Bill S-10
If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.
|
2nd Session, 36th Parliament, 48-49 Elizabeth II, 1999-2000
|
|
|
The Senate of Canada
|
|
|
BILL S-10 |
|
|
An Act to amend the National Defence Act,
the DNA Identification Act and the
Criminal Code
|
|
|
|
|
R.S., c. N-5
|
NATIONAL DEFENCE ACT |
|
|
1. The National Defence Act is amended
by adding the following after section 196.1:
|
|
|
DIVISION 6.1 |
|
|
FORENSIC DNA ANALYSIS |
|
Definitions
|
196.11 The definitions in this section apply
in this Division.
|
|
``Commission
er'' « commissaire »
|
``Commissioner'' means the Commissioner of
the Royal Canadian Mounted Police.
|
|
``designated
offence'' « infraction désignée »
|
``designated offence'' means a primary
designated offence or a secondary
designated offence.
|
|
``DNA'' « ADN »
|
``DNA'' means deoxyribonucleic acid.
|
|
``DNA
profile'' « profil d'identifica- tion génétique »
|
``DNA profile'' means the results of forensic
DNA analysis.
|
|
``forensic
DNA
analysis'' « analyse génétique »
|
``forensic DNA analysis''
|
|
|
|
|
|
|
|
``peace
officer'' « agent de la paix »
|
``peace officer'' means
|
|
|
|
|
|
|
|
``prescribed
form'' « formulaire réglemen- taire »
|
``prescribed form'' means a form prescribed in
the regulations made by the Governor in
Council.
|
|
``primary
designated
offence'' « infraction primaire »
|
``primary designated offence'' means a
primary designated offence within the
meaning of section 487.04 of the Criminal
Code that is punishable under section 130.
|
|
``secondary
designated
offence'' « infraction secondaire »
|
``secondary designated offence'' means
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Information
for DNA
warrant
|
196.12 (1) A military judge, on ex parte
application in the prescribed form, may issue
a warrant in the prescribed form authorizing
the taking for the purpose of forensic DNA
analysis, from a person subject to the Code of
Service Discipline, of any number of samples
of bodily substances that is reasonably
required for that purpose, if the military judge
is satisfied by information on oath that it is in
the best interests of the administration of
justice to do so and that there are reasonable
grounds to believe
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Criteria
|
(2) In considering whether to issue the
warrant, the military judge shall have regard
to all relevant matters, including
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Telewarrants
|
196.13 (1) If a peace officer believes that it
would be impracticable to appear personally
before a military judge to apply for a warrant,
the peace officer may submit an information
on oath to the judge by telephone or other
means of telecommunication.
|
|
Contents of
information
|
(2) An information submitted by telephone
or other means of telecommunication shall
include, in addition to the information
described in subsection 196.12(1),
|
|
|
|
|
|
|
|
Oath in
writing
|
(3) If the telecommunication is in written
form, a written statement by the peace officer
that all matters contained in the information
are true to the officer's knowledge and belief
is deemed to be a statement made under oath.
|
|
Information
filed with
Court Martial
Adminis- trator
|
(4) The military judge shall, as soon as
practicable, certify the information as to time
and date of receipt, and cause it to be filed with
the Court Martial Administrator. If the
telecommunication is not in written form, the
information that is to be filed is the verbatim
record, or a transcription of it, certified by the
judge as to its contents and time and date of
receipt.
|
|
Formalities
respecting
warrant and
facsimiles
|
(5) When a military judge issues a warrant
by telephone or other means of
telecommunication that is not in written form,
|
|
|
|
|
|
|
|
|
|
|
Issuance of
warrant -
telecommuni- cation in written form
|
(6) When a military judge issues a warrant
by a means of telecommunication in written
form,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proof of
authorization
|
(7) In any proceeding in which it is material
for a court to be satisfied that the taking of
samples of a bodily substance was authorized
by a warrant issued by telephone or other
means of telecommunication, the absence of
the information or warrant, signed by the
military judge and carrying on its face a
notation of the time, date and place of
issuance, is, in the absence of evidence to the
contrary, proof that the taking of the samples
was not authorized.
