An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act (S.C. 2005, c. 25)

Assented to 2005-05-19

An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act

S.C. 2005, c. 25

Assented to 2005-05-19

An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act

SUMMARY

This enactment amends the provisions in the Criminal Code respecting the taking of bodily substances for forensic DNA analysis and the inclusion of DNA profiles in the national DNA data bank and makes related amendments to the DNA Identification Act and National Defence Act. It clarifies that the forensic DNA analysis of the bodily substances taken from convicted offenders for the purposes of the national DNA data bank will be conducted by the Commissioner of the Royal Canadian Mounted Police.

In particular, the enactment

  • (a) adds offences to the lists of designated offences in the Criminal Code, including participating in the activities of a criminal organization, the commission of an offence for a criminal organization, instructing the commission of an offence for a criminal organization, uttering threats and criminal harassment;

  • (b) reclassifies robbery and break and enter into a dwelling-house as primary designated offences;

  • (c) provides for the making of DNA data bank orders against a person who has committed a designated offence but who was found not criminally responsible by reason of mental disorder;

  • (d) provides for the making of DNA data bank orders against a person who committed one murder and one sexual offence at different times before the coming into force of the legislation;

  • (e) includes several repealed sexual offences (indecent assault male, indecent assault female and gross indecency) as designated offences and sexual offences referred to in paragraph 487.055(3)(b) of the Criminal Code;

  • (f) provides for the review of defective DNA data bank orders and for the destruction of the bodily substances taken under them;

  • (g) compels offenders to appear at a certain time and place to provide a DNA sample; and

  • (h) allows for a DNA data bank order to be made after sentence has been imposed.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. C-46CRIMINAL CODE

Marginal note:1995, c. 27, s. 1
  •  (1) The portion of section 487.04 of the Criminal Code before the definition “adult” is replaced by the following:

    Marginal note:Definitions

    487.04 In this section and in sections 487.05 to 487.0911,

  • (2) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (iii):

    • (iii.1) section 153.1 (sexual exploitation of person with disability),

  • Marginal note:1998, c. 37, s. 15(2)

    (3) Subparagraph (a)(v) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:

    • (iv.1) subsection 163.1(2) (making child pornography),

    • (iv.2) subsection 163.1(3) (distribution, etc., of child pornography),

    • (iv.3) subsection 163.1(4) (possession of child pornography),

    • (iv.4) subsection 163.1(4.1) (accessing child pornography),

    • (iv.5) section 172.1 (luring a child),

    • (v) subsection 212(1) (procuring),

    • (v.1) subsection 212(2) (procuring),

    • (v.2) subsection 212(4) (offence — prostitution of person under eighteen),

  • (4) Subparagraphs (a)(vii) to (xx) of the definition “primary designated offence” in section 487.04 of the Act are replaced by the following:

    • (vii) section 271 (sexual assault),

    • (viii) section 279.1 (hostage taking),

    • (ix) paragraph 348(1)(d) (breaking and entering a dwelling-house),

    • (x) section 423.1 (intimidation of a justice system participant or journalist),

    • (xi) section 431 (attack on premises, residence or transport of internationally protected person),

    • (xii) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel), and

    • (xiii) subsection 431.2(2) (explosive or other lethal device),

  • (5) The definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after paragraph (a):

    • (a.1) an offence under any of the following provisions, namely,

    • (i) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years),

    • (ii) section 235 (murder),

    • (iii) section 236 (manslaughter),

    • (iv) section 239 (attempt to commit murder),

    • (v) section 244 (causing bodily harm with intent — firearm),

    • (vi) section 244.1 (causing bodily harm with intent — air gun or pistol),

    • (vii) paragraph 245(a) (administering noxious thing with intent to endanger life or cause bodily harm),

    • (viii) section 246 (overcoming resistance to commission of offence),

    • (ix) section 267 (assault with a weapon or causing bodily harm),

    • (x) section 268 (aggravated assault),

    • (xi) section 269 (unlawfully causing bodily harm),

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

    • (xiii) section 273 (aggravated sexual assault),

    • (xiv) section 279 (kidnapping),

    • (xv) section 344 (robbery), and

    • (xvi) section 346 (extortion),

  • (5.1) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (xx):

    • (xxi) section 467.11 (participation in activities of criminal organization),

    • (xxii) section 467.12 (commission of offence for criminal organization), and

    • (xxiii) section 467.13 (instructing commission of offence for criminal organization),

  • (6) Paragraph (b) of the definition “primary designated offence” in section 487.04 of the Act is amended by striking out the word “and” 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), and

