An Act to amend certain Acts in relation to DNA identification (S.C. 2007, c. 22)
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Assented to 2007-06-22
An Act to amend certain Acts in relation to DNA identification
S.C. 2007, c. 22
Assented to 2007-06-22
An Act to amend certain Acts in relation to DNA identification
SUMMARY
This enactment amends the Criminal Code, the DNA Identification Act and the National Defence Act to facilitate the implementation of An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005. The enactment makes certain technical changes to those Acts. It also
(a) specifies that the provisions in section 487.051 of the Criminal Code relating to orders for the taking of samples of bodily substances for forensic DNA analysis apply to persons who are sentenced or are discharged under section 730 of, or are found not criminally responsible on account of mental disorder for, designated offences committed at any time, including before June 30, 2000, and makes similar amendments to the National Defence Act;
(b) allows an order to be made under section 487.051 of the Criminal Code at a hearing whose date is set within 90 days after the day on which a person is sentenced, discharged under section 730 or found not criminally responsible on account of mental disorder, and makes similar amendments to the National Defence Act;
(c) adds attempted murder and conspiracy to commit murder or to cause another person to be murdered to the offences covered by section 487.055 of the Criminal Code;
(d) permits an application to be made under section 487.055 of the Criminal Code when a person is still serving a sentence of imprisonment for one of the specified offences, rather than requiring that they be serving a sentence of imprisonment of two years or more for that offence;
(e) in certain circumstances, allows a court to require a person who wishes to participate in a hearing relating to an order or authorization under the Criminal Code for the taking of samples of bodily substances for forensic DNA analysis to appear by closed-circuit television or a similar means of communication;
(f) allows samples of bodily substances to be taken under the Criminal Code and the National Defence Act at the place, day and time set by an order or a summons or as soon as feasible afterwards;
(g) specifies that it is an offence under the Criminal Code and the National Defence Act to fail to comply with such an order or summons;
(h) requires the Commissioner of the Royal Canadian Mounted Police to destroy the bodily substances collected under an order or authorization and the information transmitted with them if, in the opinion of the Attorney General or the Director of Military Prosecutions, as the case may be, the offence to which the order or authorization relates is not a designated offence;
(i) enables the Commissioner to communicate internationally the information that may be communicated within Canada under subsection 6(1) of the DNA Identification Act; and
(j) allows the Commissioner to communicate information for the purpose of the investigation of criminal offences, and allows the subsequent communication of that information for the purpose of the investigation and prosecution of criminal offences.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
INTERPRETATION
Definition of “other Act”
1. In this Act, “other Act” means An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005.
2005, c. 25AMENDMENTS TO THE OTHER ACT
2. (1) Subsection 1(5.1) of the other Act is repealed.
(2) Subsection 1(6.1) of the other Act is repealed.
3. Section 4 of the other Act is replaced by the following:
Marginal note:1998, c. 37, s. 17; 2000, c. 10, s. 14; 2002, c. 1, s. 177
4. Sections 487.052 and 487.053 of the Act are replaced by the following:
Marginal note:Timing of order
487.053 (1) The court may make an order under section 487.051 authorizing the taking of samples of bodily substances when it imposes a sentence on a person, finds the person not criminally responsible on account of mental disorder or directs that they be discharged under section 730.
Marginal note:Hearing
(2) If the court does not consider the matter at that time, it
(a) shall, within 90 days after the day on which it imposes the sentence, makes the finding or directs that the person be discharged, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.
4. Section 7 of the other Act is repealed.
5. Section 25 of the other Act is replaced by the following:
Marginal note:2000, c. 10, s. 1
25. Sections 196.15 and 196.16 of the Act are replaced by the following:
Marginal note:Timing of order
196.16 (1) The court martial may make an order under section 196.14 authorizing the taking of samples of bodily substances either when it imposes a sentence on a person or finds them not responsible on account of mental disorder or at a later date if it adjourns the proceedings after it imposes the sentence or makes the finding.
Marginal note:Hearing by new court martial
(2) If the court martial does not consider the matter at that time,
(a) the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to do so;
(b) the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; and
(c) for greater certainty, the person who may be made subject to the order continues to be liable to be dealt with under the Code of Service Discipline for the purpose of the hearing.
Marginal note:Failure to appear
196.161 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples of bodily substances to be taken.
Marginal note:Warrant in force
(2) The warrant may be executed anywhere in or outside Canada by a peace officer who has jurisdiction in that place or over the person. The warrant remains in force until it is executed.
6. Section 30.1 of the other Act is repealed.
R.S., c. C-46CRIMINAL CODE
Marginal note:2000, c. 10, s. 13
7. Subsection 487.03(2) of the Criminal Code is repealed.
Marginal note:1998, c. 37, s. 15(1)
8. (1) Paragraph (b) of the definition “forensic DNA analysis” in section 487.04 of the Act is replaced by the following:
(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person under an order made under section 487.051 or an authorization granted under section 487.055 or 487.091, or to a bodily substance referred to in paragraph 487.05(1)(b), means forensic DNA analysis of the bodily substance;
(2) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act, as enacted by subsection 1(4) of the other Act, is amended by striking out the word “and” at the end of subparagraph (xii) and by replacing subparagraph (xiii) with the following:
(xiii) subsection 431.2(2) (explosive or other lethal device),
(xiv) section 467.11 (participation in activities of criminal organization),
(xv) section 467.12 (commission of offence for criminal organization), and
(xvi) section 467.13 (instructing commission of offence for criminal organization),
(3) Paragraphs (a) and (b) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, are replaced by the following:
(a) an offence under this Act that may be prosecuted by indictment — or, for section 487.051 to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more,
(b) an offence under any of the following provisions of the Controlled Drugs and Substances Act that may be prosecuted by indictment — or, for section 487.051 to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
(i) section 5 (trafficking in substance and possession for purpose of trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production of substance),
(4) Subparagraph (c)(i) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, is replaced by the following:
(i) section 145 (escape and being at large without excuse),
(i.1) section 146 (permitting or assisting escape),
(i.2) section 147 (rescue or permitting escape),
(i.3) section 148 (assisting prisoner of war to escape),
(i.4) subsection 160(3) (bestiality in presence of or by child),
(5) Paragraph (e) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, is replaced by the following:
(e) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit
(i) an offence referred to in paragraph (a) or (b) — which, for section 487.051 to apply, is prosecuted by indictment, or
(ii) an offence referred to in paragraph (c) or (d);
9. Section 487.051 of the Act, as enacted by section 3 of the other Act, is replaced by the following:
Marginal note:Order — primary designated offences
487.051 (1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged.