|
|
Duplicates
and facsimiles
acceptable
|
(8) A duplicate or a facsimile of an
information or a warrant has the same
probative force as the original for the purpose
of subsection (7).
|
|
Order
|
196.14 (1) Subject to section 196.16, if a
person is found guilty of a designated offence,
the court martial
|
|
|
|
|
|
|
|
Exception
|
(2) The court martial is not required to make
an order under paragraph (1)(a) if it is satisfied
that the person has established that, were the
order made, the impact on the 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.
|
|
Criteria
|
(3) In deciding whether to make an order
under paragraph (1)(b), the court martial shall
consider the nature of the offence and the
circumstances surrounding its commission,
any previous convictions by a service tribunal
or civil court and the impact such an order
would have on the privacy and security of the
person and shall give reasons for its decision.
|
|
Offences
committed
before DNA
Identification
Act in force
|
196.15 (1) Subject to section 196.16, if a
person is found guilty of a designated offence
committed before the coming into force of
subsection 5(1) of the DNA Identification Act,
the court martial may, on application by the
prosecutor, make an order in the prescribed
form authorizing the taking, from that person,
for the purpose of forensic DNA analysis, of
any number of samples of bodily substances
that is reasonably required for that purpose, if
the court martial 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 martial shall consider the nature of
the offence and the circumstances
surrounding its commission, any previous
convictions by a service tribunal or civil court
and the impact such an order would have on
the privacy and security of the person and shall
give reasons for its decision.
|
|
No order
|
196.16 An order shall not be made under
section 196.14 or 196.15 if the prosecutor
advises the court martial that the order is not
required because the national DNA data bank,
established under the DNA Identification Act,
contains a DNA profile of the person in
question.
|
|
When
collection to
take place
|
196.17 (1) Samples of bodily substances
referred to in sections 196.14 and 196.15 shall
be taken at the time the person is found guilty
or as soon as is feasible afterwards, even
though an appeal may have been taken.
|
|
Who collects
|
(2) The samples shall be taken by
|
|
|
|
|
|
|
|
Report of
peace officer
|
196.18 (1) A peace officer who is
authorized to take samples of bodily
substances, or to direct another person to take
them, in execution of a warrant under section
196.12 or 196.13, an order under section
196.14 or 196.15 or an authorization under
section 196.24 shall, as soon as is feasible after
the samples have been taken, make a written
report in the prescribed form and cause the
report to be filed with
|
|
|
|
|
|
|
|
Contents of
report
|
(2) The report shall state the time and date
the samples were taken, and describe the
bodily substances that were taken.
|
|
Unexecuted
telewarrant
|
(3) If a peace officer does not execute a
warrant that was issued in accordance with
section 196.13, the peace officer must make a
report stating the reasons why the warrant was
not executed.
|
|
No criminal
or civil
liability
|
196.19 No peace officer or person acting
under a peace officer's direction incurs any
disciplinary, criminal or civil liability for
anything necessarily done with reasonable
care and skill in the taking of samples of
bodily substances in execution of a warrant
under section 196.12 or 196.13, an order under
section 196.14 or 196.15 or an authorization
under section 196.24.
|
|
Investigative
procedures
|
196.2 (1) A peace officer or person acting
under a peace officer's direction is authorized
to take samples of bodily substances by a
warrant under section 196.12 or 196.13, an
order under section 196.14 or 196.15 or an
authorization under section 196.24 by any of
the following means:
|
|
|
|
|
|
|
|
|
|
|
Terms and
conditions
|
(2) The warrant or order shall include any
terms and conditions that the military judge
considers advisable to ensure that the taking of
the samples is reasonable in the
circumstances.
|
|
Fingerprints
|
(3) A peace officer, or any person acting
under a peace officer's direction, who is
authorized to take samples of bodily
substances from a person by an order under
section 196.14 or 196.15 or an authorization
under section 196.24 may take fingerprints
from the person for the purpose of the DNA
Identification Act.
|
|