Bill C-13

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1st Session, 38th Parliament,

53 Elizabeth II, 2004

house of commons of canada

BILL C-13

An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act

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

CRIMINAL CODE

1995, c. 27, s. 1

1. (1) The portion of section 487.04 of the Criminal Code before the definition “adult” is replaced by the following:

Definitions

487.04 In this section and in sections 487.05 to 487.0911,

(2) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (iii):

(iii.1) section 153.1 (sexual exploitation of person with disability),

1998, c. 37, s. 15(2)

(3) Subparagraph (a)(v) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:

(iv.1) subsection 163.1(2) (making child pornography),

(iv.2) subsection 163.1(3) (distribution, etc., of child pornography),

(iv.3) subsection 163.1(4) (possession of child pornography),

(iv.4) subsection 163.1(4.1) (accessing child pornography),

(iv.5) section 172.1 (luring a child),

(v) subsection 212(1) (procuring),

(v.1) subsection 212(2) (procuring),

(v.2) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years),

(v.3) subsection 212(4) (offence — prostitution of person under eighteen),

(4) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (ix):

(ix.1) section 244.1 (causing bodily harm with intent — air gun or pistol),

(ix.2) paragraph 245(a) (administering noxious thing with intention to endanger life or cause bodily harm),

(ix.3) section 246 (overcoming resistance to commission of offence),

(5) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (xvii):

(xvii.1) section 344 (robbery),

(xvii.2) section 346 (extortion),

(xvii.3) paragraph 348(1)(d) (breaking and entering a dwelling-house),

(xvii.4) section 423.1 (intimidation of a justice system participant or journalist),

(6) Paragraph (b) of the definition “primary designated offence” in section 487.04 of the Act is amended by striking out the word “and” at the end of subparagraph (ii) and by adding the following after subparagraph (iii):

(iv) section 149 (indecent assault on female),

(v) section 156 (indecent assault on male), and

(vi) section 157 (acts of gross indecency),

1998, c. 37, s. 15(2)

(7) Subparagraph (a)(vii) of the definition “secondary designated offence” in section 487.04 of the Act is repealed.

(8) Paragraph (a) of the definition “secondary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (xvi):

(xvi.1) section 264 (criminal harassment),

(xvi.2) section 264.1 (uttering threats),

1998, c. 37, s. 15(2)

(9) Subparagraphs (a)(xxi) and (xxii) of the definition “secondary designated offence” in section 487.04 of the Act are replaced by the following:

(xxi) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),

(xxii) section 349 (being unlawfully in a dwelling-house),

(xxii.1) section 423 (intimidation),

(10) Paragraph (a) of the definition “secondary designated offence” in section 487.04 of the Act is amended by striking out the word “and” at the end of subparagraph (xxiv) and by adding the following after that subparagraph:

(xxiv.1) section 434 (arson — damage to property),

(11) Paragraph (a) of the definition “secondary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (xxv):

(xxvi) section 435 (arson for fraudulent purpose),

(xxvii) section 467.11 (participation in activities of criminal organization),

(xxviii) section 467.12 (commission of offence for criminal organization), and

(xxix) section 467.13 (instructing commission of offence for criminal organization),

2002, c. 1, s. 175

(12) The definition “young person” in section 487.04 of the Act is replaced by the following:

“young person”
« adolescent »

“young person” has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act or subsection 2(1) of the Young Offenders Act, as the case may be.

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

“Young Offenders Act”
« Loi sur les jeunes contrevenants »

“Young Offenders Act” means chapter Y-1 of the Revised Statutes of Canada, 1985;

1998, c. 37, s. 16(1)

2. (1) The portion of subsection 487.05(1) of the French version of the Act before paragraph (a) is replaced by the following:

Mandat relatif aux analyses génétiques

487.05 (1) Sur demande ex parte présentée selon la formule 5.01, un juge de la cour provinciale peut délivrer un mandat — rédigé selon la formule 5.02 — autorisant le prélèvement en conformité avec le paragraphe 487.06(1), pour analyse génétique, du nombre d’échantillons de substances corporelles d’une personne jugé nécessaire à cette fin, s’il est convaincu, à la suite d’une dénonciation faite sous serment, que cela servirait au mieux l’administration de la justice et qu’il existe des motifs raisonnables de croire :

1995, c. 27, s. 1; 1998, c. 37, s. 16(2)(E)

(2) Paragraph 487.05(2)(b) of the French version of the Act is replaced by the following:

b) de la possibilité d’avoir un agent de la paix — ou toute personne sous son autorité — qui, de par sa formation ou son expérience, peut effectuer le prélèvement en conformité avec le paragraphe 487.06(1).

1998, c. 37, s. 17; 2002, c. 1, s. 176

3. (1) Subsection 487.051(1) of the Act is replaced by the following:

Order

487.051 (1) If a person is convicted, found guilty under the Youth Criminal Justice Act or the Young Offenders Act, or discharged under section 730 of a designated offence, or found not criminally responsible on account of mental disorder for 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 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 designated offence, on application by the prosecutor, 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.

