Law:DNA Identification Act

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S.c. 1998, c. 37

Assented to 1998-12-10

An Act respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts

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


Contents

Short Title

Short title

1. This Act may be cited as the DNA Identification Act.


Interpretation

Definitions

2. The definitions in this section apply in this Act.

“authorization”

« autorisation »

“authorization”“authorization” means an authorization made under section 487.055 or 487.091 of the Criminal Code or section 196.24 of the National Defence Act.

“Commissioner”

« commissaire »

“Commissioner” means the Commissioner of the Royal Canadian Mounted Police.

“designated offence”

« infraction désignée »

“designated offence” means a designated offence within the meaning of section 487.04 of the Criminal Code or section 196.11 of the National Defence Act.

“DNA”

« Adn »

“DNA” means deoxyribonucleic acid.

“DNA profile”

« profil d’identification génétique »

“DNA profile” means the results of forensic DNA analysis of a bodily substance.

“forensic DNA analysis”

« analyse génétique »

“forensic DNA analysis”, in relation to a bodily substance, means forensic DNA analysis of the bodily substance.

“order”

« ordonnance »

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

“Young Offenders Act”

« Loi sur les jeunes contrevenants »

“Young Offenders Act” means chapter Y-1 of the Revised Statutes of Canada, 1985.

“young person”

« adolescent »

“young person” has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act or subsection 2(1) of the Young Offenders Act, as the case may be.

1998, c. 37, s. 2; 2000, c. 10, s. 4; 2002, c. 1, s. 187; 2005, c. 25, s. 14; 2007, c. 22, s. 27.

Previous Version

Purpose

Purpose


Principles

Principles

4. It is recognized and declared that

(a) the protection of society and the administration of justice are well served by the early detection, arrest and conviction of offenders, which can be facilitated by the use of DNA profiles;

(b) the DNA profiles, as well as samples of bodily substances from which the profiles are derived, may be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose; and

(c) to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on

(i) the use and communication of, and access to, DNA profiles and other information contained in the national DNA data bank, and

(ii) the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act.

1998, c. 37, s. 4; 2000, c. 10, s. 5.


National Dna Data Bank

Establishment

5. (1) The Minister of Public Safety and Emergency Preparedness shall, for criminal identification purposes, establish a national DNA data bank, consisting of a crime scene index and a convicted offenders index, to be maintained by the Commissioner.

Commissioner’s duties

(2) The Commissioner’s duties under this Act may be performed on behalf of the Commissioner by any person authorized by the Commissioner to perform those duties.

Crime scene index

(3) The crime scene index shall contain DNA profiles derived from bodily substances that are found

(a) at any place where a designated offence was committed;

(b) on or within the body of the victim of a designated offence;

(c) on anything worn or carried by the victim at the time when a designated offence was committed; or

(d) on or within the body of any person or thing or at any place associated with the commission of a designated offence.

Convicted offenders index

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

Other information

(5) In addition to the DNA profiles referred to in subsections (3) and (4), the DNA data bank shall contain, in relation to each of the profiles, information from which can be established

(a) in the case of a profile in the crime scene index, the case number of the investigation associated with the bodily substance from which the profile was derived; and

(b) in the case of a profile in the convicted offenders index, the identity of the person from whose bodily substance the profile was derived.

1998, c. 37, s. 5; 2000, c. 10, s. 6; 2005, c. 10, s. 34, c. 25, s. 15; 2007, c. 22, s. 28.

Previous VersionReview of information transmitted

5.1 (1) The Commissioner shall review the information transmitted under section 487.071 of the Criminal Code or section 196.22 of the National Defence Act to ensure that the offence referred to in the order or authorization is a designated offence.

Forensic DNA analysis

(2) The Commissioner shall conduct a forensic DNA analysis of the bodily substances transmitted if satisfied that the offence referred to in the order or authorization is a designated offence and enter the resulting DNA profile in the convicted offenders index.

Retention of order or authorization

(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.

2005, c. 25, s. 16; 2007, c. 22, s. 29.

Previous VersionDefect in order or authorization

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.

Confirmation or correction

(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.

Substantive defect

(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.

Destruction of bodily substances

(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.

2005, c. 25, s. 16; 2007, c. 22, s. 30.

Previous VersionCommunication of information

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:

(a) if the DNA profile is not already contained in the data bank, the fact that it is not;

(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;

(c) if the DNA profile is, in the opinion of the Commissioner, similar to one that is already contained in the data bank, the similar DNA profile; and

(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.

Authorized users

(2) Information as to whether a person’s DNA profile is contained in the convicted offenders index may be communicated to an authorized user of the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police.

Foreign law enforcement agencies

(3) On receipt of a DNA profile from the government of a foreign state, an international organization established by the governments of states or an institution of such a government or international organization, the Commissioner may compare the profile with those in the DNA data bank to determine whether it is already contained in the data bank and may then communicate to the government, organization or institution

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

(b) the information contained in the data bank in relation to a DNA profile communicated to the government, organization or institution in the circumstances set out in paragraph (1)(c) if the government, organization or institution advises the Commissioner that their comparison of that DNA profile with one that is connected to the commission of a criminal offence has not excluded the former as a possible match.

Communication of DNA profile

(4) The Commissioner may, on the request of a law enforcement agency in the course of the investigation of a designated offence, communicate a DNA profile contained in the crime scene index to the government of a foreign state, an international organization established by the governments of states or an institution of any such government or international organization.

