Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Information for warrant to take bodily substances for forensic DNA analysis

• 487.05 (1) A provincial court judge who on ex parte application made in Form 5.01 is satisfied by information on oath that there are reasonable grounds to believe

  • (a) that a designated offence has been committed,

  • (b) that a bodily substance has been found or obtained

    • (i) at the place where the offence was committed,

    • (ii) on or within the body of the victim of the offence,

    • (iii) on anything worn or carried by the victim at the time when the offence was committed, or

    • (iv) on or within the body of any person or thing or at any place associated with the commission of the offence,

  • (c) that a person was a party to the offence, and

  • (d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person

  and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1).

• Marginal note:Criteria

  (2) In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including

  • (a) the nature of the designated offence and the circumstances of its commission; and

  • (b) whether there is

    • (i) a peace officer who is able, by virtue of training or experience, to take samples of bodily substances from the person, by means of the investigative procedures described in subsection 487.06(1), or

    • (ii) another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures.

• (3) [Repealed, 2022, c. 17, s. 20]

• Marginal note:Execution in Canada

  (4) A warrant issued under subsection (1) may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.

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 paragraphs (a) and (c.02) 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 (c.01) and (c.03) 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.

487.052 [Repealed, 2007, c. 22, s. 3]

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 videoconference, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

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: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;

  • (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.

• Marginal note:Certificate

  (2) The application shall be accompanied by a certificate referred to in paragraph 667(1)(a) that establishes that the person is a person referred to in subsection (1). The certificate may be received in evidence without giving the notice referred to in subsection 667(4).

• Definition of sexual offence

  (3) For the purposes of subsection (1), sexual offence means

  • (a) an offence under any of the following provisions, namely,

    • (i) section 151 (sexual interference),

    • (ii) section 152 (invitation to sexual touching),

    • (iii) section 153 (sexual exploitation),

    • (iv) section 155 (incest),

    • (v) subsection 212(4) (offence in relation to juvenile prostitution),

    • (vi) section 271 (sexual assault),

    • (vii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), and

    • (viii) section 273 (aggravated sexual assault);

  • (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);

  • (b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,

    • (i) section 144 (rape),

    • (ii) section 146 (sexual intercourse with female under fourteen or between fourteen and sixteen),

    • (iii) section 148 (sexual intercourse with feeble-minded, etc.),

    • (iv) section 149 (indecent assault on female),

    • (v) section 156 (indecent assault on male), or

    • (vi) section 157 (acts of gross indecency);

  • (c) an offence under paragraph 153(1)(a) (sexual intercourse with step-daughter, etc.) 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; and

  • (d) an attempt to commit an offence referred to in any of paragraphs (a) to (c).

• 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 videoconference, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

• Marginal note:Criteria

  (3.1) In deciding whether to grant an authorization under subsection (1), the court shall consider the person’s criminal record, the nature of the offence and the circumstances surrounding its commission and the impact such an authorization would have on the privacy and security of the person and shall give reasons for its decision.

• 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:Service on individual

  (5) The summons shall be accompanied by a copy of the authorization referred to in subsection (1) and be served by a peace officer who shall either deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, leave it for the person at their latest or usual place of residence with any person found there who appears to be at least sixteen years of age.

• (6) [Repealed, 2008, c. 18, s. 13]

• (7) to (10) [Repealed, 2007, c. 22, s. 11]

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.

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: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.