Bill S-236
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- ENGLISH
- SUMMARY SUMMARY
- TABLE OF PROVISIONS TABLE OF PROVISIONS
- Short Title Short Title
- Criminal Code Criminal Code
- Criminal Records Act Criminal Records Act
- National Defence Act National Defence Act
- DNA Identification Act DNA Identification Act
- Coming into Force Coming into Force
- EXPLANATORY NOTES EXPLANATORY NOTES
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Second Session, Forty-third Parliament, 69-70 Elizabeth II, 2020-2021 |
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SENATE OF CANADA |
An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act
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FIRST READING, June 15, 2021
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THE HONOURABLE SENATOR Carignan, P.C. |
SUMMARY
This enactment amends the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act to promote the DNA collection system and increase the number of DNA profiles stored in the national DNA data bank.
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Available on the Senate of Canada website at the following address:
www.sencanada.ca/en |
TABLE OF PROVISIONS
Increasing the Identification of Criminals Through the Use of DNA Act
Amendments
Amendment
Amendments
Amendments
Sixty days after royal assent
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2nd Session, 43rd Parliament, 69-70 Elizabeth II, 2020-2021 |
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SENATE OF CANADA |
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BILL S-236 |
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An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act |
Preamble
Whereas the national DNA data bank was created to help law enforcement agencies identify persons alleged to have committed designated offences;
Whereas the effectiveness of the national DNA data bank depends on the number of DNA profiles in the convicted offenders index to be compared to the DNA profiles in the crime scene index;
Whereas Canada has, on a per capita basis, far fewer DNA profiles in the convicted offenders index of its national DNA data bank than the national DNA data banks of other free and democratic countries, resulting in fewer chances of identifying the perpetrators of serious and violent crimes;
Whereas the use of familial searching has been instrumental in solving horrific crimes in other free and democratic countries;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
Short title
1 This Act may be cited as the Increasing the Identification of Criminals Through the Use of DNA Act.
R.S., c. C-46
Criminal Code
2 (1) The portion of section 487.04 of the Criminal Code before the first definition is replaced by the following:
487.04 In this section and in sections 487.05 to Insertion start 487.091 Insertion end ,
(2) The definitions primary designated offence and secondary designated offence in section 487.04 of the Act are replaced by the following:
primary designated offence means Insertion start any Insertion end offence Insertion start that may be prosecuted by indictment and for which the maximum punishment is imprisonment for five years or more, including summary conviction offences that may also be prosecuted by indictment, created by one of the following Acts: Insertion end
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Start of inserted block
(a) this Act;
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(b) the Security of Information Act;
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(c) the Cannabis Act, unless the offence is prosecuted using the procedure set out in subsection 51(1) of that Act or the Attorney General, within the meaning of that Act, makes an election under section 58 of that Act; and
End of inserted block -
(d) the Controlled Drugs and Substances Act; (infraction primaire)
secondary designated offence means Insertion start any Insertion end offence — other than a primary designated offence — that may be prosecuted by indictment and for which the maximum punishment is Insertion start less than Insertion end five years, Insertion start including summary conviction offences that may also be prosecuted by indictment, created by one of the following Acts: Insertion end
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(a) this Act;
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Start of inserted block
(b) the Security of Information Act;
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(c) the Cannabis Act, unless the offence is prosecuted using the procedure set out in subsection 51(1) of that Act or the Attorney General, within the meaning of that Act, makes an election under section 58 of that Act; and
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(d) the Controlled Drugs and Substances Act; (infraction secondaire)
End of inserted block
3 Section 487.051 of the Act is replaced by the following:
Order — designated offences
487.051 (1) The court Insertion start must Insertion end 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 Insertion start , including a young person within the meaning of subsection 2(1) of Insertion end the Youth Criminal Justice Act, who is convicted, discharged or Insertion start found to be not criminally responsible on account of mental disorder of Insertion end a designated offence that Insertion start , on the day on which the order is made, is Insertion end
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Insertion start (a) Insertion end a primary designated offence Insertion start ; or Insertion end
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Start of inserted block
(b) a secondary designated offence, unless the person satisfies the court 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.
End of inserted block
DNA profile contained in convicted offenders index
(2) Insertion start Despite subsection (1), Insertion end the court is not required to make Insertion start an Insertion end order if it is satisfied that Insertion start the convicted offenders index of the national DNA data bank established under the DNA Identification Act already contains the person’s DNA profile Insertion end .
Order to offender
Start of inserted block(3) A court making an order authorizing the taking of samples of bodily substances must either detain the person until the samples are taken or make an order in Form 5.041 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.
End of inserted blockGrounds
(4) Insertion start If Insertion end the court Insertion start does not make Insertion end an order Insertion start under paragraph (1)(b), the court must include in the record a statement of its reasons for not doing so Insertion end .
4 Section 487.053 of the Act is replaced by the following:
Timing of order — primary designated offence
487.053 (1) The court Insertion start makes Insertion end an order under Insertion start paragraph 487.051(1)(a) Insertion end authorizing the taking of samples of bodily substances when it Insertion start convicts Insertion end a person or finds the person not criminally responsible on account of mental disorder.
