Section 487.05 Seizure Warrant of DNA Samples

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General Principles

Information for warrant to take bodily substances for forensic DNA analysis

487.05 (1) A provincial court judge who on ex parte application made in Form 5.01 is satisfied by information on oath 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 when 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 a person 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 and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1).

Criteria

(2) In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including

(a) the nature of the designated offence and the circumstances of its commission; and

(b) whether there is

(i) a peace officer who is able, by virtue of training or experience, to take samples of bodily substances from the person, by means of the investigative procedures described in subsection 487.06(1), or

(ii) another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures.

Telewarrant

(3) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.
1995, c. 27, s. 1; 1997, c. 18, s. 44; 1998, c. 37, s. 16; 2005, c. 25, s. 2(F).

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This provision is only one of several ways to seize an item for the purpose of obtaining DNA. An item that contains a bodily substance can likewise be obtained through other means such as a warrant under s.487.

This section authorizing the taking of the sample is constitutional.

Validity

The ITO must contain sufficient details to be valid.

The basis for a warrant:

• the applicable designated offence that is being investigated (s.487.04)
• belief that a bodily substance was found or obtained at the scene
• belief that accused was party to the offence

The warrant must include:

• appropriate terms and conditions of sampling (s. 487.06(2))
• special requirements must comply with s. 487.07

Execution of the warrant

The sample must be taken by a peace officer with the necessary training to take bodily samples. The peace officers are permitted to use reasonable force to extract the sample if the accused resists or refuses to submit to the taking of the sample.

Use of DNA

The sample may only be used with respect to the offence under investigation.[s. 487.08]

Procedure

Warrant of seizure under s. 487.05(1) requires Form 5.02.

Additional Samples

Collection of additional bodily substances

487.091 (1) A provincial court judge may, on ex parte application made in Form 5.08, authorize in Form 5.09 the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), if

(a) a DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 487.051 [Primary Designated Offence DNA Order] or an authorization granted under section 487.055; or

(b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.

Reasons

(2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost.

Persons not in custody

(3) If the court authorizes the taking of samples of bodily substances from a person who is not in custody, a summons in Form 5.061 setting out the information referred to in paragraphs 487.07(1)(b) to (d) shall be directed to the person requiring them to report at the place, day and time set out in the summons and submit to the taking of the samples. Subsections 487.055(5) and (6) apply, with any modifications that the circumstances require.
1998, c. 37, s. 23; 2000, c. 10, s. 23; 2005, c. 25, s. 10; 2007, c. 22, s. 20.
[annotations added]

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Execution of Blood Sample Warrant

Duty to inform

487.07 (1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 487.05 or an order made under section 487.051 or under an authorization granted under section 487.055 or 487.091, a peace officer shall inform the person of

(a) the contents of the warrant, order or authorization;

(b) the nature of the investigative procedures by means of which the samples are to be taken;

(c) the purpose of taking the samples;

(d) the authority of the peace officer and any other person under the direction of the peace officer to use as much force as is necessary for the purpose of taking the samples; and

(d.1) [Repealed, 2000, c. 10, s. 20]

(e) in the case of samples of bodily substances taken in execution of a warrant,

(i) the possibility that the results of forensic DNA analysis may be used in evidence, and

(ii) if the sample is taken from a young person, the rights of the young person under subsection (4).

Detention of person

(2) A person from whom samples of bodily substances are to be taken may

(a) be detained for that purpose for a period that is reasonable in the circumstances; and

(b) be required to accompany a peace officer for that purpose.

Respect of privacy

(3) A peace officer who takes samples of bodily substances from a person, or a person who takes such samples under the direction of a peace officer, shall ensure that the person’s privacy is respected in a manner that is reasonable in the circumstances.

Execution of warrant against young person

(4) A young person against whom a warrant is executed has, in addition to any other rights arising from his or her detention under the warrant,

(a) the right to a reasonable opportunity to consult with, and

(b) the right to have the warrant executed in the presence of

counsel and a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person.

Waiver of rights of young person

(5) A young person may waive his or her rights under subsection (4) but any such waiver

(a) must be recorded on audio tape or video tape or otherwise; or

(b) must be made in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

1995, c. 27, ss. 1, 3; 1998, c. 37, s. 19; 2000, c. 10, s. 20; 2007, c. 22, s. 17.

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No criminal or civil liability

487.058 No peace officer, and no person acting under a peace officer’s direction, incurs any criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances from a person under a warrant issued under section 487.05, an order made under section 487.051 or an authorization granted under section 487.055 or 487.091.
1998, c. 37, s. 17; 2000, c. 10, s. 18; 2007, c. 22, s. 15.

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Investigative procedures

487.06 (1) A peace officer or a person acting under a peace officer’s direction is authorized by a warrant issued under section 487.05, an order made under section 487.051 or an authorization granted under section 487.055 or 487.091 to take samples of bodily substances by any of the following means:

(a) the plucking of individual hairs from the person, 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, order or authorization shall include any terms and conditions that the provincial court judge or court, as the case may be, considers advisable to ensure that the taking of the samples authorized by the warrant, order or authorization is reasonable in the circumstances.

