The Record Expires, the DNA Sample Doesn’t: DNA Orders and Conditional Discharges in R. v. Vu, 2026 ONCA 429

By Daniel Anselmo, Associate, Shikhman Barristers

The Court of Appeal Restrains Parliament

A conditional discharge is supposed to be one of the bottom rungs of the sentencing ladder. If someone complies with their probation, no conviction registers. The discharge represents Canada’s belief in rehabilitation, that people deserve a second chance.

However, under the 2018 amendments to the federal DNA sample regime, someone who received a discharge and a DNA order can be worse off than someone criminally convicted of the same offence. Parliament wanted to keep their DNA as long as the RCMP did not want to give it up. Even worse, a discharged offender’s DNA sample could be used for further analysis by the state even after their record is purged.

The Ontario Court of Appeal recently protected someone from exactly that state overreach. In R. v. Vu, on June 17, 2026, the Court of Appeal confirmed that a meaningful legislative difference exists in how the DNA Identification Act’s (the “Act”) treats discharged and convicted offenders. As well, the Court held that a sentencing judge who fails to account for that difference when making a DNA order against a discharged offender commits a reviewable error. (Vu, at paras. 3 and 35)

The decision gives defence an argument for resisting DNA orders in discharge cases. It also demonstrates how Parliament’s amendments to the DNA records regime created an unfair system, which the Court of Appeal recognized and restrained.

What Happened in Vu

A dispute between Mr. Vu and his neighbour over the state of a lawn escalated into a fight. Mr. Vu, who had no prior criminal record, pleaded guilty and received a conditional discharge with 18 months’ probation. The sentencing judge added a discretionary DNA order under s. 487.051(3) of the Criminal Code, after considering the statutory factors and concluding the order was in the interests of the administration of justice. This order required Mr. Vu to give a DNA sample to be kept in the national DNA data bank, controlled by the RCMP. (Vu, at paras. 1, 5, and 13)

On summary conviction appeal, the DNA order was set aside. The summary conviction appeal judge (“SCAJ”) reasoned that the sentencing judge could not have appreciated that the DNA order “would have had a greater impact on the Appellant’s privacy and security than it would have on someone who had received a harsher penalty,” and that an order whose expiry depends on the discretionary authority of the RCMP “would … be grossly disproportionate to the public interest in the protection of society”. (Vu, at para. 7)

The Crown asked the Court of Appeal for a new DNA order, arguing that the SCAJ misinterpreted the Act and overemphasized the privacy impact. (Vu, at paras. 2 and 10) The Court of Appeal unanimously disagreed and dismissed the Crown’s appeal.

The Meaningful Legislative Difference: 2018 Amendments

Before March 2018, the Act contained an expiry mechanism for discharged offenders. Section 9(2)(c) permanently removed access to their DNA profile (test result derived from a bodily substance), and s. 10(7)(c) required destruction of their DNA sample (the bodily substance itself) three years after a conditional discharge. (Vu, at paras. 21–22) The 2018 amendments repealed both provisions, leaving behind an asymmetry. (Vu, at para. 19)

A convicted offender may apply for a record suspension under s. 3(1) of the Criminal Records Act. If a suspension is granted, s. 10(8) of the Act requires that their DNA sample be kept “separate and apart,” never used for forensic DNA analysis, and its very existence never be communicated to anyone. (Vu, at paras. 24 and 26)

By contrast, a discharged offender is not “a person who has been convicted” and therefore cannot apply for a record suspension at all. Section 10(8) can never be triggered for them. (Vu, at paras. 25-26)

Consequently, a discharged offender’s only pathway is s. 10(6), which grants the RCMP Commissioner discretionary power to destroy stored samples “no longer required for the purpose of forensic DNA analysis”. Subject only to that discretion, the sample of a discharged offender remains in the national DNA data bank and can potentially be used for further forensic analysis. (Vu, at paras. 24, 27, and 31)

This means that while a convicted offender gets a pathway to privacy after a record suspension, the discharged offender is left with an indefinitely retained DNA sample and must rely on the discretion of the RCMP Commissioner to help keep their most intimate details private. The SCAJ was right that an accused “should not be burdened with the obligation of seeking an administrative remedy to deal with this issue”. (Vu, at paras. 7 and 34)

A DNA Sample Is Not a DNA Profile

The Crown’s position was that there is no meaningful distinction because DNA profiles are kept indefinitely for both record-suspended and discharged offenders alike. (Vu, at para. 10) This is true but ignores the main point. The privacy interest in a stored DNA profile is not the same as the privacy interest in a stored DNA sample. (Vu, at para. 33)

A DNA profile is defined in s. 2 of the Act as “the results of forensic DNA analysis of a bodily substance”. It is the end product of testing, a record derived from a tiny subset of gene sequences. It is not itself testable. (Vu, at paras. 12 and 33)

A DNA sample is the bodily substance itself. The Supreme Court of Canada on DNA samples wrote that, “[u]nlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological makeup”. And yet, under s. 10(2) of the Act, retained samples remain available for testing by methods that have not yet been invented. (Vu, at para. 33)

What This Means in Practice

For secondary designated offences, where the DNA order is discretionary under s. 487.051(3), Vu establishes that the differential retention regime for discharged offenders is a factor the sentencing judge must consider as part of the privacy analysis. Defence counsel seeking a discharge should now refer to Vu whenever the Crown seeks a DNA order.

A sentencing judge who makes a DNA order in a discharge case without addressing this differential treatment commits an error that opens the door to appellate intervention. (Vu, at para. 35)

The Bigger Picture

We have written before about Parliament’s amendments to the records regime, most recently in our post on Bill C-16 and its proposed changes. The 2018 amendments that repealed ss. 9(2)(c) and 10(7)(c) expanded the data bank’s purposes to include locating missing persons and identifying human remains, nominally laudable goals. But in the process, Parliament deleted the only provisions that gave discharged offenders an exit from the data bank while leaving in place a record-suspension pathway available only to the convicted. (Vu, at para. 16)

The result is a regime in which the state’s retention of a person’s most intimate biological information favours the convicted over the conditionally discharged.

Our rights are not always explicitly lost. Sometimes they erode through what one hopes are oversights by Parliament and not intentional acts. This erosion has now been checked, at least for the sentencing stage, by the Court of Appeal. Until Parliament corrects the meaningful difference in treatment, Vu ensures that at least sentencing courts must consider it before ordering a discharged offender’s genome into potentially indefinite state custody.

Please see next week’s blog on R. v. J.J.R.D and how that decision and the subsequent judicial application of it eroded the presumption of innocence and how many years went by before the Supreme Court of Canada finally recognized the legal flaw and dangers thereof.

R. v. Vu, 2026 ONCA 429, per George J.A. (Zarnett and Copeland JJ.A. concurring).