DNA Orders: Difference between revisions

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{{Currency|April 2021}}
{{LevelZero}}
{{LevelZero}}
{{HeaderDNA}}
{{HeaderDNA}}
== DNA Orders ==
== DNA Orders ==
DNA<ref>DNA is defined in s. 487.04 as "deoxyribonucleic acid"</ref> 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.  
DNA<ref>DNA is defined in s. 487.04 as "deoxyribonucleic acid"</ref>  
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:
Only "designated offences" are eligible for including DNA orders as part of sentencing. Section 487.04 defines "designated offence" as:
{{quotation|
{{quotation2|
'''Definitions'''<br>
; Definitions
487.04 In this section and in sections 487.05 to 487.0911,
487.04 In this section and in sections 487.05 to 487.0911 {{AnnSec4|487.05 to 487.0911}},<br>
<br>...<br>
{{ellipsis}}
"designated offence" means a primary designated offence or a secondary designated offence; (infraction désignée)
'''"designated offence"''' means a primary designated offence or a secondary designated offence; (infraction désignée)<br>
|[http://canlii.ca/t/7vf2#sec487.04 CCC]
{{ellipsis}}
{{LegHistory90s|1995, c. 27}}, s. 1;
{{LegHistory90s|1998, c. 37}}, s. 15;
{{LegHistory00s|2001, c. 41}}, s. 17;
{{LegHistory00s|2002, c. 1}}, s. 175;
{{LegHistory00s|2005, c. 25}}, s. 1, c. 43, ss. 5, 9;
{{LegHistory00s|2007, c. 22}}, ss. 2, 8, 47;
{{LegHistory00s|2008, c. 6}}, ss. 35, 63;
{{LegHistory00s|2009, c. 22}}, s. 16;
{{LegHistory10s|2010, c. 3}}, s. 6, c. 17, s. 3;
{{LegHistory10s|2012, c. 1}}, s. 30;
{{LegHistory10s|2013, c. 9}}, s. 16, c. 13, s. 8;
{{LegHistory10s|2014, c. 17}}, s. 13, {{LegHistory10sA|2014|c. 25}}, s. 23;
{{LegHistory10s|2015, c. 20}}, s. 23;
{{LegHistory10s|2018, c. 16}}, s. 216, {{LegHistory10sA|2018|c. 21}}, s. 18;
{{LegHistory10s|2019, c. 13}}, s. 152;
{{LegHistory10s|2019, c. 25}}, s. 196.1.
{{Annotation}}
|{{CCCSec2|487.04}}
|{{NoteUp|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.
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:
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:
{{quotation|
{{quotation2|
'''Definitions'''<br>
; Definitions
487.04 In this section and in sections 487.05 to 487.0911,<br>...<Br>
487.04 In this section and in sections 487.05 to 487.0911 {{AnnSec4|487.05 to 487.0911}},<br>
"forensic DNA analysis"<br>
{{ellipsis}}
:(a) in relation to a bodily substance that is taken from a person in execution of a warrant under section 487.05 [''[[Section 487.05 Seizure Warrant of DNA Samples|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
'''"forensic DNA analysis"'''<br>
:(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;
:(a) in relation to a bodily substance that is taken from a person in execution of a warrant under section 487.05 {{AnnSec4|487.05}}, 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) {{AnnSec4|487.05(1)(b)}}, and includes any incidental tests associated with that analysis, and
<br>...<br>
:(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 {{AnnSec4|487.051A}} or an authorization granted under section 487.055 {{AnnSec4|487.055}} or 487.091 {{AnnSec4|487.091}}, or to a bodily substance referred to in paragraph 487.05(1)(b) {{AnnSec4|487.05(1)(b)}}, means forensic DNA analysis of the bodily substance;
|[http://canlii.ca/t/7vf2#sec487.04 CCC]
{{ellipsis}}
{{LegHistory90s|1995, c. 27}}, s. 1;
{{LegHistory90s|1998, c. 37}}, s. 15;
{{LegHistory00s|2001, c. 41}}, s. 17;
{{LegHistory00s|2002, c. 1}}, s. 175;
{{LegHistory00s|2005, c. 25}}, s. 1, c. 43, ss. 5, 9;
{{LegHistory00s|2007, c. 22}}, ss. 2, 8, 47;
{{LegHistory00s|2008, c. 6}}, ss. 35, 63;
{{LegHistory00s|2009, c. 22}}, s. 16;
{{LegHistory10s|2010, c. 3}}, s. 6, c. 17, s. 3;
{{LegHistory10s|2012, c. 1}}, s. 30;
{{LegHistory10s|2013, c. 9}}, s. 16, c. 13, s. 8;
{{LegHistory10s|2014, c. 17}}, s. 13, {{LegHistory10sA|2014|c. 25}}, s. 23;
{{LegHistory10s|2015, c. 20}}, s. 23;
{{LegHistory10s|2018, c. 16}}, s. 216, {{LegHistory10sA|2018|c. 21}}, s. 18;
{{LegHistory10s|2019, c. 13}}, s. 152;
{{LegHistory10s|2019, c. 25}}, s. 196.1.
{{Annotation}}
|{{CCCSec2|487.04}}
|{{NoteUp|487.04}}
}}
}}