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

  • (6.1) Paragraph (a) of the definition “secondary designated offence” in section 487.04 of the Act is amended by adding the following before subparagraph (vi):

    • (i) section 145 (escape and being at large without excuse),

    • (ii) section 146 (permitting or assisting escape),

    • (iii) section 147 (rescue or permitting escape),

    • (iv) section 148 (assisting prisoner of war to escape),

  • Marginal note:1998, c. 37, s. 15(2); 2002, c. 1, s. 175

    (7) The definitions “secondary designated offence” and “young person” in section 487.04 of the Act are replaced by the following:

    “secondary designated offence”

    « infraction secondaire »

    “secondary designated offence” means an offence, other than a primary designated offence, that is

    • (a) an offence under this Act that is liable to a maximum sentence of five or more years imprisonment and may be prosecuted by indictment, and, for the application of section 487.051 or 487.052, is prosecuted by indictment,

    • (b) an offence under any of the following provisions of the Controlled Drugs and Substances Act that is liable to a maximum sentence of five or more years imprisonment and may be prosecuted by indictment, and, for the application of section 487.051 or 487.052, is prosecuted by indictment:

      • (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),

    • (c) an offence under any of the following provisions of this Act:

      • (i) subsection 160(3) (bestiality in the presence of or by child),

      • (ii) section 170 (parent or guardian procuring sexual activity),

      • (iii) section 173 (indecent acts),

      • (iv) section 252 (failure to stop at scene of accident),

      • (v) section 264 (criminal harassment),

      • (vi) section 264.1 (uttering threats),

      • (vii) section 266 (assault),

      • (viii) section 270 (assaulting a peace officer),

      • (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),

      • (x) section 349 (being unlawfully in dwelling-house), and

      • (xi) section 423 (intimidation),

    • (d) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990:

      • (i) section 433 (arson), and

      • (ii) section 434 (setting fire to other substance), and

    • (e) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit an offence referred to in any of paragraphs (a) to (d);

    “young person”

    « adolescent »

    “young person” has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act or subsection 2(1) of the Young Offenders Act, as the case may be.

  • (8) Section 487.04 of the Act is amended by adding the following in alphabetical order:

    Young Offenders Act

    « Loi sur les jeunes contrevenants »

    Young Offenders Act means chapter Y-1 of the Revised Statutes of Canada, 1985;

Marginal note:1998, c. 37, s. 16(1)
  •  (1) The portion of subsection 487.05(1) of the French version of the Act before paragraph (a) is replaced by the following:

    Marginal note:Mandat relatif aux analyses génétiques
    • 487.05 (1) Sur demande ex parte présentée selon la formule 5.01, un juge de la cour provinciale peut délivrer un mandat — rédigé selon la formule 5.02 — autorisant le prélèvement en conformité avec le paragraphe 487.06(1), pour analyse génétique, du nombre d’échantillons de substances corporelles d’une personne jugé nécessaire à cette fin, s’il est convaincu, à la suite d’une dénonciation faite sous serment, que cela servirait au mieux l’administration de la justice et qu’il existe des motifs raisonnables de croire :

  • Marginal note:1995, c. 27, s. 1; 1998, c. 37, s. 16(2)(E)

    (2) Paragraph 487.05(2)(b) of the French version of the Act is replaced by the following:

    • b) de la possibilité d’avoir un agent de la paix — ou toute personne sous son autorité — qui, de par sa formation ou son expérience, peut effectuer le prélèvement en conformité avec le paragraphe 487.06(1).

Marginal note:1998, c. 37, s. 17; 2002, c. 1, s. 176

 Subsections 487.051(1) to (3) of the Act are replaced by the following:

Marginal note:Order
  • 487.051 (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, or found not criminally responsible on account of mental disorder for a designated offence, the court

    • (a) shall, subject to subsection (2), in the case of a primary designated offence other than one described in paragraph (b), make an order in Form 5.03 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); or

    • (b) may, in the case of a primary designated offence in respect of which a verdict of not criminally responsible on account of mental disorder has been rendered or in the case of a secondary designated offence, on application by the prosecutor, make an order in Form 5.04 authorizing the taking of such samples if the court is satisfied that it is in the best interests of the administration of justice to do so.

      • Marginal note:Exception

        (2) The court is not required to make an order under paragraph (1)(a) in the case of an offence referred to in paragraph (a) or any of paragraphs (b) to (d) of the definition “primary designated offence” in section 487.04 if it is satisfied that the person or young person has established that, were the order made, the impact on the person's or young person's 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:Criteria

    (3) In deciding whether to make an order under paragraph (1)(b), the court shall consider the person’s criminal record, whether the person was 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

    (4) 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).

 
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