An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act (S.C. 2005, c. 25)
Full Document:
Assented to 2005-05-19
1998, c. 37DNA IDENTIFICATION ACT
17.1 Section 8 of the Act is replaced by the following:
Marginal note:Unauthorized use of information
8. No person to whom information is communicated under subsection 6(1) or (6.1) or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes referred to in that subsection or paragraph.
Marginal note:2000, c. 10, s. 8(2)
18. Subsection 9(2) of the Act is replaced by the following:
Marginal note:Information to be permanently removed
(2) Access to information in the convicted offenders index shall be permanently removed without delay
(a) if the person to whom the information relates is finally acquitted of every designated offence in connection with which an order was made; and
(b) in the case of a person who is discharged under section 730 of the Criminal Code of a designated offence and is not subject to an order or authorization that relates to another designated offence,
(i) one year after they are discharged absolutely unless, during that year, they are convicted of, or found not criminally responsible on account of mental disorder for, a designated offence, or
(ii) three years after they are discharged conditionally unless, during those three years, they are convicted of, or found not criminally responsible on account of mental disorder for, a designated offence.
Marginal note:2000, c. 10, s. 9
19. Section 9.1 of the Act is replaced by the following:
Marginal note:Young persons — access to information removed
9.1 (1) Access to information in the convicted offenders index in relation to a young person who has been found guilty under the Young Offenders Act or under the Youth Criminal Justice Act of a designated offence shall be permanently removed without delay when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.
Marginal note:Exception
(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to
(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or
(b) a record to which subsection 120(6) of that Act applies.
Marginal note:2000, c. 10, s. 10(1)
20. (1) Subsection 10(1) of the Act is replaced by the following:
Marginal note:Storage of bodily substances
10. (1) When bodily substances are transmitted to the Commissioner under section 487.071 of the Criminal Code or section 196.22 of the National Defence Act, the Commissioner shall, subject to this section and section 10.1, safely and securely store, for the purpose of forensic DNA analysis, the portions of the samples of the bodily substances that the Commissioner considers appropriate and without delay destroy any remaining portions.
(2) Subsection 10(3) of the Act is repealed.
Marginal note:2000, c. 10, s. 10(2)
(3) Subsection 10(7) of the Act is replaced by the following:
Marginal note:Mandatory destruction in certain cases
(7) The Commissioner shall destroy the stored bodily substances of a person without delay
(a) if the person is finally acquitted of every designated offence in connection with which an order or an authorization under section 487.091 of the Criminal Code or section 196.24 of the National Defence Act was made; and
(b) in the case of a person who is discharged under section 730 of the Criminal Code of a designated offence and is not subject to an order or authorization that relates to another designated offence,
(i) one year after they are discharged absolutely unless, during that year, they are convicted of, or found not criminally responsible on account of mental disorder for, a designated offence, or
(ii) three years after they are discharged conditionally unless, during those three years, they are convicted of, or found not criminally responsible on account of mental disorder for, a designated offence.
Marginal note:2000, c. 10, s. 11
21. Section 10.1 of the Act is replaced by the following:
Marginal note:Young persons — destruction of bodily substances
10.1 (1) The Commissioner shall, without delay, destroy stored bodily substances of a young person who has been found guilty of a designated offence under the Young Offenders Act or under the Youth Criminal Justice Act when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.
Marginal note:Exception
(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to
(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or
(b) a record to which subsection 120(6) of that Act applies.
22. The portion of section 11 of the Act before paragraph (a) is replaced by the following:
Marginal note:Offence
11. Every person who contravenes subsection 6(6) or (7), section 8 or subsection 10(5)
R.S., c. N-5NATIONAL DEFENCE ACT
Marginal note:2000, c. 10, s. 1
23. (1) The definition “primary designated offence” in section 196.11 of the National Defence Act is replaced by the following:
“primary designated offence”
« infraction primaire »
“primary designated offence” means
(a) an offence within the meaning of paragraph (a) or any of paragraphs (b) to (c.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130;
(a.1) an offence within the meaning of paragraph (a.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130; and
(b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130.
(2) Paragraph (a) of the definition “secondary designated offence” in section 196.11 of the Act is replaced by the following:
(a) an offence within the meaning of any of paragraphs (a) to (d) of the definition “secondary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130;
Marginal note:2000, c. 10, s. 1
24. Subsections 196.14(1) to (3) of the Act are replaced by the following:
Marginal note:Order
196.14 (1) If a person is found guilty of, or not responsible on account of mental disorder for, a designated offence, the court martial
(a) shall, subject to subsection (2), in the case of a primary designated offence other than one described in paragraph (b), make an order in the prescribed form authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose; or
(b) may, in the case of a primary designated offence in respect of which a finding of not responsible on account of mental disorder has been rendered or in the case of a secondary designated offence, on application by the prosecutor, make an order in the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
Marginal note:Exception
(2) The court martial is not required to make an order under paragraph (1)(a) in the case of an offence referred to in paragraph (a) or (b) of the definition “primary designated offence” in section 196.11 if it is satisfied that the person has established that, were the order made, the impact on the privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.
Marginal note:Criteria
(3) In deciding whether to make an order under paragraph (1)(b), the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence, and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.
Marginal note:Order to offender
(4) The court martial may make an order in the prescribed form to require the person to report at the place, day and time set out in the order and submit to the taking of samples of bodily substances for the purposes of subsection (1).
Marginal note:2000, c. 10, s. 1
25. Sections 196.15 and 196.16 of the Act are replaced by the following:
Marginal note:Offences committed before June 30, 2000
196.15 (1) If a person is found guilty of, or not responsible on account of mental disorder for, a designated offence committed before June 30, 2000, the court martial may, on application by the prosecutor, make an order in the prescribed form authorizing the taking from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
Marginal note:Criteria
(2) In deciding whether to make the order, the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence, and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.
Marginal note:Order to offender
(3) The court martial may make an order in the prescribed form to require the person to report at the place, day and time set out in the order and submit to the taking of samples of bodily substances for the purposes of subsection (1).
Marginal note:Timing of order
196.16 The court martial may make an order under section 196.14 or 196.15
(a) when it imposes a sentence on a person for a designated offence or finds them not responsible on account of mental disorder for the offence; or
(b) if it is not possible to proceed at the time referred to in paragraph (a), at a date and time set upon adjournment of the proceedings.
Marginal note:Verification
196.161 (1) Before taking samples of bodily substances from a person under an order made under section 196.14 or 196.15 or an authorization made under section 196.24, a peace officer or a person acting under their direction shall verify whether the convicted offenders index of the national DNA data bank, established under the DNA Identification Act, contains a DNA profile of the person.
Marginal note:DNA profile in data bank
(2) If the person’s DNA profile is in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall not take any bodily substances from the person but shall
(a) confirm in writing on the order or authorization that he or she has been advised that the person’s DNA profile is in the national DNA data bank; and
(b) transmit a copy of the endorsed order or authorization and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner.
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