'''Purpose'''<br>
; Purpose
The purpose behind taking a DNA sample from offenders is not simply for law enforcement. Objectives include:<ref>
The purpose behind taking a DNA sample from offenders is not simply for law enforcement. Objectives include:<ref>
R v Jackpine/Rodgers, [2006] 1 SCR 554, [http://canlii.ca/t/1n3br 2006 SCC 15] (CanLII), at para 32, per Charron J. <br>
{{CanLIIRP|Jackpine/Rodgers|1n3br|2006 SCC 15 (CanLII)|[2006] 1 SCR 554}}{{perSCC|Charron J}} (4:3){{atL|1n3br|32}} <br>
R v Briggs, [http://canlii.ca/t/1fg12 2001 CanLII 24113] (ON CA), at para 22 per Weiler JA<br>
{{CanLIIRP|Briggs|1fg12|2001 CanLII 24113 (ON CA)|157 CCC (3d) 38}}{{perONCA|Weiler JA}}{{atL|1fg12|22}}<br>
</ref>
</ref>
# deter potential repeat offenders;  
# deter potential repeat offenders;  
Line 37: Line 77:
# assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).
# assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).


'''Format of Order'''<br>
; Format of Order
DNA orders for primary designated offences under s. 487.051(1) or (2) should be based on [http://canlii.ca/t/7vf2#sec849 Form 5.03] of the Code. Those that are secondary designated offences under s. 487.051(3) should be [http://canlii.ca/t/7vf2#sec849 Form 5.04].
DNA orders for primary designated offences under s. 487.051(1) or (2) should be based on [{{CCCSec|849}} Form 5.03] of the Code. Those that are secondary designated offences under s. 487.051(3) should be [{{CCCSec|849}} Form 5.04].


{{reflist|2}}
{{reflist|2}}
Line 45: Line 85:
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".
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".


{{quotation|
{{quotation2|
'''Order — primary designated offences'''<br>
; 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.
487.051 (1) The court shall make an order in Form 5.03 {{AnnSec|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 {{AnnSec7|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 {{AnnSec4|487.04}} when the person is sentenced or discharged.
<br>
<br>
'''Order  —  primary designated offences'''<br>
; Order  —  primary designated offences
(2) The court shall make such an order in Form 5.03 [''[[Criminal_Code_Forms#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.
(2) The court shall make such an order in Form 5.03 {{AnnSec|Form 5.03}} in relation to a person who is convicted, discharged under section 730 {{AnnSec7|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 {{AnnSec4|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.
<br>
<br>
'''Order — persons found not criminally responsible and secondary designated offences'''<br>
{{Removed|(3) and (4)}}<br>
(3) [''NCR DNA Order'']...<br>
{{LegHistory90s|1998, c. 37}}, s. 17;  
'''Order to offender'''<bR>
{{LegHistory00s|2002, c. 1}}, s. 176;  
(4) [''reporting order'']...<br>
{{LegHistory00s|2005, c. 25}}, s. 3;  
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.<br>
{{LegHistory00s|2007, c. 22}}, ss. 9, 47;
[''annotation added'']
{{LegHistory10s|2014, c. 25}}, s. 24.
|[http://canlii.ca/t/7vf2#sec487.051 CCC]
{{Annotation}}
|{{CCCSec2|487.051}}
|{{NoteUp|487.051|1|2}}
}}
}}
; Forms
The mandatory PDOs and presumptive PDOs use Form 5.03.<Ref>
see [[Criminal Code Forms]]
</ref>
{{reflist|2}}