Timing of order — secondary designated offence
(2) The court Insertion start makes an order under paragraph 487.051(1)(b) authorizing the taking of samples of bodily substances when Insertion end it imposes Insertion start a Insertion end sentence Insertion start on a person, finds Insertion end the person Insertion start not criminally responsible on account of mental disorder Insertion end , directs that Insertion start they Insertion end be discharged Insertion start or directs that the sentence be suspended Insertion end .
Time limit of 90 days
Start of inserted block(3) Despite subsections (1) and (2), the court may make an order under subsection 487.051 in the 90 days after it imposes a sentence on a person, finds the person not criminally responsible on account of mental disorder, directs that they be discharged or directs that the sentence be suspended, as the case may be.
End of inserted block5 (1) Paragraphs 487.055(1)(c.1) to (e) of the Act are repealed.
(2) Subsection 487.055(3) of the Act is repealed.
6 Subsection 487.0551(1) of the Act is replaced by the following:
Failure to appear
487.0551 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051 Insertion start (3) Insertion end or 487.055(3.11) or in 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 in Form 5.062 to allow samples of bodily substances to be taken.
7 The portion of subsection 487.0552(1) of the Act before paragraph (a) is replaced by the following:
Failure to comply with order or summons
487.0552 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 487.051 Insertion start (3) Insertion end or 487.055(3.11) of this Act or under subsection 196.14(4) or 196.24(4) of the National Defence Act, or with a summons referred to in subsection 487.055(4) or 487.091(3) of this Act, is guilty of
8 (1) Paragraph 487.056(1)(a) of the Act is replaced by the following:
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(a) at the place, day and time set out in an order made under subsection 487.051 Insertion start (3) Insertion end or as soon as feasible afterwards; or
(2) The portion of subsection 487.056(3) of the Act before paragraph (a) is replaced by the following:
When collection to take place
(3) If a person fails to appear as required by an order made under subsection 487.051 Insertion start (3) Insertion end or 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3), samples of bodily substances shall be taken
9 Section 487.057 of the Act is repealed.
10 Subsection 487.071(2) of the Act is replaced by the following:
DNA profile contained in convicted offenders index
(2) Insertion start Despite section 487.051, a Insertion end peace officer or person acting under their direction Insertion start who is satisfied Insertion end that the person’s DNA profile is in the convicted offenders index of the national DNA data bank Insertion start must Insertion end not take any bodily substances from the person.
11 Section 487.0911 of the Act is repealed.
12 (1) Form 5.03 in Part XXVII of the Act is amended by replacing the reference after the heading “FORM 5.03” with the following:
(2) The portion of Form 5.03 of Part XXVII of the Act that begins with “Whereas” and ends with “section 487.04 of the Criminal Code” is replaced by the following:
Whereas (name of person) has been
Insertion start (a) Insertion end convicted, discharged or found Insertion start to be not criminally responsible on account of mental disorder of Insertion end a primary designated offence; or
(b) convicted, discharged or found to be not criminally responsible on account of mental disorder of a secondary designated offence;
End of inserted block13 Form 5.04 of Part XXVII of the Act is repealed.
14 Paragraphs (c.1) to (e) of Form 5.05 of Part XXVII of the Act are repealed.
15 Paragraphs (c.1) to (e) of Form 5.06 of Part XXVII of the Act are repealed.
16 Form 5.07 of Part XXVII of the Act is repealed.
R.S., c. C-47
Criminal Records Act
17 The Criminal Records Act is amended by adding the following after section 6.2:
Disclosure to police forces
Start of inserted block6.21 Despite sections 6 and 6.1, the identity of a person whose record is suspended under section 4.1 or who has received a discharge referred to in section 6.1 may be disclosed to a police force if a match under section 6 or section 6.41 of the DNA Identification Act is found.
End of inserted blockR.S., c. N-5
National Defence Act
18 Subsection 119.2 (1) of the National Defence Act is replaced by the following:
Failure to comply with order or summons
119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051 Insertion start (3) Insertion end or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
19 (1) The definition primary designated offence in section 196.11 of the Act is replaced by the following:
primary designated offence means an offence within the meaning of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; (infraction primaire)
(2) Paragraph (a) of the definition secondary designated offence in section 196.11 of the Act is replaced by the following:
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(a) an offence within the meaning of the definition secondary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; and
(3) The portion of paragraph (b) of the definition infraction secondaire in section 196.11 of the French version of the Act before subparagraph (i) is replaced by the following:
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b) infraction visée Insertion start à Insertion end l’une ou l’autre des dispositions suivantes de la présente loi :
(4) The definition secondary designated offence in section 196.11 of the Act is amended by adding “and” at the end of paragraph (a), by striking out “and” at the end of paragraph (b) and by repealing paragraph (c).
20 (1) Subsections 196.14 (1) and (2) of the Act are replaced by the following:
Order — primary designated offences
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 Insertion start or not responsible on account of mental disorder Insertion end if that offence is a primary designated offence within the meaning of Insertion start this Act Insertion end when the person is sentenced Insertion start or the finding is made Insertion end .