Marginal note:Order — primary designated offences
(2) The court shall make such an order in Form 5.03 in relation to a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) or any of paragraphs (b) to (d) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged. However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their 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:Order — persons found not criminally responsible and secondary designated offences
(3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to
(a) a person who is found not criminally responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or
(b) a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced or discharged.
In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission 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) When the court makes an order authorizing the taking of samples of bodily substances, it may make an order in Form 5.041 to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.
Marginal note:1998, c. 37, s. 17
10. Section 487.054 of the Act is replaced by the following:
Marginal note:Appeal
487.054 The offender or the prosecutor may appeal from a decision of the court under any of subsections 487.051(1) to (3).
Marginal note:2005, c. 25, s. 5(1)
11. (1) Paragraphs 487.055(1)(d) and (e) of the Act are replaced by the following:
(c.1) had been convicted of attempted murder or conspiracy to commit murder or to cause another person to be murdered and, on the date of the application, is serving a sentence of imprisonment for that offence;
(d) had been convicted of a sexual offence within the meaning of subsection (3) and, on the date of the application, is serving a sentence of imprisonment for that offence; or
(e) had been convicted of manslaughter and, on the date of the application, is serving a sentence of imprisonment for that offence.
(2) Section 487.055 of the Act is amended by adding the following after subsection (3):
Marginal note:Manner of appearance
(3.01) The court may require a person who is given notice of an application under subsection (1) and who wishes to appear at the hearing to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.
Marginal note:1998, c. 37, s. 17
(3) Subsection 487.055(4) of the Act is replaced by the following:
Marginal note:Order
(3.11) If the court authorizes the taking of samples of bodily substances from a person who is on conditional release and who has appeared at the hearing, it shall make an order in Form 5.041 to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.
Marginal note:Summons
(4) However, if a person who is on conditional release has not appeared at the hearing, a summons in Form 5.061 setting out the information referred to in paragraphs 487.07(1)(b) to (d) shall be directed to them requiring them to report at the place, day and time set out in the summons and submit to the taking of the samples.
Marginal note:1998, c. 37, s. 17
(4) Subsections 487.055(7) to (10) of the Act are repealed.
12. The Act is amended by adding the following after section 487.055:
Marginal note:Failure to appear
487.0551 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051(4) or 487.055(3.11) or in a summons referred to in subsection 487.055(4) or 487.091(3), a justice of the peace may issue a warrant for their arrest in Form 5.062 to allow samples of bodily substances to be taken.
Marginal note:Execution of warrant
(2) The warrant may be executed anywhere in Canada by a peace officer who has jurisdiction in that place or over the person. The warrant remains in force until it is executed.
Marginal note:Failure to comply with order or summons
487.0552 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 487.051(4) or 487.055(3.11) of this Act or under subsection 196.14(4) or 196.24(4) of the National Defence Act, or with a summons referred to in subsection 487.055(4) or 487.091(3) of this Act, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Marginal note:For greater certainty
(2) For greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse if, at the time, the person is subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act.
13. (1) Subsection 487.056(1) of the Act, as enacted by section 6 of the other Act, is replaced by the following:
Marginal note:When collection to take place
487.056 (1) Samples of bodily substances shall be taken as authorized under section 487.051
(a) at the place, day and time set out in an order made under subsection 487.051(4) or as soon as feasible afterwards; or
(b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.
Marginal note:1998, c. 37, s. 17; 2000, c. 10, s. 16(1)
(2) Subsections 487.056(2) and (3) of the Act are replaced by the following:
Marginal note:When collection to take place
(2) Samples of bodily substances shall be taken as authorized under section 487.055 or 487.091
(a) at the place, day and time set out in an order made under subsection 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3) or as soon as feasible afterwards; or
(b) in any other case, as soon as feasible after the authorization is granted.
Marginal note:When collection to take place
(3) If a person fails to appear as required by an order made under subsection 487.051(4) or 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3), samples of bodily substances shall be taken
(a) when the person is arrested under a warrant issued under subsection 487.0551(1) or as soon as feasible afterwards; or
(b) as soon as feasible after the person appears at the place set out in the order or summons if no warrant is issued.
Marginal note:Appeal
(4) Subsections (1) to (3) apply even if the order or authorization to take the samples of bodily substances is appealed.
Marginal note:Collection of samples
(5) A peace officer who is authorized under section 487.051, 487.055 or 487.091 to take samples of bodily substances may cause the samples to be taken in any place in Canada in which the person who is subject to the order or authorization is located.
Marginal note:Who collects samples
(6) The samples shall be taken by a peace officer who has jurisdiction over the person or in the place in which the samples are taken — or a person acting under their direction — who is able, by virtue of training or experience, to take them.