1998, c. 37, s. 17

(2) Subsection 487.051(3) of the Act is replaced by the following:

Criteria

(3) In deciding whether to make an order under paragraph (1)(b), the court shall consider the person’s criminal record, whether the person was previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence and 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.

Order to offender

(4) The court may make an order in Form 5.031 to require the person to report at the place, day and time set out in the order and submit to the taking of samples of bodily substances for the purposes of subsection (1).

1998, c. 37, s. 17; 2000, c. 10, s. 14; 2002, c. 1, s. 177

4. Sections 487.052 and 487.053 of the Act are replaced by the following:

Offences committed before June 30, 2000

487.052 (1) If a person is convicted, found guilty under the Youth Criminal Justice Act or the Young Offenders Act, or discharged under section 730 of a designated offence committed before June 30, 2000, or found not criminally responsible on account of mental disorder for such a designated offence, the court may, on application by the prosecutor, make an order in Form 5.04 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, by means of the investigative procedures described 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 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 and 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.

Order to offender

(3) The court may make an order in Form 5.031 to require the person to report at the place, day and time set out in the order and submit to the taking of samples of bodily substances for the purposes of subsection (1).

Timing of order

487.053 (1) The court may make an order under section 487.051 or 487.052 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.

Hearing

(2) If it is not possible to make the order under section 487.051 or 487.052 at the time referred to in subsection (1), the court may set a date and time for a subsequent hearing to determine whether to make the order. The court retains jurisdiction over the matter and may compel the attendance at the hearing of any person who may be subject to the order.

1998, c. 37, s. 17

5. (1) Subsection 487.055(1) of the Act is replaced by the following:

Offenders serving sentences

487.055 (1) A provincial court judge may, on ex parte application made in Form 5.05, authorize in Form 5.06 the taking, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), from a person who, before June 30, 2000,

(a) had been declared a dangerous offender under Part XXIV;

(b) had been declared a dangerous offender or a dangerous sexual offender under Part XXI of the Criminal Code, being chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988;

(d) had been convicted of more than one sexual offence 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; or

(e) had been convicted of a murder and a sexual offence within the meaning of subsection (3), committed at different times.

(2) Subsection 487.055(3) of the Act is amended by adding the following after paragraph (a):

(a.1) an offence under subsection 348(1) if the indictable offence referred to in that subsection is a sexual offence within the meaning of paragraph (a), (b), (c) or (d);

(3) Paragraph 487.055(3)(b) of the Act is amended by striking out the word “or” at the end of subparagraph (ii) and by adding the following after subparagraph (iii):

(iv) section 149 (indecent assault on female),

(v) section 156 (indecent assault on male), or

(vi) section 157 (acts of gross indecency);

1998, c. 37, s. 17; 2002, c. 1, s. 179(E)

6. Subsection 487.056(1) of the Act is replaced by the following:

When collection to take place

487.056 (1) Samples of bodily substances shall be taken, either when a court makes an order under subsection 487.051(1) or 487.052(1) or, if the court is of the opinion that it is not feasible for samples to be taken then, at a place, day and time set out in an order made under subsection 487.051(4) or 487.052(3), even though an appeal is taken.

7. The Act is amended by adding the following after section 487.056:

Failure to appear

487.0561 (1) A justice of the peace may issue a warrant for the arrest of a person who does not report at the place, day and time set out in an order referred to in subsection 487.056(1) to allow samples of bodily substances to be taken.

Contents of warrant to arrest

(2) The warrant must name or describe the person and order that they be arrested without delay to allow the samples to be taken.

Warrant in force

(3) The warrant remains in force until it is executed.

1998, c. 37, s. 20; 2000, c. 10, s. 21

8. Section 487.071 of the Act is replaced by the following:

Verification

487.071 (1) Before taking samples of bodily substances from a person under an order made under section 487.051 or 487.052 or an authorization made under section 487.055 or 487.091, a peace officer or a person under their direction shall verify whether the convicted offenders index of the national DNA data bank, established under the DNA Identification Act, contains the person’s DNA profile.

DNA profile in data bank

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

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

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

DNA profile not in data bank

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

(a) any bodily substances taken; and

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

1998, c. 37, s. 21(1); 2000, c. 10, s. 22(1)

9. (1) Subsection 487.08(1.1) of the Act is replaced by the following:

Use of bodily substances — order, authorization

(1.1) No person shall use bodily substances that are taken in execution of an order under section 487.051 or 487.052 or section 196.14 or 196.15 of the National Defence Act, or under an authorization under section 487.055 or 487.091 or section 196.24 of the National Defence Act, except to transmit them to the Commissioner of the Royal Canadian Mounted Police for the purpose of forensic DNA analysis in accordance with the DNA Identification Act.

