42-43-44 ELIZABETH II

CHAPTER 27

An Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis)

[Assented to 13th July, 1995]

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. C-46; R.S., cc. 2, 11, 27, 31, 47, 51, 52 (1st Supp.), cc. 1, 24, 27, 35 (2nd Supp.), cc. 10 19, 30, 34 (3rd Supp.), cc. 1, 23, 29, 30, 31, 32, 40, 42, 50 (4th Supp.); 1989, c. 2; 1990, cc. 15, 16, 17, 44; 1991, cc. 1, 4, 28, 40, 43; 1992, cc. 1, 11, 20, 21, 22, 27, 38, 41, 47, 51; 1993, cc. 7, 25, 28, 34, 37, 40, 45, 46; 1994, cc. 12, 13, 38, 44; 1995, c. 5

CRIMINAL CODE

1993, c. 40, s. 15

1. Section 487.03 of the Criminal Code is replaced by the following:

Execution in another province

487.03 Where

    (a) a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province,

    (b) it may reasonably be expected that the warrant is to be executed in another province, and

    (c) the execution of the warrant would require entry into or on the property of any person in the other province or would require that an order be made under section 487.02 with respect to any person in that other province,

a judge or justice, as the case may be, in the other province may, on application, endorse the warrant and the warrant, after being so endorsed, has the same force in that other province as though it had originally been issued in that other province.

Forensic DNA Analysis

Definitions

487.04 In this section and sections 487.05 to 487.09,

``adult''
« adulte »

``adult'' has the meaning assigned by subsection 2(1) of the Young Offenders Act;

``designated offence''
« infraction désignée »

``designated offence'' means

      (a) an offence under any of the following provisions of this Act, namely,

        (i) section 75 (piratical acts),

        (ii) section 76 (hijacking),

        (iii) section 77 (endangering safety of aircraft or airport),

        (iv) section 78.1 (seizing control of ship or fixed platform),

        (v) paragraph 81(2)(a) (using explosives),

        (vi) section 151 (sexual interference),

        (vii) section 152 (invitation to sexual touching),

        (viii) section 153 (sexual exploitation),

        (ix) section 155 (incest),

        (x) subsection 212(4) (offence in relation to juvenile prostitution),

        (xi) section 220 (causing death by criminal negligence),

        (xii) section 221 (causing bodily harm by criminal negligence),

        (xiii) section 231 (murder),

        (xiv) section 236 (manslaughter),

        (xv) section 244 (causing bodily harm with intent),

        (xvi) section 252 (failure to stop at scene of accident),

        (xvii) section 266 (assault),

        (xviii) section 267 (assault with a weapon or causing bodily harm),

        (xix) section 268 (aggravated assault),

        (xx) section 269 (unlawfully causing bodily harm),

        (xxi) section 269.1 (torture),

        (xxii) paragraph 270(1)(a) (assaulting a peace officer),

        (xxiii) section 271 (sexual assault),

        (xxiv) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),

        (xxv) section 273 (aggravated sexual assault),

        (xxvi) section 279 (kidnapping),

        (xxvii) section 279.1 (hostage taking),

        (xxviii) section 344 (robbery),

        (xxix) subsection 348(1) (breaking and entering with intent, committing offence or breaking out),

        (xxx) subsection 430(2) (mischief that causes actual danger to life),

        (xxxi) section 433 (arson - disregard for human life), and

        (xxxii) section 434.1 (arson - own property),

      (b) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990, namely,

        (i) section 433 (arson), and

        (ii) section 434 (setting fire to other substance),

      (c) an offence under the following provision of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988, namely, paragraph 153(1)(a) (sexual intercourse with stepdaughter, etc.),

      (d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,

        (i) section 144 (rape),

        (ii) section 146 (sexual intercourse with female under fourteen and between fourteen and sixteen), and

        (iii) section 148 (sexual intercourse with feeble-minded, etc.), and

      (e) an attempt to commit an offence referred to in any of paragraphs (a) to (d);

``DNA''
« ADN »

``DNA'' means deoxyribonucleic acid;

``forensic DNA analysis''
« analyse génétique »

``forensic DNA analysis'', in relation to a bodily substance that is obtained in execution of a warrant, 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(i)(b) and includes any incidental tests associated with that analysis;

``provincial court judge''
« juge de la cour provinciale »

``provincial court judge'', in relation to a young person, includes a youth court judge within the meaning of subsection 2(1) of the Young Offenders Act,

``young person''
« adolescent »

``young person'' has the meaning assigned by subsection 2(1) of the Young Offenders Act.

Information for warrant to obtain bodily substances for forensic DNA analysis

487.05 (1) A provincial court judge who on ex parte application 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

      (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 writing authorizing a peace officer to obtain, or cause to be obtained under the direction of the peace officer, a bodily substance from that person, by means of an investigative procedure described in subsection 487.06(1), for the purpose of forensic DNA analysis.

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 obtain a bodily substance from the person, by means of an investigative procedure described in subsection 487.06(1), or

      (ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person, by means of such an investigative procedure.

Investigative procedures

487.06 (1) The warrant authorizes a peace officer or another person under the direction of a peace officer to obtain and seize a bodily substance from the person by means of

    (a) the plucking of individual hairs from the person, including the root sheath;

    (b) the taking of buccal swabs by swabing 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 shall include any terms and conditions that the provincial court judge considers advisable to ensure that the seizure of a bodily substance authorized by the warrant in the circurmstances.

Execution of warrant

487.07 (1) Before executing a warrant, a peace officer shall inform the person against whom it is to be executed of

    (a) the contents of the warrant;

    (b) the nature of the investigative procedure by means of which a bodily substance is to be obtained from that person;

    (c) the purpose of obtaining a bodily substance from that person;

    (d) the possibility that the results of forensic DNA analysis may be used in evidence;

    (e) the authority of the peace officer and person under the direction of any other person under the direction of the peace officer to use as much force as is necessary for the purpose of executing the warrant;

    (f) in the case of a young person, the rights of the young person under subsection (4).

Detention of person under warrant

(2) A person against whom a warrant is executed

    (a) may be detained for the purpose of executing the warrant for a period that is reasonable in the circumstances for the purpose of obtaining a bodily substance from the person; and

    (b) may be required by the peace officer who executes the warrant to accompany the peace officer.

Respect of privacy

(3) A peace officer who executes a warrant against a person or a person who obtains a bodily substance from the person under the direction of the peace officer shall ensure that the privacy of that person 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 or 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.

Limitations on use of bodily substances

487.08 (1) No person shall use a bodily substance that is obtained in execution of a warrant except in the course of an investigation of the designated offence for the purpose of forensic DNA analysis.