Part XV of the Criminal Code of Canada (Special Procedures and Powers) now encompasses Sections 487.04 to 487.09, providing the means by which police can use DNA as evidence.
Section 487.04 identifies the Criminal Code designated offences for which application for a DNA warrant may be made. Designated offences are further classified as primary or secondary designated offences. Primary offences are those for which, upon conviction, the court will automatically issue an order directing that bodily substances be obtained for the purposes of inclusion in the National DNA Data Bank. Secondary offences are those for which, upon conviction, a sample may be obtained from an individual. In these circumstances, the Crown must make application to the court satisfying the judge that it is in the best interests of the administration of justice for the subject to provide a sample.
DNA warrants cannot be obtained for non-designated offences, thereby excluding a number of offences where DNA analysis may be of benefit (such as criminal harassment (stalking), threatening, and extortion). Restrictions on the classification of designated offences appears to be a policy-based decision by Parliament to the effect that warranted seizures of bodily substances are only justifiable in connection with offences of a particular nature and gravity. The choice of designated offences is based on both the potential for personal injury or death, and the gravity of the offence as reflected by the prescribed punishment in the Criminal Code.
Information for Warrants to Obtain Bodily Substances for Forensic DNA Analysis
The required criteria of the Information to Obtain are identified in Section 487.05(a) and (bl CCC as follows:
- Section 487.05
- A provincial court judge who on ex parte application made in Form 5.01is satisfied by information on oath that there are reasonable grounds to believe:
- that a designated offence has been committed,
- that a bodily substance has been found or obtained,
- at the place where the offence was committed,
- on or within the body of the victim of the offence,
- on anything worn or carried by the victim at the time when the offence was committed, or
- on or within the body of any person or thing or at any place associated with the commission of the offence,
- that a person was party to the offence,3o and
- that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking,from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in Subsection 487.06(1).
In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including
- the nature of the designated offence and the circumstances of its commission; and
- whether there is
- a peace officer who is able, by virtue of training or experience, to take samples of bodily substances from the person, by means of the investigative procedure described in Subsection 487.06(1), or
- another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures.
Section 487 .06 identifies the three methods, or what are termed “authorized investigative procedures,” by which the police or a designate may obtain known biological samples, with warrant, from a suspect. Note, the legislation permits the police to obtain “samples of bodily substances from a person…” but does not define the quantity of samples that may be taken.
- A peace officer or another person under the direction of a peace officer is authorized to take samples of bodily substances from a person by a warrant under Section 487.05 or an order under Section 487.051 or 487.052 or an authorization under Section 487.055 or 487.091, by any of the following means:
- the plucking of individual hairs from the person, including the root sheath;
- the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or
- the taking of blood by pricking the skin surface with a sterile lancet.
Paragraph (1)(a) specifically includes the plucking of individual hairs from the person, including the root sheath, as root sheaths are a rich source of cellular material. Note also that this section makes no mention of what type of hair (for example, scalp, pubic or otherwise) should be obtained. Given the unique characteristics of DNA there is no need to compare hairs of the same source. The taking of a buccal swab requires the actual swabbing of the inner cheeks, lips, and tongue specifically for epithelial cells. As indicated previously, caution must be used when obtaining a sample of this nature, as simply dipping the swab in saliva may not collect the necessary epithelial cells required for analysis. Buccal swabs are the least preferred method of collection for DNA analysis purposes. Section 487 .06(2) further provides that the warrant shall include any terms and conditions that the provincial court judge considers advisable to ensure that the seizure of a bodily substance authorized by warrant, order or authorization is reasonable in the circumstances.
Execution of Warrants
- the contents of the warrant;
- the nature of the investigative procedure by means of which a bodily substance is to be obtained from that person;
- the purpose of obtaining a bodily substance from that person;
- the possibility that the results of forensic DNA analysis may be used in evidence;
- the authority of the peace officer and any other person under the direction of the peace officer to use as much force as is necessary for the purpose of executing the warrant; and
- in the case of a young person, the rights of the young person under Subsection (4).
Judicially Authorized Detention
Section 487.07(2) provides police with the authority to lawfully detain a subject for the purpose of executing the warrant. Note, “detained” is the specific wording used within the legislation. This detention may be necessitated by the need to attend a medical facility, hospital or other such location for the purposes of obtaining the sample. A person from whom samples of bodily substances are to be taken may:
- be detained for that purpose for a period that is reasonable in the circumstances; and
- be required to accompany a peace officer for that purpose.
Right to Counsel
As Section 487.07(2) authorizes the detention of subjects of a DNA warrant, the requisite duties imposed by Sections 10(a) and 10(b) of the Charter of Rights and Freedoms must be satisfied. Should the subject wish to exercise the right to consult with counsel, a reasonable opportunity to do so would have to be provided prior to the taking of the sample. Sections 487.04 to 487.09 contained within Part XV of the Criminal Code now provide police with statutory authority to obtain warrants to seize a bodily substance for DNA analysis.