2000, c. 10, s. 22(3)

(2) Subsection 487.08(2.1) of the Act is repealed.

1998, c. 37, s. 21(2)

(3) The portion of subsection 487.08(4) of the Act before paragraph (a) is replaced by the following:

Offence

(4) Every person who contravenes subsection (1.1)

1998, c. 37, s. 23

10. Subsections 487.091(1) and (2) of the Act are replaced by the following:

Collection of additional bodily substances

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

(a) a DNA profile cannot be derived from the bodily substances that were taken from that person in execution of an order under section 487.051 or 487.052 or under an authorization under section 487.055; or

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

Reasons

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

11. The Act is amended by adding the following after section 487.091:

Review by Attorney General

487.0911 (1) On receipt of a notice from the Commissioner of the Royal Canadian Mounted Police under subsection 5.2(1) of the DNA Identification Act that an order made under section 487.051 or 487.052, or an authorization made under section 487.091, appears to be defective, the Attorney General shall review the order or authorization and the court record.

Clerical error

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

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

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

Substantive defect

(3) If, in the opinion of the Attorney General, the offence to which the order or authorization relates is not a designated offence, the Attorney General shall

(a) apply, ex parte, to a judge of the court of appeal for an order revoking the order or authorization; and

(b) if the order or authorization is revoked, transmit a copy of the order revoking it to the Commissioner.

No defect

(4) If the Attorney General is of the opinion that the offence referred to in the order or authorization is a designated offence, the Attorney General shall transmit that opinion, with written reasons, to the Commissioner.

1998, c. 37, s. 24; 2002, c. 1, ss. 185 and 186

12. Forms 5.03 to 5.06 in Part XXVIII of the Act are replaced by the following:

FORM 5.03

(Paragraph 487.051(1)(a))

ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

To the peace officers in (territorial division):

Whereas (name of offender) has been convicted, discharged under section 730 of the Criminal Code or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of (offence), or found not criminally responsible on account of mental disorder for that offence, an offence that is a primary designated offence within the meaning of section 487.04 of the Criminal Code;

Therefore, you are authorized to take from (name of offender) or cause to be taken by a person acting under your direction, the number of samples of bodily substances that are reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated this ................ day of ................ ,

A.D. ........ , at ................ .

............................................

(Signature of judge of the court)

FORM 5.031

(Subsections 487.051(4) and 487.052(3))

ORDER TO A PERSON SUBJECT TO A DNA DATA BANK ORDER

Canada,

Province of ................

(territorial division)

To A.B., of ................ ,

Whereas you have this day been made subject to an order to take from you the number of samples of bodily substances that are reasonably required for forensic DNA analysis;

This is therefore to command you, in Her Majesty’s name to appear on ................ , the ................ day of ................ , A.D. ........ , at ............ o’clock in the ........ noon, at ................ , for the purposes of the taking of bodily substances by means of the investigative procedures set out in subsection 487.06(1) of the Criminal Code.

You are warned that failure to appear in accordance with this order may result in a warrant being issued for your arrest.

Subsection 487.0561(1) of the Criminal Code states as follows:

Dated this ................ day of ................ , A.D. ........ , at ................ .

...........................................

(Signature of judge of the court)

FORM 5.04

(Paragraph 487.051(1)(b) and subsection 487.052(1))

ORDER AUTHORIZING THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of .................

(territorial division)

To the peace officers in (territorial division):

Whereas (name of offender), in this order called the “offender”, has been convicted, discharged under section 730 of the Criminal Code or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of (offence), or found not criminally responsible on account of mental disorder for that offence, an offence that is

(a) a secondary designated offence within the meaning of section 487.04 of the Criminal Code, or

(b) a designated offence within the meaning of section 487.04 of the Criminal Code committed before June 30, 2000;

Whereas I have considered the offender’s criminal record, the nature of the offence and the circumstances surrounding its commission, whether the offender was previously found not criminally responsible on account of mental disorder for a designated offence, and the impact that this order would have on the offender’s privacy and security of the person;

And whereas I am satisfied that it is in the best interests of the administration of justice to make this order;

This order is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated this ................ day of ................ , A.D. ........ , at ................ .

........................................

(Signature of judge of the court)

FORM 5.05

(Subsection 487.055(1))

APPLICATION FOR AN AUTHORIZATION TO TAKE BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

I, (name of peace officer), (occupation), of .......... in the said (territorial division), apply for an authorization to take bodily substances for forensic DNA analysis. A certificate referred to in paragraph 667(1)(a) of the Criminal Code is filed with this application.

Whereas (name of offender), before June 30, 2000,

(a) had been declared a dangerous offender under Part XXIV of the Criminal Code,

(d) had been convicted of more than one sexual offence within the meaning of subsection 487.055(3) of the Criminal Code and is currently serving a sentence of at least two years imprisonment for one or more of those offences, or

(e) had been convicted of a murder and a sexual offence within the meaning of subsection 487.055(3) of the Criminal Code committed at different times;

Therefore, I request that an authorization be granted under subsection 487.055(1) of the Criminal Code to take from (name of offender) the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

Dated this ... day of ........ , A.D. ...... , at ............... .