Order — secondary designated offences
(2) A court martial shall make an order in the prescribed form Insertion start authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Insertion end a person who is found guilty of an offence Insertion start or not responsible on account of mental disorder Insertion end if that offence is a Insertion start secondary Insertion end designated offence within the meaning of Insertion start this Act Insertion end when the person is sentenced Insertion start or the finding is made Insertion end . 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.
(2) Subsection 196.14 (3) of the Act is repealed.
1998, c. 37
DNA Identification Act
21 Section 5.2 of the DNA Identification Act is replaced by the following:
Destruction of bodily substances
5.2 (1) The Commissioner Insertion start must, without delay, destroy the Insertion end bodily substances collected under the order or authorization and Insertion start the Insertion end information transmitted with it if the Commissioner Insertion start determines Insertion end that the offence is not a designated offence.
Consultations
(2) Insertion start In making a determination under subsection (1), Insertion end the Commissioner Insertion start may consult with Insertion end the Attorney General or the Director of Military Prosecutions, as the case may be.
22 The Act is amended by adding the following after section 6.4:
Profile comparison — biological relative
Start of inserted block6.41 (1) If a comparison of a crime scene profile with the convicted offenders index has not produced a match, an investigating authority, 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 may request that the crime scene profile be compared to the convicted offenders index to determine if it could be the profile of a biological relative of someone whose DNA profile is in the convicted offenders index.
End of inserted blockPreconditions
Start of inserted block(2) The Commissioner may conduct the comparison requested under subsection (1) if the Commissioner is satisfied that
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(a) the request is being made in connection with an investigation into a designated offence — or an offence that would be a designated offence if it occurred in Canada — for which the person may be sentenced to imprisonment for 14 years or more; and
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(b) other investigative procedures have been tried and have failed or are unlikely to succeed, or that the urgency of the situation requires the comparison of the profile to others.
End of inserted block
Communication
Start of inserted block(3) If, in the Commissioner’s opinion, the DNA profile compared under subsection (2) could be the profile of a biological relative of someone whose DNA profile is in the convicted offenders index, the Commissioner may communicate to the entity that made the request any information regarding the profile in the convicted offenders index that the Commissioner considers appropriate for the purpose of aiding the investigation.
End of inserted block23 (1) Subsections 8(1) and (2) of the Act are replaced by the following:
Unauthorized use of information
8 (1) Subject to subsection (2), no person to whom information is communicated under any of sections 6, 6.1 Insertion start , Insertion end 6.3 and Insertion start 6.41 Insertion end or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes set out in the applicable provision of those sections.
Use for different purpose
(2) A law enforcement agency may Insertion start only Insertion end use information Insertion start it Insertion end has received in relation to a DNA profile that was communicated to them under paragraph 6(1)(a) or subsection 6(2) Insertion start , Insertion end 6.1(3) or Insertion start 6.41(3) Insertion end , for the purpose of the investigation or prosecution of a designated offence if they have reasonable grounds to suspect that the information will assist in the investigation or prosecution.
24 Section 9 of the Act is replaced by the following:
Information to be made inaccessible
9 (1) Insertion start A person may, on application in writing to the Commissioner, request that Insertion end information Insertion start in respect of that person Insertion end in the convicted offenders index be Insertion start made inaccessible and any bodily substances of the person be destroyed Insertion end .
Commissioner’s determination
(2) Insertion start The Commissioner must destroy any Insertion end bodily substances Insertion start collected and make Insertion end permanently Insertion start inaccessible the Insertion end information in the convicted offenders index Insertion start in respect of a Insertion end person Insertion start who makes a request under subsection (1) if the Commissioner determines that Insertion end
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(a) the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted; Insertion start and Insertion end
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Start of inserted block
(b) the person has no other findings of guilt, discharges or findings of not criminally responsible on account of mental disorder for a designated offence or for an offence, which on the day of its commission was a designated offence.
End of inserted block
25 Subsections 10(7) and (8) of the Act are repealed.
26 Section 12 of the Act is amended by adding the following after paragraph (c):
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Start of inserted block
(c.1) respecting the application of section 6.41;
End of inserted block
27 Section 13 of the Act is replaced by the following:
Report of the Minister
Start of inserted block13 (1) The Minister of Public Safety and Emergency Preparedness must examine and prepare a report on the advisability of taking a DNA sample on the same basis as fingerprints taken under the Identification of Criminals Act.
End of inserted blockReport to Parliament
Start of inserted block(2) The Minister must cause the report prepared under subsection (1) to be laid before each House of Parliament no later than 15 sitting days after the second anniversary of the day on which this Act receives royal assent.
End of inserted blockPublication of report
Start of inserted block(3) The Minister must post the report on the departmental website within 10 days after the day on which the report is tabled in Parliament.
