This week’s top three summaries: R v Vu, 2026 ONCA 429: #DNA retention, R v Ghandi, 2026 ONCA 407: virtual trial ID, R v AK, 2026 NUCA 4: rushed #deliberations

R v Vu, 2026 ONCA 429

[June 17, 2026] Sentencing: Conditional Discharges and DNA Retention [Reasons by George J.A. with B. Zarnett and J. Copeland JJ.A. concurring]

AUTHOR’S NOTE: Amendments to the Criminal Code enacted in 2018 significantly altered the consequences of DNA collection orders following a conditional discharge. Although the CPIC record associated with a conditional discharge is eventually removed in the ordinary course, the offender’s DNA profile is not. Instead, it remains in the National DNA Data Bank unless the RCMP Commissioner exercises the statutory discretion to authorize its destruction.

This legislative change became central to the exercise of discretion for DNA orders on secondary designated offences. Because such orders are discretionary, courts must balance the public interest in retaining the offender’s DNA profile against the intrusion upon the offender’s privacy and security interests. The possibility of effectively indefinite DNA retention following a conditional discharge is therefore a relevant factor weighing against the making of an order.

Here, the offender argued that the 2018 amendments fundamentally changed the practical consequences of a DNA order and should inform the discretionary analysis. The Summary Conviction Appeal Court accepted that submission and set aside the DNA order. The Ontario Court of Appeal agreed, holding that the amended statutory scheme was a proper consideration in determining whether a DNA order should be made.

The case also exposes an unusual consequence of the current legislative framework. An offender who is convicted may ultimately have a pathway to the removal of a DNA profile through the statutory mechanisms associated with a record suspension. A person who receives a conditional discharge, however, has no corresponding avenue because a discharge is not a conviction. As a result, an individual who avoids a criminal conviction may, in practical terms, face a more enduring consequence with respect to DNA retention than some offenders who are convicted.

It was this anomaly that made the legislative amendments particularly relevant to the discretionary balancing exercise. The Court recognized that, following the 2018 changes, a DNA order accompanying a conditional discharge may carry consequences that extend well beyond the life of the discharge itself, making that reality a proper consideration when deciding whether the order should be imposed.

[1] The respondent, who had no prior criminal record, pleaded guilty to one count of assault arising from an altercation over the state of his neighbour’s lawn. The neighbour sustained a laceration to his chin, which required stitches, and bruising to the left side of his face near his eyebrow. The sentencing judge imposed a conditional discharge with 18 months’ probation. She also ordered the respondent to provide samples of his bodily substances (the “DNA samples”) that are reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act, S.C. 1998, c. 37 (the “Act”). On appeal, the summary conviction appeal judge (the “SCAJ”) set aside the DNA order, noting that the sentencing judge had failed to take into account the harsher treatment the Act imposed on discharged offenders as compared to convicted offenders concerning the treatment and retention of DNA samples.

[3] In my view, there is a meaningful legislative difference between the treatment and retention of DNA samples taken from convicted offenders, and those taken from discharged offenders under the Act. While a convicted offender can apply for a record suspension, following which their DNA sample is sequestered and unavailable for future forensic DNA analysis, a discharged offender cannot. As the SCAJ concluded, this should be taken into account when deciding whether to make a DNA order for a discharged offender. The sentencing judge failed to do so.[Emphasis by PJM]

[7] The SCAJ allowed the appeal and set aside the DNA order. In his reasons, the SCAJ noted that while s. 10(7)(c) of the Act previously provided for the destruction of a discharged offender’s DNA sample, this subsection was repealed following amendments to the Act that came into force in March 2018. The SCAJ determined that, although the Commissioner of the Royal Canadian Mounted Police (“RCMP”) has the discretionary power to destroy DNA samples under s. 10(6) of the Act if he or she considers that they are no longer required for the purpose of forensic DNA analysis, the respondent “should not be burdened with the obligation of seeking an administrative remedy to deal with this issue”….

[11] ….Amicus curiae submits that unlike a record-suspended offender, a discharged offender’s DNA sample remains accessible for forensic testing and analysis, and could be subject to new testing methods following advancements in science and technology, even after their record is purged under s. 6.1 of the Criminal Records Act, R.S.C. 1985, c. C-47. The difference is that for discharged offenders, both their DNA profile and their DNA sample remain available, while for convicted offenders with a record suspension, although their DNA profile is also accessible indefinitely, their DNA sample is sequestered, kept secret, and rendered unavailable pursuant to s. 10(8) of the Act.

[12] Amicus curiae submits further that by retaining access to a DNA sample, the state retains access to the entirety of the respondent’s genome, which is substantially more rich in core biographical information than a DNA profile derived from same, which only reflects a tiny subset of gene sequences within the genome. Which is to say, a DNA profile is the “end product” of a given test or analysis, and thus not itself testable.

III. BRIEF OVERVIEW OF THE ACT

[14] Section 487.051(3) of the Criminal Code sets out the criteria a court is to consider and apply when determining whether a DNA order should be made for a secondary designated offence:

[T]he person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision. [Emphasis added.]