===List of Primary Designated DNA Offences===
===List of Primary Designated DNA Offences===
* [[List of Primary Designated DNA Offences]]
* [[List of Primary Designated DNA Offences]] (including s. 487.04(a), (a.1), (b), (c), (c.01), (c.02), (c.03), and (d))


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" <ref> R v Jordan, [http://canlii.ca/t/4v0x 2002 NSCA 11] (CanLII){{perNSCA|Cromwell JA}} at para 59</ref>
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" <ref>  
{{CanLIIRP|Jordan|4v0x|2002 NSCA 11 (CanLII)|162 CCC (3d) 385}}{{perNSCA|Cromwell JA}}{{atL|4v0x|59}}</ref>


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."<ref>Jordan{{ibid}} at para 61</ref>
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."<ref>
{{ibid1|Jordan}}{{atL|4v0x|61}}</ref>


{{reflist|2}}
{{reflist|2}}
Line 72: Line 123:
==Secondary Designated Offences==
==Secondary Designated Offences==
Distinct from "primary designated offences" are the "secondary designated offences" which is defined as:
Distinct from "primary designated offences" are the "secondary designated offences" which is defined as:
{{quotation|
{{quotation2|
s. 487.051 <br>...<br>
s. 487.051 <br>
'''Order — persons found not criminally responsible and secondary designated offences'''<br>
{{removed|(1) and (2)}}
(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
; 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 [[Criminal Code Forms|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
:(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.
:(b) a person who is convicted, discharged under section 730 {{AnnSec7|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.
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.<br>
<br>...<br>
{{removed|(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.
{{LegHistory90s|1998, c. 37}}, s. 17;  
|[http://canlii.ca/t/7vf2#sec487.051 CCC]
{{LegHistory00s|2002, c. 1}}, s. 176;  
{{LegHistory00s|2005, c. 25}}, s. 3;  
{{LegHistory00s|2007, c. 22}}, ss. 9, 47;  
{{LegHistory10s|2014, c. 25}}, s. 24.
{{Annotation}}
|{{CCCSec2|487.051}}
|{{NoteUp|487.051|3}}
}}
}}


'''Burden'''<br>
; 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".<ref>
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."<ref>
R v RC, [2005] 3 SCR 99, [http://canlii.ca/t/1lvtr 2005 SCC 61] (CanLII)
{{CanLIIRP|RC|1lvtr|2005 SCC 61 (CanLII)|[2005] 3 SCR 99}}{{perSCC-H|Fish J}}
</ref>
</ref>


'''When to be Granted'''<br>
; 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.”
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.<ref>similar provision was interpreted in such a fashion in R v R(BE) [http://canlii.ca/t/1lg21 2005 BCCA 420] (CanLII) at paras 20 to 22</ref>
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.<ref>similar provision was interpreted in such a fashion in {{CanLIIRP|BER|1lg21|2005 BCCA 420 (CanLII)|32 CR (6th) 151}}{{perBCCA|Ryan JA}}{{atsL|1lg21|20| to 22}}</ref>


A secondary designated DNA Order must use Form 5.04.<ref>see s. 487.051(3)</ref>
; Forms
The SDOs use Form 5.04.<ref>
see s. 487.051(3)<br>
[[Criminal Code Forms]]
</ref>


{{reflist|2}}
{{reflist|2}}


===Secondary Designated Offences under 487.04(a) or (b)===
===Secondary Designated Offences under 487.04(a), (a.1) or (b)===
{{seealso|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.
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:
Offences that are classified as "secondary designated offences" consist of:
{{quotation|
{{quotation2|
487.04<br>...<Br>
487.04<br>
“secondary designated offence” means an offence, other than a primary designated offence, that is
{{ellipsis}}
:(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,
'''"secondary designated offence"''' means an offence, other than a primary designated offence, that is
:(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:
:(a) an offence under this Act that may be prosecuted by indictment — or, for section 487.051 {{AnnSec4|487.051A}} 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 {{AnnSec4|487.051A}} to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
::(i) section 9 ([[Cannabis-related Offences (Offence)|distribution and possession for purpose of distributing]]),
::(ii) section 10 ([[Cannabis-related Offences (Offence)|selling and possession for purpose of selling]]),
::(iii) section 11 ([[Cannabis-related Offences (Offence)|importing and exporting and possession for purpose of exporting]]),
::(iv) section 12 ([[Cannabis-related Offences (Offence)|production]]),
::(v) section 13 ([[Cannabis-related Offences (Offence)|possession, etc., for use in production or distribution of illicit cannabis]]), and
::(vi) section 14 ([[Cannabis-related Offences (Offence)|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 {{AnnSec4|487.051A}} to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
::(i) section 5 ([[Drug Trafficking (Offence)|trafficking in substance and possession for purpose of trafficking]]),
::(i) section 5 ([[Drug Trafficking (Offence)|trafficking in substance and possession for purpose of trafficking]]),
::(ii) section 6 ([[Importing and Exporting Drugs (Offence)|importing and exporting]]), and
::(ii) section 6 ([[Importing and Exporting Drugs (Offence)|importing and exporting]]), and
::(iii) section 7 ([[Drug Production (Offence)|production of substance]]),
::(iii) section 7 ([[Drug Production (Offence)|production of substance]]),
 
