DNA Orders, Primary and Secondary Offences

November 1, 2009

In 1995, despite resistance on the part of criminal defence lawyers and civil rights activists, Bill C-18 was passed, which amended the Criminal Code to create a regime for collecting DNA samples from convicted offenders. Many criminal defence lawyers had argued that requiring offenders to submit bodily samples interfered with their bodily integrity and infringed their right to privacy. Nonetheless, the amendments to the Criminal Code were passed, giving courts the authority to order that offenders give a DNA sample. Samples are stored in a national databank created by the DNA Identification Act for use in investigating unsolved past crimes and future crimes. Under the new regime created by the DNA Identification Act, a judge can make a “DNA order” after convicting an offender of certain proscribed crimes. These orders are legally binding, and the offender must surrender a sample of his or her DNA. The Supreme Court of Canada has declared the DNA order regime constitutional in several cases.

For the purpose of issuing DNA orders, the Criminal Code distinguishes between two types of offences: primary offences and secondary offences. DNA orders may be issued for an individual convicted of a primary or secondary offence. In reality, the two categories cover almost every common offence in the Code.

Primary Designated Offences are listed in s. 487.04 of the Criminal Code. There are over 50 offences designated as primary offences. They are mostly of a violent or sexual nature, but also include especially serious offences such as hijacking, using explosives, endangering the safety of an aircraft, and participating in terrorist activities. If an individual is convicted of a primary offence, the judge must make a DNA order with respect to that person, unless the defendant and his or her criminal defence lawyer are able to satisfy the court that the impact on the defendant’s privacy and bodily integrity significantly outweighs the public interest in protecting society through the early detection, arrest and conviction of offenders. The burden on the accused is particularly high. The defence lawyer must show that the negative effect on the offender would be “grossly disproportionate” to the benefits for society. A DNA order may be avoided for a primary offence if the offence was extremely minor (for example, a sexual assault that consisted of touching another person’s leg or buttocks) and/or the defence can show that there is very little chance of the offender reoffending.

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Secondary Designated Offences are also listed in s. 487.04 of the Criminal Code. They include all indictable offence under the Criminal Code for which the maximum sentence is five years or more, and all indictable offences under s. 5 (trafficking), s. 6 (importing and exporting narcotics), and s. 7 (production) of the Controlled Drugs and Substances Act punishable by a maximum sentence of five years or more. Section 487.04 also lists almost 20 additional secondary designated offences, including escaping from custody, assault, arson, criminal harassment or uttering threats. If an individual is found guilty of a secondary offence, the court can make a DNA order if it determines that it is in best interests of the administration of justice to do so.  Often, the Crown Attorney will request a DNA order and make submissions to the judge arguing in favor of the Order, and the accused’s criminal defence lawyer will make submissions against the making of the Order. The court will then weigh a number of factors, including the submissions of counsel, the nature and circumstances of the offence, the criminal record of the accused, and the impact of such a DNA order on the accused’s right to privacy and security of the person, to decide whether a DNA order is warranted.

One of the most controversial aspects of the DNA Order Regime is that it applies retrospectively. According to s. 487.052 of the Criminal Code, the Court may order that DNA samples be taken from certain offenders convicted of committing a crime before Bill C-18 came into force. Retrospective Orders are made by way of an ex parte (without notice to the offender) application. They can be made against an individual who is serving a prison sentence of at least two years on the date of the application, for murder, certain listed sexual offences, or manslaughter, They can also be made against an individuals serving a sentence of at least two years on the date of application who has been declared a “dangerous offender” under the Criminal Code. Generally speaking, as a matter of fairness, laws only apply to actions committed after a law comes into force. However, in R. v. Rodgers, the Supreme Court of Canada declared retrospective DNA orders constitutional.

DNA orders can be issued to young offenders (individuals between the ages of 12 and 17 tried under the Youth Criminal Justice Act). The same rules about primary and secondary offences apply to young offenders. However, in the case of R. v. R. C., the Supreme Court of Canada ruled that it is appropriate to consider the underlying principles and objectives of the Youth Criminal Justice Act when determining whether to a DNA order against a young offender for a primary offence.

DNA orders can also be made when an individual is found “not criminally responsible” by way of insanity or mental illness [NCR] for a designated primary or secondary offence, even though an NCR finding is not technically a finding of guilt. Moreover, when a judge looks at an offender’s criminal record to determine whether to issue of DNA order for a secondary offence, they may consider any previous NCR findings in making their assessment.

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