nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA Date: 20100121 Between: Docket: 1738 Her Majesty the Queen and Camille Heisler Coram: Cameron, Richards and Ottenbreit JJ.A. Counsel: Katharine Grier for the appellant Jennifer Fraser for the respondent Appeal: From: Provincial Court Heard: January 21, 2010 Disposition: Appeal Allowed Oral Reasons: January 21, 2010 By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. Following the conviction of the respondent on a charge of trafficking in morphine contrary to section 5(1) of the Controlled Drugs and Substances Act, the prosecutor asked the sentencing judge to make a DNA order under section 487.051(3) of the Criminal Code. The judge declined to do so for the reason this was the respondent’s first drug offence and she had no record of violence. With respect, we are of the opinion the judge erred in declining to make the order. The error lay in the judge’s failure to have regard for the offender’s record as a whole—she has 53 prior convictions—and to have adequate regard for the objectives of section 487.051 as identified in R. v. Briggs (2001), 2001 CanLII 24113 (ON CA), 45 C.R. (5th) 99 (Ont. C.A.). In light of the nature of the respondent’s current offence, her lengthy record, her history of recidivism, and the relatively modest impact an order would have on her privacy and security interests, we are satisfied an order should have been made. Accordingly, and in the best interests of the administration of justice, there will be an order under section 487.051(3) in Form 5.04 for the taking of bodily samples from the respondent. If any directions should be required in relation to the execution of the order, the parties are given leave to informally apply for such directions through the Registrar’s office.
Fulltext of judgment follows: Following the conviction of the respondent on a charge of trafficking in morphine contrary to section 5(1) of the Controlled Drugs and Substances Act, the prosecutor asked the sentencing judge to make a DNA order under section 487.051(3) of the Criminal Code. The judge declined to do so for the reason this was the respondent's first drug offence and she had no record of violence. With respect, we are of the opinion the judge erred in declining to make the order. The error lay in the judge's failure to have regard for the offender's record as a wholeÃ¹she has 53 prior convictionsÃ¹and to have adequate regard for the objectives of section 487.051 as identified in R. v. Briggs 2001 CanLII 24113 (ON C.A.), (2001), 45 C.R. (5th) 99 (Ont. C.A.). In light of the nature of the respondent's current offence, her lengthy record, her history of recidivism, and the relatively modest impact an order would have on her privacy and security interests, we are satisfied an order should have been made. Accordingly, and in the best interests of the administration of justice, there will be an order under section 487.051(3) in Form 5.04 for the taking of bodily samples from the respondent. If any directions should be required in relation to the execution of the order, the parties are given leave to informally apply for such directions through the Registrar's office.