Marginal note:2000, c. 10, s. 17
14. (1) Subsection 487.057(1) of the Act is replaced by the following:
Marginal note:Report of peace officer
487.057 (1) A peace officer who takes samples of bodily substances from a person or who causes a person who is not a peace officer to take samples under their direction shall, as soon as feasible after the samples are taken, make a written report in Form 5.07 and cause the report to be filed with
(a) the provincial court judge who issued the warrant under section 487.05 or granted the authorization under section 487.055 or 487.091 or another judge of that provincial court; or
(b) the court that made the order under section 487.051.
(2) Section 487.057 of the Act is amended by adding the following after subsection (2):
Marginal note:Copy of report
(3) A peace officer who takes the samples or causes the samples to be taken under their direction at the request of another peace officer shall send a copy of the report to the other peace officer unless that other peace officer had jurisdiction to take the samples.
Marginal note:2000, c. 10, s. 18
15. Section 487.058 of the Act is replaced by the following:
Marginal note:No criminal or civil liability
487.058 No peace officer, and no person acting under a peace officer’s direction, incurs any criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances from a person under a warrant issued under section 487.05, an order made under section 487.051 or an authorization granted under section 487.055 or 487.091.
Marginal note:2000, c. 10, s. 19(1)
16. (1) The portion of subsection 487.06(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Investigative procedures
487.06 (1) A peace officer or a person acting under a peace officer’s direction is authorized by a warrant issued under section 487.05, an order made under section 487.051 or an authorization granted under section 487.055 or 487.091 to take samples of bodily substances by any of the following means:
Marginal note:2000, c. 10, s. 19(2)
(2) Subsection 487.06(3) of the Act is replaced by the following:
Marginal note:Fingerprints
(3) A peace officer who is authorized to take samples of bodily substances from a person by an order made under section 487.051 or an authorization granted under section 487.055 or 487.091, or a person acting under their direction, may take fingerprints from the person for the purpose of the DNA Identification Act.
Marginal note:2000, c. 10, s. 20(1)
17. The portion of subsection 487.07(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Duty to inform
487.07 (1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 487.05 or an order made under section 487.051 or under an authorization granted under section 487.055 or 487.091, a peace officer shall inform the person of
18. (1) Subsection 487.071(1) of the Act, as enacted by section 8 of the other Act, is replaced by the following:
Marginal note:Verification
487.071 (1) Before taking samples of bodily substances from a person under an order made under section 487.051 or an authorization granted under section 487.055 or 487.091, 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 the person’s DNA profile.
(2) Paragraph 487.071(2)(b) of the English version of the Act, as enacted by section 8 of the other Act, is replaced by the following:
(b) transmit a copy of the order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner of the Royal Canadian Mounted Police.
19. Subsection 487.08(1.1) of the Act, as enacted by subsection 9(1) of the other Act, is replaced by the following:
Marginal note:Use of bodily substances — order, authorization
(1.1) No person shall use bodily substances that are taken in execution of an order made under section 487.051 of this Act or section 196.14 of the National Defence Act, or under an authorization granted under section 487.055 or 487.091 of this Act or section 196.24 of the National Defence Act, except to transmit them to the Commissioner of the Royal Canadian Mounted Police for the purpose of forensic DNA analysis in accordance with the DNA Identification Act.
20. (1) Paragraph 487.091(1)(a) of the Act, as enacted by section 10 of the other Act, is replaced by the following:
(a) a DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 487.051 or an authorization granted under section 487.055; or
(2) Paragraph 487.091(1)(b) of the English version of the Act, as enacted by section 10 of the other Act, is replaced by the following:
(b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.
(3) Subsection 487.091(2) of the English version of the Act, as enacted by section 10 of the other Act, is replaced by the following:
Marginal note:Reasons
(2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost.
Marginal note:2000, c. 10, s. 23
(4) Subsection 487.091(3) of the Act is replaced by the following:
Marginal note:Persons not in custody
(3) If the court authorizes the taking of samples of bodily substances from a person who is not in custody, a summons in Form 5.061 setting out the information referred to in paragraphs 487.07(1)(b) to (d) shall be directed to the person requiring them to report at the place, day and time set out in the summons and submit to the taking of the samples. Subsections 487.055(5) and (6) apply, with any modifications that the circumstances require.
21. (1) Subsection 487.0911(1) of the Act, as enacted by section 11 of the other Act, is replaced by the following:
Marginal note:Review by Attorney General
487.0911 (1) On receipt of a notice from the Commissioner of the Royal Canadian Mounted Police under subsection 5.2(1) of the DNA Identification Act that an order made under section 487.051 or an authorization granted under section 487.091 appears to be defective, the Attorney General shall review the order or authorization and the court record.
(2) The portion of subsection 487.0911(2) of the English version of the Act before paragraph (a), as enacted by section 11 of the other Act, is replaced by the following:
Marginal note:Clerical error
(2) If the Attorney General is of the opinion that the defect is due to a clerical error, the Attorney General shall
(3) Subsection 487.0911(3) of the Act, as enacted by section 11 of the other Act, is replaced by the following:
Marginal note:Substantive defect
(3) If the Attorney General is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Attorney General shall inform the Commissioner of that opinion.
Marginal note:R.S., c. 27 (1st Supp.), s. 149
22. Subsection 703(2) of the Act is replaced by the following:
Marginal note:Warrant effective in a province
(2) Despite any other provision of this Act but subject to subsections 487.0551(2) and 705(3), a warrant of arrest or committal that is issued by a justice or provincial court judge may be executed anywhere in the province in which it is issued.
23. Forms 5.03 to 5.06 in Part XXVIII of the Act, as enacted by section 12 of the other Act, are replaced by the following:
FORM 5.03(Subsections 487.051(1) and (2))ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS
Canada
Province of ................
