DNA Identification Act (S.C. 1998, c. 37)

Short Title

Marginal note:Short title

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

Interpretation

Marginal note:Definitions

2 The definitions in this section apply in this Act.

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. (autorisation)

Commissioner

Commissioner means the Commissioner of the Royal Canadian Mounted Police. (commissaire)

designated offence

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. (infraction désignée)

DNA

DNA means deoxyribonucleic acid. (ADN)

DNA profile

DNA profile means the results of forensic DNA analysis of a bodily substance. (profil d’identification génétique)

forensic DNA analysis

forensic DNA analysis, in relation to a bodily substance, means forensic DNA analysis of the bodily substance. (analyse génétique)

human remains

human remains includes any detached part of the body of a person who may still be alive. (restes humains)

investigating authority

investigating authority means, as the case may be,

• (a) a Canadian law enforcement agency;

• (b) a coroner or medical examiner, or a person or organization with similar duties or functions, who is acting in the course of their duties under an Act of Parliament or of a provincial legislature; or

• (c) a laboratory. (autorité chargée de l’enquête)

order

order means an order made under section 487.051 of the Criminal Code or section 196.14 of the National Defence Act. (ordonnance)

Young Offenders Act

Young Offenders Act means chapter Y-1 of the Revised Statutes of Canada, 1985. (Loi sur les jeunes contrevenants)

young person

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. (adolescent)

Purpose

Marginal note:Purpose

3 The purpose of this Act is to establish a national DNA data bank to help

• (a) law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act; and

• (b) law enforcement agencies — as well as coroners, medical examiners or persons and organizations with similar duties or functions — find missing persons and identify human remains.

Principles

Marginal note: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;

• (a.1) society is well served by locating missing persons and identifying human remains, 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 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.

National DNA Data Bank

Establishment and Contents

Marginal note:Establishment

• 5 (1) The Minister of Public Safety and Emergency Preparedness shall establish a national DNA data bank, to be maintained by the Commissioner, consisting of

  • (a) for criminal identification purposes, a crime scene index, a convicted offenders index and a victims index;

  • (b) for the purposes of finding missing persons and identifying human remains, a missing persons index, a relatives of missing persons index and a human remains index; and

  • (c) for the purposes set out in paragraphs (a) and (b), a voluntary donors index.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Convicted offenders index

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

• Marginal note:Victims index

  (4.1) The victims index shall contain DNA profiles derived from bodily substances of a victim of a designated offence that

  • (a) are voluntarily submitted by the victim for the purpose of having their DNA profile added to the index; or

  • (b) if the victim is unidentified, deceased or unable to consent to submitting their bodily substances or their whereabouts are unknown, are obtained, as the case may be, from

    • (i) their personal effects,

    • (ii) any place associated with the commission of the designated offence, and

    • (iii) if the victim is deceased, their remains.

• Marginal note:Missing persons index

  (4.2) The missing persons index shall contain DNA profiles derived from bodily substances of a missing person, including bodily substances obtained from their personal effects.

• Marginal note:Relatives of missing persons index

  (4.3) The relatives of missing persons index shall contain DNA profiles derived from bodily substances of a person that are voluntarily submitted by them for the purpose of having their DNA profile added to the index, where their profile may assist in confirming the identity of a person whose DNA profile is contained in the missing persons index or human remains index.

• Marginal note:Human remains index

  (4.4) The human remains index shall contain DNA profiles derived from human remains.

• Marginal note:Voluntary donors index

  (4.5) The voluntary donors index shall contain DNA profiles derived from the bodily substances of a person, other than a victim of a designated offence, that are voluntarily submitted by them for the purpose of having their DNA profile added to the index, where their profile may be relevant to an investigation of a designated offence or of a missing person or human remains.

• Marginal note:Other information

  (5) In addition to the DNA profiles referred to in subsections (3) to (4.5), 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 referred to in subsection (3) or any of subsections (4.1) to (4.4), the case number of the investigation associated with the bodily substance from which the profile was derived;

  • (b) in the case of a profile referred to in any of subsections (4) to (4.5), the identity of the person from whose bodily substance the profile was derived, if that identity is known; and

  • (c) in the case of a profile referred to in subsection (4.3), the stated biological or other relationship of the person from whose bodily substance the profile was derived with the person whose identity is to be confirmed.

Marginal note:Review 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.

• Marginal note: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 add the resulting DNA profile in the convicted offenders index.

• Marginal note: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.

Marginal note:Defect 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Precondition — victims

• 5.3 (1) A DNA profile and related information shall be added to the victims index only if the Commissioner has reasonable grounds to suspect that the comparison of the profile conducted under subsection 5.5(1) will assist in the investigation of a designated offence with respect to which the profile was obtained.

• Marginal note:Preconditions — missing persons and relatives

  (2) A DNA profile and related information shall be added to the missing persons index or the relatives of missing persons index only if the Commissioner

  • (a) has reasonable grounds to suspect that the comparison of the profile conducted under section 5.5 will assist in the investigation of a missing person or human remains; and

  • (b) is satisfied that other investigative procedures have been tried and have failed or are unlikely to succeed, or that the urgency of the situation requires the comparison of the profile to others.

Marginal note:Written consent

5.4 A DNA profile and related information shall be added to the relatives of missing persons index or the voluntary donors index, or to the victims index in the circumstances described in paragraph 5(4.1)(a), only if the Commissioner has received the written consent to that addition, provided in accordance with any regulations, of the person who voluntarily provided the bodily substances from which the profile was derived.

Comparison of Profiles and Communication and Use of Information

Marginal note:Comparison of DNA profiles

• 5.5 (1) The Commissioner shall compare each DNA profile that is added to the crime scene index, the convicted offenders index, the victims index, the missing person index, the voluntary donors index or the human remains index with the DNA profiles that are already contained in those indices.

• Marginal note:Relatives of missing persons index

  (2) The Commissioner shall compare each DNA profile that is added to the relatives of missing persons index with the DNA profiles that are already contained in the missing persons index and the human remains index.

Marginal note:Communication — match

• 6 (1) If a comparison conducted under subsection 5.5(1) produces a match between DNA profiles, and none of the profiles that match is contained in the missing persons index or the human remains index, the Commissioner may communicate any information in relation to the profiles, to any laboratory or Canadian law enforcement agency that the Commissioner considers appropriate, for the purpose of

  • (a) if at least one of the profiles is contained in the victims index, the investigation of a designated offence with respect to which that profile was obtained; and

  • (b) in any other case, the investigation of any designated offence.

• Marginal note:Missing persons and human remains indices

  (2) If a comparison conducted under subsection 5.5(1) produces a match between DNA profiles, and at least one of the profiles that match is contained in the missing persons index or the human remains index, the Commissioner may communicate any information in relation to the profiles, to any investigating authority that the Commissioner considers appropriate, for the purpose of the investigation of a missing person or human remains.