.........................................

(Signature of applicant)

FORM 5.06

(Subsection 487.055(1))

AUTHORIZATION FOR THE TAKING OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

To the peace officers in (territorial division):

Whereas (name of offender), before June 30, 2000,

(a) had been declared a dangerous offender under Part XXIV of the Criminal Code,

(e) had been convicted of a murder and a sexual offence within the meaning of subsection 487.055(3) of the Criminal Code committed at different times;

Whereas (name of peace officer), a peace officer of the said territorial division, has applied for an authorization for the taking of the number of samples of bodily substances from (name of offender) that is reasonably required for forensic DNA analysis by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code;

And whereas I have considered the offender’s criminal record, the nature of the offence and the circumstances surrounding its commission and the impact that this authorization would have on the offender’s privacy and security of the person;

Therefore, the peace officers of the said territorial division are authorized to take from (name of offender) or cause to be taken by a person acting under their direction those samples, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

This authorization is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated this ................ day of ................ , A.D., at ................ .

........................................

(Signature of provincial court judge)

1998, c. 37, s. 24

13. Forms 5.08 and 5.09 in Part XXVIII of the Act are replaced by the following:

FORM 5.08

(Subsection 487.091(1))

APPLICATION FOR AN AUTHORIZATION FOR TAKING ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

I, (name of peace officer), (occupation), of .......... in the said (territorial division), apply for an authorization to take additional samples of bodily substances for forensic DNA analysis.

Whereas samples of bodily substances were taken from (name of offender) for the purpose of forensic DNA analysis, in execution of an order made under section 487.051 or 487.052 of the Criminal Code or an authorization granted under section 487.055 of the Criminal Code (attach a copy of the order or authorization);

And whereas on (day/month/year) it was determined that

(a) a DNA profile cannot be derived from the samples for the following reasons:

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

Therefore, I request that an authorization be granted under subsection 487.091(1) of the Criminal Code to take from (name of offender) the number of additional samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

Dated this .... day of ........ , A.D. ........ , at ............... .

.........................................

(Signature of applicant)

FORM 5.09

(Subsection 487.091(1))

AUTHORIZATION FOR THE TAKING OF ADDITIONAL SAMPLES OF BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

Province of ................

(territorial division)

To the peace officers in (territorial division):

Whereas on (day/month/year) it was determined that

(a) a DNA profile could not be derived from the samples for the following reasons:

And whereas (name of peace officer), a peace officer of the said territorial division, has applied for an authorization for the taking of the number of additional samples of bodily substances from (name of offender) that is reasonably required for forensic DNA analysis by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code;

Therefore, the peace officers of the said territorial division are authorized to take from (name of offender) or cause to be taken by a person acting under their direction those additional samples, provided that the person taking the samples is able by virtue of training or experience to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and provided that, if the person taking the samples is not a peace officer, he or she take the samples under the direction of a peace officer.

This authorization is subject to the following terms and conditions that I consider advisable to ensure that the taking of the samples is reasonable in the circumstances:

Dated this ................ day of ................ , A.D. ........ , at ................ .

........................................

(Signature of provincial court judge)

1998, c. 37

DNA IDENTIFICATION ACT

2002, c. 1, s. 187

14. (1) The definition “young person” in section 2 of the DNA Identification Act is replaced by the following:

“young person”
« adolescent »

“young person” has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act or subsection 2(1) of the Young Offenders Act, as the case may be.

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

“authorization”
« autorisation »

“authorization” means an authorization made under section 487.055 or 487.091 of the Criminal Code or section 196.24 of the National Defence Act.

“order”
« ordonnance »

“order” means an order made under section 487.051 or 487.052 of the Criminal Code or section 196.14 or 196.15 of the National Defence Act.

“Young Offenders Act”
« Loi sur les jeunes contrevenants »

“Young Offenders Act” means chapter Y-1 of the Revised Statutes of Canada, 1985.

2000, c. 10, s. 6

15. Subsection 5(4) of the Act is replaced by the following:

Convicted offenders index

(4) The convicted offenders index shall contain DNA profiles derived from bodily substances described in section 487.071 of the Criminal Code or section 196.22 of the National Defence Act.

16. The Act is amended by adding the following after section 5:

Review of information transmitted

5.1 (1) The Commissioner shall review the information transmitted under section 487.071 of the Criminal Code or section 196.22 of the National Defence Act to ensure that the offence referred to in the order or authorization is a designated offence.

Forensic DNA analysis

(2) The Commissioner shall conduct a forensic DNA analysis of the bodily substances transmitted if satisfied that the offence referred to in the order or authorization is a designated offence.

Retention of order or authorization

(3) The Commissioner shall retain the copy of the order or authorization transmitted under subsection 487.071(2) of the Criminal Code or subsection 196.161(2) of the National Defence Act.

