National Defence Act (R.S.C., 1985, c. N-5)

Marginal note:Telewarrants

• 196.13 (1) If a peace officer believes that it would be impracticable to appear personally before a military judge to apply for a warrant, the peace officer may submit an information on oath to the judge by telephone or other means of telecommunication.

• Marginal note:Contents of information

  (2) An information submitted by telephone or other means of telecommunication shall include, in addition to the information described in subsection 196.12(1),

  • (a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a military judge; and

  • (b) a statement as to any prior application for a warrant under this section.

• Marginal note:Oath in writing

  (3) If the telecommunication is in written form, a written statement by the peace officer that all matters contained in the information are true to the officer’s knowledge and belief is deemed to be a statement made under oath.

• Marginal note:Information filed with Court Martial Administrator

  (4) The military judge shall, as soon as practicable, certify the information as to time and date of receipt, and cause it to be filed with the Court Martial Administrator. If the telecommunication is not in written form, the information that is to be filed is the verbatim record, or a transcription of it, certified by the judge as to its contents and time and date of receipt.

• Marginal note:Formalities respecting warrant and facsimiles

  (5) When a military judge issues a warrant by telephone or other means of telecommunication that is not in written form,

  • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

  • (b) the peace officer, on the direction of the judge, shall complete, in duplicate, a facsimile of the warrant in the prescribed form, noting on its face the name of the judge and the time, date and place of issuance; and

  • (c) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the Court Martial Administrator.

• Marginal note:Issuance of warrant — telecommunication in written form

  (6) When a military judge issues a warrant by a means of telecommunication in written form,

  • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

  • (b) the judge shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information, and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (5)(b);

  • (c) the peace officer shall procure another facsimile of the warrant; and

  • (d) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with Court Martial Administrator.

• Marginal note:Proof of authorization

  (7) In any proceeding in which it is material for a court to be satisfied that the taking of samples of a bodily substance was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the military judge and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the taking of the samples was not authorized.

• Marginal note:Duplicates and facsimiles acceptable

  (8) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purpose of subsection (7).

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: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, any previous finding of not responsible on account of mental disorder for a designated offence and the impact that such an order would have on the person’s privacy and security 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.

196.15 [Repealed, 2007, c. 22, s. 5]

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 Standing 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.

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: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: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.

• Marginal note:Contents of report

  (2) The report shall state the time and date the samples were taken, and describe the bodily substances that were taken.

• 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:Unexecuted telewarrant

  (3) If a peace officer does not execute a warrant that was issued in accordance with section 196.13, the peace officer must make a report stating the reasons why the warrant was not executed.

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: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:

  • (a) the plucking of individual hairs, including the root sheath;

  • (b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or

  • (c) the taking of blood by pricking the skin surface with a sterile lancet.

• 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: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

  • (a) the contents of the warrant or order;

  • (b) the nature of the investigative procedures by means of which the samples are to be taken;

  • (c) the purpose of taking the samples;

  • (d) the authority of the peace officer and any person acting under the officer’s direction to use as much force as is reasonably necessary for the purpose of taking the samples; and

  • (e) in the case of samples of bodily substances taken in execution of a warrant, the possibility that the results of forensic DNA analysis may be used in evidence.

• Marginal note:Detention of person

  (2) A person from whom samples of bodily substances are to be taken may, for that purpose, be detained for a period that is reasonable in the circumstances and be required to accompany a peace officer.

• Marginal note:Respect of privacy

  (3) A peace officer, or any person acting under a peace officer’s direction, who takes samples of bodily substances from a person shall ensure that the person’s privacy is respected in a manner that is reasonable in the circumstances.

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.