Criminal practice point

What happens when a DNA order should be made on sentencing but the convict has already had a DNA sample taken from a prior conviction?  Can the judge decline to make a new DNA order because that would be moot?

 

The Court of Appeal says no: see, R. v. Wagner, 2009 ONCA 588:

 

 

[3]              The current DNA sampling order regime makes sampling authorization orders mandatory for some offences, including robbery. However, the legislation does not require that a DNA sample be taken pursuant to a sampling authorization order where a DNA sample already exists in the convicted offenders index of the national DNA data bank. Rather, the legislation requires persons charged with executing a sampling authorization order to confirm in writing on the new order receipt of advice that the offender's DNA profile is already in the DNA data bank and to transmit notice of the new order to the data bank authorities so that an existing sample will not be destroyed in the event of a successful appeal of a prior sampling authorization order. See s. 487.071 of the Criminal Code and s. 10(7) of the DNA Identification Act. Note also that former s. 487.053 of the Criminal Code was repealed and an unrelated provision was substituted as the new s. 487.053. The sentencing judge should not have refused to make the mandatory order.