What is a DNA Order?

A DNA order, made by a Judge, allows the police to take a sample of bodily substances (e.g. saliva or blood) from an offender. The Criminal Code of Canada governs the taking of bodily substances for law enforcement purposes. The substance is taken for the purpose of creating a DNA profile, which is stored in a national databank created by the DNA Identification Act. The databank is maintained by the RCMP and can be used to assist with future police investigations and unsolved past crimes.

Following the conviction of an offender for certain crimes, a Judge can make a DNA order.

A Judge’s decision to make a DNA order depends on the type of criminal offence committed. Some offences in the Criminal Code are designated as “primary designated offences”. Some offences are considered “secondary designated offences”. These designated offences are listed under section 487.04 of the Criminal Code. Primary designated offences are more serious than secondary designated offences. The list of designated offences includes, but is not limited to, offences of a violent or sexual nature. Judges are more likely to make DNA orders if an offender is found guilty of a primary designated offence than a secondary designated offence.

The Court is required to make a DNA order where an offender is convicted for a primary designated offence, unless the Judge is satisfied that the impact on the offender’s privacy and security of the person would be grossly disproportionate to the public interest in the protection of society. The burden of proof is on the offender to convince the Court not to make the order. The Judge will listen to the submissions from the Crown and Defence Counsel in deciding whether to make a DNA order.

For a secondary designated offence, a DNA order may be granted if the Judge is satisfied that it is in the best interests of justice to do so. In this scenario, the burden of proof is on the Crown to convince the Court to make the order. In deciding whether to grant the order, courts are required to consider the following factors: the criminal record of the person or young person; the nature of the offence and the circumstances surrounding its commission; and the impact such an order would have on the person’s or young person’s privacy and security of the person.

DNA samples can be taken in the Courthouse. Sometimes the offender will have to go to a police station to have the sample taken.

If you have questions about DNA orders or are facing criminal charges, contact a criminal defence lawyer in your jurisdiction as soon as possible. Fahd Ahmed is a criminal defence lawyer based in Toronto, ON and defends against all criminal charges.

Blog posts are not legal advice.

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