DNA Data Bank Legislation - Consultation Paper 2002

Criminal Code DNA Provisions

The provisions of the Criminal Code that govern the taking of bodily substances for law enforcement purposes have been carefully designed to be respectful of constitutional requirements.

The DNA profiles derived from bodily substances obtained from a suspect under a Criminal Code DNA warrant5 are only to be used in the investigation and prosecution of a designated offence and are not to be included in the national DNA data bank. This approach is consistent with the constitutionally protected presumption of innocence and permits the use of the DNA information either to exclude the person as a suspect or as evidence against the person by establishing a link between that person and the alleged crime.6

The DNA profiles derived from bodily substances taken from offenders who have been convicted of a designated offence under a Criminal Code DNA data bank order are only to be included in the convicted offenders index. The national DNA data bank helps law enforcement agencies identify or exclude offenders alleged to have committed other designated offences, including those committed before the coming into force of the DNA Identification Act.

The DNA warrant scheme and the DNA data bank scheme have a number of features in common, including:

Judicial discretion

Interference with an individual's bodily integrity in order to obtain bodily substances for law enforcement purposes potentially raises several issues under the Canadian Charter of Rights and Freedoms. Most importantly, therefore, under both the DNA warrant and the DNA data bank schemes an independent judicial arbiter determines whether it is appropriate, in the circumstances, to authorize an agent of the state to take samples of bodily substances from the individual for limited law enforcement purposes. In doing so the judge balances the rights of the individual and the law enforcement interests of the state. Judicial discretion is required to ensure the constitutionality of the scheme as a whole.

Temporal scope of the Criminal Code DNA Data Bank provisions

The Criminal Code permits the making of post-conviction DNA data bank orders and authorizations in three circumstances and is said to have prospective7, retrospective8 and retroactive9 application. Also, a provincial court judge can authorize the taking of additional bodily substances from an offender if a DNA profile could not be derived from the sample obtained under an earlier order10.

Primary designated offences and secondary designated offences

The Criminal Code classifies those offences that may be the subject of a DNA warrant or of a post-conviction DNA data bank order as either primary or secondary designated offences. The nature of the crime, the seriousness of the crime and the likelihood of bodily substances being left behind by the perpetrator of the offence at the crime scene or on something related to the commission of the crime were factors in determining whether an offence is included in these lists. With a few exceptions the list of designated offences is limited to violent offences and sexual offences where there is a likelihood of bodily substances being left behind by the perpetrator of the offence. Primary designated offences are the most serious of these offences.11

Some serious offences do not appear on either list because they do not meet the criteria. For example, drug trafficking, while a serious offence, is highly unlikely to involve DNA evidence.

Differences in the treatment of primary and secondary designated offences

The court is required to make a DNA data bank order where an offender is convicted or discharged of a primary designated offence unless the judge is satisfied that the impact on the offender's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society. The burden of proof is on the offender to convince the court not to make the order.

In the case of a secondary designated offence, the order may be granted if the judge is satisfied that it is in the best interests of justice to do so. The burden of proof is on the Crown to convince the court to make the order. In deciding whether to grant the order, the courts are required to consider the following factors:

Judicial consideration of the legislation

When Parliament enacted the DNA warrant scheme it was anticipated that several of its aspects would be tested before the courts to determine whether they conformed to constitutional parameters. In some cases the entire scheme was challenged while in others the accused focused on one or more particular aspects of the legislation. While the Supreme Court of Canada has not yet had an opportunity to consider such matters, trial level courts and appellate courts have uniformly been satisfied that the legislation meets constitutional requirements. The constitutionality of the DNA data bank legislation has also come under judicial scrutiny and provincial appellate courts have now begun to review some of the early decisions made under it.

The courts have also been asked to interpret a number of expressions found in s. 487.055 which sets out the "retroactive" aspect of the legislation.12