INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the considerations for a provincial court judge in deciding whether to issue a warrant for the collection of bodily samples during a criminal investigation.
SECTION WORDING
487.05(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 take samples of bodily substances from the person, by means of the investigative procedures described in subsection 487.06(1), or (ii) another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures.
EXPLANATION
Section 487.05(2) of the Criminal Code of Canada highlights the considerations that a provincial court judge must take into account when deciding whether to issue a warrant for the taking of bodily substances from a suspect. This section is particularly relevant in investigating serious offences, such as those designated by law as DNA offences, where the collection of bodily substances from a suspect can provide crucial evidence to aid in identifying perpetrators and solving crimes. The provincial court judge considering the issuance of the warrant has to consider the nature of the designated offence and the circumstances surrounding its commission. This consideration is essential in determining whether the issuance of the warrant would be proportionate to the crime committed. For instance, in cases of a relatively less severe offence, such as shoplifting, the collection of bodily substances may not be necessary, and a warrant may not be issued. However, for more severe crimes such as sexual assault, the judge may consider the collection of bodily substances as necessary, and a warrant can be issued. The provision further stipulates that the judge also needs to consider if there is a peace officer or another person who has the necessary training and experience to take samples of bodily substances from the person using the methods described in subsection 487.06(1). This consideration is essential in ensuring that the collection process is done professionally and in adherence to set investigative procedures, hence maintaining the credibility and reliability of the evidence collected. In conclusion, section 487.05(2) provides a guideline on the issues that a provincial court judge needs to consider when deciding whether to issue a warrant for the taking of bodily substances from a suspect, therefore ensuring a balance between the interests of justice, and the rights and freedoms of the individual.
COMMENTARY
Section 487.05(2) of the Criminal Code of Canada outlines the considerations that a provincial court judge should take into account when deciding whether to issue a warrant for the taking of bodily samples from an individual in connection with an investigation into a designated offence. This provision acknowledges that the decision to allow the taking of bodily samples from a person is a significant intrusion on their bodily integrity and requires a careful balancing of competing interests. The first factor that the judge must consider is the nature of the designated offence and the circumstances of its commission. This involves examining the seriousness of the offence and whether the evidence sought is directly relevant to the investigation. For example, if the offence involves a sexual assault, bodily samples may be necessary to prove or disprove the presence of DNA evidence linking the accused to the crime. Similarly, if the offence involves impaired driving, bodily samples may be necessary to determine the individual's blood alcohol concentration at the time of the offence. The second factor that the judge must consider is whether there is a peace officer or other qualified person available to take the bodily samples in accordance with the investigative procedures outlined in subsection 487.06(1) of the Criminal Code. This subsection sets out the requirements for obtaining and executing a warrant for the taking of bodily samples and requires that the samples be taken by a qualified person in accordance with prescribed procedures. This provision recognizes that the taking of bodily samples requires specialized knowledge and training and that not all peace officers may be equipped to carry out this task. By requiring that a qualified person be available to take the samples, this provision helps to ensure that the samples are taken properly and with the minimum amount of intrusion necessary. Overall, section 487.05(2) of the Criminal Code of Canada provides a useful framework for balancing the interests of law enforcement and the individual's right to bodily integrity. By requiring that a warrant be issued before bodily samples can be taken and by setting out the factors to be considered by the judge in issuing the warrant, this provision helps to ensure that the procedural safeguards are in place to protect against arbitrary or abusive use of state power.
STRATEGY
Section 487.05(2) of the Criminal Code of Canada gives provincial court judges discretion to issue warrants for the taking of bodily samples as part of an investigation into a designated offence. This section raises a number of strategic considerations for investigators, prosecutors, and defence counsel. One strategic consideration is the nature of the designated offence and the circumstances of its commission. Certain offences will lend themselves more readily to the taking of bodily samples than others. For example, a sexual assault case may involve bodily fluids or DNA evidence that can be obtained through the investigative procedures authorized under subsection 487.06(1). By contrast, a fraud case may not involve bodily evidence at all, making the taking of samples unhelpful or unnecessary. Another strategic consideration is the availability of trained personnel to take the samples. Under subsection 487.05(2)(b), the judge must consider whether there is a trained peace officer or other person who can take the samples. This means that investigators need to have access to personnel with the appropriate training and experience in order to secure a warrant. If they do not have such personnel, they may need to consider obtaining training for existing staff or enlisting the services of outside experts. A third strategic consideration is the timing of the warrant application. The Criminal Code does not specify when a warrant for the taking of bodily samples should be sought, but investigators may want to consider the optimal timing based on the circumstances of the case. For example, it may be preferable to seek a warrant sooner rather than later if there is a risk that the bodily evidence will be lost or destroyed. A fourth strategic consideration is the potential impact of the bodily samples on the case. The samples may provide strong evidence of guilt or innocence, but they may also be inconclusive or subject to challenge based on the manner in which they were obtained. This means that investigators, prosecutors, and defence counsel need to carefully assess the potential value of the samples and the risks associated with seeking a warrant. Given these strategic considerations, there are a number of strategies that could be employed in dealing with Section 487.05(2) of the Criminal Code. One strategy is to carefully select cases where the taking of bodily samples is likely to be helpful and where trained personnel are available to obtain the samples. Another strategy is to ensure that the warrant application is timely and takes into account the potential impact of the bodily samples on the case. A third strategy is to be prepared to rebut any challenges to the samples based on the manner in which they were obtained or analyzed. Finally, defence counsel may want to consider challenging the warrant application on the basis of Section 8 of the Charter of Rights and Freedoms if the court authorizes the taking of bodily samples in circumstances that are unreasonable or unjustified.