:{{removed|(c), (d), (d.1), (d.2) and (e)}}
...<Br>
{{ellipsis}}
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.
{{LegHistory90s|1995, c. 27}}, s. 1;  
|[http://canlii.ca/t/7vf2#sec487.04 CCC]
{{LegHistory90s|1998, c. 37}}, s. 15;  
{{LegHistory00s|2001, c. 41}}, s. 17;
{{LegHistory00s|2002, c. 1}}, s. 175;
{{LegHistory00s|2005, c. 25}}, s. 1, c. 43, ss. 5, 9;
{{LegHistory00s|2007, c. 22}}, ss. 2, 8, 47;
{{LegHistory00s|2008, c. 6}}, ss. 35, 63;  
{{LegHistory00s|2009, c. 22}}, s. 16;
{{LegHistory10s|2010, c. 3}}, s. 6, c. 17, s. 3;
{{LegHistory10s|2012, c. 1}}, s. 30;
{{LegHistory10s|2013, c. 9}}, s. 16, c. 13, s. 8;
{{LegHistory10s|2014, c. 17}}, s. 13, {{LegHistory10sA|2014|c. 25}}, s. 23;  
{{LegHistory10s|2015, c. 20}}, s. 23;
{{LegHistory10s|2018, c. 16}}, s. 216, {{LegHistory10sA|2018|c. 21}}, s. 18;
{{LegHistory10s|2019, c. 13}}, s. 152;
{{LegHistory10s|2019, c. 25}}, s. 196.1.
{{Annotation}}
|{{CCCSec2|487.04}}
|{{NoteUp|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.<ref>
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.<ref>
See also [[Drug Trafficking (Offence)]]<br>
See also [[Drug Trafficking (Offence)]]<br>
</ref>
</ref>
Line 127: Line 215:
===Secondary Designated Offences Under s. 487.04(c) to (e)===
===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|Crown election]].
The SDOs listed under (c) to (e) of s. 487.04 apply irrespective of maximum penalty or [[Crown Election|Crown election]].
{{quotation|
487.04<br>...
"secondary designated offence" means an offence, other than a primary designated offence, that is
<br>...<br>
:(c) an offence under any of the following provisions of this Act:
::(i) section 145 ([[Escape from Lawful Custody (Offence)|escape and being at large without excuse]]),
::(i.1) section 146 ([[Miscellaneous Administration of Justice Offences|permitting or assisting escape]]),
::(i.2) section 147 ([[Miscellaneous Administration of Justice Offences|rescue or permitting escape]]),
::(i.3) section 148 ([[Miscellaneous Administration of Justice Offences|assisting prisoner of war to escape]]),
::(i.4) and (ii) [Repealed, 2010, c. 17, s. 3]
::(iii) subsection 173(1) ([[Indecent Act (Offence)|indecent acts]]),
::(iv) section 252 ([[Failure to Stop or Remain at Scene of Accident (Offence)|failure to stop at scene of accident]]),
::(v) section 264 ([[Criminal Harassment (Offence)|criminal harassment]]),
::(vi) section 264.1 ([[Uttering Threats (Offence)|uttering threats]]),
::(vii) section 266 ([[Common Assault (Offence)|assault]]),
::(viii) section 270 ([[Assault Peace Officer (Offence)|assaulting a peace officer]]),
::(viii.1) subsection 286.1(1) ([[Commodification of Sexual Services (Offence)|obtaining sexual services for consideration]]),
::(ix) paragraph 348(1)(e) ([[Break and Enter (Offence)|breaking and entering a place other than a dwelling-house]]),
::(x) section 349 ([[Break and Enter (Offence)|being unlawfully in dwelling-house]]), and
::(xi) section 423 ([[Intimidation (Offence)|intimidation]]),


