Bill C-13

53-54 ELIZABETH II

——————

CHAPTER 25

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

[Assented to 19th May, 2005]

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

CRIMINAL CODE

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

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),

(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(4) (offence — prostitution of person under eighteen),

(4) Subparagraphs (a)(vii) to (xx) of the definition “primary designated offence” in section 487.04 of the Act are replaced by the following:

(vii) section 271 (sexual assault),

(viii) section 279.1 (hostage taking),

(ix) paragraph 348(1)(d) (breaking and entering a dwelling-house),

(x) section 423.1 (intimidation of a justice system participant or journalist),

(xi) section 431 (attack on premises, residence or transport of internationally protected person),

(xii) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel), and

(xiii) subsection 431.2(2) (explosive or other lethal device),

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

(a.1) an offence under any of the following provisions, namely,

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

(ii) section 235 (murder),

(iii) section 236 (manslaughter),

(iv) section 239 (attempt to commit murder),

(v) section 244 (causing bodily harm with intent — firearm),

(vi) section 244.1 (causing bodily harm with intent — air gun or pistol),

(vii) paragraph 245(a) (administering noxious thing with intent to endanger life or cause bodily harm),

(viii) section 246 (overcoming resistance to commission of offence),

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

(xiii) section 273 (aggravated sexual assault),

(xiv) section 279 (kidnapping),

(xv) section 344 (robbery), and

(xvi) section 346 (extortion),

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

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

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

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

(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),

(6.1) Paragraph (a) of the definition “secondary designated offence” in section 487.04 of the Act is amended by adding the following before subparagraph (vi):

(i) section 145 (escape and being at large without excuse),

(ii) section 146 (permitting or assisting escape),

(iii) section 147 (rescue or permitting escape),

(iv) section 148 (assisting prisoner of war to escape),

(7) The definitions “secondary designated offence” and “young person” in section 487.04 of the Act are replaced by the following:

“secondary designated offence” means an offence, other than a primary designated offence, that is

(a) an offence under this Act that is liable to a maximum sentence of five or more years imprisonment and may be prosecuted by indictment, and, for the application of section 487.051 or 487.052, is prosecuted by indictment,

(b) an offence under any of the following provisions of the Controlled Drugs and Substances Act that is liable to a maximum sentence of five or more years imprisonment and may be prosecuted by indictment, and, for the application of section 487.051 or 487.052, is prosecuted by indictment:

(i) section 5 (trafficking in substance and possession for purpose of trafficking),

(ii) section 6 (importing and exporting), and

(iii) section 7 (production of substance),

(c) an offence under any of the following provisions of this Act:

(i) subsection 160(3) (bestiality in the presence of or by child),

(ii) section 170 (parent or guardian procuring sexual activity),

(iii) section 173 (indecent acts),

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

(v) section 264 (criminal harassment),

(vi) section 264.1 (uttering threats),

(vii) section 266 (assault),

(viii) section 270 (assaulting a peace officer),

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

(x) section 349 (being unlawfully in dwelling-house), and

(xi) section 423 (intimidation),

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

(i) section 433 (arson), and

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

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

“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.

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

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

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

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

3. Subsections 487.051(1) to (3) of the Act are replaced by the following:

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 other than one described in paragraph (b), 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 primary designated offence in respect of which a verdict of not criminally responsible on account of mental disorder has been rendered or 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.

(2) The court is not required to make an order under paragraph (1)(a) in the case of an offence referred to in paragraph (a) or any of paragraphs (b) to (d) of the definition “primary designated offence” in section 487.04 if it is satisfied that the person or young person has established 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 administration of justice, to be achieved through the early detection, arrest and conviction of offenders.

(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.

(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).

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

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.

(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.

(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).

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.

(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.

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

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;

(c) had been convicted of murder;

(d) had been convicted of a 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 that offence; or

(e) had been convicted of manslaughter and, on the date of the application, is serving a sentence of imprisonment of at least two years for that offence.

(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);

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

487.056 (1) Samples of bodily substances shall be taken from a person, even if an appeal is taken,

(a) on the day when a court makes an order under subsection 487.051(1) or 487.052(1);

(b) if the court is of the opinion that it is not possible 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); or

(c) if the person whose presence is required by an order described in paragraph (b) fails to appear, when the person is arrested pursuant to a warrant issued under section 487.0561, or as soon as possible afterwards.

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

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.

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

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

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

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.

(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.

(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.

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

(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.

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

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

(4) Every person who contravenes subsection (1.1)

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

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.

(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:

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.

(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.

(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.

(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.

