National Defence Act (R.S.C., 1985, c. N-5)

196.15 [Repealed, 2007, c. 22, s. 5]

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 Standing 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.

Marginal note:When collection to take place

• 196.17 (1) Samples of bodily substances shall be taken as authorized under section 196.14

  • (a) at the place, day and time set out in an order made under subsection 196.14(4) or as soon as feasible afterwards; or

  • (b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.

• Marginal note:When collection to take place

  (1.1) Samples of bodily substances shall be taken as authorized under section 196.24

  • (a) at the place, day and time set out in an order made under subsection 196.24(4) or as soon as feasible afterwards; or

  • (b) in any other case, as soon as feasible after the authorization is granted.

• Marginal note:When collection to take place

  (1.2) If a person fails to appear as required by an order made under subsection 196.14(4) or 196.24(4), samples of bodily substances shall be taken

  • (a) when the person is arrested under a warrant issued under subsection 196.161(1) or as soon as feasible afterwards; or

  • (b) as soon as feasible after the person appears at the place set out in the order if no warrant is issued.

• Marginal note:Appeal

  (1.3) Subsections (1) to (1.2) apply even if the order or authorization to take the samples of bodily substances is appealed.

• Marginal note:Collection of samples

  (2) A peace officer who is authorized under section 196.14 or 196.24 to take samples of bodily substances may cause the samples to be taken in any place in or outside Canada in which the person who is subject to the order or authorization is located.

• Marginal note:Who collects samples

  (3) The samples shall be taken by a peace officer who has jurisdiction over the person or in the place in which the samples are taken — or a person acting under their direction — who is able, by virtue of training or experience, to take them.

Marginal note:Report of peace officer

• 196.18 (1) A peace officer who takes samples of bodily substances from a person or who causes a person who is not a peace officer to take samples under their direction shall, as soon as feasible after the samples are taken, make a written report in the prescribed form and cause the report to be filed with

  • (a) the military judge who issued the warrant under section 196.12 or 196.13 or who granted the authorization under section 196.24, or another military judge; or

  • (b) the Court Martial Administrator, in the case of an order made by a court martial under section 196.14.

• Marginal note:Contents of report

  (2) The report shall state the time and date the samples were taken, and describe the bodily substances that were taken.

• Marginal note:Copy of report

  (2.1) The peace officer who takes the samples or causes the samples to be taken under their direction at the request of another peace officer shall send a copy of the report to the other peace officer unless that other peace officer had jurisdiction to take the samples.

• Marginal note:Unexecuted telewarrant

  (3) If a peace officer does not execute a warrant that was issued in accordance with section 196.13, the peace officer must make a report stating the reasons why the warrant was not executed.

Marginal note:No criminal or civil liability

196.19 No peace officer, and no person acting under a peace officer’s direction, incurs any disciplinary, criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24.

Marginal note:Investigative procedures

• 196.2 (1) A peace officer, or a person acting under a peace officer’s direction, is authorized by a warrant issued under section 196.12 or 196.13, an order made under section 196.14 or an authorization granted under section 196.24 to take samples of bodily substances by any of the following means:

  • (a) the plucking of individual hairs, including the root sheath;

  • (b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or

  • (c) the taking of blood by pricking the skin surface with a sterile lancet.

• Marginal note:Terms and conditions

  (2) The warrant or order shall include any terms and conditions that the military judge or court martial considers advisable to ensure that the taking of the samples is reasonable in the circumstances.

• Marginal note:Fingerprints

  (3) A peace officer who is authorized to take samples of bodily substances from a person by an order made under section 196.14 or an authorization granted under section 196.24, or a person acting under their direction, may take fingerprints from the person for the purpose of the DNA Identification Act.

Marginal note:Duty to inform

• 196.21 (1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24, a peace officer shall inform the person of

  • (a) the contents of the warrant or order;

  • (b) the nature of the investigative procedures by means of which the samples are to be taken;

  • (c) the purpose of taking the samples;

  • (d) the authority of the peace officer and any person acting under the officer’s direction to use as much force as is reasonably necessary for the purpose of taking the samples; and

  • (e) in the case of samples of bodily substances taken in execution of a warrant, the possibility that the results of forensic DNA analysis may be used in evidence.

• Marginal note:Detention of person

  (2) A person from whom samples of bodily substances are to be taken may, for that purpose, be detained for a period that is reasonable in the circumstances and be required to accompany a peace officer.

• Marginal note:Respect of privacy

  (3) A peace officer, or any person acting under a peace officer’s direction, who takes samples of bodily substances from a person shall ensure that the person’s privacy is respected in a manner that is reasonable in the circumstances.

Marginal note:Verification

• 196.22 (1) Before taking samples of bodily substances from a person under an order made under section 196.14 or an authorization granted 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 the person’s DNA profile.

• 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 they have been advised that the person’s DNA profile is in the national DNA data bank; and

  • (b) transmit a copy of the order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner.

• Marginal note:DNA profile not in data bank

  (3) 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:Destruction of bodily substances, etc.

• 196.23 (1) Subject to subsection (2), bodily substances that are taken from a person in execution of a warrant under section 196.12 and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after

  • (a) the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person;

  • (b) the person is finally acquitted of the designated offence and of any other offence in respect of the same transaction; or

  • (c) the expiry of one year after the charge is withdrawn unless during that year the person is again charged with the designated offence or any other offence in respect of the same transaction.

• Marginal note:Exception

  (2) A military judge may order that the bodily substances that are taken from a person and the results of forensic DNA analysis not be destroyed during any period that the judge considers appropriate if the judge is satisfied that they might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.

• Marginal note:Destruction of bodily substances, etc., voluntarily given

  (3) Bodily substances that are provided voluntarily by a person and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person.

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 under an order made under section 196.14; or

  • (b) the information or bodily substances 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 information or bodily substances were not transmitted in accordance with the regulations or were lost.

• Marginal note:For greater certainty

  (3) For greater certainty, the person who may be made subject to the authorization continues to be liable to be dealt with under the Code of Service Discipline for that purpose.

• Marginal note:Persons not in custody

  (4) If the military judge authorizes the taking of samples of bodily substances from a person who is not in custody, an order in the prescribed form shall be directed to the person requiring them to report at the place, day and time set out in the order and submit to the taking of the samples.

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 an authorization granted 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 the Director of Military Prosecutions is of the opinion that 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 the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Director shall inform the Commissioner of that opinion.

• 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.