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This enactment amends the National Defence Act to authorize
military judges to issue DNA warrants in the investigation of designated
offences committed by a person who is subject to the Code of Service
Discipline. It also authorizes military judges to order military offenders
convicted of a designated offence to provide samples of bodily
substances for the purpose of the national DNA data bank. These
authorities are similar to those that may be exercised by a provincial
court judge under the Criminal Code.
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This enactment makes related amendments to the DNA
Identification Act and the Criminal Code. The DNA Identification Act
amendments allow bodily substances, and the DNA profiles derived
from them, that are taken as a result of an order or authorization by a
military judge, to be included in the national DNA data bank. The
Criminal Code amendments extend the prohibition against
unauthorized use of bodily substances and the results of forensic DNA
analysis to include those obtained under the National Defence Act.
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Other amendments to the Criminal Code clarify and strengthen the
existing regime concerning the taking of bodily substances for the
purpose of forensic DNA analysis.
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Clause 1: New. The proposed provisions are similar to
sections 487.04 to 487.091 of the Criminal Code, as
amended by sections 15 to 23 of the DNA Identification
Act, chapter 37 of the Statutes of Canada, 1998.
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Clause 2: New. The relevant portion of section 230
reads as follows:
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230. Every person subject to the Code of Service Discipline has,
subject to subsection 232(3), the right to appeal to the Court Martial
Appeal Court from a court martial in respect of any of the following
matters:
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Clause 3: New. The relevant portion of section 230.1
reads as follows:
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230.1 The Minister, or counsel instructed by the Minister for that
purpose, has, subject to subsection 232(3), the right to appeal to the
Court Martial Appeal Court from a court martial in respect of any of the
following matters:
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Clause 4: The definition ``designated offence'' in
section 2 reads as follows:
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``designated offence'' means a primary designated offence or a
secondary designated offence, within the meaning of section 487.04
of the Criminal Code.
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Clause 5: New. The relevant portion of section 4 reads
as follows:
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4. It is recognized and declared that
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Clause 6: Subsection 5(4) reads as follows:
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(4) The convicted offenders index shall contain DNA profiles
derived from bodily substances described in subsection 487.071(1) of
the Criminal Code.
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Clause 7: The relevant portion of subsection 6(1)
reads as follows:
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6. (1) On receipt of a DNA profile that is transmitted under
subsection 487.071(1) of the Criminal Code or under subsection 10(3)
for entry in the DNA data bank, the Commissioner shall compare it with
the DNA profiles in the data bank in order to determine whether it is
already contained in the data bank and may then communicate, for the
purposes of the investigation or prosecution of a criminal offence, the
following information to any Canadian law enforcement agency or
laboratory that the Commissioner considers appropriate:
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Clause 8: (1) Subsection 9(1) reads as follows:
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9. (1) Subject to subsection (2) and the Criminal Records Act,
information in the convicted offenders index shall be kept indefinitely.
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(2) The relevant portion of subsection 9(2) reads as
follows:
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(2) Access to the following information in the convicted offenders
index shall be permanently removed without delay after
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(c) in the case of information in relation to a young person who has
been found guilty under the Young Offenders Act of any of the
following offences, the expiry of ten years after all dispositions made
in respect of the offence have been completed, namely,
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(i) an offence referred to in any of subparagraphs (a)(i) to (v), (ix)
to (xiii) and (xv) and (b)(i) of the definition ``primary designated
offence'' in section 487.04 of the Criminal Code,
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(ii) an offence referred to in any of subparagraphs (a)(v), (xiii),
(xvi) and (xvii) and (b)(i) and (ii) of the definition ``secondary
designated offence'' in section 487.04 of the Criminal Code, and
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(iii) an offence under section 145 of the Criminal Code, chapter
C-34 of the Revised Statutes of Canada, 1970, as it read
immediately before January 4, 1983;
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(d) in the case of information in relation to a young person who has
been found guilty under the Young Offenders Act of a designated
offence, other than an offence referred to in any of subparagraphs
(c)(i) to (iii) and sections 235 (first degree murder or second degree
murder), 236 (manslaughter), 239 (attempt to commit murder) and
273 (aggravated sexual assault) of the Criminal Code, the expiry of
five years after all dispositions made in respect of the offence have
been completed; and
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(e) in the case of information in relation to a young person who has
been found guilty under the Young Offenders Act of a designated
offence that is a summary conviction offence, the expiry of three
years after all dispositions made in respect of the offence have been
completed.
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Clause 9: New.
