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An Ontario judge has ordered the federal DNA data bank to remove and destroy samples from two convicted murderers.

Although each man killed more than one person, the court said they did not meet the test under the Criminal Code for inclusion in the data bank: being convicted "of more than one murder committed at different times."

In what is believed to be the first test of DNA provisions that became part of the code in June of 2000, Kuldip Singh Sharma and Vlado Maljkovich applied to overturn a lower court ruling that ordered them to submit their DNA profiles.

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Their lawyer, Ricardo Federico, said he is not aware of any other case where DNA samples have been ordered removed from the national data bank.

The two men were ordered to provide samples to the National DNA Databank on Jan. 22, 2002, by Judge Lauren Marshall of the Ontario Court.

Although their crimes predated the new DNA laws, the Crown asked the judge to authorize the samples.

The code gives the court authority to order samples from those convicted before the DNA laws came into force. Judges can issue such orders without hearing from those affected, as happened in this case.

At issue in the appeal heard last September was the interpretation of a section of the code that specifies who must submit samples for the data bank, and whether that applies to multiple murders committed as part of the same incident or only to those "committed at different times."

In a four-page ruling released yesterday, Mr. Justice David McCombs of the Ontario Superior Court said that if Parliament had intended Section 487.055(1)(b) to apply to all murderers, "there would have been no need to include the qualifying phrase 'committed at different times.' "

Furthermore, he added, the section should not be interpreted so literally as to make the "different times" requirement redundant.

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"The phrase must be interpreted in a way that reflects Parliamentary intent," the judgment states.

Mr. Sharma was convicted in December, 1993, of two counts of first-degree murder and one of attempted murder.

He entered a courtroom at Osgoode Hall in Toronto on May 18, 1982, during the hearing of a civil motion and fired six shots from at least four different locations in the room. Two men, among them including lawyer Oscar Fonesca, were killed. Another man was injured. Mr. Sharma was convicted on all three counts.

After the shooting, he fled to his native India, but was arrested in 1990 and extradited to Canada two years later. He is serving three life sentences without eligibility for parole for 25 years.

Mr. Valjkovich was convicted in February, 1995, of two counts of second-degree murder and one of attempted murder. He killed his wife and daughter by cutting their throats and tried to do the same to his daughter's boyfriend.

He first killed his wife in one room of their apartment, then left the room, locking the door behind him. He met his daughter in the hallway and slit her throat. Then he attacked the boyfriend, who survived.

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Originally charged with two counts of first-degree murder, he pleaded guilty to second-degree. He was given a life sentence with no parole eligibility until he has served 14 years.

In reaching his decision, Judge McCombs referred to a transcript of the hearing conducted by the House of Commons Standing Committee on Justice and Human Rights. It shows, he said, that the purpose of the section is to include in the data bank serial or career murderers with a high degree of recividism.

"In my opinion [the section]is not meant to apply to multiple murders committed during the same transaction," he states.

Mr. Federico said this is a test case for the DNA law, but he could not say if there will be similar applications to remove samples from the data bank as a result of Judge McCombs's ruling.

The Crown has 30 days in which to appeal to the Ontario Court of Appeal.

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