Criminal Law Notebook

DNA Orders

This page was last substantively updated or reviewed April 2021. (Rev. # 96372)

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 [DNA order related provisions],
...
 "designated offence" means a primary designated offence or a secondary designated offence; (infraction désignée)
...
 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; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.04

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 [DNA order related provisions],
...
 "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) [information for warrant to take bodily substances for forensic DNA analysis – location of bodily substance], 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 [DNA Orders — offenders serving sentences] or 487.091 [collection of additional bodily substances], or to a bodily substance referred to in paragraph 487.05(1)(b) [information for warrant to take bodily substances for forensic DNA analysis – location of bodily substance], means forensic DNA analysis of the bodily 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, c. 21, s. 18; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.04

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 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J (4:3), at para 32
    R v Briggs, 2001 CanLII 24113 (ON CA), 157 CCC (3d) 38, 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 [forms] 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 [order of discharge] 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 [DNA analysis – definitions] 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 [order of discharge] 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 [DNA analysis – definitions] 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.
[omitted (3) and (4)]

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(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.051(1) and (2)

Forms

The mandatory PDOs and presumptive PDOs use Form 5.03.[1]

  1. ↑ see Criminal Code Forms

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), 162 CCC (3d) 385, 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
[omitted (1) and (2)]

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 [order of discharge] 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.
[omitted (4)]
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(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.051(3)

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]

Forms

The SDOs use Form 5.04.[3]

  1. ↑ R v RC, 2005 SCC 61 (CanLII), [2005] 3 SCR 99, per Fish J
  2. ↑ similar provision was interpreted in such a fashion in R v BER, 2005 BCCA 420 (CanLII), 32 CR (6th) 151, per Ryan JA, at paras 20 to 22
  3. ↑ see s. 487.051(3)
    Criminal Code Forms

Secondary Designated Offences under 487.04(a), (a.1) or (b)

See also: List of Secondary Designated DNA Offences (Group A)

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 [DNA Orders — primary designated offences] 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 [DNA Orders — primary designated offences] 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 [DNA Orders — primary designated offences] 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),
[omitted (c), (d), (d.1), (d.2) and (e)]

...
 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; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.04

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.

Group C

Group C consists of a long enumerated list:

Group D to E

487.04 In this section and in sections 487.05 to 487.0911 [DNA order related provisions],
...

(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),
(d.1) an offence under section 252 [failure to stop at scene of accident], as it read from time to time before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force,
(d.2) an offence under any of sections 249 [dangerous operation of motor vehicles, vessels and aircraft], 249.1 [flight from peace officer], 249.2 [causing death by criminal negligence (street racing)], 249.3 , 249.4 [dangerous operation of motor vehicle while street racing], 253 [operation while impaired], 254 [taking samples of breath/blood] and 255 [operation while impaired and procedure – punishment], as they read from time to time before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force, that may be prosecuted by indictment or, for section 487.051 to apply, is prosecuted by indictment, and
(e) an attempt to commit or, other than for the purposes of subsection 487.05(1) [information for warrant to take bodily substances for forensic DNA analysis – reasonable grounds], a conspiracy to commit
(i) an offence referred to in paragraph (a) or (b) — which, for section 487.051 [DNA Orders — primary designated offences] to apply, is prosecuted by indictment, or
(ii) an offence referred to in any of paragraphs (c) to (d.2); (infraction secondaire)

...
 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; 2019, c. 25, s. 196.1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.04

Factors When Imposing DNA Orders

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), 161 CCC (3d) 275, 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), 165 CCC (3d) 393, per curiam, at para 50
  2. ↑ R v Garland, 2002 NSCA 112 (CanLII), 649 APR 399, 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), 161 CCC (3d) 275, per Rosenberg JA, at para 36
  2. ↑ R v SFA, 2002 NSCA 42 (CanLII), 635 APR 71, per Freeman JA
  3. ↑ PRF, supra

Impact on Privacy

The judge can decline to make a DNA order where it would be “would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice."[1]

The accused must present "cogent evidence" establishing an impact on the accused's privacy interests.[2]

Taking of samples does not amount to a punishment.[3]

  1. ↑ R v Goodstriker, 2007 ABPC 334 (CanLII), per LeGrandeur J
    R v Hafez, 2006 NSPC 13 (CanLII), 242 NSR (2d) 195, per Campbell J
    R v RC, 2005 SCC 61 (CanLII), [2005] 3 SCR 99, per Fish J
  2. ↑ R v SFA, 2002 NSCA 42 (CanLII), 635 APR 71, per Freeman JA
  3. ↑ R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J, at para 5
    R v Murrins, 2002 NSCA 12 (CanLII), 162 CCC (3d) 412, per Bateman JA, at para 96

Taking of Samples

See also: Section 487.05 Seizure Warrant of DNA Samples

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) [DNA Orders – types of orders].
1998, c. 37, s. 17; 2007, c. 22, s. 10.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.054

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), per Williamson J
  2. ↑ R v Kaplan, 2018 BCCA 31 (CanLII), per Fisher JA (chambers)

Procedure

Timing of order

487.053 (1) The court may make an order under section 487.051 [DNA Orders — primary designated offences] 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 [order of discharge].

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 videoconference, 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; 2019, c. 25, s. 198.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.053(1) and (2)

Form Required

487.051
[omitted (1), (2) and (3)]

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 [forms] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.051(4)

Misc DNA Provisions

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=DNA_Orders&oldid=96372"