R. v. Gibson

2011 BCSC 324 R. v. Gibson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gibson, 2011 BCSC 324 Date: 20110317 Docket: X074673 Registry: New Westminster Regina v. Peter Robert Gibson Before: The Honourable Mr. Justice Williamson Reasons for Judgment Counsel for Respondent: J. Caldwell Counsel for Appellant: V. Williams Place and Date of Hearing: New Westminster, B.C. March 1, 2011 Place and Date of Judgment: New Westminster, B.C. March 17, 2011 Introduction [1] The applicant, Peter Gibson, applies to this Court for the staying of an order requiring him to submit to the taking of a DNA sample pursuant to s. 487.051 of the Criminal Code (R.S., 1985, c. C-46), pending an appeal against conviction. The Crown opposes this application. [2] The application raises an important issue, mandating as it does consideration of one of the defining aspects of this Court, the fact that it is a court of inherent jurisdiction. Indeed, a fundamental characteristic of our Parliamentary democracy is the division of powers between the legislative, executive and judicial branches. While Parliamentary supremacy permits the legislative branch to circumscribe inherent jurisdiction, the importance of this long standing division of constitutional powers necessitates the most careful analysis should the legislative branch move to limit the courts' ability to administer justice, or should the courts attempt to curb the powers of the legislative branch. This Court, then, must be vigilant in protecting its legitimate, historic inherent jurisdiction. Background [3] On February 22, 2011, the applicant was convicted of assault contrary to s. 266 of the Criminal Code. The court suspended the passing of a sentence and imposed a 12-month probation order. Mr. Gibson was also ordered to submit to the taking of a DNA sample. [4] The provision of the Code at issue is s. 487.056, and particularly ss. (4). The entire section reads: 487.056 (1) Samples of bodily substances shall be taken as authorized under section 487.051 (a) at the place, day and time set out in an order made under subsection 487.051(4) or as soon as feasible afterwards; or (b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards. (2) Samples of bodily substances shall be taken as authorized under section 487.055 or 487.091 (a) at the place, day and time set out in an order made under subsection 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3) or as soon as feasible afterwards; or (b) in any other case, as soon as feasible after the authorization is granted. (3) If a person fails to appear as required by an order made under subsection 487.051(4) or 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3), samples of bodily substances shall be taken (a) when the person is arrested under a warrant issued under subsection 487.0551(1) or as soon as feasible afterwards; or (b) as soon as feasible after the person appears at the place set out in the order or summons if no warrant is issued. (4) Subsections (1) to (3) apply even if the order or authorization to take the samples of bodily substances is appealed. [Emphasis added] [5] In short, s. 487.056(4) provides that DNA samples must be taken at the time the person is convicted or as soon as feasible thereafter even if the order or authorization to do so is appealed. The language used by Parliament is, in this respect, clear. However, the Code is silent when it comes to appeals from conviction and/or sentence. In other words, it does not specify whether subsections (1) to (3) apply to an appeal other than an appeal against a DNA order. [6] The applicant is appealing his conviction as opposed to simply the DNA order. Success of the conviction appeal, if that should happen, would clearly obviate the DNA order. If justice is to be done, the court ought to have the power to grant a stay, the absence of which would in this respect render an appeal from conviction ineffective and otiose. The Parties' Submissions [7] Does this Court have the jurisdiction to stay a DNA order pending an appeal of conviction? [8] The applicant submits the court may rely upon its inherent jurisdiction to stay the order pending an appeal. He says the Code as it is worded does not remove from this Court the jurisdiction to do so. The Crown responds that the court does not have the authority to grant a stay because the express words of the Code and the interpretation given by the case law oust the court's jurisdiction to do so. The Applicant's Authorities [9] Counsel for the applicant cites I.H. Jacob, "The Inherent Jurisdicition of the Court", Current Legal Problems (1970), pp. 23 - 52, for the proposition that the inherent jurisdiction of a superior court is derived not from any statute or rule of law but from the very nature of the court as a superior court. Jacob argues that while this power does not extend to the creation of substantive law, superior courts have the authority to regulate their own processes and to prevent any such process from being obstructed or abused. [10] Jacob's article was cited with approval in R. v. Unnamed Person (1985), 22 C.C.C. (3d) 