With respect to judicial discretion, I've never fully understood why we are getting so few orders in, not just in primaries but particularly in secondaries. In 2001, in a case called Hendry, the Ontario court of appeal concluded—they were looking at four appeals where orders weren't made:
On balance I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s.487.051(1)(b)....
--which was the secondary designated offences--
This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations.
When that decision came out, I was expecting a flood of decisions to come in, and yet we're getting 15%, 17% of secondary designated offences. I don't know if the crowns aren't appealing or the judges are turning it down, but with this judgment I was expecting we were going to get about 100% of them, but we aren't.