A DNA order is an ancillary order that a sentencing court may make when sentencing an individual for a criminal offence.
Section 487.051(1) of the Criminal Code directs the court to make an order authorizing the taking of samples of bodily fluids from an individual who has been convicted or discharged of a primary designated offence (as outlined in section 487.04).
Section 487.051(2) stipulates that where the offender is convicted or discharged of a primary designated offence, the Court may decline to make a DNA order where they are satisfied that doing so would have an impact on the security and privacy of the offender that is grossly disproportionate to the public interest in protecting society and the proper administration of justice which is achieved through the early detection, arrest and conviction of individuals who commit criminal offences.
The DNA Identification Act
The DNA Identification Act is the piece of legislation that created Canada’s current national DNA data bank. The Act also created powers under the Criminal Code, authorizing sentencing judges to order offenders convicted or discharged of certain designated offences to provide a sample of their DNA to be kept in the national data bank. The Act creates processes and procedures for how DNA that has been collected is to be stored, accessed, and destroyed.
What is the Purpose of the DNA Identification Act?
When enacting the DNA Identification Act the purpose was to create and maintain a national DNA data bank of individuals to allow law enforcement to identify and prosecute individuals who have committed designated offences. The data bank also allows law enforcement agencies as well as medical examiners and doctors to identify missing persons or human remains.
What is a DNA Order?
A DNA order is an order made by the sentencing court directing the offender to provide samples of bodily fluid to be stored in a national DNA data bank. When a DNA order is made, the court will typically set a date and time for the offender to have their bodily samples taken.
What are Designated Offences?
The Criminal Code outlines a list of primary designated offences and secondary designation offences.
Primary Designated Offences
Where an individual is convicted or discharged of a primary designated offence, a DNA order is mandatory upon sentencing. A list of primary designated offences is provided in section 487.04 of the Criminal Code.
Section 487.051(2) of the Criminal Code creates an exception to the mandatory DNA order for primary designated offences. A sentencing judge may decline to make a DNA order for a primary designated offence where the offender can satisfy the court that the intrusion on their security and privacy is grossly disproportionate to the public interest in protecting the public and the proper administration of justice through early detection, arrest, and conviction of those who have committed criminal offences. This means that the burden lies with the offender to convince the court not to make the DNA order.
Sentencing courts are less likely to make a DNA order where the offender was known to the victim, where the offender was easily identified as the perpetrator of the offence and where the offence was not predatory. Courts are more likely to make an order where there is reason to believe the offender may reoffend in the future and that retaining their DNA will assist in identifying and/or prosecuting them.
Secondary Designated Offences
An individual convicted or discharged of a secondary designated offence may be ordered to provide a sample of DNA, but it is not a mandatory requirement. Typically, the Crown will make an argument in favour of a DNA order at sentencing for a secondary designated offence. Defence counsel will have an opportunity to make an argument about why a DNA order is not appropriate. The ultimate decision lies with the sentencing judge who has discretion regarding whether to make the order.
Before the sentencing judge will make the order, they must be satisfied that the accused’s right to personal privacy is not grossly outweighed by the public interest in protecting society and the proper administration of justice achieved by detecting and identifying those who have committed criminal acts. A list of secondary designated offences is provided in section 487.04 of the Criminal Code.
Who Collects the Samples?
The samples are to be taken by a peace officer who has jurisdiction over the offender or in the location where the samples are to be taken, or another individual who is trained and experienced with taking such samples.
How long does my DNA Remain in the Database?
If you have provided a DNA sample after being issued a DNA order at sentencing for a criminal offence, the police will retain this DNA sample forever, unless you have your record suspended or are pardoned.
Does my DNA Remain after I have been Pardoned?
When an individual who has been ordered to provide a DNA sample is later granted a pardon or record suspension, the DNA sample will be moved from the general data bank and will be kept separate and apart from other samples. This DNA is not to be used for forensic analysis and the existence of the sample should not be communicated to anyone. This means, in short, that if you have been granted a pardon or record suspension your DNA file will also be sealed.