Breach of DNA Orders (Offence)
| This page was last substantively updated or reviewed January 2020. (Rev. # 96371) |
| Breach of DNA Orders | |
|---|---|
| s. 487.0552 and 487.08(1.1) and 487.08(1) and (2) of the Crim. Code | |
| Election / Plea | |
| Crown Election | Summary/Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| Indictable Dispositions | |
| Avail. Disp. | same as summary |
| Minimum | None |
| Maximum | 2 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
The offences relating to breaches of DNA Orders are found in Part XV of the Criminal Code relating to "Special Procedure and Power". There are four offences relating to the breach of a DNA Order. First, it is an offence under s. 487.0552 to fail to comply, including failing to attend for DNA sampling under summons, with a DNA Order under s. 487.051(4) or 487.055(3.11). Second, there are two offences under s. 487.08(1) and (1.1) relating to use of the bodily substances. Finally, there is an offence under s. 487.08(2) for the use of results from a forensic DNA analysis.
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
|---|---|---|---|---|
| s. 487.0552 [failure to comply with DNA order or summons] and s. 487.08(1.1) [unauthorized use of bodily substances] |
Hybrid Offence(s) |  |
(* only if Crown proceeds by Indictment) |
 (under 14 years max)
|
| s. 487.08(1), and (2) [unauthorized use of bodily substances] | Summary Offence(s) | |
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(under 14 years max)
|
Offences under s. 487.0552 and 487.08(1.1) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
Offences under s. 487.08(1) and (2) are straight summary conviction offence. The trial must be held in provincial court.
- Release
When charged under s. 487.0552, 487.08(1), (1.1), and (2), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 487.0552 and 487.08(1.1) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
| Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 487.0552, 487.08(1), (1.1), and (2) | |
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See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Failure to comply with order or summons
487.0552 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 487.051(4) [DNA Orders – primary designated offences & form of order] or 487.055(3.11) [DNA Orders – offenders serving sentences – order] of this Act or under subsection 196.14(4) or 196.24(4) of the National Defence Act, or with a summons referred to in subsection 487.055(4) [DNA Orders – offenders serving sentences – summons] or 487.091(3) [collection of additional bodily substances – persons not in custody] of this Act, is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
- For greater certainty
(2) For greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse if, at the time, the person is subject to the Code of Service Discipline within the meaning of subsection 2(1) of the National Defence Act.
2007, c. 22, s. 12.
- Use of bodily substances — warrant
487.08 (1) No person shall use bodily substances that are taken in execution of a warrant under section 487.05 [warrant to Obtain DNA samples] or under section 196.12 of the National Defence Act except to use them for the purpose of forensic DNA analysis in the course of an investigation of a designated offence.
- Use of bodily substances — order, authorization
(1.1) No person shall use bodily substances that are taken in execution of an order made under section 487.051 of this Act or section 196.14 of the National Defence Act, or under an authorization granted under section 487.055 or 487.091 of this Act or section 196.24 of the National Defence Act, except to transmit them to the Commissioner of the Royal Canadian Mounted Police for the purpose of forensic DNA analysis in accordance with the DNA Identification Act.
- Use of results — warrant
(2) No person shall use the results of forensic DNA analysis of bodily substances that are taken in execution of a warrant under section 487.05 [warrant to Obtain DNA samples] or under section 196.12 of the National Defence Act except
- (a) 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 was found in the circumstances described in paragraph 487.05(1)(b) or in paragraph 196.12(1)(b) of the National Defence Act; or
- (b) in any proceeding for such an offence.
...
- Offence
(3) Every person who contravenes subsection (1) [use of bodily substances – warrant] or (2) [use of results – warrant] is guilty of an offence punishable on summary conviction.
- Offence
(4) Every person who contravenes subsection (1.1) [use of bodily substances – order, authorization]
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
- (b) is guilty of an offence punishable on summary conviction.
1995, c. 27, s. 1; 1998, c. 37, s. 21; 2000, c. 10, s. 22; 2005, c. 25, s. 9; 2007, c. 22, s. 19; 2019, c. 25, s. 200.
[annotation(s) added]
Draft Form of Charges
| Pre-ambles | ||
|---|---|---|
| "THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
| Code Section | Subject of Offence | Draft Wording |
| 487.08(3) | failure to observe limitation on use of bodily substances subject to a warrant | "..., did use bodily substances or the results of forensic DNA analysis of a body substance, for the purpose not authorized by the warrant by which it was obtained, to wit: [conduct], contrary to section 487.08(3) of the Criminal Code." |
| 487.08(4) | failure to observe limitation on use of bodily substances subject to an order | "..., did use bodily substances or the results of forensic DNA analysis of a body substance, for the purpose not authorized by the order by which it was obtained, to wit: [conduct], contrary to section 487.08(4) of the Criminal Code." |
Proof of the Offence
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Proving breach of DNA orders under s. 487.0552 should include:
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Proving improper use of bodily substances taken by warrant under s. 487.08 should include:
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Proving improper use of bodily substances taken by order under s. 487.08 should include:
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Proving improper use of bodily substances analysis results under s. 487.08 should include:
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Interpretation
Sentencing Principles and Factors
- Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| s. 487.08(1), and (2) [unauthorized use of bodily substances] | N/A | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| s. 487.0552 [failure to comply with DNA order or summons] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| s. 487.08(1.1) [unauthorized use of bodily substances] | summary election | six months jail and/or a $2,000 fine |
| s. 487.0552 [failure to comply with DNA order or summons] and s. 487.08(1.1) [unauthorized use of bodily substances] |
indictable election | 2 years incarceration |
Offences under s. 487.0552 are hybrid. If prosecuted by indictment, the maximum penalty is 2 years custody. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
| Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
|---|---|---|---|---|---|---|---|---|
| s. 487.0552 | any | |
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All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
- Offence-specific Orders
- None
- General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
| Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
| Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
- General Forfeiture Orders
| Forfeiture | Conviction | Description |
|---|---|---|
| Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
| Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
| Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 487.0552 and 487.08 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
History
2000 to 2007
Prior to 2007 amendment, the section read in part:
- Use of bodily substances — warrant
487.08 (1) No person shall use bodily substances that are taken in execution of a warrant under section 487.05 or under section 196.12 of the National Defence Act except to use them for the purpose of forensic DNA analysis in the course of an investigation of a designated offence.
- Use of bodily substances — order, authorization
(1.1) No person shall use bodily substances that are taken in execution of an order under section 487.051 or 487.052, under an authorization under section 487.055 or 487.091, in execution of an order under section 196.14 or 196.15 of the National Defence Act, or under an authorization under section 196.24 of that Act except
- (a) to use them for the purpose of forensic DNA analysis; or
- (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).
...
- Offence
(4) Every person who contravenes subsection (1.1) or (2.1)
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
- (b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $2,000 or to imprisonment for a term not exceeding six months, or to both.
1995, c. 27, s. 1; 1998, c. 37, s. 21; 2000, c. 10, s. 22.
– CCC