Defect in order or authorization

5.2 (1) If the Commissioner is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Commissioner shall retain any bodily substances collected under it and any information transmitted with it, and give notice of the apparent defect to

(a) the Attorney General of the province in which the order or authorization was made, if it was transmitted under section 487.071 of the Criminal Code; or

(b) the Director of Military Prosecutions, if the order or authorization was transmitted under section 196.22 of the National Defence Act.

Confirmation or correction

(2) If the Attorney General or Director of Military Prosecutions, as the case may be, confirms in writing that the order or authorization is valid or sends a copy of a corrected order or authorization to the Commissioner, the Commissioner shall conduct a forensic DNA analysis of any bodily substances collected under it.

Revoked order or authorization

(3) The Commissioner shall, without delay, destroy any bodily substances collected and any information transmitted with them if the order or authorization for their collection is revoked.

Destruction of bodily substances

(4) The Commissioner shall destroy any bodily substances and information retained under subsection (1) on the expiry of 180 days after sending a notice under that subsection unless, before the expiry of that period, the Commissioner receives

(a) a confirmation that the order or authorization is valid;

(b) a corrected order or authorization;

(c) a notice that the Attorney General or Director of Military Prosecutions requires an additional period of not greater than 90 days to review the order or authorization; or

(d) a notice that the issue of whether or not the order or authorization is defective is under review by a judge or in proceedings before a court.

2000, c. 10, s. 7

17. (1) The portion of subsection 6(1) of the Act before paragraph (a) is replaced by the following:

Communication of information

6. (1) After conducting a DNA forensic analysis, the Commissioner shall compare the resulting DNA profile with DNA profiles in the data bank in order to determine whether it is already contained in the data bank and may then communicate, for the purposes of the investigation or prosecution of a criminal offence, the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:

(2) Subsection 6(6) of the Act is replaced by the following:

Use of results — order, authorization

(6) No person shall use the results of forensic DNA analysis of bodily substances that are taken in execution of an order or authorization, except in accordance with this Act.

2000, c. 10, s. 8(2)

18. Subsection 9(2) of the Act is replaced by the following:

Information to be permanently removed

(2) Access to information in the convicted offenders index shall be permanently removed without delay

(a) if the person to whom the information relates is finally acquitted of every designated offence in connection with which an order was made; and

(b) in the case of a person who is discharged under section 730 of the Criminal Code of a designated offence and is not subject to an order or authorization that relates to another designated offence,

(i) one year after they are discharged absolutely unless, during that year, they are convicted of, or found not criminally responsible on account of mental disorder for, a designated offence, or

(ii) three years after they are discharged conditionally unless, during those three years, they are convicted of, or found not criminally responsible on account of mental disorder for, a designated offence.

2000, c. 10, s. 9

19. Section 9.1 of the Act is replaced by the following:

Young persons — access to information removed

9.1 (1) Access to information in the convicted offenders index in relation to a young person who has been found guilty under the Young Offenders Act or under the Youth Criminal Justice Act of a designated offence shall be permanently removed without delay when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.

Exception

(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to

(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.

2000, c. 10, s. 10(1)

20. (1) Subsection 10(1) of the Act is replaced by the following:

Storage of bodily substances

10. (1) When bodily substances are transmitted to the Commissioner under section 487.071 of the Criminal Code or section 196.22 of the National Defence Act, the Commissioner shall, subject to this section and section 10.1, safely and securely store, for the purpose of forensic DNA analysis, the portions of the samples of the bodily substances that the Commissioner considers appropriate and without delay destroy any remaining portions.

(2) Subsection 10(3) of the Act is repealed.

2000, c. 10, s. 10(2)

(3) Subsection 10(7) of the Act is replaced by the following:

Mandatory destruction in certain cases

(7) The Commissioner shall destroy the stored bodily substances of a person without delay

(a) if the person is finally acquitted of every designated offence in connection with which an order or an authorization under section 487.091 of the Criminal Code or section 196.24 of the National Defence Act was made; and

(i) one year after they are discharged absolutely unless, during that year, they are convicted of, or found not criminally responsible on account of mental disorder for, a designated offence, or

2000, c. 10, s. 11

21. Section 10.1 of the Act is replaced by the following:

Young persons — destruction of bodily substances

10.1 (1) The Commissioner shall, without delay, destroy stored bodily substances of a young person who has been found guilty of a designated offence under the Young Offenders Act or under the Youth Criminal Justice Act when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.

Exception

(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to

(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.

22. The portion of section 11 of the Act before paragraph (a) is replaced by the following:

Offence

11. Every person who contravenes subsection 6(6) or (7), section 8 or subsection 10(5)

R.S., c. N-5

NATIONAL DEFENCE ACT

2000, c. 10, s. 1

23. The definition “primary designated offence” in section 196.11 of the National Defence Act is replaced by the following:

“primary designated offence”
« infraction primaire »

“primary designated offence” means

(a) a primary designated offence within the meaning of paragraphs (a) to (c.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130; and

(b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit a primary designated offence within the meaning of paragraphs (a) to (c) of the definition “primary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130.

