An Act to amend certain Acts in relation to DNA identification (S.C. 2007, c. 22)
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Assented to 2007-06-22
An Act to amend certain Acts in relation to DNA identification
S.C. 2007, c. 22
Assented to 2007-06-22
An Act to amend certain Acts in relation to DNA identification
SUMMARY
This enactment amends the Criminal Code, the DNA Identification Act and the National Defence Act to facilitate the implementation of An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005. The enactment makes certain technical changes to those Acts. It also
(a) specifies that the provisions in section 487.051 of the Criminal Code relating to orders for the taking of samples of bodily substances for forensic DNA analysis apply to persons who are sentenced or are discharged under section 730 of, or are found not criminally responsible on account of mental disorder for, designated offences committed at any time, including before June 30, 2000, and makes similar amendments to the National Defence Act;
(b) allows an order to be made under section 487.051 of the Criminal Code at a hearing whose date is set within 90 days after the day on which a person is sentenced, discharged under section 730 or found not criminally responsible on account of mental disorder, and makes similar amendments to the National Defence Act;
(c) adds attempted murder and conspiracy to commit murder or to cause another person to be murdered to the offences covered by section 487.055 of the Criminal Code;
(d) permits an application to be made under section 487.055 of the Criminal Code when a person is still serving a sentence of imprisonment for one of the specified offences, rather than requiring that they be serving a sentence of imprisonment of two years or more for that offence;
(e) in certain circumstances, allows a court to require a person who wishes to participate in a hearing relating to an order or authorization under the Criminal Code for the taking of samples of bodily substances for forensic DNA analysis to appear by closed-circuit television or a similar means of communication;
(f) allows samples of bodily substances to be taken under the Criminal Code and the National Defence Act at the place, day and time set by an order or a summons or as soon as feasible afterwards;
(g) specifies that it is an offence under the Criminal Code and the National Defence Act to fail to comply with such an order or summons;
(h) requires the Commissioner of the Royal Canadian Mounted Police to destroy the bodily substances collected under an order or authorization and the information transmitted with them if, in the opinion of the Attorney General or the Director of Military Prosecutions, as the case may be, the offence to which the order or authorization relates is not a designated offence;
(i) enables the Commissioner to communicate internationally the information that may be communicated within Canada under subsection 6(1) of the DNA Identification Act; and
(j) allows the Commissioner to communicate information for the purpose of the investigation of criminal offences, and allows the subsequent communication of that information for the purpose of the investigation and prosecution of criminal offences.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
INTERPRETATION
Definition of “other Act”
1. In this Act, “other Act” means An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005.
2005, c. 25AMENDMENTS TO THE OTHER ACT
2. (1) Subsection 1(5.1) of the other Act is repealed.
(2) Subsection 1(6.1) of the other Act is repealed.
3. Section 4 of the other Act is replaced by the following:
Marginal note:1998, c. 37, s. 17; 2000, c. 10, s. 14; 2002, c. 1, s. 177
4. Sections 487.052 and 487.053 of the Act are replaced by the following:
Marginal note:Timing of order
487.053 (1) The court may make an order under section 487.051 authorizing the taking of samples of bodily substances when it imposes a sentence on a person, finds the person not criminally responsible on account of mental disorder or directs that they be discharged under section 730.
Marginal note:Hearing
(2) If the court does not consider the matter at that time, it
(a) shall, within 90 days after the day on which it imposes the sentence, makes the finding or directs that the person be discharged, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.
4. Section 7 of the other Act is repealed.
5. Section 25 of the other Act is replaced by the following:
Marginal note:2000, c. 10, s. 1
25. Sections 196.15 and 196.16 of the Act are replaced by the following:
Marginal note:Timing of order
196.16 (1) The court martial may make an order under section 196.14 authorizing the taking of samples of bodily substances either when it imposes a sentence on a person or finds them not responsible on account of mental disorder or at a later date if it adjourns the proceedings after it imposes the sentence or makes the finding.
Marginal note:Hearing by new court martial
(2) If the court martial does not consider the matter at that time,
(a) the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to do so;
(b) the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; and
(c) for greater certainty, the person who may be made subject to the order continues to be liable to be dealt with under the Code of Service Discipline for the purpose of the hearing.
Marginal note:Failure to appear
196.161 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples of bodily substances to be taken.
Marginal note:Warrant in force
(2) The warrant may be executed anywhere in or outside Canada by a peace officer who has jurisdiction in that place or over the person. The warrant remains in force until it is executed.
6. Section 30.1 of the other Act is repealed.
R.S., c. C-46CRIMINAL CODE
Marginal note:2000, c. 10, s. 13
7. Subsection 487.03(2) of the Criminal Code is repealed.
Marginal note:1998, c. 37, s. 15(1)
8. (1) Paragraph (b) of the definition “forensic DNA analysis” in section 487.04 of the Act is replaced by the following:
(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person under an order made under section 487.051 or an authorization granted under section 487.055 or 487.091, or to a bodily substance referred to in paragraph 487.05(1)(b), means forensic DNA analysis of the bodily substance;
(2) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act, as enacted by subsection 1(4) of the other Act, is amended by striking out the word “and” at the end of subparagraph (xii) and by replacing subparagraph (xiii) with the following:
(xiii) subsection 431.2(2) (explosive or other lethal device),
(xiv) section 467.11 (participation in activities of criminal organization),
(xv) section 467.12 (commission of offence for criminal organization), and
(xvi) section 467.13 (instructing commission of offence for criminal organization),
(3) Paragraphs (a) and (b) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, are replaced by the following:
(a) an offence under this Act that may be prosecuted by indictment — or, for section 487.051 to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more,
(b) an offence under any of the following provisions of the Controlled Drugs and Substances Act that may be prosecuted by indictment — or, for section 487.051 to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
(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),
(4) Subparagraph (c)(i) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, is replaced by the following:
(i) section 145 (escape and being at large without excuse),
(i.1) section 146 (permitting or assisting escape),
(i.2) section 147 (rescue or permitting escape),
(i.3) section 148 (assisting prisoner of war to escape),
(i.4) subsection 160(3) (bestiality in presence of or by child),
(5) Paragraph (e) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, is replaced by the following:
(e) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit
(i) an offence referred to in paragraph (a) or (b) — which, for section 487.051 to apply, is prosecuted by indictment, or
(ii) an offence referred to in paragraph (c) or (d);
9. Section 487.051 of the Act, as enacted by section 3 of the other Act, is replaced by the following:
Marginal note:Order — primary designated offences
487.051 (1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged.
Marginal note:Order — primary designated offences
(2) The court shall make such an order in Form 5.03 in relation to a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) or any of paragraphs (b) to (d) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged. However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their 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:Order — persons found not criminally responsible and secondary designated offences
(3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to
(a) a person who is found not criminally responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or
(b) a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced or discharged.
In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, 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) When the court makes an order authorizing the taking of samples of bodily substances, it may make an order in Form 5.041 to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.
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