[15] The Act defines “DNA profile” in s. 2 as “the results of forensic DNA analysis of a bodily substance.” The Act also creates several indices (databases), including the convicted offenders index which contains DNA profiles that have been derived from the DNA samples of offenders convicted, discharged, or found guilty of designated offences. A DNA sample is used to generate a DNA profile that can be compared against DNA profiles located in other indices such as the crime scene index to identify a potential match. To protect an individual’s privacy, the Act has several safeguards limiting the use and communication of, and access to, information in the national DNA data bank. In R. v. Roche, 2023 ONCA 396, at para. 13, citing R. v. Briggs, (2001) 55 O.R. (3d) 417 (C.A.), at para. 22, leave to appeal refused, [2002] S.C.C.A. No. 31, this court noted that the national DNA data bank was 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).

[16] Substantial amendments to the Act came into force on March 6, 2018, which, among other things, expanded the purpose of the Act to include helping law enforcement find missing persons and identify human remains. The purpose of the Act, as set out in s. 3, is to “establish a national DNA data bank to help”:

(a) law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act; and

(b) law enforcement agencies — as well as coroners, medical examiners or persons and organizations with similar duties or functions — find missing persons and identify human remains.

1. Overview of Specific Provisions in the Act

[19] For the purposes of this appeal, ss. 9(1), 9(2), and 10(6) to 10(8) are of particular importance. Before addressing these, I think it important to note that the amendments to the Act that came into force in March 2018 repealed ss. 9(2)(c) and 10(7)(c), which dealt with access to information in the convicted offenders index and the destruction of DNA samples of discharged offenders, respectively.

[20] Section 9(1) of the Act provides that the DNA profiles for adult offenders in the convicted offenders index shall be kept indefinitely subject to s. 9(2),1 which states:

Access to information in the convicted offenders index shall be permanently removed

(a) without delay after every order or authorization for the collection of bodily substances from the person to whom the information relates is finally set aside; or

(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted.

[21] Prior to the amendments coming into force in March 2018, s. 9(2)(c) provided that three years after the day on which an offender was conditionally discharged under s. 730 of the Criminal Code, access to their DNA profile would be permanently removed:

(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period. [Emphasis added.][Emphasis by PJM]

[22] As well, prior to the amendments coming into force in March 2018, s. 10(7) provided that three years after the day on which an offender is conditionally discharged under s. 730 of the Criminal Code, their DNA sample would be destroyed in accordance with the now repealed s.10(7)(c):

(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period. [Emphasis added.][Emphasis by PJM]

[23] With respect to the destruction of DNA samples, s. 10(7) of the Act currently provides that:

The Commissioner shall destroy the stored bodily substances of a person,

(a) without delay after every order or authorization for the collection of bodily substances from the person is finally set aside; or

(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted.

(c) [Repealed, 2014, c. 39, s. 243]

[24] Section 10(6) of the Act confers on the RCMP Commissioner the discretionary power to “at any time destroy any or all of the stored bodily substances”, including those of a conditionally discharged offender, if the Commissioner considers that it is “no longer required for the purpose of forensic DNA analysis.” Furthermore, under s. 10(8) of the Act, the DNA sample of an offender with a record suspension is kept separate and apart from other DNA samples and can be neither used for forensic DNA analysis nor communicated to any person:

[S]tored bodily substances of a person in respect of whom a record suspension, as defined in subsection 2(1) of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.

[25] Section 3(1) of the Criminal Records Act provides that “a person who has been convicted of an offence under an Act of Parliament may apply to the [Parole Board of Canada] for a record suspension” (emphasis added). A discharged offender under s. 730 of the Criminal Code is not “a person who has been convicted” and is therefore not eligible to apply for a record suspension.[Emphasis by PJM]

[26] The net effect of this is that a convicted offender is eligible to apply for a record suspension which, if granted, triggers s. 10(8) of the Act; s. 10(8) directs that the offender’s DNA samples be kept separate and apart, and prohibits the samples from being used for further forensic DNA analysis. By contrast, a discharged offender is not eligible for a record suspension, and therefore s. 10(8) does not apply to them.[Emphasis by PJM]

[27] A discharged offender can only rely on s. 10(6), which gives the Commissioner discretionary authority to have DNA samples destroyed if they are “no longer required for the purpose of forensic DNA analysis.”

IV. DISCUSSION

1. Misapprehension of the Act

[29] In my view, the SCAJ did not misapprehend the Act’s provisions and therefore did not commit a legal error. There is, as he found, a meaningful legislative difference between the treatment and retention of DNA samples taken from convicted offenders and those taken from discharged offenders….

[35] The SCAJ did not, as the Crown submits, base his decision on what he believed to be the differences in how the Act treated already developed DNA profiles. He based it on a correct understanding of how DNA samples are treated, and on his assessment of how that information would have affected the sentencing judge’s decision. In my view, the sentencing judge’s failure to take the differential treatment of DNA samples into account opened the door to appellate intervention.

