Bill S-10

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

PDF

	48-49 ELIZABETH II
	CHAPTER 10

	An Act to amend the National Defence Act, the DNA Identification Act and the Criminal Code
	[Assented to 29th June, 2000]
	Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. N-5	NATIONAL DEFENCE ACT
	*1. The National Defence Act* is amended by adding the following after section 196.1:**
	DIVISION 6.1
	FORENSIC DNA ANALYSIS
Definitions	196.11 The definitions in this section apply in this Division.
``Commission er'' « commissaire »	``Commissioner'' means the Commissioner of the Royal Canadian Mounted Police.
``designa- ted offence'' « infraction désignée »	``designated offence'' means a primary designated offence or a secondary designated offence.
``DNA'' « ADN »	``DNA'' means deoxyribonucleic acid.
``DNA profile'' « profil d'identifica- tion génétique »	``DNA profile'' means the results of forensic DNA analysis.
``forensic DNA analysis'' « analyse génétique »	``forensic DNA analysis''
	(a) in relation to a bodily substance that is taken in execution of a warrant under section 196.12, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 196.12(1)(b), and includes any incidental tests associated with that analysis; and
	(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or taken in execution of an order under section 196.14 or 196.15 or under an authorization under section 196.24, or a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance.
``peace officer'' « agent de la paix »	``peace officer'' means
	(a) a police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process; or
	(b) an officer or a non-commissioned member of the Canadian Forces who is appointed for the purpose of section 156 or employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer.
``prescribed form'' « formulaire réglementai- re »	``prescribed form'' means a form prescribed in the regulations made by the Governor in Council.
``primary designated offence'' « infraction primaire »	``primary designated offence'' means a primary designated offence within the meaning of section 487.04 of the Criminal Code that is punishable under section 130.
``secondary designated offence'' « infraction secondaire »	``secondary designated offence'' means
	(a) a secondary designated offence within the meaning of paragraph (a) or (b) of the definition ``secondary designated offence'' in section 487.04 of the Criminal Code that is punishable under section 130;
	(b) an offence under any of the following provisions of this Act:
	(i) paragraph 77(a) (violence to person bringing materiel to forces),
	(ii) section 79 (mutiny with violence),
	(iii) section 84 (striking a superior officer),
	(iv) paragraph 87(b) (violence while in custody),
	(v) section 95 (striking a subordinate),
	(vi) paragraph 107(a) (endangering a person on an aircraft), or
	(vii) section 127 (handling of dangerous substances); and
	(c) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit any offence referred to in paragraph (a) or (b).


Information for DNA warrant	196.12 (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 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.
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.
Telewarrants	196.13 (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.
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.
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.
Information filed with Court Martial Adminis- trator	(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.
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.
Issuance of warrant - telecommu- nication 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.
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.
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).
Order	196.14 (1) Subject to section 196.16, if a person is found guilty of a designated offence, the court martial
	(a) shall, subject to subsection (2), in the case of a primary designated offence, make an order in the prescribed form authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose; or
	(b) may, in the case of a secondary designated offence, make an order in the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
Exception	(2) The court martial is not required to make an order under paragraph (1)(a) if it is satisfied that the person has established that, were the order made, the impact on the 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.
Criteria	(3) In deciding whether to make an order under paragraph (1)(b), 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 and the impact such an order would have on the privacy and security of the person and shall give reasons for its decision.
Offences committed before DNA Identification Act in force	196.15 (1) Subject to section 196.16, if a person is found guilty of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court martial may, on application by the prosecutor, make an order in the prescribed form authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, if the court martial is satisfied that it is in the best interests of the administration of justice to do so.
Criteria	(2) 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 and the impact such an order would have on the privacy and security of the person and shall give reasons for its decision.
No order	196.16 An order shall not be made under section 196.14 or 196.15 if the prosecutor advises the court martial that the order is not required because the national DNA data bank, established under the DNA Identification Act, contains a DNA profile of the person in question.
When collection to take place	196.17 (1) Samples of bodily substances referred to in sections 196.14 and 196.15 shall be taken at the time the person is found guilty or as soon as is feasible afterwards, even though an appeal may have been taken.
Who collects	(2) The samples shall be taken by
	(a) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person; or
	(b) 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.
Report of peace officer	196.18 (1) A peace officer who is authorized to take samples of bodily substances, or to direct another person to take them, in execution of a warrant under section 196.12 or 196.13, an order under section 196.14 or 196.15 or an authorization under section 196.24 shall, as soon as is feasible after the samples have been 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 or authorization, or another military judge; or
	(b) the Court Martial Administrator, in the case of an order.
Contents of report	(2) The report shall state the time and date the samples were taken, and describe the bodily substances that were taken.
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.
No criminal or civil liability	196.19 No peace officer or 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 under section 196.12 or 196.13, an order under section 196.14 or 196.15 or an authorization under section 196.24.
Investigative procedures	196.2 (1) A peace officer or person acting under a peace officer's direction is authorized to take samples of bodily substances by a warrant under section 196.12 or 196.13, an order under section 196.14 or 196.15 or an authorization under section 196.24 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.
Terms and conditions	(2) The warrant or order shall include any terms and conditions that the military judge considers advisable to ensure that the taking of the samples is reasonable in the circumstances.
Fingerprints	(3) A peace officer, or any person acting under a peace officer's direction, who is authorized to take samples of bodily substances from a person by an order under section 196.14 or 196.15 or an authorization under section 196.24 may take fingerprints from the person for the purpose of the DNA Identification Act.

Bill S-10

48-49 ELIZABETH II

CHAPTER 10

NATIONAL DEFENCE ACT

DIVISION 6.1

FORENSIC DNA ANALYSIS