Court/Judicial body: Supreme Court of Canada
Date: October 28, 2005 CRC
Provisions:Convention on the Rights of the Child (general reference)
Domestic provisions:Criminal Code, Canada Young Offenders Act, CanadaYouth Criminal Justice Act, Canada
Background: A 13 year old boy (“R.W.C.”) was convicted of assault with a weapon for stabbing his mother in the foot with a pen. Section 487.051(2) of the Criminal Code (Canada) required the trial court to order R.W.C. to provide a DNA sample unless it could determine that the invasion into R.W.C.’s privacy and security interests “would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice.” Citing this exception to the rule, the trial court refused to issue a DNA order for R.W.C. considering, among other things, R.W.C.’s age and the underlying principles and objectives of the Youth Criminal Justice Act (Canada) (the “YCJA”), which incorporates the CRC and extends enhanced protections to young offenders. The Nova Scotia Court of Appeal disagreed and instructed the trial court to order a DNA sample; R.W.C. then appealed the Nova Scotia Court of Appeal’s decision to the Supreme Court of Canada.
Issue and resolution: Juvenile justice and privacy. The Supreme Court affirmed the trial court’s decision not to issue a DNA order for R.W.C., holding that judges may consider the underlying principles and defining characteristics of youth criminal justice legislation, such as the YCJA, when deciding whether to order a DNA sample.
Court reasoning: Although no specific provision in the YCJA or the Young Offenders Act (Canada) it replaced modifies the Criminal Code, it is clear that the Canadian Parliament intended for their shared principles to be respected whenever young people are brought within the Canadian criminal justice system.
Dissenting opinion: The test set out in Section 487.051(2) should operate in the same manner for adults and young people. The courts should not assume that taking a DNA sample from a young person would unacceptably violate his or her privacy and security interests. Rather, the courts should make decisions on a case-by-case basis on evidence that shows how negative the impact would be on the particular young offender.
Excerpt citing CRC and other relevant human rights In this case, the trial judge did not err by taking into account the underlying principles and objectives of the youth criminal justice legislation in balancing the governing factors under s. 487.051(2) [of the Criminal Code (Canada)]. The taking and retention of a DNA sample constitutes a grave intrusion on a person’s right to personal and informational privacy. While no specific provision of the youth criminal justice legislation modifies s. 487.051, Parliament clearly intended that this legislation would be respected whenever young persons are brought within the criminal justice system. In creating a separate criminal justice system for young persons, Parliament has recognized their heightened vulnerability and has sought to extend enhanced procedural protections to them, and to interfere with their personal freedom as little as possible.     …  Most significantly, both the YOA and the YCJA extend to youth justice courts exclusive jurisdiction in respect of offences alleged to have been committed by young persons, and stipulate that, notwithstanding any other Act of Parliament, the young person shall be dealt with according to their terms (s. 14 YCJA; s. 5(1) YOA). Both Acts incorporate the provisions of the Criminal Code with “any modifications that the circumstances require” (s. 140 YCJA; similar wording in s. 51 YOA). While no specific provision of either Act modifies s. 487.051(1)(a) or (2) of the Code, it is clear that Parliament intended their shared principles to be respected whenever young persons are brought within the Canadian system of criminal justice. …  In creating a separate criminal justice system for young persons, Parliament has recognized the heightened vulnerability and reduced maturity of young persons. In keeping with its international obligations, Parliament has sought as well to extend to young offenders enhanced procedural protections, and to interfere with their personal freedom and privacy as little as possible: see the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, incorporated by reference in the YCJA.
Notes: This ruling is significant because it requires courts to consider both the positive principles of Canada’s youth justice legislation and the country’s international obligations under the CRC (incorporated by reference into the Youth Criminal Justice Act) whenever young people are brought within the Canadian criminal justice system. In this way, R. v. R.C. clearly reinforces the inclusion of the CRC into Canadian youth criminal justice law.
CRIN comments: CRIN believes that this decision is consistent with the CRC, and that children’s rights should be considered whenever they come in contact with the legal system. In the context of juvenile justice, children in conflict with the law have the right to privacy under Article 16 of the CRC and should never be forced to provide DNA samples. As one of the central goals of juvenile justice is rehabilitation, the focus should be on linking children with services and resources rather than on immediate public protection.
Citation: R. v. R.C.,  3 S.C.R. 99, 2005 SCC 61
Link to full judgement: http://www.canlii.org/en/ca/scc/doc/2005/2005scc61/2005scc61.html