Bill C-18

APPLICATION FOR AN AUTHORIZATION TO TAKE ADDITIONAL SAMPLES OF 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 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 under an order made under section 487.051, 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 could not be derived from the samples for the following reasons:

(b) the information or bodily substances 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 that, if the person taking the samples is not a peace officer, they take them 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 TO TAKE 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 under an order made under section 487.051 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 information or bodily substances 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 in (territorial division), has applied for an authorization to take 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, you are authorized to take those additional samples, or cause them to be taken, from (name of offender), 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 them 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)

26. Form 28.1 in Part XXVIII of the Act is repealed.

DNA IDENTIFICATION ACT

27. The definition “order” in section 2 of the DNA Identification Act, as enacted by subsection 14(2) of the other Act, is replaced by the following:

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

28. Subsection 5(4) of the Act, as enacted by section 15 of the other Act, is replaced by the following:

(4) The convicted offenders index shall contain DNA profiles derived from bodily substances that are taken under orders and authorizations.

29. Subsection 5.1(3) of the Act is replaced by the following:

(3) The Commissioner shall retain the copy of the order or authorization transmitted under subsection 487.071(2) of the Criminal Code or subsection 196.22(2) of the National Defence Act.

30. Subsection 5.2(3) of the Act is replaced by the following:

(3) If the Attorney General or the Director of Military Prosecutions, as the case may be, informs the Commissioner that the offence referred to in the order or authorization is not a designated offence, the Commissioner shall, without delay, destroy the bodily substances collected under the order or authorization and the information transmitted with it.

31. (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 their comparison of a DNA profile communicated under paragraph (c) with one that is connected to the commission of a criminal offence has not excluded the former 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

(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.

32. Subsection 9(2) of the Act, as enacted by section 18 of the other Act, is replaced by the following:

(2) Access to information in the convicted offenders index shall be permanently removed

(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted; or

(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period.

33. Subsection 10(7) of the Act, as enacted by subsection 20(3) of the other Act, is replaced by the following:

(7) The Commissioner shall destroy the stored bodily substances of a person

(b) without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted; or

(c) one year after the day on which the person is discharged absolutely, or three years after the day on which they are discharged conditionally, of a designated offence under section 730 of the Criminal Code if they are not subject to an order or authorization that relates to another designated offence and are neither convicted of, nor found not criminally responsible on account of mental disorder for, a designated offence during that period.

NATIONAL DEFENCE ACT

34. The National Defence Act is amended by adding the following after section 119:

35. Paragraph (b) of the definition “forensic DNA analysis” in section 196.11 of the Act is replaced by the following:

(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person in execution of an order made under section 196.14 or under an authorization granted under section 196.24, or to a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance.

36. Section 196.14 of the Act, as enacted by section 24 of the other Act, is replaced by the following:

196.14 (1) A court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) of the definition “primary designated offence” in section 196.11 when the person is sentenced.

(2) A court martial shall make such an order in the prescribed form in relation to a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) or (b) of the definition “primary designated offence” in section 196.11 when the person is sentenced. However, the court martial is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.

(3) A court martial may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of military justice to do so, make such an order in the prescribed form in relation to

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 the decision.

(4) When a court martial makes an order authorizing the taking of samples of bodily substances, it 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 the samples.

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

196.17 (1) Samples of bodily substances shall be taken as authorized under section 196.14

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

(b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.

(1.2) If a person fails to appear as required by an order made under subsection 196.14(4) or 196.24(4), samples of bodily substances shall be taken

(a) when the person is arrested under a warrant issued under subsection 196.161(1) or as soon as feasible afterwards; or

(2) Subsection 196.17(2) of the Act is repealed.

(3) Subsections 196.17(3) to (5) of the Act, as enacted by subsection 26(2) of the other Act, are replaced by the following:

38. (1) Subsection 196.18(1) of the Act is replaced by the following:

196.18 (1) A peace officer who takes samples of bodily substances from a person or who causes a person who is not a peace officer to take samples under their direction shall, as soon as feasible after the samples are taken, make a written report in the prescribed form and cause the report to be filed with

(a) the military judge who issued the warrant under section 196.12 or 196.13 or who granted the authorization under section 196.24, or another military judge; or

(b) the Court Martial Administrator, in the case of an order made by a court martial under section 196.14.

(2) Section 196.18 of the Act is amended by adding the following after subsection (2):

39. Section 196.19 of the Act is replaced by the following:

196.19 No peace officer, and no person acting under a peace officer’s direction, incurs any disciplinary, criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24.

40. (1) The portion of subsection 196.2(1) of the Act before paragraph (a) is replaced by the following:

196.2 (1) A peace officer, or a person acting under a peace officer’s direction, is authorized by a warrant issued under section 196.12 or 196.13, an order made under section 196.14 or an authorization granted under section 196.24 to take samples of bodily substances by any of the following means:

(2) Subsections 196.2(2) and (3) of the Act are replaced by the following:

(2) The warrant or order shall include any terms and conditions that the military judge or court martial considers advisable to ensure that the taking of the samples is reasonable in the circumstances.