; Group C
Group C consists of a long enumerated list:
* [[List of Secondary Designated DNA Offences (Group C)]]
; Group D to E
{{quotation2|
487.04 In this section and in sections 487.05 to 487.0911 {{AnnSec4|487.05 to 487.0911}},<Br>
{{ellipsis}}
:(d) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990:
:(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 (Offence)|arson]]), and
::(i) section 433 ([[Arson (Offence)|arson]]), and
::(ii) section 434 ([[Arson (Offence)|setting fire to other substance]]), and
::(ii) section 434 ([[Arson (Offence)|setting fire to other substance]]),
 
:(d.1) an offence under section 252 {{AnnSec2|252}}, as it read from time to time before the day on which section 14 of An Act to amend the Criminal Code ([[Conveyance Offences|offences relating to conveyances]]) and to make consequential amendments to other Acts comes into force,
:(e) an [[Attempts and Accessories After the Fact (Offence)|attempt to commit]] or, other than for the purposes of subsection 487.05(1), a [[Conspiracy (Offence)|conspiracy to commit]]
:(d.2) an offence under any of sections 249 {{AnnSec2|249}}, 249.1 {{AnnSec2|249.1}}, 249.2 {{AnnSec2|249.2}}, 249.3 {{AnnSec|249.3}}, 249.4 {{AnnSec2|249.4}}, 253 {{AnnSec2|253}}, 254 {{AnnSec2|254}} and 255 {{AnnSec2|255}}, 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
::(i) an offence referred to in paragraph (a) or (b) — which, for section 487.051 to apply, is prosecuted by indictment, or
:(e) an attempt to commit or, other than for the purposes of subsection 487.05(1) {{AnnSec4|487.05(1)}}, a conspiracy to commit
::(ii) an offence referred to in paragraph (c) or (d);  
::(i) an offence referred to in paragraph (a) or (b) — which, for section 487.051 {{AnnSec4|487.051}} to apply, is prosecuted by indictment, or
 
::(ii) an offence referred to in any of paragraphs (c) to (d.2); (infraction secondaire)
...<Br>
{{Ellipsis}}
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.
{{LegHistory90s|1995, c. 27}}, s. 1;
|[http://canlii.ca/t/7vf2#sec487.04 CCC]
{{LegHistory90s|1998, c. 37}}, s. 15;
{{LegHistory00s|2001, c. 41}}, s. 17;  
{{LegHistory00s|2002, c. 1}}, s. 175;  
{{LegHistory00s|2005, c. 25}}, s. 1, c. 43, ss. 5, 9;  
{{LegHistory00s|2007, c. 22}}, ss. 2, 8, 47;  
{{LegHistory00s|2008, c. 6}}, ss. 35, 63;  
{{LegHistory00s|2009, c. 22}}, s. 16; 2010, c. 3, s. 6, c. 17, s. 3;  
{{LegHistory10s|2012, c. 1}}, s. 30; 2013, c. 9, s. 16, c. 13, s. 8;  
{{LegHistory10s|2014, c. 17}}, s. 13, c. 25, s. 23;  
{{LegHistory10s|2015, c. 20}}, s. 23;
{{LegHistory10s|2018, c. 16}}, s. 216, c. 21, s. 18;
{{LegHistory10s|2019, c. 25}}, s. 196.1.
{{Annotation}}
|{{CCCSec2|487.04}}
|{{NoteUp|487.04}}
}}
}}


{{reflist|2}}
{{reflist|2}}


===Factors===
==Factors When Imposing DNA Orders==


The three enumerated factors to consider consist of:
The three enumerated factors to consider consist of:
Line 171: Line 261:


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.<ref>
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.<ref>
R v PRF, [http://canlii.ca/t/1f829 2001 CanLII 21168] (ON CA) per Rosenberg J.A.
{{CanLIIRP|PRF|1f829|2001 CanLII 21168 (ON CA)|161 CCC (3d) 275}}{{perONCA|Rosenberg JA}}
</ref>
</ref>


Line 178: Line 268:


The higher the rate of recidivism the greater the chance of making the DNA order.<ref>
The higher the rate of recidivism the greater the chance of making the DNA order.<ref>
R v North, [http://canlii.ca/t/5k5l 2002 ABCA 134] (CanLII) at para 50</ref>
{{CanLIIRP|North|5k5l|2002 ABCA 134 (CanLII)|165 CCC (3d) 393}}{{TheCourtABCA}}{{atL|5k5l|50}}</ref>


