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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

 The Act is amended by adding the following after section 487.091:

Marginal note:Review by Attorney General
  • 487.0911 (1) On receipt of a notice from the Commissioner of the Royal Canadian Mounted Police under subsection 5.2(1) of the DNA Identification Act that an order made under section 487.051 or 487.052, or an authorization made under section 487.091, appears to be defective, the Attorney General shall review the order or authorization and the court record.

  • Marginal note:Clerical error

    (2) If, in the opinion of the Attorney General, the defect is due to a clerical error, the Attorney General shall

    • (a) apply, ex parte, to the judge who made the order or authorization, or to a judge of the same court, to have it corrected; and

    • (b) transmit a copy of the corrected order or authorization, if any, to the Commissioner.

  • Marginal note:Substantive defect

    (3) If, in the opinion of the Attorney General, the offence to which the order or authorization relates is not a designated offence, the Attorney General shall

    • (a) apply, ex parte, to a judge of the court of appeal for an order revoking the order or authorization; and

    • (b) if the order or authorization is revoked, transmit a copy of the order revoking it to the Commissioner.

  • Marginal note:No defect

    (4) If the Attorney General is of the opinion that the offence referred to in the order or authorization is a designated offence, the Attorney General shall transmit that opinion, with written reasons, to the Commissioner.

Marginal note:1998, c. 37, s. 24; 2002, c. 1, ss. 185 and 186

 Forms 5.03 to 5.06 in Part XXVIII of the Act are replaced by the following:

FORM 5.03(Paragraph 487.051(1)(a))ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

To the peace officers in (territorial division):

Whereas (name of offender) has been convicted, discharged under section 730 of the Criminal Code or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of (offence), an offence that is a primary designated offence within the meaning of section 487.04 of the Criminal Code;

Therefore, you are authorized to take from (name of offender) or cause to be taken by a person acting under your direction, the number of samples of bodily substances that are reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated this ................ day of ................ ,

A.D. ........ , at ................ .

............................................

(Signature of judge of the court)

FORM 5.031(Subsections 487.051(4) and 487.052(3))ORDER TO A PERSON SUBJECT TO A DNA DATA BANK ORDER

Canada,

Province of ................

(territorial division)

To A.B., of ................ ,

Whereas you have this day been made subject to an order to take from you the number of samples of bodily substances that are reasonably required for forensic DNA analysis;

This is therefore to command you, in Her Majesty’s name to appear on ................ , the ................ day of ................ , A.D. ........ , at ............ o’clock in the ........ noon, at ................ , for the purposes of the taking of bodily substances by means of the investigative procedures set out in subsection 487.06(1) of the Criminal Code.

You are warned that failure to appear in accordance with this order may result in a warrant being issued for your arrest under subsection 487.0561(1) of the Criminal Code. You are also warned that failure to appear, without lawful excuse, is an offence under subsection 127(1) of that Act.

Subsection 487.0561(1) of the Criminal Code states as follows:

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.

Subsection 127(1) of the Criminal Code states as follows:

  • 127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Dated this ................ day of ................ , A.D. ........ , at ................ .

...........................................

(Signature of judge of the court)

FORM 5.04(Paragraph 487.051(1)(b) and subsection 487.052(1))ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of .................

(territorial division)

To the peace officers in (territorial division):

Whereas (name of offender), in this order called the “offender”, has

  • (a) been found not criminally responsible on account of mental disorder for an offence that is a primary designated offence within the meaning of section 487.04 of the Criminal Code, or

  • (b) been convicted, discharged under section 730 of the Criminal Code or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act, of (offence), or found not criminally responsible on account of mental disorder for that offence, an offence that is

  • (i) a secondary designated offence within the meaning of section 487.04 of the Criminal Code, or

  • (ii) a designated offence within the meaning of section 487.04 of the Criminal Code committed before June 30, 2000;

Whereas I have considered the offender’s criminal record, the nature of the offence and the circumstances surrounding its commission, whether the offender was previously found not criminally responsible on account of mental disorder for a designated offence, and the impact that this order would have on the offender’s privacy and security of the person;

And whereas I am satisfied that it is in the best interests of the administration of justice to make this order;

Therefore, you are authorized to take from (name of offender) or cause to be taken by a person acting under your direction, the number of samples of bodily substances that are reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated this ................ day of ................ , A.D. ........ , at ................ .

........................................

(Signature of judge of the court)

FORM 5.05(Subsection 487.055(1))APPLICATION FOR AN AUTHORIZATION TO TAKE BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

I, (name of peace officer), (occupation), of .......... in the said (territorial division), apply for an authorization to take bodily substances for forensic DNA analysis. A certificate referred to in paragraph 667(1)(a) of the Criminal Code is filed with this application.

Whereas (name of offender), before June 30, 2000,

  • (a) had been declared a dangerous offender under Part XXIV of the Criminal Code,

  • (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 more than one murder committed at different times,

  • (d) had been convicted of more than one sexual offence within the meaning of subsection 487.055(3) of the Criminal Code and is currently serving a sentence of at least two years imprisonment for one or more of those offences, or

  • (e) had been convicted of a murder and a sexual offence within the meaning of subsection 487.055(3) of the Criminal Code committed at different times;

Therefore, I request that an authorization be granted under subsection 487.055(1) of the Criminal Code to take from (name of offender) the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

Dated this ... day of ........ , A.D. ...... , at ............... .

.........................................

(Signature of applicant)

FORM 5.06(Subsection 487.055(1))AUTHORIZATION FOR THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

To the peace officers in (territorial division):

Whereas (name of offender), before June 30, 2000,

  • (a) had been declared a dangerous offender under Part XXIV of the Criminal Code,

  • (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 more than one murder committed at different times,

  • (d) had been convicted of more than one sexual offence within the meaning of subsection 487.055(3) of the Criminal Code and is currently serving a sentence of at least two years imprisonment for one or more of those offences, or

  • (e) had been convicted of a murder and a sexual offence within the meaning of subsection 487.055(3) of the Criminal Code committed at different times;

Whereas (name of peace officer), a peace officer of the said territorial division, has applied for an authorization for the taking of the number of samples of bodily substances from (name of offender) that is reasonably required for forensic DNA analysis by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code;

And whereas I have considered the offender’s criminal record, the nature of the offence and the circumstances surrounding its commission and the impact that this authorization would have on the offender’s privacy and security of the person;

Therefore, the peace officers of the said territorial division are authorized to take from (name of offender) or cause to be taken by a person acting under their direction those samples, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

This authorization is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated this ................ day of ................ , A.D., at ................ .

........................................

(Signature of provincial court judge)

 
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