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Canadian Criminal Sentencing/Ancillary Orders/DNA Orders

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DNA Orders

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DNA Orders are court orders permitting certain law enforcement persons to take bodily substance samples for the purpose of adding a record of the offender's DNA to the national database. A DNA order can be made by a sentencing judge where the offence being sentenced is either a "primary designated offence", for which it is mandatory, or a "secondary designated offence", for which it is discretionary.

Primary Designated Offences

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Order — primary designated offences
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.

Order — primary designated offences
(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.

1998, c. 37, s. 17; 2002, c. 1, s. 176; 2005, c. 25, s. 3; 2007, c. 22, ss. 9, 47.


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Under s. 487.04, a "primary designated offence" is defined as:

SECTION (a) SECTION (a.1)
  • piratical acts,
  • hijacking,
  • endangering safety of aircraft or airport,
  • seizing control of ship or fixed platform,
  • using explosives,
  • participation in activity of terrorist group,
  • facilitating terrorist activity,
  • commission of offence for terrorist group,
  • instructing to carry out activity for terrorist group,
  • instructing to carry out terrorist activity,
  • harbouring or concealing,
  • procuring, infanticide,
  • trafficking in persons,
  • trafficking of a person under the age of eighteen years,
  • hostage taking, breaking and entering a dwelling-house,
  • intimidation of a justice system participant or journalist,
  • attack on premises, residence or transport of internationally protected person,
  • attack on premises,
  • accommodation or transport of United Nations or associated personnel,
  • explosive or other lethal device, participation in activities of criminal organization,
  • commission of offence for criminal organization, and
  • instructing commission of offence for criminal organization
 SECTION (b)

Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:

  • rape, attempt to commit rape,
  • sexual intercourse with female under fourteen and between fourteen and sixteen,

sexual intercourse with feeble-minded, etc.,

  • indecent assault on female, indecent assault on male,
  • acts of gross indecency, and
  • assault with intent if the intent is to commit an offence referred to in subparagraphs (i) to (vi)

SECTION (c)

Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:

  • sexual intercourse with a female under age of 14,
  • sexual intercourse with a female between ages of 14 and 16,
  • sexual intercourse with step-daughter,
  • gross indecency, parent or guardian procuring defilement, and
  • householder permitting defilement

SECTION (c.01)

Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970,
as [amended by] chapter 125 of the Statutes of Canada, 1980-81-82-83:

  • sexual assault,
  • sexual assault with a weapon,
  • threats to a third party or causing bodily harm, and
  • aggravated sexual assault]

SECTION (c.1)

Security of Information Act:

  • approaching, entering, etc., a prohibited place,
  • threats or violence,
  • harbouring or concealing

SECTION (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.01)

The sample will only be refused where "the impact of the order on the offender's privacy and security of the person [is] 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" [1]

Factors to be considered include "the nature of the offence, the nature of the intrusion and the circumstances of the individual who will be the subject of the intrusion."[2]

  1. ↑ R. v. Jordan, 2002 NSCA 11 at para. 59
  2. ↑ Jordan at para. 61

Secondary designated offences

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Distinct from "primary designated offences" are the "secondary designated offences" which is defined as:

s. 487.051

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Order — persons found not criminally responsible and secondary designated offences
(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.


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Offences that are classified as "secondary designated offences" consist of:

(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...

(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:

[listing the following offences: trafficking in substance and possession for purpose of trafficking, importing and exporting, and production of substance]

(c) an offence under any of the following provisions of this Act... [listing the following offences:escape and being at large without excuse, permitting or assisting escape, rescue or permitting escape, assisting prisoner of war to escape, indecent acts, failure to stop at scene of accident, criminal harassment, uttering threats, assault, assaulting a peace officer, breaking and entering a place other than a dwelling-house, being unlawfully in dwelling-house, and intimidation]...

(d) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990: [listing arson, setting fire to other substance]

(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 paragraph (c) or (d);


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Under s. 487.051(3)(b), DNA orders can only be granted for secondary offences where the prosecution applies and where the court is “satisfied that it is in the best interests of the administration of justice to do so, make [a DNA order] … in relation to…(b) a person who is convicted…of an offence…if that offence is a secondary designated offence when the person is sentenced or discharged.”

Due to the wording of the provision, the court has no authority to seek a DNA order for a secondary offence where the crown is not seeking one.[1]

  1. ↑ similar provision was interpreted in such a fashion in R v R(BE) 2005 BCCA 420 at 20 to 22

List of Secondary Designated Offences

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  • Possession of a Forged Passport (57)
  • Taking Explosives or Weapons on Board a Plane (78)
  • Breach of Duty of Care Regarding Explosives Causing Bodily Harm or Death (80)
  • Possession of a Weapon for a Dangerous Purpose (88)
  • Carrying a Concealed Weapon (90)
  • Unauthorized Possession of a Firearm (91)
  • Possession of a Firearm Knowing Possession is Unauthorized (92)
  • Possession of a Restricted or Prohibited Firearm with Ammo (95)
  • Weapons Trafficking (99)
  • Possession of a Weapon for Purpose of Trafficking (100)
  • Perjury (131)
  • Contradictory Evidence with Intent to Mislead (136)
  • Fabricating Evidence (137)
  • Obstructing Justice (139(2))
  • Public Mischief (140)
  • Prison Breach (144)
  • Bestiality (160)
  • Impaired Driving and Driving While Over 80 (253)
  • Refusal to Provide a Breath or Blood Sample (254)

NB: This list is not complete

Taking of Samples

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487.056

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Collection of samples
(5) A peace officer who is authorized under section 487.051, 487.055 or 487.091 to take samples of bodily substances may cause the samples to be taken in any place in Canada in which the person who is subject to the order or authorization is located.

Who collects samples
(6) The samples shall be taken by a peace officer who has jurisdiction over the person or in the place in which the samples are taken — or a person acting under their direction — who is able, by virtue of training or experience, to take them.

1998, c. 37, s. 17; 2000, c. 10, s. 16; 2002, c. 1, s. 179(E); 2005, c. 25, s. 6; 2007, c. 22, s. 13.

Report of peace officer
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.

Contents of report
(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.

Copy of report
(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.

1998, c. 37, s. 17; 2000, c. 10, s. 17; 2007, c. 22, s. 14.


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References

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