Bill C-72

1st Session, 38th Parliament,

53-54 Elizabeth II, 2004-2005

house of commons of canada

BILL C-72

An Act to amend certain Acts in relation to DNA Identification

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

INTERPRETATION

1. In this Act, “other Act” means An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005.

REPEALS — THE OTHER ACT

2. (1) Subsection 1(5.1) of the other Act is repealed.

(2) Subsection 1(6.1) of the other Act is repealed.

CRIMINAL CODE

3. (1) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Criminal Code, as enacted by subsection 1(4) of the other Act, is amended by striking out the word “and” at the end of subparagraph (xii) and by replacing subparagraph (xiii) with the following:

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

(2) Subparagraph (c)(i) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, is replaced by the following:

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

(i.4) subsection 160(3) (bestiality in presence of or by child),

(3) Paragraph (e) of the definition “secondary designated offence” in section 487.04 of the Act, as enacted by subsection 1(7) of the other Act, is replaced by the following:

(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

(i) paragraph (a) or (b) and that, for the application of section 487.051 or 487.052, is prosecuted by indictment, or

(ii) paragraph (c) or (d);

4. (1) Section 487.055 of the Act is amended by adding the following after subsection (3):

(2) Subsection 487.055(4) of the Act is replaced by the following:

(4) However, if a person who is on conditional release has not appeared at the hearing, a summons in Form 5.061 setting out the matters referred to in paragraphs 487.07(1)(b) to (d) shall be directed to them requiring them to report at the place, day and time set out in the summons and submit to the taking of the samples.

(3) Subsections 487.055(7) to (10) of the Act are repealed.

5. (1) Subsection 487.056(1) of the Act, as enacted by section 6 of the other Act, is replaced by the following:

487.056 (1) Even though an appeal is taken, samples of bodily substances shall be taken as authorized under section 487.051 or 487.052

(a) at the place, day and time set out in an order made under subsection 487.051(4) or 487.052(3) or as soon as feasible afterwards; or

(b) in any other case, on the day on which a court makes an order under subsection 487.051(1) or 487.052(1) or as soon as feasible afterwards.

(2) Subsection 487.056(2) of the Act is replaced by the following:

(2) Even though an appeal is taken, samples of bodily substances shall be taken as authorized under section 487.055 or 487.091

(b) in any other case, as soon as feasible after the authorization is granted.

6. Subsection 487.0561(1) of the Act, as enacted by section 7 of the other Act, is replaced by the following:

487.0561 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051(4), 487.052(3) or 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3), a justice of the peace may issue a warrant for their arrest to allow samples of bodily substances to be taken.

7. Subsection 487.091(3) of the Act is replaced by the following:

(3) If the court authorizes the taking of samples of bodily substances from a person who is not in custody, a summons in Form 5.061 setting out the matters referred to in paragraphs 487.07(1)(b) to (d) shall be directed to the person requiring them to report at the place, day and time set out in the summons and submit to the taking of the samples. Subsections 487.055(5) and (6) apply, with any modifications that the circumstances require.

8. Subsection 487.0911(3) of the Act, as enacted by section 11 of the other Act, is replaced by the following:

(3) If the Attorney General is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Attorney General shall transmit that opinion to the Commissioner.

9. Forms 5.031 to 5.06 in Part XXVIII of the Act, as enacted by section 12 of the other Act, are replaced by the following:

FORM 5.031

(Subsections 487.051(4), 487.052(3) and 487.055(3.11))

ORDER TO A PERSON TO HAVE BODILY SUBSTANCES TAKEN FOR FORENSIC DNA ANALYSIS

Canada,

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

(territorial division)

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

Whereas an order has been made under section 487.051 or 487.052 of the Criminal Code, or an authorization has been granted under section 487.055 of that Act, 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, 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) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051(4), 487.052(3) or 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3), a justice of the peace may issue a warrant for their arrest 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”,

(a) has been found not criminally responsible on account of mental disorder for (offence), which was committed before, on or after June 30, 2000 and is a primary designated offence within the meaning of section 487.04 of the Criminal Code,

(b) 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), which was committed before June 30, 2000 and is a primary designated offence within the meaning of section 487.04 of the Criminal Code, or

(c) 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 has been found not criminally responsible on account of mental disorder for (offence), which was committed before, on or after June 30, 2000 and is a secondary designated offence within the meaning of section 487.04 of the Criminal Code because it is (identify which of the following is applicable)

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 that, if the person taking the samples is not a peace officer, they 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 (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 murder,

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

(e) had been convicted of manslaughter and is currently serving a sentence of at least two years imprisonment for that offence;

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, they 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 TO TAKE BODILY SUBSTANCES FOR FORENSIC DNA ANALYSIS

Canada,

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

(territorial division)

To the peace officers in (territorial division):

Whereas (name of peace officer), a peace officer in the territorial division referred to above, has applied for an authorization to take 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;

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 murder,

(d) had been convicted of a sexual offence within the meaning of subsection 487.055(3) of the Criminal Code and, on the date of the application, was serving a sentence of at least two years imprisonment for that offence, or

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

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

10. Section 5.2 of the DNA Identification Act is amended by adding the following after subsection (2):

11. (1) The portion of subsection 6(1) of the Act before paragraph (a) 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 criminal offence, communicate the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:

(2) Paragraph 6(1)(b) of the English version of the Act is replaced by the following:

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

(3) Paragraph 6(1)(d) of the Act is replaced by the following:

(d) if a law enforcement agency or laboratory advises the Commissioner that it cannot exclude a DNA profile that is communicated under paragraph (c) as a possible match, the information contained in the data bank in relation to that profile.

(4) 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 such a government or international organization, the Commissioner may compare the profile with those in the DNA data bank to determine whether it is already contained in the data bank and may then communicate to the government, organization or institution

(a) the information referred to in any of paragraphs (1)(a) to (c) in the circumstances referred to in that paragraph; and

(b) the information contained in the data bank in relation to a DNA profile communicated to the government, organization or institution in the circumstances set out in paragraph (1)(c) if the government, organization or institution advises the Commissioner that the profile cannot be excluded as a possible match.

(5) Subsection 6(6.1) of the Act is replaced by the following:

(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 criminal offence.

NATIONAL DEFENCE ACT

12. (1) Subsection 196.17(1) of the National Defence Act, as enacted by subsection 26(1) of the other Act, is replaced by the following:

196.17 (1) Even though an appeal is taken, samples of bodily substances shall be taken as authorized under section 196.14 or 196.15

(a) at the place, day and time set out in an order made under subsection 196.14(4) or 196.15(3) or as soon as feasible afterwards; or

(b) in any other case, on the day on which a court martial makes an order under subsection 196.14(1) or 196.15(1) or as soon as feasible afterwards.

(1.1) If a person fails to appear as required by an order made under subsection 196.14(4) or 196.15(3), samples of bodily substances shall be taken

(a) when the person is arrested under a warrant issued under subsection (3) or as soon as feasible afterwards; or

(2) Subsection 196.17(3) of the Act, as enacted by subsection 26(2) of the other Act, is replaced by the following:

(3) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.15(3), a military judge may issue a warrant in the prescribed form for their arrest to allow samples of bodily substances to be taken.

13. Subsection 196.241(3) of the Act, as enacted by section 29 of the other Act, is replaced by the following:

(3) If the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Director shall transmit that opinion to the Commissioner.

COORDINATING AMENDMENT

14. On the later of the coming into force of section 1 of An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, chapter 32 of the Statutes of Canada, 2005 and the coming into force of section 12 of the other Act, the last paragraph of Form 5.061 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.