(territorial division)
To the peace officers in (territorial division):
Whereas (name of offender) has been convicted under the Criminal Code, discharged under section 730 of that Act or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of (offence), which, on the day on which the offender was sentenced or discharged, was a primary designated offence within the meaning of section 487.04 of the Criminal Code;
Therefore, you are authorized to take or cause to be taken from (name of offender) the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated this ................ day of ................ ,
A.D. ........ , at ................ .
............................................
(Signature of judge of the court)
FORM 5.04(Subsection 487.051(3))ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS
Canada
Province of .................
(territorial division)
To the peace officers in (territorial division):
Whereas (name of offender), in this order called the “offender”,
(a) has been found not criminally responsible on account of mental disorder for (offence), which, on the day on which the finding was made, was a primary designated offence within the meaning of section 487.04 of the Criminal Code, or
(b) has been convicted under the Criminal Code, discharged under section 730 of that Act or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act, of, or has been found not criminally responsible on account of mental disorder for, (offence), which, on the day on which the offender was sentenced or discharged or the finding was made, was one of the following secondary designated offences within the meaning of section 487.04 of the Criminal Code (check applicable box):
[ ] (i) an offence under the Criminal Code for which the maximum punishment is imprisonment for five years or more and that was prosecuted by indictment, [ ] (ii) an offence under any of sections 5 to 7 of the Controlled Drugs and Substances Act for which the maximum punishment is imprisonment for five years or more and that was prosecuted by indictment, [ ] (iii) an offence under any of sections 145 to 148, subsection 160(3), sections 170, 173, 252, 264, 264.1, 266 and 270, paragraph 348(1)(e) and sections 349 and 423 of the Criminal Code, [ ] (iv) an offence under section 433 or 434 of the Criminal Code as that section read from time to time before July 1, 1990, or [ ] (v) an attempt or a conspiracy to commit an offence referred to in subparagraph (i) or (ii) that was prosecuted by indictment (or, if applicable, an attempt or a conspiracy to commit an offence referred to in subparagraph (iii) or (iv));
Whereas I have considered the offender’s criminal record, the nature of the offence, the circumstances surrounding its commission, whether the offender was previously found not criminally responsible on account of mental disorder for a designated offence, and the impact that this order would have on the offender’s privacy and security of the person;
And whereas I am satisfied that it is in the best interests of the administration of justice to make this order;
Therefore, you are authorized to take or cause to be taken from (name of offender) the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated this ................ day of ................, A.D. ........ , at ................ .
........................................
(Signature of judge of the court)
FORM 5.041(Subsections 487.051(4) and 487.055(3.11))ORDER TO A PERSON TO HAVE BODILY SUBSTANCES TAKEN FOR FORENSIC DNA ANALYSIS
Canada
Province of ................
(territorial division)
To A.B., of ................ ,
Whereas an order has been made under section 487.051, or an authorization has been granted under section 487.055, of the Criminal Code, to take from you the number of samples of bodily substances that is reasonably required for forensic DNA analysis;
This is therefore to command you, in Her Majesty’s name, to appear on ................ , the ................ day of ................ , A.D. ........ , at ............ o’clock, at ................ , for the purpose of the taking of bodily substances by means of the investigative procedures set out in subsection 487.06(1) of the Criminal Code.
You are warned that failure to appear in accordance with this order may result in a warrant being issued for your arrest under subsection 487.0551(1) of the Criminal Code. You are also warned that failure to appear, without reasonable excuse, is an offence under subsection 487.0552(1) of that Act.
Subsection 487.0551(1) of the Criminal Code states as follows:
487.0551 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051(4) or 487.055(3.11) or in a summons referred to in subsection 487.055(4) or 487.091(3), a justice of the peace may issue a warrant for their arrest in Form 5.062 to allow samples of bodily substances to be taken.
Subsection 487.0552(1) of the Criminal Code states as follows:
487.0552 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 487.051(4) or 487.055(3.11) of this Act or under subsection 196.14(4) or 196.24(4) of the National Defence Act, or with a summons referred to in subsection 487.055(4) or 487.091(3) of this Act, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Dated this ................ day of ................ , A.D. ........ , at ................ .
...........................................
(Signature of judge of the court)
FORM 5.05(Subsection 487.055(1))APPLICATION FOR AN AUTHORIZATION TO TAKE BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS
Canada
Province of ................
(territorial division)
I (name of peace officer), (occupation), of .......... in (territorial division), apply for an authorization to take bodily substances for forensic DNA analysis. A certificate referred to in paragraph 667(1)(a) of the Criminal Code is filed with this application.
Whereas (name of offender), before June 30, 2000,
(a) had been declared a dangerous offender under Part XXIV of the Criminal Code,
(b) had been declared a dangerous offender or a dangerous sexual offender under Part XXI of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988,
(c) had been convicted of murder,
(c.1) had been convicted of attempted murder or conspiracy to commit murder or to cause another person to be murdered and is currently serving a sentence of imprisonment for that offence,
(d) had been convicted of a sexual offence within the meaning of subsection 487.055(3) of the Criminal Code and is currently serving a sentence of imprisonment for that offence, or
(e) had been convicted of manslaughter and is currently serving a sentence of imprisonment for that offence;
Therefore, I request that an authorization be granted under subsection 487.055(1) of the Criminal Code to take from (name of offender) the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
Dated this ................ day of ................ , A.D. ...... , at ............... .
.........................................
(Signature of applicant)
FORM 5.06(Subsection 487.055(1))AUTHORIZATION TO TAKE BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS
Canada
Province of ................
