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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

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

Marginal note:1998, c. 37, s. 24

13. Forms 5.08 and 5.09 in Part XXVIII of the Act are replaced by the following:

FORM 5.08(Subsection 487.091(1))APPLICATION FOR AN AUTHORIZATION FOR TAKING ADDITIONAL SAMPLES OF 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 additional samples of bodily substances for forensic DNA analysis.

Whereas samples of bodily substances were taken from (name of offender) for the purpose of forensic DNA analysis, in execution of an order made under section 487.051 or 487.052 of the Criminal Code or an authorization granted under section 487.055 of the Criminal Code (attach a copy of the order or authorization);

And whereas on (day/month/year) it was determined that

  • (a) a DNA profile cannot be derived from the samples for the following reasons:

  • (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 for the following reasons:

Therefore, I request that an authorization be granted under subsection 487.091(1) of the Criminal Code to take from (name of offender) the number of additional 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 5.09(Subsection 487.091(1))AUTHORIZATION FOR THE TAKING OF ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

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

(territorial division)

To the peace officers in (territorial division):

Whereas samples of bodily substances were taken from (name of offender) for the purpose of forensic DNA analysis, in execution of an order made under section 487.051 or 487.052 of the Criminal Code or an authorization granted under section 487.055 of the Criminal Code;

Whereas on (day/month/year) it was determined that

  • (a) a DNA profile could not be derived from the samples for the following reasons:

  • (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 for the following reasons:

And 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 additional 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;

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 additional 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)

1998, c. 37DNA IDENTIFICATION ACT

Marginal note:2002, c. 1, s. 187
Marginal note:2000, c. 10, s. 6

15. Subsection 5(4) of the Act is replaced by the following:

  • Marginal note:Convicted offenders index

    (4) The convicted offenders index shall contain DNA profiles derived from bodily substances described in section 487.071 of the Criminal Code or section 196.22 of the National Defence Act.

16. The Act is amended by adding the following after section 5:

Marginal note:Review of information transmitted

  • 5.1 (1) The Commissioner shall review the information transmitted under section 487.071 of the Criminal Code or section 196.22 of the National Defence Act to ensure that the offence referred to in the order or authorization is a designated offence.

  • Marginal note:Forensic DNA analysis

    (2) The Commissioner shall conduct a forensic DNA analysis of the bodily substances transmitted if satisfied that the offence referred to in the order or authorization is a designated offence and enter the resulting DNA profile in the convicted offenders index.

  • Marginal note:Retention of order or authorization

    (3) The Commissioner shall retain the copy of the order or authorization transmitted under subsection 487.071(2) of the Criminal Code or subsection 196.161(2) of the National Defence Act.

Marginal note:Defect in order or authorization

  • 5.2 (1) If the Commissioner is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Commissioner shall retain any bodily substances collected under it and any information transmitted with it, and give notice of the apparent defect to

    • (a) the Attorney General of the province in which the order or authorization was made, if it was transmitted under section 487.071 of the Criminal Code; or

    • (b) the Director of Military Prosecutions, if the order or authorization was transmitted under section 196.22 of the National Defence Act.

  • Marginal note:Confirmation or correction

    (2) If the Attorney General or Director of Military Prosecutions, as the case may be, confirms in writing that the order or authorization is valid or sends a copy of a corrected order or authorization to the Commissioner, the Commissioner shall conduct a forensic DNA analysis of any bodily substances collected under it.

  • Marginal note:Revoked order or authorization

    (3) The Commissioner shall, without delay, destroy any bodily substances collected and any information transmitted with them if the order or authorization for their collection is revoked.

  • Marginal note:Destruction of bodily substances

    (4) The Commissioner shall destroy any bodily substances and information retained under subsection (1) on the expiry of 180 days after sending a notice under that subsection unless, before the expiry of that period, the Commissioner receives

    • (a) a confirmation that the order or authorization is valid;

    • (b) a corrected order or authorization;

    • (c) a notice that the Attorney General or Director of Military Prosecutions requires an additional period of not greater than 90 days to review the order or authorization; or

    • (d) a notice that the issue of whether or not the order or authorization is defective is under review by a judge or in proceedings before a court.

Marginal note:2000, c. 10, s. 7

  • 17. (1) Subsection 6(1) of the Act is replaced by the following:

    Marginal note:Comparison of DNA profiles and communication of information

    • 6. (1) The Commissioner shall compare any DNA profile that is entered in the convicted offenders index or the crime scene index with those DNA profiles that are already contained in the data bank and may then, for the purpose of the investigation of a designated offence, communicate the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:

      • (a) if the DNA profile is not already contained in the data bank, the fact that it is not;

      • (b) if the DNA profile is already contained in the data bank, any information contained in the data bank in relation to that DNA profile;

      • (c) if the DNA profile is, in the opinion of the Commissioner, similar to one that is already contained in the data bank, the similar DNA profile; and

      • (d) if a DNA profile that is communicated under paragraph (c) cannot be excluded as a possible match on further analysis, any information contained in the data bank in relation to that DNA profile.

  • (2) Subsection 6(3) of the Act is replaced by the following:

    • Marginal note:Foreign law enforcement agencies

      (3) On receipt of a DNA profile from the government of a foreign state, an international organization established by the governments of states or an institution of any such government or international organization, the Commissioner may compare the DNA profile with those in the DNA data bank to determine whether it is already contained in the data bank and may then communicate to that government, international organization or institution

      • (a) whether the DNA profile is already contained in the data bank; and

      • (b) any information, other than the DNA profile itself, that is contained in the data bank in relation to that DNA profile.

  • (3) Subsections 6(6) and (7) of the Act are replaced by the following:

    • Marginal note:Use of results — order, authorization

      (6) No person shall use the results of forensic DNA analysis of bodily substances that are taken in execution of an order or authorization, except in accordance with this Act.

    • Marginal note:Subsequent communication

      (6.1) Information that is communicated under subsection (1) may be communicated subsequently to a person to whom the communication is necessary for the purpose of the investigation or prosecution of a designated offence.

    • Marginal note:Unauthorized communication

      (7) Subject to this section, no person shall communicate any information that is contained in the DNA data bank or allow the information to be communicated.

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