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Clause 10: (1) Subsection 10(1) reads as follows:
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10. (1) When bodily substances are transmitted to the Commissioner
under subsection 487.071(2) of the Criminal Code, the Commissioner
shall, subject to this section, safely and securely store, for the purpose
of forensic DNA analysis, the portions of the samples of the bodily
substances that the Commissioner considers appropriate and without
delay destroy any remaining portions.
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(2) The relevant portion of subsection 10(7) reads as
follows:
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(7) The Commissioner shall nevertheless destroy the stored bodily
substances of a person without delay
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(c) if the person is a young person who has been found guilty under
the Young Offenders Act of any of the following offences, after the
expiry of ten years after all dispositions made in respect of the
offence have been completed, namely,
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(i) an offence referred to in any of subparagraphs (a)(i) to (v), (ix)
to (xiii) and (xv) and (b)(i) of the definition ``primary designated
offence'' in section 487.04 of the Criminal Code,
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(ii) an offence referred to in any of subparagraphs (a)(v), (xiii),
(xvi) and (xvii) and (b)(i) and (ii) of the definition ``secondary
designated offence'' in section 487.04 of the Criminal Code, and
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(iii) an offence under section 145 of the Criminal Code, chapter
C-34 of the Revised Statutes of Canada, 1970, as it read
immediately before January 4, 1983;
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(d) if the person is a young person who has been found guilty under
the Young Offenders Act of a designated offence, other than an
offence referred to in any of subparagraphs (c)(i) to (iii) and sections
235 (first degree murder or second degree murder), 236
(manslaughter), 239 (attempt to commit murder) and 273
(aggravated sexual assault) of the Criminal Code, after the expiry of
five years after all dispositions made in respect of the offence have
been completed; and
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(e) if the person is a young person who has been found guilty under
the Young Offenders Act of a designated offence that is a summary
conviction offence, after the expiry of three years after all
dispositions made in respect of the offence have been completed.
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Clause 11: New.
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Clause 12: Section 13.1 and the heading before it are
new. Section 13 reads as follows:
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13. (1) The provisions and operation of this Act shall, within five
years after this Act comes into force, be reviewed by any committee of
the House of Commons, or of both Houses of Parliament, that may be
designated or established by Parliament for that purpose.
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(2) This section is deemed to be repealed on the completion of the
review referred to in subsection (1).
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Clause 13: New.
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Clause 14: Section 487.053 reads as follows:
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487.053 No court may make an order under section 487.051 or
487.052 in respect of a person or young person if the court has been
advised
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(a) by the prosecutor, that a DNA profile, within the meaning of the
DNA Identification Act, is not required for the purposes of that Act;
or
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(b) by the person or young person, that they consent to the entry, in
the convicted offenders index of the national DNA data bank
established under that Act, of the results of DNA analysis of bodily
substances that were provided voluntarily in the course of the
investigation of, or taken from them in execution of a warrant that
was issued under section 487.05 in respect of, the designated offence
of which the person has been convicted, discharged under section
730 or, in the case of a young person, found guilty under the Young
Offenders Act, or another designated offence in respect of the same
transaction.
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Clause 15: (1) Subsection 487.055(2) reads as
follows:
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(2) The application shall be accompanied by a certificate referred to
in paragraph 667(1)(a) establishing that the person is a person referred
to in paragraph (1)(a) or (b), as the case may be.
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(2) Subsection 487.055(3.1) reads as follows:
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(3.1) In deciding whether to grant an authorization under subsection
(1), the court shall consider the criminal record of the person, the nature
of the offence and 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.
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Clause 16: (1) Subsection 487.056(2) reads as
follows:
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(2) Samples of bodily substances referred to in section 487.055 shall
be taken as soon as is feasible after the authorization referred to in that
section is granted.
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(2) Subsection 487.056(3) reads as follows:
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(3) Samples of bodily substances referred to in sections 487.051,
487.052 and 487.055 shall be taken by a peace officer, or another person
acting under the direction of a peace officer, who is able, by virtue of
training or experience, to take them by means of the investigative
procedures described in subsection 487.06(1).
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Clause 17: The relevant portion of subsection
487.057(1) reads as follows:
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487.057 (1) A peace officer who is authorized to take, or cause to be
taken under the direction of the peace officer, samples of bodily
substances from a person in execution of a warrant under section 487.05
or an order under section 487.051 or 487.052 or under an authorization
under section 487.055 shall, as soon as is feasible after the samples have
been so taken, make a written report in Form 5.07 and cause the report
to be filed with
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Clause 18: Section 487.058 reads as follows:
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487.058 No peace officer or person acting under the direction of a
peace officer incurs any criminal or civil liability for anything
necessarily done with reasonable care and skill in the taking of samples
of bodily substances from a person in execution of a warrant under
section 487.05 or an order under section 487.051 or 487.052 or under
an authorization under section 487.055.