End of inserted blockComing into Force
Sixty days after royal assent
28 This Act comes into force 60 days after the day on which it receives royal assent.
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Published under authority of the Senate of Canada
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EXPLANATORY NOTES
487.04 In this section and in sections 487.05 to 487.0911,
. . .
primary designated offence means
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(a) an offence under any of the following provisions, namely,
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(i) subsection 7(4.1) (offence in relation to sexual offences against children),
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(i.1) section 151 (sexual interference),
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(i.2) section 152 (invitation to sexual touching),
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(i.3) section 153 (sexual exploitation),
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(i.4) section 153.1 (sexual exploitation of person with disability),
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(i.5) section 155 (incest),
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(i.6) subsection 160(2) (compelling the commission of bestiality),
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(i.7) subsection 160(3) (bestiality in presence of or by a child),
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(i.8) section 163.1 (child pornography),
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(i.9) section 170 (parent or guardian procuring sexual activity),
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(i.901) section 171.1 (making sexually explicit material available to child),
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(i.91) section 172.1 (luring a child),
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(i.911) section 172.2 (agreement or arrangement — sexual offence against child),
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(i.92) subsection 173(2) (exposure),
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(i.93) to (i.96) [Repealed, 2014, c. 25, s. 23]
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(ii) section 235 (murder),
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(iii) section 236 (manslaughter),
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(iv) section 239 (attempt to commit murder),
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(v) section 244 (discharging firearm with intent),
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(vi) section 244.1 (causing bodily harm with intent — air gun or pistol),
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(vi.1) section 244.2 (discharging firearm — recklessness),
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(vii) paragraph 245(a) (administering noxious thing with intent to endanger life or cause bodily harm),
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(viii) section 246 (overcoming resistance to commission of offence),
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(ix) section 267 (assault with a weapon or causing bodily harm),
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(x) section 268 (aggravated assault),
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(xi) section 269 (unlawfully causing bodily harm),
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(xi.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm),
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(xi.2) section 270.02 (aggravated assault of peace officer),
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(xi.3) section 271 (sexual assault),
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(xii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), (xiii) section 273 (aggravated sexual assault), (xiii.1) subsection 273.3(2) (removal of a child from Canada),
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(xiii) section 273 (aggravated sexual assault),
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(xiii.1) subsection 273.3(2) (removal of a child from Canada),
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(xiv) section 279 (kidnapping),
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(xiv.1) section 279.011 (trafficking — person under 18 years),
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(xiv.2) subsection 279.02(2) (material benefit — trafficking of person under 18 years),
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(xiv.3) subsection 279.03(2) (withholding or destroying documents — trafficking of person under 18 years),
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(xiv.4) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years),
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(xiv.5) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years),
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(xiv.6) subsection 286.3(2) (procuring — person under 18 years),
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(xv) section 344 (robbery), and
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(xvi) section 346 (extortion),
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(a.1) an offence under any of the following provisions, namely,
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(i) section 75 (piratical acts),
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(i.01) section 76 (hijacking),
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(i.02) section 77 (endangering safety of aircraft or airport),
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(i.03) section 78.1 (seizing control of ship or fixed platform), (i.04) subsection 81(1) (using explosives),
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(i.04) subsection 81(1) (using explosives),
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(i.041) section 82.3 (possession, etc., of nuclear material, radioactive material or device),
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(i.042) section 82.4 (use or alteration of nuclear material, radioactive material or device),
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(i.043) section 82.5 (commission of indictable offence to obtain nuclear material, etc.),
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(i.044) section 82.6 (threats),
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(i.05) section 83.18 (participation in activity of terrorist group),
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(i.051) section 83.181 (leaving Canada to participate in activity of terrorist group),
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(i.06) section 83.19 (facilitating terrorist activity),
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(i.061) section 83.191 (leaving Canada to facilitate terrorist activity),
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(i.07) section 83.2 (commission of offence for terrorist group),
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(i.071) section 83.201 (leaving Canada to commit offence for terrorist group,
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(i.072) section 83.202 (leaving Canada to commit offence that is terrorist activity),
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(i.08) section 83.21 (instructing to carry out activity for terrorist group),
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(i.09) section 83.22 (instructing to carry out terrorist activity),
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(i.091) section 83.221 (counselling commission of terrorism offence),
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(i.1) section 83.23 (harbouring or concealing),
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(i.11) to (iii.1) [Repealed, 2010, c. 17, s. 3]
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(iv) [Repealed, 2014, c. 25, s. 23]
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(iv.1) to (iv.5) [Repealed, 2010, c. 17, s. 3]
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(v) [Repealed, 2014, c. 25, s. 23]
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(v.1) and (v.2) [Repealed, 2010, c. 17, s. 3]
