DNA Orders

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DNA Orders

DNA Orders are court orders permitting certain law enforcement persons to take bodily substance samples for the purpose of adding a record of the offender's DNA to the national database. A DNA order can be made by a sentencing judge where the offence being sentenced is either a "primary designated offence", for which it is mandatory, or a "secondary designated offence", for which it is discretionary.

Purpose
The purpose behind taking a DNA sample from offenders is not simply for law enforcement. Objectives include:[1]

  1. deter potential repeat offenders;
  2. promote the safety of the community;
  3. detect when a serial offender is at work;
  4. assist in solving cold crimes;
  5. streamline investigations; and most importantly,
  6. assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).

Format of Order
DNA orders for primary designated offences under s. 487.051(1) or (2) should be based on Form 5.03 of the Code. Those that are secondary designated offences under s. 487.051(3) should be Form 5.04.

  1. R v Jackpine/Rodgers, [2006] 1 SCR 554, 2006 SCC 15 (CanLII), at para 32, per Charron J.
    R v Briggs, 2001 CanLII 24113 (ON CA), at para 22 per Weiler J.A.

Primary Designated Offences

Primary designated offences divided into two categories. The first category of PDOs are mandatory DNA Orders under s. 487.051(1) where the offence is listed under s. 487.04(a) or (c.2). The second category of PDOs (sometimes referred to as "presumptive" PDOs) allow for a DNA order under s. 487.051(2) where the offence is listed under s. 487.04(a.1) to (d), except for (c.2). However, the court may refuse to make the DNA order for the offences under the second category where "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".

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 paragraphs (a) and (c.02) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged.
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 any of paragraphs (a.1) to (c.01) and (c.03) 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.
...
1998, c. 37, s. 17; 2002, c. 1, s. 176; 2005, c. 25, s. 3; 2007, c. 22, ss. 9, 47; 2014, c. 25, s. 24.


CCC

Under s. 487.04, a "primary designated offence" is defined as:

SECTION (a) SECTION (a.1) SECTION (b)

Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:

  • rape, attempt to commit rape,
  • sexual intercourse with female under fourteen and between fourteen and sixteen,

sexual intercourse with feeble-minded, etc.,

  • indecent assault on female, indecent assault on male,
  • acts of gross indecency, and
  • assault with intent if the intent is to commit an offence referred to in subparagraphs (i) to (vi)


SECTION (c)
Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:

  • sexual intercourse with a female under age of 14,
  • sexual intercourse with a female between ages of 14 and 16,
  • sexual intercourse with step-daughter,
  • gross indecency, parent or guardian procuring defilement, and
  • householder permitting defilement


SECTION (c.01)
Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970,
as [amended by] chapter 125 of the Statutes of Canada, 1980-81-82-83:


SECTION (c.02)

SECTION (c.03)
(c.03) an offence under any of paragraphs 212(1)(a) to (h) (procuring) of this Act, as they read from time to time before the day on which this paragraph comes into force,
SECTION (c.1) Security of Information Act:

  • approaching, entering, etc., a prohibited place,
  • threats or violence,
  • harbouring or concealing


SECTION (d)
(d) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit an offence referred to in any of paragraphs (a) to (c.03);

Each section represents a category:

  • (a) mandatory
  • (a.1) presumptive
  • (b) historical presumptive, pre january 4, 1983
  • (c) historical presumptive, pre january 1, 1988
  • (c.01) historical presumptive, 1970 to 1983
  • (c.02) historical mandatory, pre-december 6, 2014
  • (c.03) historical presumptive, pre-december 6, 2014

The sample will only be refused where "the impact of the order on the offender's privacy and security of the person [is] 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" [1]

Factors to be considered include "the nature of the offence, the nature of the intrusion and the circumstances of the individual who will be the subject of the intrusion."[2]


  1. R v Jordan, 2002 NSCA 11 (CanLII) at para 59
  2. Jordan, ibid. at para 61

Secondary Designated Offences

Distinct from "primary designated offences" are the "secondary designated offences" which is defined as:

s. 487.051
...
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.
...
1998, c. 37, s. 17; 2002, c. 1, s. 176; 2005, c. 25, s. 3; 2007, c. 22, ss. 9, 47; 2014, c. 25, s. 24.


CCC

Burden
When an offender is convicted of a secondary designated offence, the burden is upon the Crown to show that the order is in the "best interests of the administration of justice".[1]

When to be Granted
Under s. 487.051(3)(b), DNA orders can only be granted for secondary offences where the prosecution applies and where the court is “satisfied that it is in the best interests of the administration of justice to do so, make [a DNA order] ... in relation to ...(b) a person who is convicted ... of an offence ... if that offence is a secondary designated offence when the person is sentenced or discharged.”

