CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XV SPECIAL PROCEDURE AND POWERS
Forensic DNA Analysis


"young person"  adolescent 

"young person" has the meaning assigned by subsection 2(1) of the Young Offenders Act.

1995, c. 27, s. 1.

Information for warrant to obtain bodily substances for forensic DNA analysis

487.05 (1) A provincial court judge who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe

(a) that a designated offence has been committed,

(b) that a bodily substance has been found

(i) at the place where the offence was committed,

(ii) on or within the body of the victim of the offence,

(iii) on anything worn or carried by the victim at the time when the offence was committed, or

(iv) on or within the body of any person or thing or at any place associated with the commission of the offence,

(c) that a person was a party to the offence, and

(d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person

and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in writing authorizing a peace officer to obtain, or cause to be obtained under the direction of the peace officer, a bodily substance from that person, by means of an investigative procedure described in subsection 487.06(1), for the purpose of forensic DNA analysis.

Criteria

(2) In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including

(a) the nature of the designated offence and the circumstances of its commission; and

(b) whether there is

(i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, by means of an investigative procedure described in subsection 487.06(1), or

(ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person, by means of such an investigative procedure.

Telewarrant

(3) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.

1995, c. 27, s. 1; 1997, c. 18, s. 44.

Investigative procedures

487.06 (1) The warrant authorizes a peace officer or another person under the direction of a peace officer to obtain and seize a bodily substance from the person by means of

(a) the plucking of individual hairs from the person, including the root sheath;

(b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or

(c) the taking of blood by pricking the skin surface with a sterile lancet.

Terms and conditions

(2) The warrant shall include any terms and conditions that the provincial court judge considers advisable to ensure that the seizure of a bodily substance authorized by the warrant is reasonable in the circumstances.

1995, c. 27, s. 1.

Execution of warrant

487.07 (1) Before executing a warrant, a peace officer shall inform the person against whom it is to be executed of

(a) the contents of the warrant;

(b) the nature of the investigative procedure by means of which a bodily substance is to be obtained from that person;

(c) the purpose of obtaining a bodily substance from that person;

(d) the possibility that the results of forensic DNA analysis may be used in evidence;

(e) the authority of the peace officer and any other person under the direction of the peace officer to use as much force as is necessary for the purpose of executing the warrant; and

(f) in the case of a young person, the rights of the young person under subsection (4).

Detention of person under warrant

(2) A person against whom a warrant is executed

(a) may be detained for the purpose of executing the warrant for a period that is reasonable in the circumstances for the purpose of obtaining a bodily substance from the person; and

(b) may be required by the peace officer who executes the warrant to accompany the peace officer.

Respect of privacy

(3) A peace officer who executes a warrant against a person or a person who obtains a bodily substance from the person under the direction of the peace officer shall ensure that the privacy of that person is respected in a manner that is reasonable in the circumstances.

Execution of warrant against young person

(4) A young person against whom a warrant is executed has, in addition to any other rights arising from his or her detention under the warrant,

(a) the right to a reasonable opportunity to consult with, and

(b) the right to have the warrant executed in the presence of

counsel or a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person.

Waiver of rights of young person

(5) A young person may waive his or her rights under subsection (4) but any such waiver

(a) must be recorded on audio tape or video tape or otherwise; or

(b) must be made in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

1995, c. 27, s. 1.

Limitations on use of bodily substances

487.08 (1) No person shall use a bodily substance that is obtained in execution of a warrant except in the course of an investigation of the designated offence for the purpose of forensic DNA analysis.

Limitations on use of results of forensic DNA analysis

(2) No person shall use the results of forensic DNA analysis of a bodily substance that is obtained in execution of a warrant except in the course of an investigation of the designated offence or any other designated offence in respect of which a warrant was issued or a bodily substance found in the circumstances described in paragraph 487.05(1)(b) or in any proceeding for such an offence.

Offence

(3) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

1995, c. 27, s. 1.

Destruction of bodily substances, etc.

