DNA Identification Act

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: Short title This Act may be cited as the DNA Identification Act. Definitions The definitions in this section apply in this Act. 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 means the Commissioner of the Royal Canadian Mounted Police. (commissaire) 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 means deoxyribonucleic acid. (ADN) DNA profile means the results of forensic DNA analysis of a bodily substance. (profil d’identification génétique) forensic DNA analysis, in relation to a bodily substance, means forensic DNA analysis of the bodily substance. (analyse génétique) human remains includes any detached part of the body of a person who may still be alive. (restes humains) investigating authority means, as the case may be, a Canadian law enforcement agency; 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 a laboratory. (autorité chargée de l’enquête) 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 means chapter Y-1 of the Revised Statutes of Canada, 1985. (Loi sur les jeunes contrevenants) 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 The purpose of this Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act; and 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 It is recognized and declared that 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; society is well served by locating missing persons and identifying human remains, which can be facilitated by the use of DNA profiles; 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 to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on the use and communication of, and access to, DNA profiles and other information contained in the national DNA data bank, and the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act. Establishment The Minister of Public Safety and Emergency Preparedness shall establish a national DNA data bank, to be maintained by the Commissioner, consisting of for criminal identification purposes, a crime scene index, a convicted offenders index and a victims index; 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 for the purposes set out in paragraphs (a) and (b), a voluntary donors index. Commissioner’s duties 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 The crime scene index shall contain DNA profiles derived from bodily substances that are found at any place where a designated offence was committed; on or within the body of the victim of a designated offence; on anything worn or carried by the victim at the time when a designated offence was committed; or 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 The convicted offenders index shall contain DNA profiles derived from bodily substances that are taken under orders and authorizations. Victims index The victims index shall contain DNA profiles derived from bodily substances of a victim of a designated offence that are voluntarily submitted by the victim for the purpose of having their DNA profile added to the index; or 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 their personal effects, any place associated with the commission of the designated offence, and if the victim is deceased, their remains. Missing persons index The missing persons index shall contain DNA profiles derived from bodily substances of a missing person, including bodily substances obtained from their personal effects. Relatives of missing persons index 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. Human remains index The human remains index shall contain DNA profiles derived from human remains. Voluntary donors index 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. Other information 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 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; 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 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. Review of information transmitted 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 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. Retention of order or authorization 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. Defect in order or authorization 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 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 the Director of Military Prosecutions, if the order or authorization was transmitted under section 196.22 of the National Defence Act. Confirmation or correction 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 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 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 confirmation that the order or authorization is valid; a corrected order or authorization; 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 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. Precondition — victims 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. Preconditions — missing persons and relatives 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 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 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. Written consent 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 DNA profiles 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. 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. Communication — match 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 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 in any other case, the investigation of any designated offence. Missing persons and human remains indices 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. Communication — similar profile If a comparison conducted under subsection 5.5(1) indicates that, in the Commissioner’s opinion, two or more DNA profiles are similar, the Commissioner may communicate the similar DNA profiles, to any investigating authority that the Commissioner considers appropriate, for the purpose of determining whether the possibility of a match between the profiles can be excluded. Deemed match If the investigating authority advises the Commissioner that the profiles are similar and that the possibility of a match between the DNA profiles has not been excluded, the Commissioner may communicate any information in relation to the profiles in accordance with subsection 6(1) or (2), as the case may be, as if there were a match between them. If a comparison conducted under subsection 5.5(2) indicates that a DNA profile that is already contained in the missing persons index or human remains index could be the profile of a biological relative of someone whose DNA profile is added to the relatives of missing persons index, the Commissioner may communicate any information in relation to both DNA profiles, to any investigating authority that the Commissioner considers appropriate, for the purpose of the investigation of a missing person or human remains. Communication — no match If a comparison conducted under section 5.5 produces neither a match between DNA profiles nor a result referred to in subsection 6.1(1) or (3), the Commissioner may communicate that fact to any investigating authority that the Commissioner considers appropriate. Subsequent communication — paragraph 6(1)(a) Information that is communicated under paragraph 6(1)(a) may be communicated subsequently to a person to whom it is necessary to communicate the information for the purpose of the investigation or prosecution of a designated offence with respect to which the DNA profile referred to in that paragraph was obtained. Subsequent communication — different purpose Information that is communicated under paragraph 6(1)(a) to a law enforcement agency may be communicated subsequently by a member of the agency to a person to whom it is necessary to communicate the information for the purpose of the investigation or prosecution of any designated offence, if the member has reasonable grounds to suspect that the information will assist in the investigation or prosecution. Further communication — different purpose Information that is communicated to a person under subsection (2) may be communicated subsequently to another person to whom it is necessary to communicate the information for the purpose of the investigation or prosecution referred to in that subsection. Subsequent communication — paragraph 6(1)(b) Information that is communicated under paragraph 6(1)(b) may be communicated subsequently to a person to whom it is necessary to communicate the information for the purpose of the investigation or prosecution of any designated offence. Subsequent communication — missing person or human remains Information that is communicated under subsection 6(2) or 6.1(3) may be communicated subsequently to a person to whom it is necessary to communicate the information for the purpose of the investigation of a missing person or human remains. Information that is communicated under subsection 6(2) or 6.1(3) to a law enforcement agency may be communicated subsequently by a member of the agency to a person to whom it is necessary to communicate the information for the purpose of the investigation or prosecution of a designated offence, if the member has reasonable grounds to suspect that the information will assist in the investigation or prosecution. Information that is communicated to a person under subsection (6) may be communicated subsequently to another person to whom it is necessary to communicate the information for the purpose of the investigation or prosecution referred to in that subsection. Communication — foreign law enforcement agencies 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 already contained in the crime scene index, the convicted offenders index, the missing persons index and the human remains index to determine whether there is a match between profiles and may then communicate any of the following to the government, organization or institution, as the case may be: if there is no match, that fact; if there is a match, any information in relation to a matching DNA profile that is already contained in any of those indices; if there is, in the Commissioner’s opinion, a similar DNA profile already contained in an index, the similar DNA profile; if, after receiving the similar DNA profile referred to in paragraph (c), the government, organization or institution advises the Commissioner that the possibility of a match between the similar profile with the DNA profile it provided has not been excluded, any information in relation to the similar DNA profile. 