2000, c. 10, s. 1

24. (1) The portion of subsection 196.14(1) of the Act before paragraph (a) is replaced by the following:

Order

196.14 (1) If a person is found guilty of, or not responsible on account of mental disorder for, a designated offence, the court martial

2000, c. 10, s. 1

(2) Paragraph 196.14(1)(b) of the Act is replaced by the following:

(b) may, in the case of a secondary designated offence, on application by the prosecutor, make an order in the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of justice to do so.

2000, c. 10, s. 1

(3) Subsection 196.14(3) of the Act is replaced by the following:

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, any previous finding of not responsible on account of mental disorder for a designated offence, 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.

Order to offender

(4) The court martial may make an order in the prescribed form to require the person to report at the place, day and time set out in the order and submit to the taking of samples of bodily substances for the purposes of subsection (1).

2000, c. 10, s. 1

25. Sections 196.15 and 196.16 of the Act are replaced by the following:

Offences committed before June 30, 2000

196.15 (1) If a person is found guilty of, or not responsible on account of mental disorder for, a designated offence committed before June 30, 2000, 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, any previous finding of not responsible on account of mental disorder for a designated offence, 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.

Order to offender

(3) The court martial may make an order in the prescribed form to require the person to report at the place, day and time set out in the order and submit to the taking of samples of bodily substances for the purposes of subsection (1).

Timing of order

196.16 The court martial may make an order under section 196.14 or 196.15

(a) when it imposes a sentence on a person for a designated offence or finds them not responsible on account of mental disorder for the offence; or

(b) if it is not possible to proceed at the time referred to in paragraph (a), at a date and time set upon adjournment of the proceedings.

Verification

196.161 (1) Before taking samples of bodily substances from a person under an order made under section 196.14 or 196.15 or an authorization made under section 196.24, a peace officer or a person acting under their direction shall verify whether the convicted offenders index of the national DNA data bank, established under the DNA Identification Act, contains a DNA profile of the person.

DNA profile in data bank

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

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

2000, c. 10, s. 1

26. (1) Subsection 196.17(1) of the Act is replaced by the following:

When collection to take place

196.17 (1) Samples of bodily substances shall be taken, either when a court martial makes an order under subsection 196.14(1) or 196.15(1) or, if the court martial is of the opinion that it is not feasible for samples to be taken then, at a place, day and time set out in an order made under subsection 196.14(4) or 196.15(3), even though an appeal is taken.

(2) Section 196.17 of the Act is amended by adding the following after subsection (2):

Failure to appear

(3) If a person does not report at the place, day and time set out in the order referred to in subsection (1), a military judge may issue a warrant in the prescribed form for their arrest to allow the samples to be taken.

Contents of warrant to arrest

(4) The warrant must name or describe the person and order that they be arrested without delay to allow the taking of the samples.

Warrant in force

(5) The warrant remains in force until it is executed.

2000, c. 10, s. 1

27. Section 196.22 of the Act is replaced by the following:

DNA profile not in data bank

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

(a) any bodily substances taken; and

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

2000, c. 10, s. 1

28. Subsections 196.24(1) and (2) of the Act are replaced by the following:

Collection of additional bodily substances

196.24 (1) A military judge may, on ex parte application made in the prescribed form within a reasonable time, authorize, in the prescribed form, the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose if

(a) a DNA profile cannot be derived from the bodily substances that were taken from that person in execution of an order under section 196.14 or 196.15; or

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

Reasons

29. The Act is amended by adding the following after section 196.24:

Review by Director of Military Prosecutions

196.241 (1) On receipt of a notice from the Commissioner under subsection 5.2(1) of the DNA Identification Act that an order made under section 196.14 or 196.15 or an authorization under section 196.24 appears to be defective, the Director of Military Prosecutions shall review the order or authorization and the court record.

Clerical error

(2) If, in the opinion of the Director of Military Prosecutions, the defect is due to a clerical error, the Director shall

(a) apply, ex parte, to the military judge who made the order, or to another military judge, to have it corrected; and

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

Substantive defect

(3) If, in the opinion of the Director of Military Prosecutions, the offence to which the order or authorization relates is not a designated offence, the Director shall

(a) apply, ex parte, to a judge of the Court Martial Appeal Court for an order revoking the order or authorization; and

(b) if the order or authorization is revoked, transmit a copy of the order revoking it to the Commissioner.

No defect

(4) If the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is a designated offence, the Director shall transmit that opinion, with written reasons, to the Commissioner.

1991, c. 43, s. 18

30. Subsection 202.14(1) of the Act is replaced by the following:

Finding of not responsible on account of mental disorder

202.14 (1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged, but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder.