284 at p. 286, [1985] O.J. No. 189 (QL) (C.A.); Global Banking Systems v. Datawest Solutions Inc., 2006 BCCA 577 at para. 15, [2006] B.C.J. No. 3287 (QL); and A. v. C. (1994), 89 B.C.L.R. (2d) 92, [1994] B.C.J. No. 488 (QL) at para. 17 (S.C.)). [11] The British Columbia Supreme Court is a court of inherent jurisdiction. Unlike the Provincial Court and the Court of Appeal, it is not a statutory court. A statutory court "has only such powers and authority in civil cases as the Legislature of British Columbia confers upon it" (Johnson v. Laing, 2004 BCCA 364 at para. 26, 30 B.C.L.R. (4th) 103), and has only such powers and authority in criminal cases as the Parliament of Canada confers upon it. In contrast, this court has the inherent jurisdiction to control its own processes unless explicit statutory language limits that jurisdiction. [12] Section 487.056(4) unequivocally takes away the court's discretion to grant a stay of a DNA order even if the order or authorization to take it is appealed. But the court's inherent jurisdiction with respect to appeals from conviction as distinct from a DNA order is not mentioned. [13] Counsel for the applicant also refers to the decision of Campbell C.J. Co. Ct. (as he then was) in R. v. Simon (1988), 11 M.V.R. (2d) 289, [1998] B.C.J. No. 2003 (.Q.L.). In that case the appellant was convicted of driving without due care and attention and was sentenced to a fine and a one-year driving prohibition. He filed a notice of appeal. He then applied before Campbell C.J. Co. Ct. for an order suspending the driving prohibition pending the disposition of the appeal of the sentence. [14] The applicable statutory provision, s. 93(3) of the now defunct Motor Vehicle Act, R.S.B.C. 1979, c. 288 , specified that "Where a person (a) appeals a conviction, and (b) applies to the appellate court for an order to stay the prohibition imposed pursuant to the conviction, the appellate court may stay the prohibition for a period it considers appropriate". [15] The Crown argued that s. 93(3) limits the court's jurisdiction to grant a stay of prohibition to cases where conviction, as opposed to sentence, is appealed. The issue, therefore, was whether the court has jurisdiction outside the Act to order a stay of a driving prohibition on appeal of sentence, as opposed to conviction, and whether the express provisions of the Act supersede that jurisdiction. [16] Campbell C.J. Co. Ct. found he had jurisdiction to stay the driving prohibition imposed pending the appeal of the sentence. In so finding, he distinguished suspensions or prohibitions imposed automatically under the statute and those imposed pursuant to the exercise of judicial discretion. He held the former cannot be stayed pending appeal, whereas, the latter may be pursuant to the court's inherent jurisdiction. He said... It may, therefore, be only an accident of legislative history that the language of s. 93(3) speaks of conviction appeals only, despite its application to judicial prohibitions as well. However, I conclude that the provisions of s. 93(3) are not inconsistent with an inherent jurisdiction to order that a non-automatic suspension be stayed pending appeal of sentence. That inherent jurisdiction can be invoked in the circumstances here in addition to, or supplemental to, the statutory jurisdiction. Viewed in this way, there is no inconsistency, the inherent jurisdiction merely supplementing an area of procedure on which the statute is silent. [17] The statutory context in which Simon was decided is materially different from that present here. The language found in the impugned Motor Vehicle Act provision, with which Campbell C.J. Co. Ct. dealt, was permissive. The language in subsection 487.056(4) is mandatory. [18] In the course of his reasons, Campbell C.J. Co. Ct. relied upon R. v. Borger Industries and Ladco Company Ltd (1979), 49 C.C.C. (2d) 527, [1979] M.J. No. 356 (QL) (Co. Ct.) [Borger cited to QL], which he noted was approved in R. v. Andersson (1982), 70 C.C.C. (2d) 253, [1982] O.J. No. 3658 (QL). In Borger, the appellants sought a stay pending final disposition of the appeals of the convictions of certain zoning offences. [19] Philp C.J. Co. Ct. concluded that an appeal does not suspend operation of any sentence or court order unless an enactment provides so explicitly. He reasoned at para. 22 that: It would be exceedingly unfair if the appellants were required to comply with the order under s. 138(1.2) of the City of Winnipeg Act pending the disposition of their appeals. That order could be reversed or varied on the appeals. [20] Speaking to the court's inherent jurisdiction, he further ruled at para. 23 that: A court of competent jurisdiction has inherent power to control its own process. I am of the view that that power, in a proper case, extends to the staying or suspension of the operation of an order which is subject to review on an appeal pending before the court. To conclude otherwise would be to acknowledge that the court is powerless to prevent the frustration of a jurisdiction expressly given to it by statute. I am not prepared to