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(vi) section 233 (infanticide),
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(vii) [Repealed, 2010, c. 17, s. 3]
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(vii.1) section 279.01 (trafficking in persons),
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(vii.11) subsection 279.02(1) (material benefit — trafficking),
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(vii.12) subsection 279.03(1) (withholding or destroying documents — trafficking),
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(viii) section 279.1 (hostage taking),
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(viii.1) subsection 286.2(1) (material benefit from sexual services),
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(viii.2) subsection 286.3(1) (procuring),
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(ix) paragraph 348(1)(d) (breaking and entering a dwelling-house
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(x) section 423.1 (intimidation of a justice system participant or journalist),
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(xi) section 431 (attack on premises, residence or transport of internationally protected person),
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(xii) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel),
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(xiii) subsection 431.2(2) (explosive or other lethal device),
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(xiv) section 467.11 (participation in activities of criminal organization),
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(xiv.1) section 467.111 (recruitment of members — criminal organization),
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(xv) section 467.12 (commission of offence for criminal organization), and
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(xvi) section 467.13 (instructing commission of offence for criminal organization),
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(xvi.1) to (xx) [Repealed, 2005, c. 25, s. 1]
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(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,
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(i) section 144 (rape),
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(i.1) section 145 (attempt to commit rape),
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(ii) section 146 (sexual intercourse with female under fourteen and between fourteen and sixteen),
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(iii) section 148 (sexual intercourse with feeble-minded, etc.),
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(iv) section 149 (indecent assault on female),
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(v) section 156 (indecent assault on male),
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(vi) section 157 (acts of gross indecency), and
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(vii) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in subparagraphs (i) to (vi),
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(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:
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(i) subsection 146(1) (sexual intercourse with a female under age of 14),
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(ii) subsection 146(2) (sexual intercourse with a female between ages of 14 and 16),
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(iii) section 153 (sexual intercourse with step-daughter),
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(iv) section 157 (gross indecency),
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(v) section 166 (parent or guardian procuring defilement), and
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(vi) section 167 (householder permitting defilement),
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(c.01) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:
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(i) section 246.1 (sexual assault),
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(ii) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), and
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(iii) section 246.3 (aggravated sexual assault),
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(c.02) an offence under any of the following provisions of this Act, as they read from time to time before the day on which this paragraph comes into force:
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(i) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),
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(ii) subsection 212(2) (living on the avails of prostitution of person under 18 years),
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(iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and
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(iv) subsection 212(4) (prostitution of person under 18 years),
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(c.03) an offence under any of paragraphs 212(1)(a) to (h) (procuring) of this Act, as they read from time to time before the day on which this paragraph comes into force,
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(c.1) an offence under any of the following provisions of the Security of Information Act, namely,
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(i) section 6 (approaching, entering, etc., a prohibited place),
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(ii) subsection 20(1) (threats or violence), and
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(iii) subsection 21(1) (harbouring or concealing), and
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(d) 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 (c.03); (infraction primaire)
. . .
secondary designated offence means an offence, other than a primary designated offence, that is
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(a) an offence under this Act that may be prosecuted by indictment — or, for section 487.051 to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more,
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(a.1) an offence under any of the following provisions of the Cannabis Act that may be prosecuted by indictment — or, for section 487.051 to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
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(i) section 9 (distribution and possession for purpose of distributing),
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(ii) section 10 (selling and possession for purpose of selling),
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(iii) section 11 (importing and exporting and possession for purpose of exporting),
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(iv) section 12 (production),
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(v) section 13 (possession, etc., for use in production or distribution of illicit cannabis), and
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(vi) section 14 (use of young person),
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(b) an offence under any of the following provisions of the Controlled Drugs and Substances Act that may be prosecuted by indictment — or, for section 487.051 to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
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(i) section 5 (trafficking in substance and possession for purpose of trafficking),
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(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 52(1) (sabotage),
-
(i.001) subsection 57(3) (possession of a forged passport),
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(i.002) section 62 (offences in relation to military forces),
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(i.003) subsection 65(2) (riot — concealing identity),
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(i.004) subsection 70(3) (contravening order made by governor in council),
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(i.005) subsection 82(1) (explosives, possession without lawful excuse),
-