Agreement or arrangement

(5) Subsections (3) and (4) apply only if the Government of Canada or one of its institutions has entered into an agreement or arrangement, in accordance with paragraph 8(2)(f) of the Privacy Act, with that government, international organization or institution, as the case may be, authorizing the communication solely for the purposes of the investigation or prosecution of a criminal offence.

Use of results — order, authorization

(6) No person shall use the results of forensic DNA analysis of bodily substances that are taken in execution of an order or authoriation, except in accordance with this Act.

Subsequent communication

(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.

Unauthorized communication

(7) Subject to this section, no person shall communicate any information that is contained in the DNA data bank or allow the information to be communicated.

1998, c. 37, s. 6; 2000, c. 10, s. 7; 2005, c. 25, s. 17; 2007, c. 22, s. 31.

Previous VersionAccess to information

7. Access to information contained in the DNA data bank may be granted to

(a) any person or class of persons that the Commissioner considers appropriate for the purposes of the proper operation and maintenance of the DNA data bank; and

(b) the personnel of any laboratories that the Commissioner considers appropriate for training purposes.

Unauthorized use of information

8. No person to whom information is communicated under subsection 6(1) or (6.1) or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes referred to in that subsection or paragraph.

1998, c. 37, s. 8; 2005, c. 25, s. 17.1.

Previous VersionCrime scene index

8.1 Access to the information in the crime scene index shall be permanently removed, in accordance with any regulations that may be made under this Act, if the information relates to a DNA profile derived from a bodily substance of

(a) a victim of a designated offence that was the object of the relevant investigation; or

(b) a person who has been eliminated as a suspect in the relevant investigation.

Information to be kept indefinitely

9. (1) Subject to subsection (2), section 9.1 and the Criminal Records Act, information in the convicted offenders index shall be kept indefinitely.

Information to be permanently removed

(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;

(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.

1998, c. 37, s. 9; 2000, c. 10, s. 8; 2005, c. 25, s. 18; 2007, c. 22, s. 32.

Previous VersionYoung persons — access to information removed

9.1 (1) Access to information in the convicted offenders index in relation to a young person who has been found guilty under the Young Offenders Act or under the Youth Criminal Justice Act of a designated offence shall be permanently removed without delay when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.

Exception

(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to

(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.

2000, c. 10, s. 9; 2005, c. 25, s. 19.

Previous VersionStorage of bodily substances

10. (1) When bodily substances are transmitted to the Commissioner under section 487.071 of the Criminal Code or section 196.22 of the National Defence Act, the Commissioner shall, subject to this section and section 10.1, safely and securely store, for the purpose of forensic DNA analysis, the portions of the samples of the bodily substances that the Commissioner considers appropriate and without delay destroy any remaining portions.

Change in technology

(2) Forensic DNA analysis of stored bodily substances may be performed if the Commissioner is of the opinion that the analysis is justified because significant technological advances have been made since the time when a DNA profile of the person who provided the bodily substances, or from whom they were taken, was last derived.

(3)�(Repealed, 2005, c. 25, s. 20)

Access

(4) Access to stored bodily substances may be granted to any person or class of persons that the Commissioner considers appropriate for the purpose of preserving the bodily substances.

Use of bodily substances

(5) No person shall transmit stored bodily substances to any person or use stored bodily substances except for the purpose of forensic DNA analysis.

Later destruction

(6) The Commissioner may at any time destroy any or all of the stored bodily substances if the Commissioner considers that they are no longer required for the purpose of forensic DNA analysis.

Mandatory destruction in certain cases

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

(a) without delay after every order or authorization for the collection of bodily substances from the person is finally set aside;

(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.

Where pardon granted

(8) Despite anything in this section, stored bodily substances of a person in respect of whom a pardon, within the meaning of section 2 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.

1998, c. 37, s. 10; 2000, c. 10, s. 10; 2005, c. 25, s. 20; 2007, c. 22, s. 33.

Previous VersionYoung persons — destruction of bodily substances

10.1 (1) The Commissioner shall, without delay, destroy stored bodily substances of a young person who has been found guilty of a designated offence under the Young Offenders Act or under the Youth Criminal Justice Act when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.

Exception

(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to

(a) a presumptive offence within the meaning of subsection 2(1) of the Youth Criminal Justice Act; or

(b) a record to which subsection 120(6) of that Act applies.

2000, c. 10, s. 11; 2005, c. 25, s. 21.

Previous VersionOffence

11. Every person who contravenes subsection 6(6) or (7), section 8 or subsection 10(5)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $2,000 or to imprisonment for a term not exceeding six months, or to both.

1998, c. 37, s. 11; 2005, c. 25, s. 22.

Previous Version

Regulations

Regulations

12. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act.


Review Of Act

Review of Act by Parliamentary committee

1998, c. 37, s. 13; 2000, c. 10, s. 12.


Report To Parliament

Annual report

13.1 (1) The Commissioner shall, within three months after the end of each fiscal year, submit to the Minister of Public Safety and Emergency Preparedness a report on the operations of the national DNA data bank for the year.

Tabling in Parliament

(2) The Minister shall cause the report of the Commissioner to be tabled in each House of Parliament on any of the first 15 days on which that House is sitting after he or she receives it.

2000, c. 10, s. 12; 2005, c. 10, s. 26.

Previous Version

Consequential Amendments

14. to 25. (Amendments)


Coming Into Force

Coming into force


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