COMING INTO FORCE

Order in council

31. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

Criminal Code

Clause 1: (1) Relevant portion of section 487.04:

487.04 In this section and sections 487.05 to 487.09,

(2) to (6) Relevant portion of the definition:

“primary designated offence”means:

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

...

(v) subsection 212(4) (offence in relation of juvenile prostitution)

...

(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,

(7) to (11) Relevant portion of the definition:

“secondary designated offence” means

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

...

(vii) section 163.1 (child pornography)

...

(xxi) section 344 (robbery),

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

(12) Existing text of the definition:

“young person” has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act.

(13) New.

Clause 2: (1) Relevant portion of subsection 487.05(1):

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

...

and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1).

(2) Relevant portion of subsection 487.05(2):

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

...

(b) whether there is

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

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

Clause 3: (1) Existing text of subsection 487.051(1):

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, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice 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 designated 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.

(2) Existing text of subsection 487.051(3):

(3) In deciding whether to make an order under paragraph (1)(b), 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.

Clause 4: Existing text of sections 487.052 and 487.053:

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, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice 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 described 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.

(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.

487.053 An order shall not be made under section 487.051 or 487.052 if the prosecutor advises the court that the national DNA data bank, established under the DNA Identification Act, contains a DNA profile, within the meaning of section 2 of that Act, of the person or young person in question.

Clause 5: (1) Existing text of subsection 487.055(1):

487.055 (1) A provincial court judge 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,

(b) before the coming into force of this subsection, had been convicted of more than one murder committed at different times, or

(c) before the coming into force of this subsection, had been convicted of more than one sexual offence 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 procedures described in subsection 487.06(1).

(2) and (3) Relevant portion of subsection 487.055(3):

(3) For the purposes of subsection (1), “sexual offence” means

...

(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,

Clause 6: Existing text of subsection 487.056(1):

487.056 (1) Samples of bodily substances referred to in sections 487.051 and 487.052 shall be taken at the time the person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act, or as soon as is feasible afterwards, even though an appeal may have been taken.

Clause 7: New.

Clause 8: Existing text of section 487.071:

487.071 (1) There shall be transmitted to the Commissioner of the Royal Canadian Mounted Police for entry in the convicted offenders index of the national DNA data bank established under the DNA Identification Act the results of forensic DNA analysis of bodily substances that are taken in execution of an order under section 487.051 or 487.052 or an authorization under section 487.055 or 487.091.

(2) Any portions of samples of bodily substances referred to in subsection (1) that are not used in forensic DNA analysis shall be transmitted to the Commissioner of the Royal Canadian Mounted Police for the purposes of the DNA Identification Act.

Clause 9: (1) Existing text of subsection 487.08(1.1):

(1.1) No person shall use bodily substances that are taken in execution of an order under section 487.051 or 487.052, under an authorization under section 487.055 or 487.091, in execution of an order under section 196.14 or 196.15 of the National Defence Act, or under an authorization under section 196.24 of that Act except

(a) to use them for the purpose of forensic DNA analysis; or

(b) to transmit any portions of samples of those bodily substances that are not used in forensic DNA analysis to the Commissioner of the Royal Canadian Mounted Police under subsection 487.071(2).

(2) Existing text of subsection 487.08(2.1):

(2.1) No person shall use the results of forensic DNA analysis of bodily substances that are taken in execution of an order under section 487.051 or 487.052 or under an authorization under section 487.055 or 487.091, or in execution of an order under section 196.14 or 196.15 of the National Defence Act, or under an authorization under section 196.24 of that Act, except to transmit them to the Commissioner of the Royal Canadian Mounted Police.

(3) Relevant portion of subsection 487.08(4):

(4) Every person who contravenes subsection (1.1) or (2.1)

Clause 10: Existing text of subsections 487.091(1) and (2):

487.091 (1) If a DNA profile could not be derived from the bodily substances that were taken from a person in execution of an order under section 487.051 or 487.052 or under an authorization under section 487.055, a provincial court judge may, on ex parte application made in Form 5.08 within a reasonable time after it is determined that the DNA profile could not be derived, grant an authorization in Form 5.09 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is required for that purpose, by means of the investigative procedures described in subsection 487.06(1).

(2) The application shall state the reasons why a DNA profile could not be derived from the bodily substances that were taken from the person under the initial order or authorization.

Clause 11: New.

DNA Identification Act

Clause 14: (1) Existing text of definition:

“young person” has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act.

(2) New.

Clause 15: Existing text of subsection 5(4):

(4) The convicted offenders index shall contain DNA profiles derived from bodily substances described in subsection 487.071(1) of the Criminal Code, subsection 196.22(1) of the National Defence Act.

Clause 16: New.