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), 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 under subsection 487.0561(1) of the Criminal Code. You are also warned that failure to appear, without lawful excuse, is an offence under subsection 127(1) of that Act.

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

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.

Subsection 127(1) of the Criminal Code states as follows:

127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

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

(a) been found not criminally responsible on account of mental disorder for an offence that is a primary designated offence within the meaning of section 487.04 of the Criminal Code, or

(b) 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

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

(ii) 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;

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 5.05

(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,

(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,

(c) had been convicted of more than one murder committed at different times,

(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,

(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,

(c) had been convicted of more than one murder committed at different times,

(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;

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)

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 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;

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

(a) a DNA profile could not 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:

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)

DNA IDENTIFICATION ACT

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

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

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

(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:

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.

(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 and enter the resulting DNA profile in the convicted offenders index.

(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.

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.

(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.

(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.

(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.

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

6. (1) The Commissioner shall compare any DNA profile that is entered in the convicted offenders index or the crime scene index with those DNA profiles that are already contained in the data bank and may then, for the purpose of the investigation of a designated offence, communicate the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:

(a) if the DNA profile is not already contained in the data bank, the fact that it is not;

(b) if the DNA profile is already contained in the data bank, any information contained in the data bank in relation to that DNA profile;

(c) if the DNA profile is, in the opinion of the Commissioner, similar to one that is already contained in the data bank, the similar DNA profile; and

(d) if a DNA profile that is communicated under paragraph (c) cannot be excluded as a possible match on further analysis, any information contained in the data bank in relation to that DNA profile.

(2) Subsection 6(3) of the Act is replaced by the following:

(3) On receipt of a DNA profile from the government of a foreign state, an international organization established by the governments of states or an institution of any such government or international organization, the Commissioner may compare the DNA profile with those in the DNA data bank to determine whether it is already contained in the data bank and may then communicate to that government, international organization or institution

(a) whether the DNA profile is already contained in the data bank; and

(b) any information, other than the DNA profile itself, that is contained in the data bank in relation to that DNA profile.

(3) Subsections 6(6) and (7) of the Act are replaced by the following:

(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.

(6.1) Information that is communicated under subsection (1) may be communicated subsequently to a person to whom the communication is necessary for the purpose of the investigation or prosecution of a designated offence.

(7) Subject to this section, no person shall communicate any information that is contained in the DNA data bank or allow the information to be communicated.

17.1 Section 8 of the Act is replaced by the following:

8. No person to whom information is communicated under subsection 6(1) or (6.1) or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes referred to in that subsection or paragraph.

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

(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.

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

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.

(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.

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

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.

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

(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

(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.

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

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.

(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:

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

NATIONAL DEFENCE ACT

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

“primary designated offence” means

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

(a.1) an offence within the meaning of paragraph (a.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 an offence within the meaning of any 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.

(2) Paragraph (a) of the definition “secondary designated offence” in section 196.11 of the Act is replaced by the following:

(a) an offence within the meaning of any of paragraphs (a) to (d) of the definition “secondary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130;

24. Subsections 196.14(1) to (3) of the Act are replaced by the following:

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

(a) shall, subject to subsection (2), in the case of a primary designated offence other than one described in paragraph (b), 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; or

(b) may, in the case of a primary designated offence in respect of which a finding of not responsible on account of mental disorder has been rendered or 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.

(2) The court martial is not required to make an order under paragraph (1)(a) in the case of an offence referred to in paragraph (a) or (b) of the definition “primary designated offence” in section 196.11 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.

(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.

(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).

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

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.

(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.

(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).

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.

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.

(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 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.

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

196.17 (1) Samples of bodily substances shall be taken, even if an appeal is taken,

(a) on the day when a court martial makes an order under subsection 196.14(1) or 196.15(1);

(b) if the court martial is of the opinion that it is not possible 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); or

(c) if the person whose presence is required by an order described in paragraph (b) fails to appear, when the person is arrested pursuant to a warrant issued under subsection 196.17(3), or as soon as possible afterwards.

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

(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.

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

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

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

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.

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

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.

(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.

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

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.

(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.

(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.

(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.

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

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.

COORDINATING AMENDMENT

30.1 If Bill C-2, introduced in the 1st session of the 38th Parliament and entitled An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (the “other Act”), receives royal assent, then, on the later of the coming into force of section 1 of the other Act and section 12 of this Act, the last paragraph of Form 5.031 in Part XXVIII of the Criminal Code is replaced by the following:

Subsection 127(1) of the Criminal Code states as follows:

127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

COMING INTO FORCE

31. The provisions of this Act, other than sections 5, 16, 17 and 30.1, come into force on a day or days to be fixed by order of the Governor in Council.