

The trial judge erred by failing to properly consider the accused's criminal record and the surrounding circumstances and by improperly forecasting that identification could never be an issue; given repeated assault convictions and the minimal invasiveness of a buccal swab or pinprick, an order for a DNA sample under s.487.051 is warranted and the refusal is set aside.

Court Disposition

Appeal allowed in part; trial judge's refusal set aside and DNA order granted.

Orders

• Previous decision refusing the Crown's request for a DNA sample is set aside.
• Order that a DNA sample be taken from Terry Burden by buccal swab or pinprick.