Clause 17: (1) Relevant portion of subsection 6(1):

6. (1) On receipt of a DNA profile that is transmitted under subsection 487.071(1) of the Criminal Code, subsection 196.22(1) of the National Defence Act or subsection 10(3) for entry in the DNA data bank, the Commissioner shall compare it with the DNA profiles in the data bank in order to determine whether it is already contained in the data bank and may then communicate, for the purposes of the investigation or prosecution of a criminal offence, the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:

(2) Existing text of subsection 6(6):

(6) No person who receives a DNA profile for entry in the DNA data bank shall use it or allow it to be used other than for the purposes of the administration of this Act.

Clause 18: Existing text of subsection 9(2):

(2) Access to the following information in the convicted offenders index shall be permanently removed without delay after

(a) in the case of information in relation to a person who has been convicted of a designated offence, the conviction is quashed and a final acquittal entered; and

(b) in the case of information in relation to a person who has been discharged under section 730 of the Criminal Code of a designated offence,

(i) the expiry of one year after the person is discharged absolutely, unless the person is convicted during that year of another offence, or

(ii) the expiry of three years after the person is discharged conditionally, unless the person is convicted during those three years of another offence.

Clause 19: Existing text of section 9.1:

9.1 (1) Access to information in the convicted offenders index in relation to a young person who has been found guilty of a designated offence under the Young Offenders Act shall be permanently removed without delay when the last part of the record in relation to the same offence is required to be destroyed under subsection 45(2), 45.02(3) or 45.03(3) of the Young Offenders Act.

(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to a young person’s record to which section 45.01 or subsection 45.02(2) of the Young Offenders Act applies.

Clause 20: (1) Existing text of subsection 10(1):

10. (1) When bodily substances are transmitted to the Commissioner under subsection 487.071(2) of the Criminal Code or subsection 196.22(2) of the National Defence Act, the Commissioner shall, subject to this section and section 10.1, safely and securely store, for the purpose of forensic DNA analysis, the portions of the samples of the bodily substances that the Commissioner considers appropriate and without delay destroy any remaining portions.

(2) Existing text of subsection 10(3):

(3) Any DNA profile that is derived from stored bodily substances shall be transmitted to the Commissioner for entry in the convicted offenders index and no person shall use such a DNA profile except to transmit it under this subsection.

(3) Existing text of subsection 10(7):

(7) The Commissioner shall nevertheless destroy the stored bodily substances of a person without delay

(a) if the person has been convicted of a designated offence, after the conviction is quashed and a final acquittal entered; and

(b) if the person has been discharged under section 730 of the Criminal Code of a designated offence,

(i) after the expiry of one year after the person is discharged absolutely, unless the person is convicted during that year of another offence, or

(ii) after the expiry of three years after the person is discharged conditionally, unless the person is convicted during those three years of another offence.

Clause 21: Existing text of section 10.1:

10.1 (1) The Commissioner shall, without delay, destroy stored bodily substances of a young person who has been found guilty of a designated offence under the Youth Criminal Justice Act when the last part of the record in relation to the same offence is required to be destroyed under subsection 45(2), 45.02(3) or 45.03(3) of the Young Offenders Act.

(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person relating to a record to which section 45.01 or subsection 45.02(2) of the Young Offenders Act applies.

Clause 22: Relevant portion of section 11:

11. Every person who contravenes subsection 6(6) or (7), section 8 or subsection 10(3) or (5)

National Defence Act

Clause 23: Existing text of definition:

“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.

Clause 24: (1) and (2) Relevant portion of subsection 196.14(1):

196.14 (1) Subject to section 196.16, if a person is found guilty of a designated offence, the court martial

...

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

(3) Existing text of subsection 196.14(3):

(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.

Clause 25: Existing texts of sections 196.15 and 196.16:

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.

(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.

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.

Clause 26: (1) Existing text of subsection 196.17(1):

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.

(2) New.

Clause 27: Existing text of section 196.22:

196.22 (1) There shall be transmitted to the Commissioner for entry in the convicted offenders index of the national DNA data bank established under the DNA Identification Act the results of forensic DNA analysis of bodily substances that are taken in execution of an order under section 196.14 or 196.15 or an authorization under section 196.24.

(2) Any portions of samples of bodily substances that are not used in forensic DNA analysis shall be transmitted to the Commissioner for the purposes of the DNA Identification Act.

Clause 28: Existing text of subsections 196.24(1) and (2):

196.24 (1) If a DNA profile could not be derived from the bodily substances that were taken in execution of an order under section 196.14 or 196.15, a military judge may, on ex parte application in the prescribed form, within a reasonable time after it is determined that the DNA profile could not be derived, authorize, in the prescribed form, the taking of any number of additional samples of bodily substances that is required for the purpose of forensic DNA analysis.

(2) The application shall state the reasons why a DNA profile could not be derived from the bodily substances that were taken from the person under the initial order or authorization.

Clause 29: New.

Clause 30: Existing text of subsection 202.14(1):

202.14 (1) Where a court martial finds that an accused person committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed that act or made the omission but is not responsible on account of mental disorder (referred to in this Act as a finding of not responsible on account of mental disorder).