Due to the wording of the provision, the court has no authority to seek a DNA order for a SDO where the crown is not seeking one.[2]

A secondary designated DNA Order must use Form 5.04.[3]

  1. R v RC, [2005] 3 SCR 99, 2005 SCC 61 (CanLII)
  2. similar provision was interpreted in such a fashion in R v R(BE) 2005 BCCA 420 (CanLII) at paras 20 to 22
  3. see s. 487.051(3)

Secondary Designated Offences under 487.04(a) or (b)

Secondary Designated Offences (SDO) that are classified under (a) or (b) of the definition under s. 487.04 designates Offences that are either straight indictment with maximum penalties of 5 years or more or hybrid offences, prosecuted by indictment, that have a maximum penalty of 5 years or more. Summary Offences or those with maximum penalties of less than 5 years are not SDOs.

Offences that are classified as "secondary designated offences" consist of:

487.04
...
“secondary designated offence” means an offence, other than a primary designated offence, that is

(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),

...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23.


CCC

Note that in the definition of "secondary designated offence" under (b) regarding CDSA trafficking related convictions, this will only apply to drugs under Schedule I, II, and IV. Schedule IV offences, when prosecuted by indictment, have a maximum penalty of 3 years and so would not be subject to a secondary DNA Order.[1]

487.04(a) Grouping

Offences that are SDO under the 487.04 (a) grouping (Offences requiring indictable election in bold):

Secondary Designated Offences Under s. 487.04(c) to (e)

The SDOs listed under (c) to (e) of s. 487.04 apply irrespective of maximum penalty or Crown election.

487.04
... "secondary designated offence" means an offence, other than a primary designated offence, that is
...

(c) an offence under any of the following provisions of this Act:
(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) and (ii) [Repealed, 2010, c. 17, s. 3]
(iii) subsection 173(1) (indecent acts),
(iv) section 252 (failure to stop at scene of accident),
(v) section 264 (criminal harassment),
(vi) section 264.1 (uttering threats),
(vii) section 266 (assault),
(viii) section 270 (assaulting a peace officer),
(viii.1) subsection 286.1(1) (obtaining sexual services for consideration),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in dwelling-house), and
(xi) section 423 (intimidation),
(d) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990:
(i) section 433 (arson), and
(ii) section 434 (setting fire to other substance), and
(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);

...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23.


CCC

Factors

The three enumerated factors to consider consist of:

  1. the criminal record of the offender
  2. the nature of the offence
  3. the impact on the privacy and security of the person

Courts have commented that in the "vast majority of cases it would be in the best interests of the administration of justice to make" a DNA Order.[1]

  1. R v F. (P.R.), 2001 CanLII 21168 (ON CA) per Rosenberg J.A.

Criminal Record

The higher the rate of recidivism the greater the chance of making the DNA order.[1]

A lengthy record for violent offences may trump the low end nature of the offence.[2]

  1. R v North, 2002 ABCA 134 (CanLII) at para 50
  2. R v Garland, 2002 NSCA 112 (CanLII) at para 4

Nature of the Offence

There are a number of considerations that are not considered relevant:

  • The ineptitude of the offence[1]
  • failure of the accused to disguise himself in the commission of the offence[2]

The difference between a commercial and residential break-in is not significant.[3]

  1. R v F. (P.R.), 2001 CanLII 21168 (ON CA) at para 36
  2. R v S.F.A., 2002 NSCA 42 (CanLII)
  3. F.(P.R.)

Impact on Privacy

The accused must present "cogent evidence" establishing an impact on the accused's privacy interests.[1]

Taking of samples does not amount to a punishment.[2]

  1. R v S.F.A., 2002 NSCA 42 (CanLII)
  2. R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554 at para 5
    R v Murrins, 2002 NSCA 12 (CanLII) at para 96

Taking of Samples

487.056
...
Collection of samples
(5) A peace officer who is authorized under section 487.051, 487.055 or 487.091 to take samples of bodily substances may cause the samples to be taken in any place in Canada in which the person who is subject to the order or authorization is located.
Who collects samples
(6) 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.
1998, c. 37, s. 17; 2000, c. 10, s. 16; 2002, c. 1, s. 179(E); 2005, c. 25, s. 6; 2007, c. 22, s. 13.


Report of peace officer
487.057 (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 Form 5.07 and cause the report to be filed with

(a) the provincial court judge who issued the warrant under section 487.05 or granted the authorization under section 487.055 or 487.091 or another judge of that provincial court; or
(b) the court that made the order under section 487.051.

Contents of report
(2) The report shall include

(a) a statement of the time and date the samples were taken; and
(b) a description of the bodily substances that were taken.

Copy of report
(3) A 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.
1998, c. 37, s. 17; 2000, c. 10, s. 17; 2007, c. 22, s. 14.


CCC

Offences Relating to DNA Orders

Appeals

An appellant who is subject to a 487.056 Order may apply to have the order stayed pending appeal.[1]

  1. R v Gibson, 2011 BCSC 324 (CanLII)

Misc DNA Provisions

See Also