(territorial division)
To the peace officers in (territorial division):
Whereas (name of peace officer), a peace officer in (territorial division), has applied for an authorization to take the number of samples of bodily substances from (name of offender) that is reasonably required for forensic DNA analysis by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code;
Whereas (name of offender), before June 30, 2000,
(a) had been declared a dangerous offender under Part XXIV of the Criminal Code,
(b) had been declared a dangerous offender or a dangerous sexual offender under Part XXI of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988,
(c) had been convicted of murder,
(c.1) had been convicted of attempted murder or conspiracy to commit murder or to cause another person to be murdered and, on the date of the application, was serving a sentence of imprisonment for that offence,
(d) had been convicted of a sexual offence within the meaning of subsection 487.055(3) of the Criminal Code and, on the date of the application, was serving a sentence of imprisonment for that offence, or
(e) had been convicted of manslaughter and, on the date of the application, was serving a sentence of imprisonment for that offence;
And whereas I have considered the offender’s criminal record, the nature of the offence, the circumstances surrounding its commission and the impact that this authorization would have on the offender’s privacy and security of the person;
Therefore, you are authorized to take those samples or cause them to be taken from (name of offender), provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This authorization is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated this ................ day of ................ , A.D., at ................ .
........................................
(Signature of provincial court judge)
FORM 5.061(Subsections 487.055(4) and 487.091(3))SUMMONS TO A PERSON TO HAVE BODILY SUBSTANCES TAKEN FOR FORENSIC DNA ANALYSIS
Canada
Province of ................
(territorial division)
To A.B., of ................ ,
Whereas an authorization has been granted under section 487.055 or 487.091 of the Criminal Code to take from you the number of samples of bodily substances that is reasonably required for forensic DNA analysis;
This is therefore to command you, in Her Majesty’s name, to appear on ................ , the ................ day of ................ , A.D. ........ , at ............ o’clock, at ................ , for the purpose of the taking of bodily substances by means of the investigative procedures set out in subsection 487.06(1) of the Criminal Code. A peace officer, or a person who is acting under a peace officer’s direction, who takes the samples of bodily substances may use as much force as necessary to do so.
You are warned that failure to appear in accordance with this summons may result in a warrant being issued for your arrest under subsection 487.0551(1) of the Criminal Code. You are also warned that failure to appear, without reasonable excuse, is an offence under subsection 487.0552(1) of that Act.
Subsection 487.0551(1) of the Criminal Code states as follows:
487.0551 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051(4) or 487.055(3.11) or in a summons referred to in subsection 487.055(4) or 487.091(3), a justice of the peace may issue a warrant for their arrest in Form 5.062 to allow samples of bodily substances to be taken.
Subsection 487.0552(1) of the Criminal Code states as follows:
487.0552 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 487.051(4) or 487.055(3.11) of this Act or under subsection 196.14(4) or 196.24(4) of the National Defence Act, or with a summons referred to in subsection 487.055(4) or 487.091(3) of this Act, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Dated this ................ day of ................ , A.D. ........ , at ................ .
...........................................
(Signature of judge of the court)
FORM 5.062(Subsection 487.0551(1))WARRANT FOR ARREST
Canada
Province of ................
(territorial division)
To the peace officers in (territorial division):
This warrant is issued for the arrest of A.B., of ................, (occupation), in this warrant called the “offender”.
Whereas the offender failed to appear at the place, day and time set out in an order made under subsection 487.051(4) or 487.055(3.11), or in a summons referred to in subsection 487.055(4) or 487.091(3), of the Criminal Code to submit to the taking of samples of bodily substances;
This is, therefore, to command you, in Her Majesty’s name, to arrest the offender without delay in order to allow the samples of bodily substances to be taken.
Dated this ................ day of ................ A.D. ........, at ................ .
........................................
A Justice of the Peace in
and for .............................
Marginal note:1998, c. 37, s. 24
24. Form 5.07 in Part XXVIII of the Act is replaced by the following:
FORM 5.07(Subsection 487.057(1))REPORT TO A PROVINCIAL COURT JUDGE OR THE COURT
Canada
Province of ................
(territorial division)
[ ] To (name of judge), a judge of the provincial court who issued a warrant under section 487.05 or granted an authorization under section 487.055 or 487.091 of the Criminal Code or to another judge of that court:
[ ] To the court that made an order under section 487.051 of the Criminal Code:
I (name of peace officer), declare that (state here whether the samples were taken under a warrant issued under section 487.05, an order made under section 487.051 or an authorization granted under section 487.055 or 487.091 of theCriminal Code).
I have (state here whether you took the samples yourself or caused them to be taken under your direction) from (name of offender) the number of samples of bodily substances that I believe is reasonably required for forensic DNA analysis, in accordance with (state whether the samples were taken under a warrant issued or an authorization granted by the judge or another judge of the court or an order made by the court).
The samples were taken on the ... day of ..........., A.D. ......, at .......... o’clock.
I (or state the name of the person who took the samples) took the following samples from (name of offender) in accordance with subsection 487.06(1) of the Criminal Code and was able, by virtue of training or experience, to do so (check applicable box):
| [ ] | individual hairs, including the root sheath |
| [ ] | epithelial cells taken by swabbing the lips, tongue or inside cheeks of the mouth |
| [ ] | blood taken by pricking the skin surface with a sterile lancet |
Any terms or conditions in the (warrant, order or authorization) have been complied with.
Dated this ................ day of ................ A.D. ........, at ................ .
........................................
(Signature of peace officer)
25. Forms 5.08 and 5.09 in Part XXVIII of the Act, as enacted by section 13 of the other Act, are replaced by the following:
FORM 5.08(Subsection 487.091(1))APPLICATION FOR AN AUTHORIZATION TO TAKE ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS
Canada
Province of ................
(territorial division)
I (name of peace officer), (occupation), of .......... in (territorial division), apply for an authorization to take additional samples of bodily substances for forensic DNA analysis.
