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
1998, c. 37DNA IDENTIFICATION ACT
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.
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