section 487.051(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the taking of bodily substances from a person convicted of certain offences for the purpose of forensic DNA analysis.

SECTION WORDING

487.051 (1) The court shall make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition "primary designated offence" in section 487.04 when the person is sentenced or discharged.

EXPLANATION

Section 487.051(1) of the Criminal Code of Canada specifies the procedure to be followed for the taking of bodily samples from individuals who have been convicted, discharged or found guilty of a primary designated offence. The purpose of this section is to enable forensic DNA analysis of bodily substances extracted from offenders, with the aim of identifying and linking them to other criminal activities related to their offence. The section requires the court to issue an order, in the prescribed Form 5.03, authorizing the taking of samples from the offender. The number of samples to be taken must be "reasonably required" for the purpose of forensic DNA analysis. This means that the number of samples taken should be proportionate to the scope of the analysis required in relation to a particular case. The provision applies not only to offences committed after June 30, 2000 but also to offences committed before that date, provided that such offences are primary designated offences within the meaning of paragraph (a) of the definition "primary designated offence" in section 487.04 at the time of sentencing or discharge. By enabling the extraction and analysis of DNA samples from individuals who committed designated primary offences, this provision strengthens the investigative capacity of law enforcement agencies and contributes to the identification and prevention of other criminal activities. Furthermore, the information obtained from these analyses can assist in the determination of guilt or innocence in criminal cases, as well as in the identification and prosecution of other offenders.

COMMENTARY

Section 487.051(1) of the Criminal Code of Canada allows for the taking of bodily substances, such as DNA samples, from individuals who have been convicted, discharged, or found guilty of a primary designated offense. This provision is part of the broader section 487 of the Code that deals with the taking of bodily substances for forensic DNA analysis. The purpose of taking bodily substances is to assist in law enforcement investigations and identify criminals. DNA analysis has become an increasingly important tool in solving crimes, and this provision reflects the Canadian government's commitment to using this technology to enhance public safety. The wording of section 487.051(1) limits the taking of bodily substances to those who have been convicted, discharged, or found guilty of primary designated offenses. The Criminal Code defines primary designated offenses as serious crimes such as murder, sexual assault, and kidnapping. Therefore, the use of this provision is limited to cases where there is high public interest in solving the offense, and where there is a higher likelihood of identifying the perpetrator through DNA analysis. The provision also allows for the taking of bodily substances from individuals who committed an offense before June 30, 2000. This provision permits law enforcement agencies to use DNA analysis to solve crimes that were committed before the technology's widespread use. The use of this provision raises some concerns regarding individuals' privacy and civil liberties. The taking of bodily substances is invasive and can be viewed as a violation of a person's bodily autonomy. However, the Supreme Court of Canada has held that the taking of bodily substances for DNA analysis is a reasonable limit on an individual's right to privacy, given the importance of DNA analysis in achieving public safety objectives. It is important to note that the use of this provision is subject to judicial approval. The court must make an order in Form 5.03 authorizing the taking of bodily substances from individuals who meet the criteria set out in the provision. This requirement ensures that the use of this provision is subject to judicial oversight and is not used arbitrarily or indiscriminately. In conclusion, section 487.051(1) of the Criminal Code of Canada permits the taking of bodily substances from individuals who have been convicted, discharged, or found guilty of primary designated offenses. This provision is intended to enhance public safety by using DNA analysis to identify criminals and solve crimes. While the use of this provision raises some concerns regarding privacy and civil liberties, the provision is subject to judicial oversight and is viewed as a reasonable limit on an individual's right to privacy.

STRATEGY

Section 487.051(1) of the Criminal Code of Canada deals with the taking of bodily substances for forensic DNA analysis from certain convicted persons. There are several strategic considerations that lawyers and law enforcement officers must take into account when working with this section of the Criminal Code. One of the first strategic considerations is whether the offence in question falls under the definition of a primary designated offence. A primary designated offence is defined as any of the following offences: murder, manslaughter, sexual assault, kidnapping, robbery, arson, and any other offence designated by the Governor in Council. If the offence does not fall into this category, then the order for the taking of bodily substances cannot be made. Another strategic consideration is the timing of the order. The order must be made at the time of sentencing or discharge under section 730, meaning that it cannot be made at a later date. This means that lawyers must ensure that the order is made before the convicted person leaves the courtroom. When dealing with section 487.051(1), lawyers must also consider the privacy and bodily integrity rights of the convicted person. While the order may be necessary for forensic DNA analysis, it still involves taking bodily substances from the person without their consent. As such, lawyers must ensure that the order is made in a way that is respectful of the convicted person's rights. One potential strategy for lawyers is to challenge the constitutionality of the order on the grounds that it violates the convicted person's rights. This strategy may be more effective in cases where the offence in question is not a primary designated offence, as the order would not be necessary in those cases. Another strategy for lawyers is to negotiate with the Crown for a reduced sentence or alternative sentence in exchange for the convicted person's consent to the order for bodily substances. This strategy may be more effective in cases where the evidence gathered from the bodily substances is not critical to the case, or where the Crown is amenable to negotiating. Overall, lawyers and law enforcement officers must carefully consider the legal and ethical implications of section 487.051(1) when working with convicted persons. While the order may be necessary for forensic DNA analysis, it must be made in a way that is respectful of the convicted person's rights and in accordance with the law.