487.09 (1) A bodily substance that is obtained from a person in execution of a warrant and the results of forensic DNA analysis shall be destroyed forthwith after

(a) the results of that analysis establish that the bodily substance referred to in paragraph 487.05(1)(b) was not from that person;

(b) the person is finally acquitted of the designated offence and any other offence in respect of the same transaction otherwise than by reason of a verdict of not criminally responsible on account of mental disorder; or

(c) the expiration of one year after

(i) the person is discharged after a preliminary inquiry into the designated offence or any other offence in respect of the same transaction,

(ii) the dismissal, for any reason other than acquittal, or the withdrawal of any information charging the person with the designated offence or any other offence in respect of the same transaction, or

(iii) any proceeding against the person for the offence or any other offence in respect of the same transaction is stayed under section 579 or under that section as applied by section 572 or 795,

unless during that year a new information is laid or an indictment is preferred charging the person with the designated offence or any other offence in respect of the same transaction or the proceeding is recommenced.

Exception

(2) Notwithstanding subsection (1), a provincial court judge may order that a bodily substance that is obtained from a person and the results of forensic DNA analysis not be destroyed during any period that the provincial court judge considers appropriate if the provincial court judge is satisfied that the bodily substance or results might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.

1995, c. 27, s. 1.

Information for impression warrant

487.091 (1) A justice may issue a warrant in writing authorizing a peace officer to do any thing, or cause any thing to be done under the direction of the peace officer, described in the warrant in order to obtain any handprint, fingerprint, footprint, foot impression, teeth impression or other print or impression of the body or any part of the body in respect of a person if the justice is satisfied

(a) by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been committed and that information concerning the offence will be obtained by the print or impression; and

(b) that it is in the best interests of the administration of justice to issue the warrant.

Search or seizure to be reasonable

(2) A warrant issued under subsection (1) shall contain such terms and conditions as the justice considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.

Provisions to apply

(3) Subsections 487(2) and (4) apply, with such modifications as the circumstances require, to a warrant issued under subsection (1).

Telewarrant

(4) Where a peace officer believes that it would be impracticable to appear personally before a justice to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.

1997, c. 18, s. 45.

Other Provisions respecting Search Warrants

Telewarrants

487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

Information submitted by telephone

(2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.

Information submitted by other means of telecommunication

(2.1) The justice who receives an information submitted by a means of telecommunication that produces a writing shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the information certified by the justice as to time and date of receipt.

Administration of oath

(3) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.

Alternative to oath

(3.1) A peace officer who uses a means of telecommunication referred to in subsection (2.1) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to his or her knowledge and belief and such a statement is deemed to be a statement made under oath.

Contents of information

(4) An information submitted by telephone or other means of telecommunication shall include

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;

(b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure;

(c) a statement of the peace officer's grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and

(d) a statement as to any prior application for a warrant under this section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.

Issuing warrant

(5) A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means of telecommunication

(a) is in respect of an indictable offence and conforms to the requirements of subsection (4),

(b) discloses reasonable grounds for dispensing with an information presented personally and in writing, and

(c) discloses reasonable grounds, in accordance with subsection 256(1) or paragraph 487(1)(a), (b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence,

may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued by a justice before whom the peace officer appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may require that the warrant be executed within such time period as the justice may order.

Formalities respecting warrant and facsimiles

(6) Where a justice issues a warrant by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing,

(a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance;

(b) the peace officer, on the direction of the justice, shall complete, in duplicate, a facsimile of the warrant in Form 5.1, noting on its face the name of the issuing justice and the time, date and place of issuance; and

(c) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.

Issuance of warrant where telecommunication produces writing

(6.1) Where a justice issues a warrant by a means of telecommunication that produces a writing,

(a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance;

(b) the justice shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (6)(b);

(c) the peace officer shall procure another facsimile of the warrant; and

(d) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.

Providing facsimile

(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, before entering the place or premises to be searched or as soon as practicable thereafter, give a facsimile of the warrant to any person present and ostensibly in control of the place or premises.