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. Missing persons or human remains index The Commissioner may, on the request of an investigating authority in the course of the investigation of a missing person or human remains, communicate a DNA profile contained in the missing persons index or the human remains 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 Subsections (1) to (3) apply only if the Government of Canada or one of its institutions has entered into an agreement or arrangement, in accordance with any regulations, with that government, international organization or institution, authorizing the communication solely for the purposes of, as the case may be, the investigation or prosecution of a criminal offence or the investigation of a missing person or human remains. Authorized users 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. Unauthorized communication Subject to sections 6 to 6.5, no person shall communicate any information that is contained in the DNA data bank or allow the information to be communicated. Access to information Access to information contained in the DNA data bank may be granted to 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 the personnel of any laboratories that the Commissioner considers appropriate for training purposes. Unauthorized use of information Subject to subsection (2), no person to whom information is communicated under any of sections 6, 6.1 and 6.3 or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes set out in the applicable provision of those sections. Use for different purpose After a law enforcement agency has received information in relation to a DNA profile that was communicated to them under paragraph 6(1)(a) or subsection 6(2) or 6.1(3), a member of the agency may use that information for the purpose of the investigation or prosecution of a designated offence if they have reasonable grounds to suspect that the information will assist in the investigation or prosecution. Use of results of DNA analysis — order or authorization No person shall use the results of forensic DNA analysis of bodily substances that are taken in execution of an order or authorization, except in accordance with this Act. Removal of access to information — crime scene index Access to information in the crime scene index shall be removed from that index without delay if the information relates to a DNA profile derived from a bodily substance of a victim of a designated offence that was the object of the relevant investigation; or a person who has been eliminated as a suspect in the relevant investigation. Other indices Access to information in relation to a DNA profile in the victims index, the missing persons index, the relatives of missing persons index, the human remains index or the voluntary donors index shall be removed from that index without delay if the Commissioner is advised that the person from whose bodily substances the profile was derived wishes to have access to the information removed; or the comparison under this Act of the profile with other profiles will not assist in the investigation with respect to which the profile was obtained. Periodic removal After each period prescribed by regulation, access to information in relation to a DNA profile in the victims index, the missing persons index, the relatives of missing persons index or the voluntary donors index shall be removed from that index without delay unless the Commissioner is advised before the end of the period, by any investigating authority that the Commissioner considers appropriate, that the investigating authority has not been advised by the person from whose bodily substances the profile was derived that they wish to have access to the information removed; and the comparison under this Act of the profile with other profiles may assist in the investigation with respect to which the profile was obtained. Subsequent DNA profile Removal of access to information in relation to a DNA profile of a person from an index under this section does not prevent a DNA profile derived from the bodily substances of the same person, and any information in relation to that profile, from subsequently being added to any index in accordance with this Act. Regulations — requirements The removal of access to information under any of subsections (1) to (3) shall be done in accordance with the requirements set out in any regulations that apply with respect to that subsection. Transfer to another index The Commissioner may transfer a DNA profile and information in relation to it from one index — other than the convicted offenders index or the relatives of missing persons index — to another, as long as the addition of the profile to the other index is in accordance with the applicable provisions of this Act. Information to be kept indefinitely 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 Access to information in the convicted offenders index shall be permanently removed 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; or 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. [Repealed, 2014, c. 39, s. 241] Young persons — access to information removed 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 Section 9 nevertheless applies to information in the convicted offenders index in relation to a serious violent offence as defined in subsection 2(1) of the Youth Criminal Justice Act; or a record to which subsection 120(6) of that Act applies. Storage of bodily substances 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 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. [Repealed, 2005, c. 25, s. 20] Access 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 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 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 The Commissioner shall destroy the stored bodily substances of a person without delay after every order or authorization for the collection of bodily substances from the person is finally set aside; or [Repealed, 2014, c. 39, s. 243] When record suspension is in effect Despite anything in this section, stored bodily substances of a person in respect of whom a record suspension, as defined in subsection 2(1) 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. Young persons — destruction of bodily substances 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. Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to Contravention of sections Every person who contravenes section 6.6 or 8 or subsection 10(5) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or 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. Regulations The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations respecting the establishment and operation of the national DNA data bank; respecting the collection and transmission of any information or other thing that is to be received by the Commissioner; respecting agreements or arrangements referred to in subsection 6.4(4); respecting access to information that is contained in the national DNA data bank, including removal of access to information and destruction of information; respecting the establishment of advisory committees to advise on any matter related to the national DNA data bank; and prescribing anything that by this Act is to be prescribed by regulation. Review of Act by Parliamentary committee Within five years after this Act comes into force, a review of the provisions and operation of this Act shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose. [Note: Sections 2, 3 and 12 in force May 8, 2000, see SI/2000-37; sections 1, 4 to 11 and 13 to 25 in force June 30, 2000, see SI/2000-60.] Annual report 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 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. [Amendments] Coming into force This Act or any of its provisions or any provision of an Act enacted by this Act comes into force on a day or days to be fixed by order of the Governor in Council. Pardons in effect — references in other legislation A reference to a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act: subsection 10(8) of the DNA Identification Act;