DNA Orders

From Criminal Law Notebook

DNA Orders

DNA[1] 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.

Only "designated offences" are eligible for including DNA orders as part of sentencing. Section 487.04 defines "designated offence" as:

Definitions

487.04 In this section and in sections 487.05 to 487.0911,
...
"designated offence" means a primary designated offence or a secondary designated offence; (infraction désignée)


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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.

Under Part XV of the Code, s. 487.04 to 487.092 concern the "Forensic DNA Analysis". Section 487.04 defines "forensic DNA analysis" as follows:

Definitions

487.04 In this section and in sections 487.05 to 487.0911,
...
"forensic DNA analysis"

(a) in relation to a bodily substance that is taken from a person in execution of a warrant under section 487.05 [Warrant to Obtain DNA samples], 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 487.05(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 is taken from a person under an order made under section 487.051 [DNA Orders — primary designated offences] or an authorization granted under section 487.055 or 487.091, or to a bodily substance referred to in paragraph 487.05(1)(b), means forensic DNA analysis of the bodily substance;


...


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Purpose

The purpose behind taking a DNA sample from offenders is not simply for law enforcement. Objectives include:[2]

  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. ↑ DNA is defined in s. 487.04 as "deoxyribonucleic acid"
  2. ↑ R v Jackpine/Rodgers, [2006] 1 SCR 554, 2006 SCC 15 (CanLII), per Charron J (4:3), at para 32
    R v Briggs, 2001 CanLII 24113 (ON CA), per Weiler JA, at para 22

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 [Forms] 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.

Order — persons found not criminally responsible and secondary designated offences

(3) [NCR DNA Order]...

Order to offender

(4) [reporting order]...
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.
[annotation added]


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List of Primary Designated DNA Offences

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), per Cromwell JA, 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.


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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), per Fish J
  2. ↑ similar provision was interpreted in such a fashion in R v BER 2005 BCCA 420 (CanLII), per Ryan JA, at paras 20 to 22
  3. ↑ see s. 487.051(3)

Secondary Designated Offences under 487.04(a), (a.1) 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,
(a.1) an offence under any of the following provisions of the Cannabis 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 9 (distribution and possession for purpose of distributing),
(ii) section 10 (selling and possession for purpose of selling),
(iii) section 11 (importing and exporting and possession for purpose of exporting),
(iv) section 12 (production),
(v) section 13 (possession, etc., for use in production or distribution of illicit cannabis), and
(vi) section 14 (use of young person),
(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; 2018, c. 16, s. 216.


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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]

  1. ↑ See also Drug Trafficking (Offence)

487.04(a) Grouping

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) [Repealed, 2018, c. 21, s. 18]
(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; 2018, c. 16, s. 216, c. 21, s. 18.


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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 PRF, 2001 CanLII 21168 (ON CA), per Rosenberg JA

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), per curiam, at para 50
  2. ↑ R v Garland, 2002 NSCA 112 (CanLII), per Cromwell JA, 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 PRF, 2001 CanLII 21168 (ON CA), per Rosenberg JA, at para 36
  2. ↑ R v SFA, 2002 NSCA 42 (CanLII), per Freeman JA
  3. ↑ PRF, supra

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 SFA, 2002 NSCA 42 (CanLII), per Freeman JA
  2. ↑ R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J, at para 5
    R v Murrins, 2002 NSCA 12 (CanLII), per Bateman JA, at para 96

Taking of Samples

See also: Section 487.05 Seizure Warrant of DNA Samples
When collection to take place

487.056 (1) Samples of bodily substances shall be taken as authorized under section 487.051

(a) at the place, day and time set out in an order made under subsection 487.051(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.
When collection to take place

(2) Samples of bodily substances shall be taken as authorized under section 487.055 or 487.091

(a) at the place, day and time set out in an order made under subsection 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3) or as soon as feasible afterwards; or
(b) in any other case, as soon as feasible after the authorization is granted.
When collection to take place

(3) If a person fails to appear as required by an order made under subsection 487.051(4) or 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3), samples of bodily substances shall be taken

(a) when the person is arrested under a warrant issued under subsection 487.0551(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 or summons if no warrant is issued.
Appeal

(4) Subsections (1) to (3) apply even if the order or authorization to take the samples of bodily substances is appealed.

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.


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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.


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Offences Relating to DNA Orders

Appeals

Appeal

487.054 The offender or the prosecutor may appeal from a decision of the court under any of subsections 487.051(1) to (3).
1998, c. 37, s. 17; 2007, c. 22, s. 10.


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

A DNA order issued under s. 487.04 as a primary designed offence cannot be stayed pending appeal.[2]

  1. ↑ R v Gibson, 2011 BCSC 324 (CanLII)
  2. ↑ R v Kaplan, 2018 BCCA 31 (CanLII)

Procedure

Timing of order

487.053 (1) The court may make an order under section 487.051 authorizing the taking of samples of bodily substances when it imposes a sentence on a person, finds the person not criminally responsible on account of mental disorder or directs that they be discharged under section 730.

Hearing

(2) If the court does not consider the matter at that time, it

(a) shall, within 90 days after the day on which it imposes the sentence, makes the finding or directs that the person be discharged, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

1998, c. 37, s. 17; 2000, c. 10, s. 14; 2005, c. 25, s. 4; 2007, c. 22, s. 3.


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Form Required

487.051
...

Order to offender

(4) When the court makes an order authorizing the taking of samples of bodily substances, it may make an order in Form 5.041 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.
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.


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Misc DNA Provisions

See Also

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