An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act (S.C. 2005, c. 25)
Full Document:
Assented to 2005-05-19
1998, c. 37DNA IDENTIFICATION ACT
Marginal note:2000, c. 10, s. 11
21. Section 10.1 of the Act is replaced by the following:
Marginal note:Young persons — destruction of bodily substances
10.1 (1) The Commissioner shall, without delay, destroy stored bodily substances of a young person who has been found guilty of a designated offence under the Young Offenders Act or under the Youth Criminal Justice Act when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.
Marginal note:Exception
(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to
(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or
(b) a record to which subsection 120(6) of that Act applies.
22. The portion of section 11 of the Act before paragraph (a) is replaced by the following:
Marginal note:Offence
11. Every person who contravenes subsection 6(6) or (7), section 8 or subsection 10(5)
R.S., c. N-5NATIONAL DEFENCE ACT
Marginal note:2000, c. 10, s. 1
23. (1) The definition “primary designated offence” in section 196.11 of the National Defence Act is replaced by the following:
“primary designated offence”
« infraction primaire »
“primary designated offence” means
(a) an offence within the meaning of paragraph (a) or any of paragraphs (b) to (c.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130;
(a.1) an offence within the meaning of paragraph (a.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130; and
(b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130.
(2) Paragraph (a) of the definition “secondary designated offence” in section 196.11 of the Act is replaced by the following:
(a) an offence within the meaning of any of paragraphs (a) to (d) of the definition “secondary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130;
Marginal note:2000, c. 10, s. 1
24. Subsections 196.14(1) to (3) of the Act are replaced by the following:
Marginal note:Order
196.14 (1) If a person is found guilty of, or not responsible on account of mental disorder for, a designated offence, the court martial
(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 the prescribed form 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; or
(b) may, in the case of a primary designated offence in respect of which a finding of not 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 the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
Marginal note:Exception
(2) The court martial is not required to make an order under paragraph (1)(a) in the case of an offence referred to in paragraph (a) or (b) of the definition “primary designated offence” in section 196.11 if it is satisfied that the person has established that, were the order made, the impact on the 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 martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence, 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 martial 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 samples of bodily substances for the purposes of subsection (1).
Marginal note:2000, c. 10, s. 1
25. Sections 196.15 and 196.16 of the Act are replaced by the following:
Marginal note:Offences committed before June 30, 2000
196.15 (1) If a person is found guilty of, or not responsible on account of mental disorder for, a designated offence committed before June 30, 2000, the court martial may, on application by the prosecutor, make an order in the prescribed form 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, if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
Marginal note:Criteria
(2) 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 by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence, 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
(3) The court martial 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 samples of bodily substances for the purposes of subsection (1).
Marginal note:Timing of order
196.16 The court martial may make an order under section 196.14 or 196.15
(a) when it imposes a sentence on a person for a designated offence or finds them not responsible on account of mental disorder for the offence; or
(b) if it is not possible to proceed at the time referred to in paragraph (a), at a date and time set upon adjournment of the proceedings.
Marginal note:Verification
196.161 (1) Before taking samples of bodily substances from a person under an order made under section 196.14 or 196.15 or an authorization made 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 a DNA profile of the person.
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 he or she has been advised that the person’s DNA profile is in the national DNA data bank; and
(b) transmit a copy of the endorsed order or authorization and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner.
Marginal note:2000, c. 10, s. 1
26. (1) Subsection 196.17(1) of the Act is replaced by the following:
Marginal note:When collection to take place
196.17 (1) Samples of bodily substances shall be taken, even if an appeal is taken,
(a) on the day when a court martial makes an order under subsection 196.14(1) or 196.15(1);
(b) if the court martial is of the opinion that it is not possible for samples to be taken then, at a place, day and time set out in an order made under subsection 196.14(4) or 196.15(3); or
(c) if the person whose presence is required by an order described in paragraph (b) fails to appear, when the person is arrested pursuant to a warrant issued under subsection 196.17(3), or as soon as possible afterwards.
(2) Section 196.17 of the Act is amended by adding the following after subsection (2):
Marginal note:Failure to appear
(3) If a person does not report at the place, day and time set out in the order referred to in subsection (1), a military judge may issue a warrant in the prescribed form for their arrest to allow the samples to be taken.
Marginal note:Contents of warrant to arrest
(4) The warrant must name or describe the person and order that they be arrested without delay to allow the taking of the samples.
Marginal note:Warrant in force
(5) The warrant remains in force until it is executed.
Marginal note:2000, c. 10, s. 1
27. Section 196.22 of the Act is replaced by the following:
Marginal note:DNA profile not in data bank
196.22 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.
Marginal note:2000, c. 10, s. 1
28. Subsections 196.24(1) and (2) of the Act are replaced by the following:
Marginal note:Collection of additional bodily substances
196.24 (1) A military judge may, on ex parte application made in the prescribed form within a reasonable time, authorize, in the prescribed form, the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose if
(a) a DNA profile cannot be derived from the bodily substances that were taken from that person in execution of an order under section 196.14 or 196.15; or
(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.
Marginal note:Reasons
(2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the bodily substances and information were not transmitted in accordance with the regulations or were lost.
29. The Act is amended by adding the following after section 196.24:
Marginal note:Review by Director of Military Prosecutions
196.241 (1) On receipt of a notice from the Commissioner under subsection 5.2(1) of the DNA Identification Act that an order made under section 196.14 or 196.15 or an authorization under section 196.24 appears to be defective, the Director of Military Prosecutions shall review the order or authorization and the court record.
Marginal note:Clerical error
(2) If, in the opinion of the Director of Military Prosecutions, the defect is due to a clerical error, the Director shall
(a) apply, ex parte, to the military judge who made the order, or to another military judge, 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 Director of Military Prosecutions, the offence to which the order or authorization relates is not a designated offence, the Director shall
(a) apply, ex parte, to a judge of the Court Martial Appeal Court 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 Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is a designated offence, the Director shall transmit that opinion, with written reasons, to the Commissioner.
Marginal note:1991, c. 43, s. 18
30. Subsection 202.14(1) of the Act is replaced by the following:
Marginal note:Finding of not responsible on account of mental disorder
202.14 (1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged, but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder.
COORDINATING AMENDMENT
Marginal note:Bill C-2
30.1 If Bill C-2, introduced in the 1st session of the 38th Parliament and entitled An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (the “other Act”), receives royal assent, then, on the later of the coming into force of section 1 of the other Act and section 12 of this Act, the last paragraph of Form 5.031 in Part XXVIII of the Criminal Code is replaced by the following:
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
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
COMING INTO FORCE
Marginal note:Order in council
31. The provisions of this Act, other than sections 5, 16, 17 and 30.1, come into force on a day or days to be fixed by order of the Governor in Council.
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