make such an acknowledgment. Accordingly, the order made was stayed pending final disposition of the appeals. [21] Counsel for the applicant also refers to R. v. Briggs (2001), 53 O.R. (3d) 124: leave to appeal to S.C.C. dismissed [2001] S.C.C.A. No. 158 (QL)., a very short oral decision of the Ontario Court of Appeal specifically concerning the stay of a DNA order. In that case, Gouge and Simmons JJ.A. for the Court granted the stay, holding that the Court had jurisdiction to stay the DNA databank order made pursuant to s. 487.062. They reasoned at para. 1 that "s. 487.056(1) does not remove from this court its jurisdiction to properly regulate proceedings before it. The section simply provides that the taking of an appeal does not per se stay that order". [22] At that time, in 2001, s. 487.056(1), which is similar to the now-in-force s. 487.056(4), read as follows: Samples of bodily substances referred to in sections 487.051 and 487.052 shall be taken at the time the person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, or as soon as is feasible afterwards, even though an appeal may have been taken. [Emphasis added] [23] Importantly, the provision as it stood then is different than the current provision. The section as it read at the time of the Briggs decisions did not specify the nature of the appeal, leaving open to interpretation whether the "appeal" is from conviction, from sentence or from the DNA order itself. The section now in force is not so broad. Rather, it speaks exclusively of an appeal from an "...order or authorization to take the samples of bodily substances". Thus, the Ontario Court of Appeal's interpretation of s. 487.056(1) as it read in 2001 is not determinative of the application before me given the changes Parliament made to that the wording of that provision since. The Crown's Authorities [24] Crown counsel referred me to the DNA Identification Act (1998, c. 37), the underpinning of s. 487.056(4). The purpose of that Act as set out in s. 3 is "to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act". Section 4 states... It is recognized and declared that (a) the protection of society and the administration of justice are well served by the early detection, arrest and conviction of offenders, which can be facilitated by the use of DNA profiles; (b) the DNA profiles, as well as samples of bodily substances from which the profiles are derived, may be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose; and (c) to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on (i) the use and communication of, and access to, DNA profiles and other information contained in the national DNA data bank, and (ii) the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act. [25] By enacting s. 487.056 (4) of the Criminal Code, authorizing samples of bodily substances to be taken from persons for the reasons set out in the previous paragraph, Parliament seems to have intended that DNA samples may be taken despite the possibility of a later acquittal. The result is that use of the sample might be made during the interim even if the appeal is allowed. [26] The Crown also refers to R. v. Bader, 2010 BCCA 515, [210] B.C.J. No. 2580 (QL). In Bader, the Provincial Court convicted the appellant of dangerous driving causing death, handed down a suspended sentence with a two-year probation order and imposed a one-year driving prohibition under s. 259(2)(c) of the Code (which is automatic under s. 99 of the now defunct Motor Vehicle Act, R.S.B.C. 1996, c. 318) as well as a ten-year firearms prohibition under s. 109(1)(a) of the Code. The appellant appealed his conviction and the firearms prohibition. He applied before Tysoe J.A. for the suspension of the probation order and stays of the driving and firearm prohibitions, on grounds that his employment in the oil and gas industry required him to travel by car and to use flare guns. [27] The Criminal Code does not authorize Court of Appeal judges to stay a firearms prohibition, whereas such authority is granted in the case of a probation order and driving prohibition. As the Court of Appeal, being a statutory court, cannot exercise power unless specifically conferred by legislation, Tysoe J.A. concluded that he did not have jurisdiction to grant a stay of the firearms prohibition. That aspect of the application was dismissed. [28] Bader illustrates the distinction between the jurisdictional nature of the B.C. Supreme Court and Court of Appeal. That distinction means that the relief obtained may be different depending wholly upon one's route to appeal. Veit J. described this as follows in R. v. Cooper (2001), 2001 ABQB 250, 289 A.R. 66, aff'd 2002 ABCA 156, 303 A.R. 399, leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 286 (QL): 29 ...Therefore, clearly this Court [Queen' Bench] and perhaps the Court of Appeal also has jurisdiction to entertain a stay. Indeed, because this Court is a court of plenary jurisdiction and the Appeal Court is a statutory court whose jurisdiction is limited to what statutes allow, and because there is no explicit statutory right in the Criminal