Whereas samples of bodily substances were taken from (name of offender) for the purpose of forensic DNA analysis under an order made under section 487.051, or an authorization granted under section 487.055, of the Criminal Code (attach a copy of the order or authorization);
And whereas on (day/month/year) it was determined that
(a) a DNA profile could not be derived from the samples for the following reasons:
(b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost for the following reasons:
Therefore, I request that an authorization be granted under subsection 487.091(1) of the Criminal Code to take from (name of offender) the number of additional samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
Dated this .... day of ........ , A.D. ........ , at ............... .
.........................................
(Signature of applicant)
FORM 5.09(Subsection 487.091(1))AUTHORIZATION TO TAKE ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS
Canada
Province of ................
(territorial division)
To the peace officers in (territorial division):
Whereas samples of bodily substances were taken from (name of offender) for the purpose of forensic DNA analysis under an order made under section 487.051 or an authorization granted under section 487.055, of the Criminal Code;
Whereas on (day/month/year) it was determined that
(a) a DNA profile could not be derived from the samples for the following reasons:
(b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost for the following reasons:
And whereas (name of peace officer), a peace officer in (territorial division), has applied for an authorization to take the number of additional samples of bodily substances from (name of offender) that is reasonably required for forensic DNA analysis by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code;
Therefore, you are authorized to take those additional samples, or cause them to be taken, from (name of offender), provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This authorization is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated this ................ day of ................ , A.D. ........ , at ................ .
........................................
(Signature of provincial court judge)
Marginal note:2000, c. 10, s. 24
26. Form 28.1 in Part XXVIII of the Act is repealed.
1998, c. 37DNA IDENTIFICATION ACT
27. The definition “order” in section 2 of the DNA Identification Act, as enacted by subsection 14(2) of the other Act, is replaced by the following:
“order”
« ordonnance »
“order” means an order made under section 487.051 of the Criminal Code or section 196.14 of the National Defence Act.
28. Subsection 5(4) of the Act, as enacted by section 15 of the other Act, is replaced by the following:
Marginal note:Convicted offenders index
(4) The convicted offenders index shall contain DNA profiles derived from bodily substances that are taken under orders and authorizations.
Marginal note:2005, c. 25, s. 16
29. Subsection 5.1(3) of the Act is replaced by the following:
Marginal note:Retention of order or authorization
(3) The Commissioner shall retain the copy of the order or authorization transmitted under subsection 487.071(2) of the Criminal Code or subsection 196.22(2) of the National Defence Act.
Marginal note:2005, c. 25, s. 16
30. Subsection 5.2(3) of the Act is replaced by the following:
Marginal note:Substantive defect
(3) If the Attorney General or the Director of Military Prosecutions, as the case may be, informs the Commissioner that the offence referred to in the order or authorization is not a designated offence, the Commissioner shall, without delay, destroy the bodily substances collected under the order or authorization and the information transmitted with it.
Marginal note:2005, c. 25, s. 17(1)
31. (1) The portion of subsection 6(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Communication of information
6. (1) The Commissioner shall compare any DNA profile that is entered in the convicted offenders index or the crime scene index with those DNA profiles that are already contained in the data bank and may then, for the purpose of the investigation of a criminal offence, communicate the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:
Marginal note:2005, c. 25, s. 17(1)
(2) Paragraph 6(1)(b) of the English version of the Act is replaced by the following:
(b) if the DNA profile is already contained in the data bank, the information contained in the data bank in relation to that DNA profile;
Marginal note:2005, c. 25, s. 17(1)
(3) Paragraph 6(1)(d) of the Act is replaced by the following:
(d) if a law enforcement agency or laboratory advises the Commissioner that their comparison of a DNA profile communicated under paragraph (c) with one that is connected to the commission of a criminal offence has not excluded the former as a possible match, the information contained in the data bank in relation to that profile.
Marginal note:2005, c. 25, s. 17(2)
(4) Subsection 6(3) of the Act is replaced by the following:
Marginal note:Foreign law enforcement agencies
(3) On receipt of a DNA profile from the government of a foreign state, an international organization established by the governments of states or an institution of such a government or international organization, the Commissioner may compare the profile with those in the DNA data bank to determine whether it is already contained in the data bank and may then communicate to the government, organization or institution
(a) the information referred to in any of paragraphs (1)(a) to (c) in the circumstances referred to in that paragraph; and
(b) the information contained in the data bank in relation to a DNA profile communicated to the government, organization or institution in the circumstances set out in paragraph (1)(c) if the government, organization or institution advises the Commissioner that their comparison of that DNA profile with one that is connected to the commission of a criminal offence has not excluded the former as a possible match.
Marginal note:2005, c. 25, s. 17(3)
(5) Subsection 6(6.1) of the Act is replaced by the following:
Marginal note:Subsequent communication
(6.1) Information that is communicated under subsection (1) may be communicated subsequently to a person to whom the communication is necessary for the purpose of the investigation or prosecution of a criminal offence.
32. Subsection 9(2) of the Act, as enacted by section 18 of the other 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
(a) without delay after every order or authorization for the collection of bodily substances from the person to whom the information relates is finally set aside;
(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted; or
(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period.
33. Subsection 10(7) of the Act, as enacted by subsection 20(3) of the other 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
(a) without delay after every order or authorization for the collection of bodily substances from the person is finally set aside;
(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted; or
(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period.
R.S., c. N-5NATIONAL DEFENCE ACT
34. The National Defence Act is amended by adding the following after section 119:
Offence in Relation to DNA Identification
Marginal note:Failure to comply with order or summons
119.1 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
Marginal note:For greater certainty
(2) For greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse.
