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The Ontario Court of Appeal yesterday upheld a decision restricting the government's ability to store genetic samples from offenders in the DNA data bank.

But the lawyer for the two men at the heart of the case said the government is unwilling to remove any samples from the DNA bank and the legal battle could continue.

The three-judge Court of Appeal ruled that the law's wording that to be included in the data bank, offenders must be convicted of murders committed "at different times" must be adhered to strictly. In doing so, the judges backed the view that the DNA samples of two multiple murderers should be taken out of the bank and destroyed.

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Kuldip Singh Samra and Vlado Maljkovich were both convicted of murder in the mid-1990s. Although each killed more than one person, the Ontario Superior Court and now the Court of Appeal have ruled that, for the purposes of the DNA bank, the slayings must be viewed as single incidents, even though some time elapsed between Mr. Maljkovich's killings.

"The relevance [of the ruling]is the interpretation of that particular statute and the fact that the DNA data bank is not for everyone," said Ricardo Federico, lawyer for both men.

"Regimes have been created and have been put in place for specific offences," he added. "Not every offence in the Criminal Code will become part of the DNA data bank."

Mr. Samra was convicted in 1993 of two counts of first-degree murder and one count of attempted murder for an early-1980s shooting in a courtroom at Osgoode Hall in Toronto. Hearing an unfavourable decision in his case, Mr. Samra pulled out a gun and shot several people.

Two years later, Mr. Maljkovich was convicted of two counts of second-degree murder after killing his wife in one room and his daughter in a nearby hallway. Although these two killings were separated by several minutes, during which the man locked the bedroom door and then encountered his daughter, the court ruled yesterday the slayings were fundamentally connected.

But Mr. Federico acknowledged that the case might not be over. Citing a two-month-old transcript of a House of Commons committee, he said the government is apparently unwilling to consider expunging completely anyone's entry in the data bank.

"I'm totally, totally puzzled and am in full agreement with the MP who said 'we can put people on the moon but we can't take people out of the national DNA data bank,' " he said.

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