Affixing facsimile

(8) A peace officer who, in any unoccupied place or premises, executes a warrant issued by telephone or other means of telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, on entering the place or premises or as soon as practicable thereafter, cause a facsimile of the warrant to be suitably affixed in a prominent place within the place or premises.

Report of peace officer

(9) A peace officer to whom a warrant is issued by telephone or other means of telecommunication shall file a written report with the clerk of the court for the territorial division in which the warrant was intended for execution as soon as practicable but within a period not exceeding seven days after the warrant has been executed, which report shall include

(a) a statement of the time and date the warrant was executed or, if the warrant was not executed, a statement of the reasons why it was not executed;

(b) a statement of the things, if any, that were seized pursuant to the warrant and the location where they are being held; and

(c) a statement of the things, if any, that were seized in addition to the things mentioned in the warrant and the location where they are being held, together with a statement of the peace officer's grounds for believing that those additional things had been obtained by, or used in, the commission of an offence.

Bringing before justice

(10) The clerk of the court shall, as soon as practicable, cause the report, together with the information and the warrant to which it pertains, to be brought before a justice to be dealt with, in respect of the things seized referred to in the report, in the same manner as if the things were seized pursuant to a warrant issued, on an information presented personally by a peace officer, by that justice or another justice for the same territorial division.

Proof of authorization

(11) In any proceeding in which it is material for a court to be satisfied that a search or seizure was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the justice and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the search or seizure was not authorized by a warrant issued by telephone or other means of telecommunication.

Duplicates and facsimiles acceptable

(12) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purposes of subsection (11).

R.S., 1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F); 1994, c. 44, s. 37.

Where warrant not necessary

487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

1997, c. 18, s. 46.

Restriction on publicity

487.2 (1) Where a search warrant is issued under section 487 or 487.1 or a search is made under such a warrant, every one who publishes in any newspaper or broadcasts any information with respect to

(a) the location of the place searched or to be searched, or

(b) the identity of any person who is or appears to occupy or be in possession or control of that place or who is suspected of being involved in any offence in relation to which the warrant was issued,

without the consent of every person referred to in paragraph (b) is, unless a charge has been laid in respect of any offence in relation to which the warrant was issued, guilty of an offence punishable on summary conviction.

Definition of "newspaper"

(2) In this section, "newspaper" has the same meaning as in section 297.

R.S., 1985, c. 27 (1st Supp.), s. 69.

Order denying access to information used to obtain any warrant

487.3 (1) A judge or justice may, on application made at the time of issuing a warrant under this or any other Act of Parliament or of granting an authorization to enter a dwelling-house under section 529 or an authorization under section 529.4 or at any time thereafter, make an order prohibiting access to and the disclosure of any information relating to the warrant or authorization on the ground that

(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

Reasons

(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

(a) if disclosure of the information would

(i) compromise the identity of a confidential informant,

(ii) compromise the nature and extent of an ongoing investigation,

(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

(iv) prejudice the interests of an innocent person; and

(b) for any other sufficient reason.

Procedure

(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).

Application for variance of order

(4) An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order or a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant was obtained may be held.

1997, c. 23, s. 14, c. 39, s. 1.

Execution of search warrant

488. A warrant issued under section 487 or 487.1 shall be executed by day, unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;

(b) the reasonable grounds are included in the information; and

(c) the warrant authorizes that it be executed by night.

R.S., 1985, c. C-46, s. 488; R.S., 1985, c. 27 (1st Supp.), s. 70; 1997, c. 18, s. 47.

Definitions

488.1 (1) In this section,

"custodian" gardien

"custodian" means a person in whose custody a package is placed pursuant to subsection (2);

"document" document

"document", for the purposes of this section, has the same meaning as in section 321;

"judge" juge

"judge" means a judge of a superior court of criminal jurisdiction of the province where the seizure was made;

"lawyer" avocat

"lawyer" means, in the Province of Quebec, an advocate, lawyer or notary and, in any other province, a barrister or solicitor;

"officer" fonctionnaire

"officer" means a peace officer or public officer.


 

CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XV SPECIAL PROCEDURE AND POWERS
Forensic DNA Analysis