Marginal note:2000, c. 10, s. 1
35. Paragraph (b) of the definition “forensic DNA analysis” in section 196.11 of the Act is replaced by the following:
(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person in execution of an order made under section 196.14 or under an authorization granted under section 196.24, or to a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance.
36. Section 196.14 of the Act, as enacted by section 24 of the other Act, is replaced by the following:
Marginal note:Order — primary designated offences
196.14 (1) A court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) of the definition “primary designated offence” in section 196.11 when the person is sentenced.
Marginal note:Order — primary designated offences
(2) A court martial shall make such an order in the prescribed form in relation to a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) or (b) of the definition “primary designated offence” in section 196.11 when the person is sentenced. However, the court martial is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.
Marginal note:Order — persons found not responsible and secondary designated offences
(3) A court martial may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of military justice to do so, make such an order in the prescribed form in relation to
(a) a person who is found not responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or
(b) a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced.
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 the decision.
Marginal note:Order to offender
(4) When a court martial makes an order authorizing the taking of samples of bodily substances, it 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 the samples.
37. (1) Subsection 196.17(1) of the Act, as enacted by subsection 26(1) of the other Act, is replaced by the following:
Marginal note:When collection to take place
196.17 (1) Samples of bodily substances shall be taken as authorized under section 196.14
(a) at the place, day and time set out in an order made under subsection 196.14(4) or as soon as feasible afterwards; or
(b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.
Marginal note:When collection to take place
(1.1) Samples of bodily substances shall be taken as authorized under section 196.24
(a) at the place, day and time set out in an order made under subsection 196.24(4) or as soon as feasible afterwards; or
(b) in any other case, as soon as feasible after the authorization is granted.
Marginal note:When collection to take place
(1.2) If a person fails to appear as required by an order made under subsection 196.14(4) or 196.24(4), samples of bodily substances shall be taken
(a) when the person is arrested under a warrant issued under subsection 196.161(1) or as soon as feasible afterwards; or
(b) as soon as feasible after the person appears at the place set out in the order if no warrant is issued.
Marginal note:Appeal
(1.3) Subsections (1) to (1.2) apply even if the order or authorization to take the samples of bodily substances is appealed.
Marginal note:2000, c. 10, s. 1
(2) Subsection 196.17(2) of the Act is repealed.
(3) Subsections 196.17(3) to (5) of the Act, as enacted by subsection 26(2) of the other Act, are replaced by the following:
Marginal note:Collection of samples
(2) A peace officer who is authorized under section 196.14 or 196.24 to take samples of bodily substances may cause the samples to be taken in any place in or outside Canada in which the person who is subject to the order or authorization is located.
Marginal note:Who collects samples
(3) The samples shall be taken by a peace officer who has jurisdiction over the person or in the place in which the samples are taken — or a person acting under their direction — who is able, by virtue of training or experience, to take them.
Marginal note:2000, c. 10, s. 1
38. (1) Subsection 196.18(1) of the Act is replaced by the following:
Marginal note:Report of peace officer
196.18 (1) A peace officer who takes samples of bodily substances from a person or who causes a person who is not a peace officer to take samples under their direction shall, as soon as feasible after the samples are taken, make a written report in the prescribed form and cause the report to be filed with
(a) the military judge who issued the warrant under section 196.12 or 196.13 or who granted the authorization under section 196.24, or another military judge; or
(b) the Court Martial Administrator, in the case of an order made by a court martial under section 196.14.
(2) Section 196.18 of the Act is amended by adding the following after subsection (2):
Marginal note:Copy of report
(2.1) The peace officer who takes the samples or causes the samples to be taken under their direction at the request of another peace officer shall send a copy of the report to the other peace officer unless that other peace officer had jurisdiction to take the samples.
Marginal note:2000, c. 10, s. 1
39. Section 196.19 of the Act is replaced by the following:
Marginal note:No criminal or civil liability
196.19 No peace officer, and no person acting under a peace officer’s direction, incurs any disciplinary, criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24.
Marginal note:2000, c. 10, s. 1
40. (1) The portion of subsection 196.2(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Investigative procedures
196.2 (1) A peace officer, or a person acting under a peace officer’s direction, is authorized by a warrant issued under section 196.12 or 196.13, an order made under section 196.14 or an authorization granted under section 196.24 to take samples of bodily substances by any of the following means:
Marginal note:2000, c. 10, s. 1
(2) Subsections 196.2(2) and (3) of the Act are replaced by the following:
Marginal note:Terms and conditions
(2) The warrant or order shall include any terms and conditions that the military judge or court martial considers advisable to ensure that the taking of the samples is reasonable in the circumstances.
Marginal note:Fingerprints
(3) A peace officer who is authorized to take samples of bodily substances from a person by an order made under section 196.14 or an authorization granted under section 196.24, or a person acting under their direction, may take fingerprints from the person for the purpose of the DNA Identification Act.
Marginal note:2000, c. 10, s. 1
41. The portion of subsection 196.21(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Duty to inform
196.21 (1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24, a peace officer shall inform the person of
42. Section 196.22 of the Act, as enacted by section 27 of the other Act, is replaced by the following:
Marginal note:Verification
196.22 (1) Before taking samples of bodily substances from a person under an order made under section 196.14 or an authorization granted 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 the person’s DNA profile.
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 they have been advised that the person’s DNA profile is in the national DNA data bank; and
(b) transmit a copy of the order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner.
Marginal note:DNA profile not in data bank
(3) If the person’s DNA profile is not in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall execute the order or authorization and transmit to the Commissioner
(a) any bodily substances taken; and
(b) a copy of the order or authorization and any other information prescribed by regulations made under the DNA Identification Act.
