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
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:Offences committed before June 30, 2000
487.052 (1) If a person is convicted, found guilty under the Youth Criminal Justice Act or the Young Offenders Act, or discharged under section 730 of a designated offence committed before June 30, 2000, or found not criminally responsible on account of mental disorder for such a designated offence, the court may, on application by the prosecutor, make an order in Form 5.04 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, by means of the investigative procedures described in subsection 487.06(1), if the court 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 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 and 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
(3) The court may make an order in Form 5.031 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
487.053 (1) The court may make an order under section 487.051 or 487.052 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 it is not possible to make the order under section 487.051 or 487.052 at the time referred to in subsection (1), the court may set a date and time for a subsequent hearing to determine whether to make the order. The court retains jurisdiction over the matter and may compel the attendance at the hearing of any person who may be subject to the order.
Marginal note:1998, c. 37, s. 17
5. (1) Subsection 487.055(1) of the Act is replaced by the following:
Marginal note:Offenders serving sentences
487.055 (1) A provincial court judge may, on ex parte application made in Form 5.05, authorize in Form 5.06 the taking, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), from a person who, before June 30, 2000,
(a) had been declared a dangerous offender under Part XXIV;
(b) had been declared a dangerous offender or a dangerous sexual offender under Part XXI of the Criminal Code, being 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;
(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 of at least two years for that offence; or
(e) had been convicted of manslaughter and, on the date of the application, is serving a sentence of imprisonment of at least two years for that offence.
(2) Subsection 487.055(3) of the Act is amended by adding the following after paragraph (a):
(a.1) an offence under subsection 348(1) if the indictable offence referred to in that subsection is a sexual offence within the meaning of paragraph (a), (b), (c) or (d);
(3) Paragraph 487.055(3)(b) of the Act is amended by striking out the word “or” at the end of subparagraph (ii) and by adding the following after subparagraph (iii):
(iv) section 149 (indecent assault on female),
(v) section 156 (indecent assault on male), or
(vi) section 157 (acts of gross indecency);
Marginal note:1998, c. 37, s. 17; 2002, c. 1, s. 179(E)
6. Subsection 487.056(1) of the Act is replaced by the following:
Marginal note:When collection to take place
487.056 (1) Samples of bodily substances shall be taken from a person, even if an appeal is taken,
(a) on the day when a court makes an order under subsection 487.051(1) or 487.052(1);
(b) if the court is of the opinion that it is not possible for samples to be taken then, at a place, day and time set out in an order made under subsection 487.051(4) or 487.052(3); or
(c) if the person whose presence is required by an order described in paragraph (b) fails to appear, when the person is arrested pursuant to a warrant issued under section 487.0561, or as soon as possible afterwards.
7. The Act is amended by adding the following after section 487.056:
Marginal note:Failure to appear
487.0561 (1) A justice of the peace may issue a warrant for the arrest of a person who does not report at the place, day and time set out in an order referred to in subsection 487.056(1) to allow samples of bodily substances to be taken.
Marginal note:Contents of warrant to arrest
(2) The warrant must name or describe the person and order that they be arrested without delay to allow the samples to be taken.
Marginal note:Warrant in force
(3) The warrant remains in force until it is executed.
Marginal note:1998, c. 37, s. 20; 2000, c. 10, s. 21
8. Section 487.071 of the 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 487.052 or an authorization made under section 487.055 or 487.091, a peace officer or a person 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 he or she has been advised that the person’s DNA profile is in the 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 of the Royal Canadian Mounted Police.
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 of the Royal Canadian Mounted Police
(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.
Marginal note:1998, c. 37, s. 21(1); 2000, c. 10, s. 22(1)
9. (1) Subsection 487.08(1.1) of the 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 under section 487.051 or 487.052 or section 196.14 or 196.15 of the National Defence Act, or under an authorization under section 487.055 or 487.091 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.
Marginal note:2000, c. 10, s. 22(3)
(2) Subsection 487.08(2.1) of the Act is repealed.
Marginal note:1998, c. 37, s. 21(2)
(3) The portion of subsection 487.08(4) of the Act before paragraph (a) is replaced by the following:
Marginal note:Offence
(4) Every person who contravenes subsection (1.1)
Marginal note:1998, c. 37, s. 23
10. Subsections 487.091(1) and (2) of the Act are replaced by the following:
Marginal note:Collection of additional bodily substances
487.091 (1) A provincial court judge may, on ex parte application made in Form 5.08, authorize in Form 5.09 the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), if
(a) a DNA profile cannot be derived from the bodily substances that were taken from that person in execution of an order under section 487.051 or 487.052 or under an authorization under section 487.055; or
(b) the bodily substances and information required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.
Marginal note:Reasons
(2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the bodily substances and information were not transmitted in accordance with the regulations or were lost.
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