Fingerprints

(3) A peace officer who is authorized to take samples of bodily substances from a person by an order made under section 487.051 or an authorization granted under section 487.055 or 487.091, or a person acting under their direction, may take fingerprints from the person for the purpose of the DNA Identification Act.
1995, c. 27, s. 1; 1998, c. 37, s. 18; 2000, c. 10, s. 19; 2007, c. 22, s. 16.

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Verification

487.071 (1) Before taking samples of bodily substances from a person under an order made under section 487.051 or an authorization granted under section 487.055 or 487.091, a peace officer, or a person acting under their direction, shall verify whether the convicted offenders index of the national DNA data bank, established under the DNA Identification Act, contains the person’s DNA profile.

DNA profile in data bank

(2) If the person’s DNA profile is in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall not take any bodily substances from the person but shall

(a) confirm in writing on the order or authorization that he or she has been advised that the person’s DNA profile is in the DNA data bank; and

(b) transmit a copy of the order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner of the Royal Canadian Mounted Police.

DNA profile not in data bank

(3) If the person’s DNA profile is not in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall execute the order or authorization and transmit to the Commissioner of the Royal

Canadian Mounted Police

(a) any bodily substances taken; and

(b) a copy of the order or authorization and any other information prescribed by regulations made under the DNA Identification Act.

1998, c. 37, s. 20; 2000, c. 10, s. 21; 2005, c. 25, s. 8; 2007, c. 22, s. 18.

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"adult"

Section 487.04 defines "adult" found in s. 487.07 as:

Definitions

487.04 In this section and in sections 487.05 to 487.0911,
"adult" has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act; (adulte)

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"young person"

Definitions

487.04 In this section and in sections 487.05 to 487.0911,
...
"young person" has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act or subsection 2(1) of the Young Offenders Act, as the case may be. (adolescent)
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.

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Person Fails to Attend for Taking of Sample

Failure to appear

487.0551 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051(4) or 487.055(3.11) or in a summons referred to in subsection 487.055(4) or 487.091(3), a justice of the peace may issue a warrant for their arrest in Form 5.062 to allow samples of bodily substances to be taken.

Execution of warrant

(2) The warrant may be executed anywhere in Canada by a peace officer who has jurisdiction in that place or over the person. The warrant remains in force until it is executed.
2007, c. 22, s. 12.

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Limitation on Use of Samples

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 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 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.

(2.1) [Repealed, 2005, c. 25, s. 9]

Offence

(3) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

Offence

(4) Every person who contravenes subsection (1.1)

(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; 2005, c. 25, s. 9; 2007, c. 22, s. 19.

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Destruction of Sample

Destruction of bodily substances, etc. — warrant

487.09 (1) Subject to subsection (2), bodily substances that are taken from a person in execution of a warrant under section 487.05 and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after

(a) the results of that analysis establish that the bodily substance referred to in paragraph 487.05(1)(b) was not from that person;

(b) the person is finally acquitted of the designated offence and any other offence in respect of the same transaction; or

(c) the expiration of one year after

(i) the person is discharged after a preliminary inquiry into the designated offence or any other offence in respect of the same transaction,

(ii) the dismissal, for any reason other than acquittal, or the withdrawal of any information charging the person with the designated offence or any other offence in respect of the same transaction, or

(iii) any proceeding against the person for the offence or any other offence in respect of the same transaction is stayed under section 579 or under that section as applied by section 572 or 795,

unless during that year a new information is laid or an indictment is preferred charging the person with the designated offence or any other offence in respect of the same transaction or the proceeding is recommenced.

Exception

(2) A provincial court judge may order that the bodily substances that are taken from a person and the results of forensic DNA analysis not be destroyed during any period that the provincial court judge considers appropriate if the provincial court judge is satisfied that the bodily substances or results might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.

Destruction of bodily substances, etc., voluntarily given

(3) Bodily substances that are provided voluntarily by a person and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after the results of that analysis establish that the bodily substance referred to in paragraph 487.05(1)(b) was not from that person.
1995, c. 27, s. 1; 1998, c. 37, s. 22.

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Remedying Defects to DNA Order

Review by Attorney General

487.0911 (1) On receipt of a notice from the Commissioner of the Royal Canadian Mounted Police under subsection 5.2(1) of the DNA Identification Act that an order made under section 487.051 or an authorization granted under section 487.091 appears to be defective, the Attorney General shall review the order or authorization and the court record.

Clerical error

(2) If the Attorney General is of the opinion that the defect is due to a clerical error, the Attorney General shall

(a) apply, ex parte, to the judge who made the order or authorization, or to a judge of the same court, to have it corrected; and

(b) transmit a copy of the corrected order or authorization, if any, to the Commissioner.

Substantive defect

(3) If the Attorney General is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Attorney General shall inform the Commissioner of that opinion.

No defect

(4) If the Attorney General is of the opinion that the offence referred to in the order or authorization is a designated offence, the Attorney General shall transmit that opinion, with written reasons, to the Commissioner.
2005, c. 25, s. 11; 2007, c. 22, s. 21.

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