[36] I therefore reject this ground of appeal.

2. Failure to Consider All Relevant Factors

[37] The Crown argues that the SCAJ erred by overemphasizing the presumed privacy impact and by failing to consider the mandatory factors set out in s. 487.051(3) of the Criminal Code.

[42] When the SCAJ’s reasons are read as a whole and placed in their proper context, it is apparent that he accepted the sentencing judge’s assessment of the statutorily mandated factors. As such, it made sense to focus solely on the disparate impact of a DNA order on someone who was discharged and not convicted, especially since the respondent did not challenge the sentencing judge’s weighing of the factors in s. 487.051(3) of the Criminal Code.

[43] Put another way, the sentencing judge’s reasons are framed in terms of what the sentencing judge would have done had she considered this one additional factor. This framing and approach was appropriate given the sentencing judge’s indication that she was “not aware of any factors that would cause a DNA order to be more than minimally intrusive” to the respondent.

[44] I appreciate that we must presume the sentencing judge knew the law, but that is not the issue here. The sentencing judge referred to the appropriate section of the Criminal Code and considered all of the mandatory factors. What the SCAJ did was, in respect of the impact such an order would have on the respondent’s privacy, identify something that could, and in a case like this should, be considered as a discretionary factor when determining whether to grant a DNA order. This is not, as the Crown submits, legally irrelevant; it is directly relevant to one of the mandated factors, the impact on one’s privacy interests. [Emphasis by PJM]

V. CONCLUSION

[45] For these reasons, I would dismiss the appeal.

R v Gandhi, 2026 ONCA 407

[June 11, 2026] Identification: Virtual Trial ID is Still In-Dock [Grant Huscroft, L.B. Roberts, and R. Pomerance JJ.A.] 

AUTHOR’S NOTE: A trial judge’s failure to consider the well-established frailties of in-dock identification can render a conviction unreasonable. The concern is not confined to traditional courtroom proceedings. The same dangers arise in virtual trials, where the accused’s presence on a video platform may be just as suggestive as sitting in the prisoner’s dock.

Here, the complainant’s identification consisted of the observation that the accused “is … supposed to be on the call.” That identification carried the same inherent weakness as a conventional in-dock identification: it identified the person whom everyone would naturally expect to be the accused, rather than testing the witness’s independent ability to recognize the perpetrator.

The trial judge was therefore required to assess the identification evidence in light of the extensive jurisprudence recognizing the limited reliability of in-dock identifications and the heightened risk of suggestion. The fact that the trial proceeded virtually did not diminish those concerns; if anything, it required careful consideration of whether the video format itself contributed to the suggestiveness of the identification.

By failing to engage with these well-established frailties, the trial judge placed undue weight on inherently weak identification evidence. That failure undermined the reasonableness of the verdict.

[1] The appellant was convicted of sexual assault. At trial, the complainant was adamant that the respondent was the man who sexually assaulted her. She was able to offer a detailed account of the assault, which took place while she was in her assailant’s home. However, there was a paucity of evidence linking the respondent to the crime.

[2] Police did not conduct any pre-trial identification procedures. The complainant gave a statement to police 20 months after the incident, in which she offered a general description that her attacker was South Asian or Sri Lankan. At trial, she identified the name of her assailant, but was not sure of the name, testifying that it might be Sanjay Gandhi, or that the name might be Patel. She identified the address of her assailant, but there was no evidence that the respondent lived at that address. At the respondent’s virtual trial, four years after the incident, she offered an “in-dock” identification of the respondent as her attacker after saying: “he is … supposed to be on the call”. She acknowledged that the respondent was the only person on the Zoom screen who did not look like a judge or a lawyer.[Emphasis by PJM]

[3] The respondent was convicted at trial, but the conviction was quashed by the Summary Conviction Appeal Court. The SCAC Judge found that the verdict was unreasonable and that the reasons of the trial judge were insufficient….

[5] ….The trial judge was clearly moved by the complainant’s sincerity in describing the incident. However, he failed to meaningfully consider the reliability of the complainant’s in-dock identification, and her assertion that Mr. Gandhi was the man who assaulted her.[Emphasis by PJM]

[6] As was held by the SCAC judge, it was incumbent on the trial judge to consider whether, despite her apparent certainty, the complainant might have identified the wrong person. Had that been done, it would have been clear that the evidence of identity, frail as it was, could not reasonably prove that Mr. Gandhi was the man who committed the assault.

[7] Before the SCAC Judge, and before this Court, the Crown argued that the address identified by the complainant was similar to the address listed on the information charging the offence and that this buttressed the evidence of identity. We note that the address offered by the complainant was not identical to the address on the information. In any event, this is of no moment. The address listed on the information was not evidence. It could neither support nor rebut the case for the Crown.

[8] In short, while the SCAC judge’s reasons are not error free, we agree with his conclusion that no reasonable jury, properly instructed, could convict on the basis of the identification evidence at trial….

[9] The appeal by the Crown is therefore dismissed.