DNA Data Bank Legislation - Consultation Paper 2002
ISSUE 4: Whether there is a need to amend the Criminal Code to address certain procedural issues
(a) Ensuring the attendance of the offender for hearings under ss. 487.051 and 487.052
The DNA data bank provisions of the Criminal Code anticipate that the offender will be present in court when a DNA data bank order is made. Until he or she is convicted of the designated offence and sentenced, the accused is under the requirement to attend court as a condition of judicial interim release (bail). In Ontario, some judges have been sentencing offenders prior to resolution of the DNA data bank issue and there is a question as to whether they continue to have jurisdiction over the offender after the imposition of sentence. Amendments to the Criminal Code may be made to clarify that judges continue to have jurisdiction to make a DNA data bank order after sentencing and to establish a method of compelling appearance for the purpose of the retrospective and prospective DNA Data Bank hearings.
Should the Criminal Code be amended to permit a court to deal with a the making of a DNA data bank order after a sentence has been imposed and to establish a process for compelling the attendance of an offender for the purposes of the hearing? If so, what should the process be?
(b) Ensuring the attendance of the offender for the execution of a DNA data bank order
A DNA data bank order, like a DNA warrant or other search warrant, authorizes the police to take custody of certain materials – in this case the materials are samples of bodily substances from a convicted offender. The DNA data bank order is not directed to the offender. Rather, it is addressed to the peace officers in the territorial division and may be accompanied by those terms and conditions that a judge considers advisable in the circumstances.20 The legislation also provides that when a court makes a DNA data bank order, the bodily samples
"shall be taken at the time the person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, or as soon as is feasible afterwards."21 The legislation anticipated that DNA samples would, in most cases, be taken immediately upon conviction. However, if the matter of making a DNA order is dealt with at a later point (e.g., contemporaneous with the sentencing process if it has been adjourned), the collection ought to take place immediately after the DNA data bank order is made. Taking DNA samples from an offender immediately after the proceedings in the court are completed helps ensure that DNA data bank orders are executed.
Nevertheless, having a peace officer trained in taking the DNA sample available at the courthouse or other location at all times can be a strain on police resources. There is generally no difficulty in locating an offender who is sentenced to imprisonment and executing the order at a later point. However, this is not always the case with respect to an offender who is not sentenced to imprisonment. To facilitate the collection of DNA samples in these circumstances, the Criminal Code could be amended to establish a mechanism that would require the offender to attend at a specified time and place to provide the DNA sample and for the arrest and detention for sampling of an offender who fails to appear.
Should the Criminal Code be amended to establish a process for compelling the attendance of an offender for the purposes of providing a DNA sample? If so, what should the process be?
(c) Obtaining additional samples of bodily substances from an offender
Before samples of bodily substances are processed by the national DNA data bank to obtain a DNA profile, officials examine the documentation that accompanies them to ensure that no errors have been made in the identification of the offenders, that no samples have been improperly submitted and, generally to avoid any contamination of the information held in the data bank that might compromise its reliability for law enforcement purposes. On May 14, 2002, the national DNA data bank reported that it has rejected a total of 240 samples for a variety of reasons since it began its operations in 2000.22
Section 487.091 provides for orders to be made for additional samples if
"a DNA profile could not be derived from the bodily substances that were taken from a person." The order is made on ex parte application. There is however no provision in the Criminal Code to deal with instances of collection error (e.g., where the witness failed to sign the form). Such human errors are infrequent but they do occur.
Should the Criminal Code be amended to allow for re-sampling if the original sample is rejected by the DNA databank as a result of problems in the identification of the offender? If so, should the procedure be ex parte or should the offender have notice of the application?
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