(i.006) subsection 121(1) (frauds on the government),
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(i.007) subsection 121(2) (contractor subscribing to election fund),
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(i.008) section 122 (breach of trust by public officer),
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(i.009) subsection 123(1) (municipal corruption),
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(i.01) subsection 123(2) (influencing municipal official),
-
(i.011) section 124 (selling or purchasing office),
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(i.012) section 125 (influencing or negotiating appointments or dealings in offices),
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(i.013) subsection 139(2) (obstructing justice),
-
(i.014) section 142 (corruptly taking reward for recovery of goods),
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(i.015) section 144 (prison breach),
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(i.016) section 145 (escape and being at large without excuse),
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(i.1) section 146 (permitting or assisting escape),
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(i.2) section 147 (rescue or permitting escape),
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(i.3) section 148 (assisting prisoner of war to escape),
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(i.4) and (ii) [Repealed, 2010, c. 17, s. 3]
-
(iii) subsection 173(1) (indecent acts),
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(iv) section 182 (dead body — neglect to perform duty, improper or indecent interference with),
-
(iv.1) section 184 (interception of private communication),
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(iv.2) section 184.5 (interception of radio-based telephone communications),
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(iv.3) section 221 (cause bodily harm by criminal negligence),
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(iv.4) section 237 (infanticide),
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(iv.5) section 242 (neglect to obtain assistance in child-birth),
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(iv.6) subsection 247(1) (traps likely to cause bodily harm),
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(iv.7) subsection 247(2) (traps — causing bodily harm),
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(iv.8) subsection 247(3) (traps — in a place kept or used for committing other indictable offence),
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(iv.9) section 262 (impeding attempt to save life),
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(v) section 264 (criminal harassment),
-
(vi) section 264.1 (uttering threats),
-
(vii) section 266 (assault),
-
(viii) section 270 (assaulting a peace officer),
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(viii.01) section 280 (abduction of person under 16),
-
(viii.02) section 281 (abduction of person under 14),
-
(viii.1) subsection 286.1(1) (obtaining sexual services for consideration),
-
(viii.11) section 291 (bigamy),
-
(viii.12) section 292 (procuring feigned marriage),
-
(viii.13) section 293 (polygamy),
-
(viii.14) section 293.1 (forced marriage),
-
(viii.15) section 293.2 (marriage under age of 16 years),
-
(viii.16) section 300 (publishing defamatory libel known to be false),
-
(viii.17) section 302 (extortion by libel),
-
(viii.2) subsection 320.16(1) (failure to stop after accident),
-
(viii.21) paragraph 334(a) (theft over $5,000 or testamentary instrument),
-
(viii.22) section 338 (fraudulently taking cattle or defacing brand),
-
(viii.23) subsection 339(1) (take possession of drift timber, etc.),
-
(viii.24) section 340 (destroying documents of title),
-
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
-
(x) section 349 (being unlawfully in dwelling-house),
-
(x.1) subsection 351(2) (disguise with intent),
-
(x.11) paragraph 355(a) (possession of property over $5,000 or testamentary instrument),
-
(x.12) section 357 (bring into Canada property obtained by crime),
-
(x.13) paragraph 362(2)(a) (false pretence, property over $5,000 or testamentary instrument),
-
(x.14) subsection 362(3) (obtain credit, etc. by false pretence),
-
(x.15) section 363 (obtain execution of valuable security by fraud),
-
(x.16) subsection 377(1) (damaging documents),
-
(x.17) section 378 (offences in relation to registers),
-
(x.18) section 382 (manipulation of stock exchange),
-
(x.19) subsection 382.1(1) (prohibited insider trading),
-
(x.2) section 383 (gaming in stocks or merchandise),
-
(x.21) section 384 (broker reducing stock by selling his own account),
-
(x.22) section 386 (fraudulent registration of title),
-
(x.23) section 394 (fraud in relation to minerals),
-
(x.24) section 394.1 (possession of stolen minerals),
-
(x.25) section 396 (offences in relation to mines),
-
(x.26) section 397 (falsification of books and documents),
-
(x.27) section 399 (false return by public officer),
-
(x.28) section 400 (false prospectus),
-
(x.29) section 405 (acknowledging instrument in false name),
-
(xi) section 423 (intimidation),
-
(xi.1) section 424 (threat against an internationally protected person),
-
(xi.11) section 424.1 (threat against United Nations or associated personnel),
-
(xi.12) section 426 (secret commissions),
-
(xi.13) section 435 (arson for fraudulent purpose),
-
(xi.14) section 436 (arson by negligence),
-
(xi.15) section 436.1 (possession incendiary material),
-
(xi.16) subsection 438(1) (interfering with saving of a wrecked vessel),
-
(xi.17) subsection 439(2) (interfering with a marine signal),
-
(xi.18) section 441 (occupant injuring building),
-
(xi.19) section 443 (interfering with international boundary marks, etc.),
-
(xi.2) section 451 (having clippings, etc.),
-
(xi.21) section 460 (advertising and dealing in counterfeit money),
-
(xi.22) subparagraphs 465(1)(b)(i) and (ii) (conspiracy to prosecute),
-
(xi.23) section 753.3 (breach of long-term supervision),
-
-
(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),
-
-
(d.1) an offence under section 252, as it read from time to time before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force,
-
(d.2) an offence under any of sections 249, 249.1, 249.2, 249.3, 249.4, 253, 254 and 255, as they read from time to time before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force, that may be prosecuted by indictment or, for section 487.051 to apply, is prosecuted by indictment, and
-
(e) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit
-
(i) an offence referred to in paragraph (a) or (b) — which, for section 487.051 to apply, is prosecuted by indictment, or
-
(ii) an offence referred to in any of paragraphs (c) to (d.2); (infraction secondaire)
-
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 paragraphs (a) and (c.02) 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 (c.01) and (c.03) 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.
(3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to
-
(a) a person who is found not criminally responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or
-
(b) 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 secondary designated offence when the person is sentenced or discharged.
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, 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) When the court makes an order authorizing the taking of samples of bodily substances, it may make an order in Form 5.041 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.
487.053 (1) The court may make an order under section 487.051 authorizing the taking of samples of bodily substances 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 the court does not consider the matter at that time, it
-
(a) shall, within 90 days after the day on which it imposes the sentence, makes the finding or directs that the person be discharged, set a date for a hearing to do so;
-
(b) retains jurisdiction over the matter; and
-
(c) may require the person to appear by closed-circuit television or videoconference, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.