Code for the Court of Appeal to hear a stay of this type, parties sometimes find it convenient to come to this court on stay applications instead of trying to find a specific perhaps collateral statutory jurisdiction in the Court of Appeal [case references omitted]. [29] Lastly, the Crown cites R. v. Zurowski, 2003 ABCA 174, [2003] A.J. 693 (QL), a ruling of the Alberta Court of Appeal decided, as in Briggs, under s. 487.056(1) the predecessor to s. 487.056(4). In Zurowski, the appellant was convicted in Provincial Court of driving while disqualified, failing to stop at the scene of an accident and two counts of dangerous driving. An order was granted authorizing the taking of his DNA pursuant to s. 487.051. He applied to stay the DNA order pending his appeal from those convictions on grounds relating to the issue of identification. The question again was whether the Court of Appeal had the inherent jurisdiction to grant a stay of an order to provide a DNA sample. The majority answered that question in the negative. [30] Like Briggs, Zurowski is not determinative of the question before me. Both decisions concern the jurisdiction of a Court of Appeal, as opposed to that of a superior court clothed with inherent jurisdiction. [31] I do, however, find the dissenting opinion of Berger J.A. in Zurowski pertinent. He concluded at paras. 33 and 56 that s. 487.056(1) as it read in 2003 does not remove from the Court of Appeal its jurisdiction to grant a stay in order to regulate proceedings before it. At para. 43, Berger J.A. raised important concerns. He wrote: It is true that the DNA sample may be destroyed following the quashing of a conviction on appeal and that access to a successful appellant's information in the convicted offenders index may be permanently removed. But during the time that the appeal is extant, if the DNA sample is utilized and relied upon, absent an efficacious remedy, the damage will already have been done. By judicial order the appellant will have been conscripted against himself. Conviction of a secondary designated offence is the foundational condition precedent for a DNA order. If the foundation for that conscription evaporates (if and when the appeal from conviction is allowed and the conviction quashed), the result is that without the benefit of a DNA warrant the subject will have been irretrievably prejudiced if the DNA sample were taken and utilized in the period preceding the hearing of the appeal. In the absence of the ability to stay the DNA order pending appeal, the statutorily conferred jurisdiction of the Court is frustrated. The Court is powerless to intervene and the appeal, at least in part, is rendered nugatory. It follows that a stay is necessary to prevent the frustration of the appeal. [Emphasis added] [32] In the case at bar, the concern is not the frustration of a statutorily conferred jurisdiction. Rather, it is the suggested curtailing of inherent jurisdiction. Conclusion [33] I conclude that s. 487.056 (4) of the Criminal Code does not oust the inherent jurisdiction of this court to stay, pending determination of an appeal from conviction, an order that bodily substances be taken for DNA samples. Should the Order be stayed? [34] Having concluded the Criminal Code does not oust the inherent jurisdiction of the Court to stay, pending an appeal from conviction, an order that DNA samples be provided, I must consider whether in the circumstances here a stay should be ordered. [35] In addressing this question, I am cognizant of the public interest involved in the DNA legislation enacted by Parliament. DNA technology has proven to be a valuable tool in criminal investigations as an aid to both solving crimes and to exonerating the innocent. This factor favours not granting the stay. [36] On the other hand, the downside for criminal investigation, if the applicant's appeal does not succeed, is merely one of delay. If the appeal succeeds, forcing the applicant to provide a DNA sample when the underlying criminal conviction was wrong is inconsistent with basic principles of Canadian criminal law. This was well expressed by Philp Co. Ct. J. in Borger, referred to in para. 20 above, when he stated that it would be "exceedingly unfair" if the applicant were forced to comply with an order that could be reversed upon appeal. [37] In weighing the injustice of enforcing an order that may be founded upon an incorrect decision in law against the impact of delay in the authorities' ability to compare the DNA sample provided to information contained in the DNA data bank, and taking into account the fact that the sample will be provided if the appeal is dismissed, I find the competing factors favour the applicant's request. Result [38] For all of the above reasons, I conclude s.487.056(4) of the Criminal Code, does not expressly oust this Court's inherent jurisdiction to grant a stay of a DNA order pending an appeal from conviction, and that in the circumstances of this case the order should be stayed. [39] The application is granted. ___________________________________ The Honourable Mr. Justice Williamson