43. (1) Paragraph 196.24(1)(a) of the Act, as enacted by section 28 of the other Act, is replaced by the following:
(a) a DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 196.14; or
(2) Paragraph 196.24(1)(b) of the English version of the Act, as enacted by section 28 of the other Act, is replaced by the following:
(b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.
(3) Subsection 196.24(2) of the English version of the Act, as enacted by section 28 of the other Act, is replaced by the following:
Marginal note:Reasons
(2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost.
Marginal note:2000, c. 10, s. 1
(4) Subsection 196.24(3) of the Act is replaced by the following:
Marginal note:For greater certainty
(3) For greater certainty, the person who may be made subject to the authorization continues to be liable to be dealt with under the Code of Service Discipline for that purpose.
Marginal note:Persons not in custody
(4) If the military judge authorizes the taking of samples of bodily substances from a person who is not in custody, an order in the prescribed form shall be directed to the person requiring them to report at the place, day and time set out in the order and submit to the taking of the samples.
44. (1) Subsection 196.241(1) of the Act, as enacted by section 29 of the other Act, is replaced by the following:
Marginal note:Review by Director of Military Prosecutions
196.241 (1) On receipt of a notice from the Commissioner under subsection 5.2(1) of the DNA Identification Act that an order made under section 196.14 or an authorization granted under section 196.24 appears to be defective, the Director of Military Prosecutions shall review the order or authorization and the court record.
(2) The portion of subsection 196.241(2) of the English version of the Act before paragraph (a), as enacted by section 29 of the other Act, is replaced by the following:
Marginal note:Clerical error
(2) If the Director of Military Prosecutions is of the opinion that the defect is due to a clerical error, the Director shall
(3) Subsection 196.241(3) of the Act, as enacted by section 29 of the other Act, is replaced by the following:
Marginal note:Substantive defect
(3) If the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Director shall inform the Commissioner of that opinion.
Marginal note:2000, c. 10, s. 2
45. Paragraph 230(f) of the Act is replaced by the following:
(f) the legality of a decision made under any of subsections 196.14(1) to (3).
Marginal note:2000, c. 10, s. 3
46. Paragraph 230.1(g) of the Act is replaced by the following:
(g) the legality of a decision made under any of subsections 196.14(1) to (3).
COORDINATING AMENDMENTS
Marginal note:2005, c. 25
47. (1) On the day on which subsections 1(2) to (5) of the other Act come into force, paragraphs (a) and (a.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code are renumbered respectively as paragraphs (a.1) and (a) of that definition and are repositioned accordingly.
(2) On the later of the day on which section 3 of the other Act comes into force and the day on which subsection (1) produces its effects — or, if those days are the same day, then on that day — subsections 487.051(1) and (2) of the Criminal Code are replaced by the following:
Marginal note:Order — primary designated offences
487.051 (1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged.
Marginal note:Order — primary designated offences
(2) The court shall make such an order in Form 5.03 in relation to a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of any of paragraphs (a.1) to (d) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged. However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their 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:2005, c. 25
48. (1) On the day on which subsection 23(1) of the other Act comes into force, paragraphs (a) and (a.1) of the definition “primary designated offence” in section 196.11 of the National Defence Act are replaced by the following:
(a) an offence within the meaning of paragraph (a) 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 any of paragraphs (a.1) to (c.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130; and
(2) On the later of the day on which section 24 of the other Act comes into force and the day on which subsection (1) produces its effects — or, if those days are the same day, then on that day — subsections 196.14(1) and (2) of the National Defence Act are replaced by the following:
Marginal note:Order — primary designated offences
196.14 (1) A court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition “primary designated offence” in section 196.11 when the person is sentenced.
Marginal note:Order — primary designated offences
(2) A court martial shall make such an order in the prescribed form in relation to a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) or (b) of the definition “primary designated offence” in section 196.11 when the person is sentenced. However, the court martial is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.
Marginal note:Bill S-3
49. If Bill S-3, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, receives royal assent, then, on the later of the day on which section 2 of that Act comes into force and the day on which section 34 of this Act comes into force — or, if those days are the same day, then on that day — section 119.1 of the National Defence Act, as enacted by that section 34, is renumbered as section 119.2. If necessary, that section 119.2 and the heading before it are repositioned accordingly.
Marginal note:Bill C-7
50. Paragraphs (a) to (c) apply as follows if Bill C-7, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the National Defence Act (“C-7”), receives royal assent:
(a) if sections 57 and 58 of C-7 come into force before section 36 of this Act, section 126 of C-7 is repealed;
(b) if section 36 of this Act comes into force before sections 57 and 58 of C-7, sections 57, 58 and 126 of C-7 are repealed; and
(c) if section 36 of this Act comes into force on the same day as sections 57 and 58 of C-7, sections 57 and 58 of C-7 are deemed to have come into force before section 36 of this Act and paragraph (a) applies.
Marginal note:Bill C-10
51. If Bill C-10, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act (“C-10”), receives royal assent and if subsection 47(1) of this Act produces its effects before the coming into force of section 26 of C-10, then section 26 of C-10, as enacted by subsection 30(1) of C-10, is replaced by the following:
26. Subparagraph (a)(v) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:
(v) section 244 (discharging firearm with intent),
COMING INTO FORCE
Marginal note:Order in council
52. Section 7, subsection 8(1), section 10, subsections 11(2) to (4), section 12, subsection 13(2), sections 14 to 17, subsection 20(4), sections 22, 24, 26, 29, 30, 34 and 35, subsection 37(2), sections 38 to 41, subsection 43(4) and sections 45 and 46 of this Act come into force on a day to be fixed by order of the Governor in Council as long as that day is the same day as that fixed for the coming into force of section 1 of the other Act.
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