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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. N-5NATIONAL DEFENCE ACT

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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