A lengthy record for violent offences may trump the low end nature of the offence.<ref>
A lengthy record for violent offences may trump the low end nature of the offence.<ref>
R v Garland, [http://canlii.ca/t/5hps 2002 NSCA 112] (CanLII) at para 4<br>
{{CanLIIRP|Garland|5hps|2002 NSCA 112 (CanLII)|649 APR 399}}{{perNSCA|Cromwell JA}}{{atL|5hps|4}}<br>
</ref>
</ref>


{{reflist|2}}
{{reflist|2}}
====Nature of the Offence====
====Nature of the Offence====


There are a number of considerations that are not considered relevant:
There are a number of considerations that are not considered relevant:
*The ineptitude of the offence<ref>
*The ineptitude of the offence<ref>
R v PRF, [http://canlii.ca/t/1f829 2001 CanLII 21168] (ON CA) at para 36</ref>
{{CanLIIRP|PRF|1f829|2001 CanLII 21168 (ON CA)|161 CCC (3d) 275}}{{perONCA|Rosenberg JA}}{{atL|1f829|36}}</ref>
* failure of the accused to disguise himself in the commission of the offence<ref>
* failure of the accused to disguise himself in the commission of the offence<ref>
R v SFA, [http://canlii.ca/t/1x697 2002 NSCA 42] (CanLII)</ref>
{{CanLIIRP|SFA|1x697|2002 NSCA 42 (CanLII)|635 APR 71}}{{perNSCA|Freeman JA}}</ref>


The difference between a commercial and residential break-in is not significant.<Ref>PRF{{supra}}</ref>
The difference between a commercial and residential break-in is not significant.<ref>
{{supra1|PRF}}</ref>


{{reflist|2}}
{{reflist|2}}


====Impact on Privacy====
====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."<ref>
{{CanLIIR|Goodstriker|1v6lb|2007 ABPC 334 (CanLII)}}{{perABPC|LeGrandeur J}}<br>
{{CanLIIRP|Hafez|1ndqn|2006 NSPC 13 (CanLII)|242 NSR (2d) 195}}{{perNSPC|Campbell J}}<br>
{{CanLIIRP|RC|1lvtr|2005 SCC 61 (CanLII)|[2005] 3 SCR 99}}{{perSCC-H|Fish J}}<br>
</ref>
The accused must present "cogent evidence" establishing an impact on the accused's privacy interests.<ref>
The accused must present "cogent evidence" establishing an impact on the accused's privacy interests.<ref>
R v SFA, [http://canlii.ca/t/1x697 2002 NSCA 42] (CanLII)</ref>
{{CanLIIRP|SFA|1x697|2002 NSCA 42 (CanLII)| 635 APR 71}}{{perNSCA|Freeman JA}}</ref>


Taking of samples does not amount to a punishment.<ref>
Taking of samples does not amount to a punishment.<ref>
R v Rodgers, [http://canlii.ca/t/1n3br 2006 SCC 15] (CanLII), [2006] 1 SCR 554 at para 5<br>
{{CanLIIRP|Rodgers|1n3br|2006 SCC 15 (CanLII)|[2006] 1 SCR 554}}{{perSCC|Charron J}}{{atL|1n3br|5}}<br>
R v Murrins, [http://canlii.ca/t/4v0z 2002 NSCA 12] (CanLII) at para 96<br>
{{CanLIIRP|Murrins|4v0z|2002 NSCA 12 (CanLII)|162 CCC (3d) 412}}{{perNSCA-H|Bateman JA}}{{atL|4v0z|96}}<br>
</ref>
</ref>


Line 210: Line 308:
==Taking of Samples==
==Taking of Samples==
{{seealso|Section 487.05 Seizure Warrant of DNA Samples}}
{{seealso|Section 487.05 Seizure Warrant of DNA Samples}}
{{Quotation|
* [[Taking of Sample of DNA Under Section 487.056]]
'''When collection to take place'''<br>
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'''<br>
(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'''<Br>
(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'''<Br>
(4) Subsections (1) to (3) apply even if the order or authorization to take the samples of bodily substances is appealed.<Br>
'''Collection of samples'''<br>
(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.
<br>
'''Who collects samples'''<br>
(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.
<br>
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.
|[http://canlii.ca/t/7vf2#sec487.056 CCC]
}}
 