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Clause 19: The relevant portion of subsection
487.06(1) reads as follows:
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487.06 (1) A peace officer or another person under the direction of
a peace officer is authorized to take samples of bodily substances from
a person by a warrant under section 487.05 or an order under section
487.051 or 487.052 or an authorization under section 487.055, by any
of the following means:
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Clause 20: (1) and (2) The relevant portion of
subsection 487.07(1) reads as follows:
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487.07 (1) Before taking samples of bodily substances from a
person, or causing samples of bodily substances to be taken from a
person under the direction of the peace officer, in execution of a warrant
under section 487.05 or an order under section 487.051 or 487.052 or
under an authorization under section 487.055, a peace officer shall
inform the person from whom the samples are to be taken of
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(d.1) the possibility for the person to state their preference as to the
bodily substance to be taken from the person; and
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(3) Subsection 487.07(3) reads as follows:
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(3) A peace officer who takes samples of bodily substances from a
person, or a person who takes such samples from the person under the
direction of a peace officer
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(a) shall ensure that the person's privacy is respected in a manner that
is reasonable in the circumstances; and
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(b) shall take the person's preference into account as to the bodily
substance to be taken before taking a bodily substance from the
person.
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Clause 21: Subsection 487.071(1) reads as follows:
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487.071 (1) There shall be transmitted to the Commissioner of the
Royal Canadian Mounted Police for entry in the convicted offenders
index of the national DNA data bank established under the DNA
Identification Act the results of forensic DNA analysis of bodily
substances that are
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(a) provided voluntarily in the course of an investigation of a
designated offence by any person who is later convicted, discharged
under section 730 or, in the case of a young person, found guilty
under the Young Offenders Act of the designated offence or another
designated offence in respect of the same transaction and who,
having been so convicted, discharged or found guilty, consents to
having the results entered in the convicted offenders index;
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(b) taken in execution of a warrant under section 487.05 from a
person who is later convicted, discharged under section 730 or, in the
case of a young person, found guilty under the Young Offenders Act
of the designated offence in respect of which the warrant was issued
or another designated offence in respect of the same transaction and
who, having been so convicted, discharged or found guilty, consents
to having the results entered in the convicted offenders index;
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(c) taken from a person in execution of an order under section
487.051 or 487.052; or
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(d) taken from a person under an authorization under section
487.055 or 487.091.
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Clause 22: (1) Subsection 487.08(1) reads as follows:
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487.08 (1) No person shall use bodily substances that are taken from
a person in execution of a warrant under section 487.05 except
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(a) to use them for the purpose of forensic DNA analysis in the
course of an investigation of the designated offence; or
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(b) to transmit any portions of samples of those bodily substances
that are not used in forensic DNA analysis to the Commissioner of
the Royal Canadian Mounted Police under subsection 487.071(2).
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(2) The relevant portion of subsection 487.08(1.1)
reads as follows:
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(1.1) No person shall use bodily substances that are taken from a
person in execution of an order under section 487.051 or 487.052 or
under an authorization under section 487.055 except
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(3) Subsections 487.08(2) and (2.1) read as follows:
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(2) No person shall use the results of forensic DNA analysis of bodily
substances that are taken from a person in execution of a warrant under
section 487.05 except
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(i) in the course of an investigation of the designated offence or
any other designated offence in respect of which a warrant was
issued or a bodily substance found in the circumstances described
in paragraph 487.05(1)(b), or
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(ii) in any proceeding for such an offence; or
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(b) to transmit them to the Commissioner of the Royal Canadian
Mounted Police under subsection 487.071(1).
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(2.1) No person shall use the results of forensic DNA analysis of
bodily substances that are taken from a person in execution of an order
under section 487.051 or 487.052 or under an authorization under
section 487.055 except to transmit them to the Commissioner of the
Royal Canadian Mounted Police under subsection 487.071(1).
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Clause 23: Subsection 487.091(3) reads as follows:
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(3) The following provisions apply, with any modifications that the
circumstances require, in respect of an authorization under this section:
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(a) subsections 487.055(4) to (10);
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(b) subsections 487.056(2) and (3);
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(c) sections 487.057, 487.058 and 487.06;
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(d) subsections 487.07(1) to (3);
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(f) subsections 487.08(1.1), (2.1) and (4).
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Clause 24: New.
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