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,
-
. . .
-
(c.1) had been convicted of attempted murder or conspiracy to commit murder or to cause another person to be murdered and, on the date of the application, is serving a sentence of imprisonment for that offence;
-
(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 for that offence; or
-
(e) had been convicted of manslaughter and, on the date of the application, is serving a sentence of imprisonment for that offence.
(3) For the purposes of subsection (1), sexual offence means
-
(a) an offence under any of the following provisions, namely,
-
(i) section 151 (sexual interference),
-
(ii) section 152 (invitation to sexual touching),
-
(iii) section 153 (sexual exploitation),
-
(iv) section 155 (incest),
-
(v) subsection 212(4) (offence in relation to juvenile prostitution),
-
(vi) section 271 (sexual assault),
-
(vii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), and
-
(viii) section 273 (aggravated sexual assault);
-
-
(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);
-
(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,
-
(i) section 144 (rape),
-
(ii) section 146 (sexual intercourse with female under fourteen or between fourteen and sixteen),
-
(iii) section 148 (sexual intercourse with feeble-minded, etc.),
-
(iv) section 149 (indecent assault on female),
-
(v) section 156 (indecent assault on male), or
-
(vi) section 157 (acts of gross indecency);
-
-
(c) an offence under paragraph 153(1)(a) (sexual intercourse with step-daughter, etc.) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988; and
-
(d) an attempt to commit an offence referred to in any of paragraphs (a) to (c).
487.0551 (1) If a person fails to appear at the place, day and time set out in an order made under subsection 487.051(4) or 487.055(3.11) or in 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 in Form 5.062 to allow samples of bodily substances to be taken.
487.0552 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 487.051(4) or 487.055(3.11) of this Act or under subsection 196.14(4) or 196.24(4) of the National Defence Act, or with a summons referred to in subsection 487.055(4) or 487.091(3) of this Act, is guilty of
487.056 (1) Samples of bodily substances shall be taken as authorized under section 487.051
-
(a) at the place, day and time set out in an order made under subsection 487.051(4) or as soon as feasible afterwards; or
-
. . .
(3) If a person fails to appear as required by an order made under subsection 487.051(4) or 487.055(3.11) or a summons referred to in subsection 487.055(4) or 487.091(3), samples of bodily substances shall be taken
-
. . .
487.057 (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 Form 5.07 and cause the report to be filed with
-
(a) the provincial court judge who issued the warrant under section 487.05 or granted the authorization under section 487.055 or 487.091 or another judge of that provincial court; or
-
(b) the court that made the order under section 487.051.
(2) The report shall include
-
(a) a statement of the time and date the samples were taken; and
-
(b) a description of the bodily substances that were taken.
(3) A peace officer who takes the samples or causes the samples to be taken under their direction at the request of another peace officer shall send a copy of the report to the other peace officer unless that other peace officer had jurisdiction to take the samples.
(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 order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner of the Royal Canadian Mounted Police.
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 an authorization granted under section 487.091 appears to be defective, the Attorney General shall review the order or authorization and the court record.
(2) If the Attorney General is of the opinion that 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 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 inform the Commissioner of that opinion.
(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.
FORM 5.03
(Subsections 487.051(1) and (2))
Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis
. . .
Whereas (name of person) has been convicted under the Criminal Code, discharged under section 730 of that Act 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, on the day on which the person was sentenced or discharged, was a primary designated offence within the meaning of section 487.04 of the Criminal Code;
FORM 5.04
(Subsection 487.051(3))
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 person), in this order called the “person”,
(a) has been found not criminally responsible on account of mental disorder for (offence), which, on the day on which the finding was made, was a primary designated offence within the meaning of section 487.04 of the Criminal Code, or
(b) has been convicted under the Criminal Code, discharged under section 730 of that Act 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, or has been found not criminally responsible on account of mental disorder for, (offence), which, on the day on which the person was sentenced or discharged or the finding was made, was one of the following secondary designated offences within the meaning of section 487.04 of the Criminal Code (check applicable box):
[ ] (i) an offence under the Criminal Code for which the maximum punishment is imprisonment for five years or more and that was prosecuted by indictment,
[ ] (i.01) an offence under any of sections 9 to 14 of the Cannabis Act for which the maximum punishment is imprisonment for five years or more and that was prosecuted by indictment,
[ ] (ii) an offence under any of sections 5 to 7 of the Controlled Drugs and Substances Act for which the maximum punishment is imprisonment for five years or more and that was prosecuted by indictment,
[ ] (iii) an offence under any of sections 145 to 148, subsection 173(1), sections 264, 264.1, 266 and 270, subsections 286.1(1) and 320.16(1), paragraph 348(1)(e) and sections 349 and 423 of the Criminal Code,
[ ] (iv) an offence under section 433 or 434 of the Criminal Code as that section read from time to time before July 1, 1990,
[ ] (iv.1) an offence under section 252 of the Criminal Code, as it read from time to time before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force, or,
[ ] (v) an attempt or a conspiracy to commit an offence referred to in any of subparagraphs (i) to (ii) that was prosecuted by indictment (or, if applicable, an attempt or a conspiracy to commit an offence referred to in subparagraph (iii) or (iv));
Whereas the person’s criminal record, the nature of the offence, the circumstances surrounding its commission, whether the person 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 person’s privacy and security have been considered by the court;
And whereas the court is satisfied that it is in the best interests of the administration of justice to make this order;
Therefore, you are authorized to take or cause to be taken from (name of person) 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 that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer.
