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

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Act current to 2019-08-28 and last amended on 2019-08-01. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6.1Forensic DNA Analysis (continued)

Marginal note:Information for warrant to take bodily substances for forensic DNA analysis

  •  (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of military justice to do so and that there are reasonable grounds to believe

    • (a) that a designated offence has been committed;

    • (b) that a bodily substance has been found or obtained

      • (i) at the place where the offence was committed,

      • (ii) on or within the body of the victim of the offence,

      • (iii) on anything worn or carried by the victim at the time the offence was committed, or

      • (iv) on or within the body of any person or thing or at any place associated with the commission of the offence;

    • (c) that the person subject to the Code of Service Discipline was a party to the offence; and

    • (d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person.

  • Marginal note:Criteria

    (2) In considering whether to issue the warrant, the military judge shall have regard to all relevant matters, including

    • (a) the nature of the offence and the circumstances surrounding its commission; and

    • (b) whether there is

      • (i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, or

      • (ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.

  • 2000, c. 10, s. 1
  • 2013, c. 24, s. 56

Marginal note:Telewarrants

  •  (1) If a peace officer believes that it would be impracticable to appear personally before a military judge to apply for a warrant, the peace officer may submit an information on oath to the judge by telephone or other means of telecommunication.

  • Marginal note:Contents of information

    (2) An information submitted by telephone or other means of telecommunication shall include, in addition to the information described in subsection 196.12(1),

    • (a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a military judge; and

    • (b) a statement as to any prior application for a warrant under this section.

  • Marginal note:Oath in writing

    (3) If the telecommunication is in written form, a written statement by the peace officer that all matters contained in the information are true to the officer’s knowledge and belief is deemed to be a statement made under oath.

  • Marginal note:Information filed with Court Martial Administrator

    (4) The military judge shall, as soon as practicable, certify the information as to time and date of receipt, and cause it to be filed with the Court Martial Administrator. If the telecommunication is not in written form, the information that is to be filed is the verbatim record, or a transcription of it, certified by the judge as to its contents and time and date of receipt.

  • Marginal note:Formalities respecting warrant and facsimiles

    (5) When a military judge issues a warrant by telephone or other means of telecommunication that is not in written form,

    • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

    • (b) the peace officer, on the direction of the judge, shall complete, in duplicate, a facsimile of the warrant in the prescribed form, noting on its face the name of the judge and the time, date and place of issuance; and

    • (c) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the Court Martial Administrator.

  • Marginal note:Issuance of warrant — telecommunication in written form

    (6) When a military judge issues a warrant by a means of telecommunication in written form,

    • (a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

    • (b) the judge shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information, and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (5)(b);

    • (c) the peace officer shall procure another facsimile of the warrant; and

    • (d) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with Court Martial Administrator.

  • Marginal note:Proof of authorization

    (7) In any proceeding in which it is material for a court to be satisfied that the taking of samples of a bodily substance was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the military judge and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the taking of the samples was not authorized.

  • Marginal note:Duplicates and facsimiles acceptable

    (8) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purpose of subsection (7).

  • 2000, c. 10, s. 1

Marginal note:Order — primary designated offences

  •  (1) A court martial shall make an order in the prescribed form 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 found guilty 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) of the definition primary designated offence in section 196.11 when the person is sentenced.

  • Marginal note:Order — primary designated offences

    (2) A court martial shall make such an order in the prescribed form in relation to a person who is found guilty 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) or (b) of the definition primary designated offence in section 196.11 when the person is sentenced. However, the court martial 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 military justice, to be achieved through the early detection, arrest and conviction of offenders.

  • Marginal note:Order — persons found not responsible and secondary designated offences

    (3) A court martial may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of military justice to do so, make such an order in the prescribed form in relation to

    • (a) a person who is found not 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 found guilty 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.

    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 the decision.

  • Marginal note:Order to offender

    (4) When a court martial makes an order authorizing the taking of samples of bodily substances, it 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 the samples.

  • 2000, c. 10, s. 1
  • 2005, c. 25, s. 24
  • 2007, c. 22, ss. 36, 48

 [Repealed, 2007, c. 22, s. 5]

Marginal note:Timing of order

  •  (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.

  • 2000, c. 10, s. 1
  • 2005, c. 25, s. 25
  • 2007, c. 22, s. 5
  • 2008, c. 29, s. 17
 
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