(3) A peace officer who is authorized to take samples of bodily substances from a person by an order made under section 196.14 or an authorization granted under section 196.24, or a person acting under their direction, may take fingerprints from the person for the purpose of the DNA Identification Act.

41. The portion of subsection 196.21(1) of the Act before paragraph (a) is replaced by the following:

196.21 (1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24, a peace officer shall inform the person of

42. Section 196.22 of the Act, as enacted by section 27 of the other Act, is replaced by the following:

(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

(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.

43. (1) Paragraph 196.24(1)(a) of the Act, as enacted by section 28 of the other Act, is replaced by the following:

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

(2) Paragraph 196.24(1)(b) of the English version of the Act, as enacted by section 28 of the other Act, is replaced by the following:

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

(3) Subsection 196.24(2) of the English version of the Act, as enacted by section 28 of the other Act, is replaced by the following:

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

(4) Subsection 196.24(3) of the Act is replaced by the following:

44. (1) Subsection 196.241(1) of the Act, as enacted by section 29 of the other Act, is replaced by the following:

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 an authorization granted under section 196.24 appears to be defective, the Director of Military Prosecutions shall review the order or authorization and the court record.

(2) The portion of subsection 196.241(2) of the English version of the Act before paragraph (a), as enacted by section 29 of the other Act, is replaced by the following:

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

(3) 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 inform the Commissioner of that opinion.

45. Paragraph 230(f) of the Act is replaced by the following:

(f) the legality of a decision made under any of subsections 196.14(1) to (3).

46. Paragraph 230.1(g) of the Act is replaced by the following:

(g) the legality of a decision made under any of subsections 196.14(1) to (3).

COORDINATING AMENDMENTS

47. (1) On the day on which subsections 1(2) to (5) of the other Act come into force, paragraphs (a) and (a.1) of the definition “primary designated offence” in section 487.04 of the Criminal Code are renumbered respectively as paragraphs (a.1) and (a) of that definition and are repositioned accordingly.

(2) On the later of the day on which section 3 of the other Act comes into force and the day on which subsection (1) produces its effects — or, if those days are the same day, then on that day — subsections 487.051(1) and (2) of the Criminal Code are replaced by the following:

487.051 (1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged.

(2) The court shall make such an order in Form 5.03 in relation to a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of any of paragraphs (a.1) to (d) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged. However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their 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.

48. (1) On the day on which subsection 23(1) of the other Act comes into force, paragraphs (a) and (a.1) of the definition “primary designated offence” in section 196.11 of the National Defence Act are replaced by the following:

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

(2) On the later of the day on which section 24 of the other Act comes into force and the day on which subsection (1) produces its effects — or, if those days are the same day, then on that day — subsections 196.14(1) and (2) of the National Defence Act are replaced by the following:

196.14 (1) A court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition “primary designated offence” in section 196.11 when the person is sentenced.

(2) A court martial shall make such an order in the prescribed form in relation to a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) or (b) of the definition “primary designated offence” in section 196.11 when the person is sentenced. However, the court martial is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.

49. If Bill S-3, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, receives royal assent, then, on the later of the day on which section 2 of that Act comes into force and the day on which section 34 of this Act comes into force — or, if those days are the same day, then on that day — section 119.1 of the National Defence Act, as enacted by that section 34, is renumbered as section 119.2. If necessary, that section 119.2 and the heading before it are repositioned accordingly.

50. Paragraphs (a) to (c) apply as follows if Bill C-7, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the National Defence Act (“C-7”), receives royal assent:

(a) if sections 57 and 58 of C-7 come into force before section 36 of this Act, section 126 of C-7 is repealed;

(b) if section 36 of this Act comes into force before sections 57 and 58 of C-7, sections 57, 58 and 126 of C-7 are repealed; and

(c) if section 36 of this Act comes into force on the same day as sections 57 and 58 of C-7, sections 57 and 58 of C-7 are deemed to have come into force before section 36 of this Act and paragraph (a) applies.

51. If Bill C-10, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act (“C-10”), receives royal assent and if subsection 47(1) of this Act produces its effects before the coming into force of section 26 of C-10, then section 26 of C-10, as enacted by subsection 30(1) of C-10, is replaced by the following:

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

(v) section 244 (discharging firearm with intent),

COMING INTO FORCE

52. Section 7, subsection 8(1), section 10, subsections 11(2) to (4), section 12, subsection 13(2), sections 14 to 17, subsection 20(4), sections 22, 24, 26, 29, 30, 34 and 35, subsection 37(2), sections 38 to 41, subsection 43(4) and sections 45 and 46 of this Act come into force on a day to be fixed by order of the Governor in Council as long as that day is the same day as that fixed for the coming into force of section 1 of the other Act.