This order is subject to the following terms and conditions that the court considers advisable to ensure that the taking of the samples is reasonable in the circumstances:
Dated (date) , at (place).
FORM 5.05
(Subsection 487.055(1))
Application for an Authorization To Take Bodily Substances for Forensic DNA Analysis
. . .
Whereas (name of offender), before June 30, 2000,
. . .
(c.1) had been convicted of attempted murder or conspiracy to commit murder or to cause another person to be murdered and is currently serving a sentence of imprisonment for that offence,
(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 imprisonment for that offence, or
(e) had been convicted of manslaughter and is currently serving a sentence of imprisonment for that offence;
. . .
FORM 5.06
(Subsection 487.055(1))
Authorization To Take Bodily Substances for Forensic DNA Analysis
. . .
Whereas (name of offender), before June 30, 2000,
. . .
(c.1) had been convicted of attempted murder or conspiracy to commit murder or to cause another person to be murdered and, on the date of the application, was serving a sentence of imprisonment for that offence,
(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 imprisonment for that offence, or
(e) had been convicted of manslaughter and, on the date of the application, was serving a sentence of imprisonment for that offence;
. . .
FORM 5.07
(Subsection 487.057(1))
Report to a Provincial Court Judge or the Court
Canada
Province of
(territorial division)
[ ] To (name of judge), a judge of the provincial court who issued a warrant under section 487.05 or granted an authorization under section 487.055 or 487.091 of the Criminal Code or to another judge of that court:
[ ] To the court that made an order under section 487.051 of the Criminal Code:
I (name of peace officer), declare that (state here whether the samples were taken under a warrant issued under section 487.05, an order made under section 487.051 or an authorization granted under section 487.055 or 487.091 of the Criminal Code).
I have (state here whether you took the samples yourself or caused them to be taken under your direction) from (name of offender) the number of samples of bodily substances that I believe is reasonably required for forensic DNA analysis, in accordance with (state whether the samples were taken under a warrant issued or an authorization granted by the judge or another judge of the court or an order made by the court).
The samples were taken on the day of , A.D. , at o’clock.
I (or state the name of the person who took the samples) took the following samples from (name of offender) in accordance with subsection 487.06(1) of the Criminal Code and was able, by virtue of training or experience, to do so (check applicable box):
[ ] individual hairs, including the root sheath
[ ] epithelial cells taken by swabbing the lips, tongue or inside cheeks of the mouth
[ ] blood taken by pricking the skin surface with a sterile lancet
Any terms or conditions in the (warrant, order or authorization) have been complied with.
Dated this day of A.D. , at .
119.2 (1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
196.11 The definitions in this section apply in this Division.
. . .
primary designated offence means
-
(a) an offence within the meaning of paragraphs (a) and (c.02) 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.01), (c.03) and (c.1) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; and
-
(b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c.03) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130. (infraction primaire)
secondary designated offence means
-
(a) an offence within the meaning of any of paragraphs (a) to (d.2) of the definition secondary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;
-
(b) an offence under any of the following provisions of this Act:
-
. . .
-
-
(c) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit any offence referred to in paragraph (a) or (b). (infraction secondaire)
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.
(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
-
(a) a person who is found not responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or
-
(b) a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced.
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.
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) 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.
(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.
8 (1) Subject to subsection (2), no person to whom information is communicated under any of sections 6, 6.1 and 6.3 or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes set out in the applicable provision of those sections.
(2) After a law enforcement agency has received information in relation to a DNA profile that was communicated to them under paragraph 6(1)(a) or subsection 6(2) or 6.1(3), a member of the agency may use that information for the purpose of the investigation or prosecution of a designated offence if they have reasonable grounds to suspect that the information will assist in the investigation or prosecution.
9 (1) Subject to subsection (2), section 9.1 and the Criminal Records Act, information in the convicted offenders index shall be kept indefinitely.
(2) Access to information in the convicted offenders index shall be permanently removed
-
(a) without delay after every order or authorization for the collection of bodily substances from the person to whom the information relates is finally set aside; or
-
(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.
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(c) [Repealed, 2014, c. 39, s. 241]
(7) The Commissioner shall destroy the stored bodily substances of a person
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(a) without delay after every order or authorization for the collection of bodily substances from the person is finally set aside; or
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(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.
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c) [Repealed, 2014, c. 39, s. 243]
(8) Despite anything in this section, stored bodily substances of a person in respect of whom a record suspension, as defined in subsection 2(1) of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.
13 Within five years after this Act comes into force, a review of the provisions and operation of this Act shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.