REGULATIONS

Regulations

12. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act.

REVIEW OF ACT

Review of Act by parliamen-
tary committee

13. (1) The provisions and operation of this Act shall, within five years after this Act comes into force, be reviewed by any commit tee of the House of Commons, or of both Houses of Parliament, that may be designated or established by Parliament for that purpose.

Deemed repeal

(2) This section is deemed to be repealed on the completion of the review referred to in subsection (1).

CONSEQUENTIAL AMENDMENTS

R.S., c. A-1

Access to Information Act

14. Schedule II to the Access to Informa tion Act is amended by adding, in alphabeti cal order, a reference to

DNA Identification Act

    Loi sur l'identification par les empreintes génétiques

and a corresponding reference to ``subsec tion 6(7)''.

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, cc. 5, 19, 22, 27, 29, 32, 39, 42; 1996, cc. 8, 16, 19, 31, 34; 1997, cc. 9, 16, 17, 18, 23, 30

Criminal Code

1995, c. 27, s. 1

15. (1) The definitions ``designated of fence'' and ``forensic DNA analysis'' in section 487.04 of the Criminal Code are replaced by the following:

``designated offence''
« infraction désignée »

``designated offence'' means a primary desig nated offence or a secondary designated of fence ;

``forensic DNA analysis''
« analyse génétique »

``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 , 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

      (b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or taken from a person in execution of an order under section 487.051 or 487.052 or under an authorization under section 487.055 or 487.091, means forensic DNA analysis of the bodily substance;

(2) Section 487.04 of the Act is amended by adding the following in alphabetical order:

``primary designated offence''
« infraction primaire »

``primary designated offence'' means

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

        (i) section 151 (sexual interference),

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

        (iii) section 153 (sexual exploitation),

        (iv) section 155 (incest),

        (v) subsection 212(4) (offence in rela tion to juvenile prostitution),

        (vi) section 235 (murder),

        (vii) section 236 (manslaughter),

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

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

        (x) section 268 (aggravated assault),

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

        (xii) section 271 (sexual assault),

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

        (xiv) section 273 (aggravated sexual assault), and

        (xv) section 279 (kidnapping),

      (b) 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 be tween fourteen and sixteen), and

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

      (c) an offence under paragraph 153(1)(a) (sexual intercourse with step-daughter, etc.) 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, and

      (d) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit an offence re ferred to in any of paragraphs (a) to (c);

``secondary designated offence''
« infraction secondaire »

``secondary designated offence'' means

      (a) an offence under any of the following provisions, 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(1)(a) or (b) (using explosives),

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

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

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

        (ix) section 266 (assault),

        (x) section 269.1 (torture),

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

        (xii) section 279.1 (hostage taking),

        (xiii) section 344 (robbery),

        (xiv) subsection 348(1) (breaking and entering with intent, committing of fence or breaking out),

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

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

        (xvii) 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), and

      (c) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit an offence referred to in paragraph (a) or (b);

1995, c. 27, s. 1

16. (1) Subsection 487.05(1) of the Act is replaced by the following:

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

      (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 sub stance referred to in paragraph (b) was from that person

and who is satisfied that it is in the best inter ests 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 de scribed in subsection 487.06(1).

1995, c. 27, s. 1

(2) Subparagraphs 487.05(2)(b)(i) and (ii) of the English version of the Act are replaced by the following:

      (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 .

17. The Act is amended by adding the following after section 487.05:

Order

487.051 (1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence, the court

    (a) shall, subject to subsection (2), in the case of a primary designated offence, make an order in Form 5.03 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); or

    (b) may, in the case of a secondary desig nated offence, make an order in Form 5.04 authorizing the taking of such samples if the court is satisfied that it is in the best interests of the administration of justice to do so.

Exception

(2) The court is not required to make an order under paragraph (1)(a) if it is satisfied that the person or young person has estab lished that, were the order made, the impact on the person's or young person's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper adminis tration of justice, to be achieved through the early detection, arrest and conviction of offenders.

Criteria

(3) In deciding whether to make an order under paragraph (1)(b), the court shall consid er the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person's or young person's privacy and security of the person and shall give reasons for its decision.

Offences committed before DNA Identification Act in force

487.052 (1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court may, on application by the prosecutor, make an order in Form 5.04 authorizing the taking, from that person or young 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 de scribed in subsection 487.06(1), if the court is satisfied that it is in the best interests of the administration of justice to do so.

Criteria

(2) In deciding whether to make the order, the court shall consider the criminal record of the person or young person, the nature of the offence and the circumstances surrounding its commission and the impact such an order would have on the person's or young person's privacy and security of the person and shall give reasons for its decision.

No order

487.053 No court may make an order under section 487.051 or 487.052 in respect of a person or young person if the court has been advised

    (a) by the prosecutor, that a DNA profile, within the meaning of the DNA Identifica tion Act, is not required for the purposes of that Act; or

    (b) by the person or young person, that they consent to the entry, in the convicted offenders index of the national DNA data bank established under that Act, of the results of DNA analysis of bodily sub stances that were provided voluntarily in the course of the investigation of, or taken from them in execution of a warrant that was issued under section 487.05 in respect of, the designated offence of which the person has been convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Of fenders Act, or another designated offence in respect of the same transaction.

Appeal

487.054 The offender or the prosecutor may appeal to the Court of Appeal from a decision of the court made under subsection 487.051(1) or 487.052(1).

Offenders serving sentences

487.055 (1) A justice may, on ex parte application made in Form 5.05, authorize, in Form 5.06, the taking, from a person who

    (a) before the coming into force of this subsection, had been declared a dangerous offender under Part XXIV, or

    (b) before the coming into force of this subsection, had been convicted more than once of one or more sexual offences within the meaning of subsection (3) and, on the date of the application, is serving a sentence of imprisonment of at least two years for one or more of those offences,

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 proce dures described in subsection 487.06(1).

Certificate

(2) The application shall be accompanied by a certificate referred to in paragraph 667(1)(a) establishing that the person is a person referred to in paragraph (1)(a) or (b), as the case may be.