{{quotation|
'''Report of peace officer'''<br>
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.<br>
 
'''Contents of report'''<br>
(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.<br>
 
'''Copy of report'''<br>
(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.
<br>
1998, c. 37, s. 17; 2000, c. 10, s. 17; 2007, c. 22, s. 14.
|[http://canlii.ca/t/7vf2#sec487.057 CCC]
}}
 
{{reflist|2}}


==Offences Relating to DNA Orders==
==Offences Relating to DNA Orders==
Line 259: Line 314:


==Appeals==
==Appeals==
{{quotation|
{{quotation2|
 
; Appeal
'''Appeal'''<br>
487.054 The offender or the prosecutor may appeal from a decision of the court under any of subsections 487.051(1) to (3) {{AnnSec4|487.051(1) to (3)}}.<br>
487.054 The offender or the prosecutor may appeal from a decision of the court under any of subsections 487.051(1) to (3).<br>
{{LegHistory90s|1998, c. 37}}, s. 17;  
1998, c. 37, s. 17; 2007, c. 22, s. 10.
{{LegHistory00s|2007, c. 22}}, s. 10.
|[http://canlii.ca/t/7vf2#sec487.054 CCC]
{{Annotation}}
|{{CCCSec2|487.054}}
|{{NoteUp|487.054}}
}}
}}


An appellant who is subject to a 487.056 Order may apply to have the order stayed pending appeal.<ref>
An appellant who is subject to a 487.056 Order may apply to have the order stayed pending appeal.<ref>
R v Gibson, [http://canlii.ca/t/fkl2q 2011 BCSC 324] (CanLII)  
{{CanLIIRx|Gibson|fkl2q|2011 BCSC 324 (CanLII)}}{{perBCSC|Williamson J}}
</ref>
</ref>


A DNA order issued under s. 487.04 as a primary designed offence cannot be stayed pending appeal.<ref>
A DNA order issued under s. 487.04 as a primary designed offence cannot be stayed pending appeal.<ref>
R v Kaplan, [http://canlii.ca/t/hq3nd 2018 BCCA 31] (CanLII)
{{CanLIIRx|Kaplan|hq3nd|2018 BCCA 31 (CanLII)}}{{perBCCA|Fisher JA}} (chambers)
</ref>
</ref>


Line 279: Line 336:
==Procedure==
==Procedure==


{{quotation|
{{quotation2|
'''Timing of order'''<br>
; 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.<Br>
487.053 (1) The court may make an order under section 487.051 {{AnnSec4|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 {{AnnSec7|730}}.<br>
'''Hearing'''<br>
; Hearing
(2) If the court does not consider the matter at that time, it
(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;
:(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
:(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.
:(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.
 
{{LegHistory90s|1998, c. 37}}, s. 17;  
1998, c. 37, s. 17; 2000, c. 10, s. 14; 2005, c. 25, s. 4; 2007, c. 22, s. 3.
{{LegHistory00s|2000, c. 10}}, s. 14;  
|[http://canlii.ca/t/7vf2#sec487.053 CCC]
{{LegHistory00s|2005, c. 25}}, s. 4;  
{{LegHistory00s|2007, c. 22}}, s. 3;
{{LegHistory10s|2019, c. 25}}, s. 198.
{{Annotation}}
|{{CCCSec2|487.053}}
|{{NoteUp|487.053|1|2}}
}}
}}


'''Form Required'''<br>
; Form Required
{{quotation|
{{quotation2|
487.051<Br>...<Br>
487.051<br>
'''Order to offender'''<br>
{{removed|(1), (2) and (3)}}
(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.
; 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 {{AnnSec|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.
<br>
<br>
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.
{{LegHistory90s|1998, c. 37}}, s. 17;  
|[http://canli.ca/t/7vf2#sec487.051 CCC]
{{LegHistory00s|2002, c. 1}}, s. 176;  
{{LegHistory00s|2005, c. 25}}, s. 3;  
{{LegHistory00s|2007, c. 22}}, ss. 9, 47;  
{{LegHistory10s|2014, c. 25}}, s. 24.
{{Annotation}}
|{{CCCSec2|487.051}}
|{{NoteUp|487.051|4}}
}}
}}


Latest revision as of 02:41, 5 November 2023

This page was last substantively updated or reviewed April 2021. (Rev. # 87516)

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

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