INTRODUCTION AND BRIEF DESCRIPTION
This section allows a provincial court judge to authorize the additional taking of bodily substances for forensic DNA analysis if previous samples were insufficient or lost.
SECTION WORDING
487.091(1) A provincial court judge may, on ex parte application made in Form 5.08, authorize in Form 5.09 the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), if (a) a DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 487.051 or an authorization granted under section 487.055; or (b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.
EXPLANATION
Section 487.091(1) of the Criminal Code of Canada pertains to the authorization of forensic DNA analysis on a person for investigative purposes. Under this section, a provincial court judge may grant an ex parte application made in Form 5.08 to authorize the collection of additional bodily samples from a person for the purpose of forensic DNA analysis, provided that the samples are reasonably required. This additional DNA testing may be ordered if a DNA profile cannot be derived from previous bodily samples obtained from that person through an order made under section 487.051 or an authorization granted under section 487.055 or if information or bodily substances required by regulations under the DNA Identification Act were not transmitted or lost. The section provides for investigative procedures described in subsection 487.06(1), which allows for the non-consensual taking of bodily substances such as hair, blood, and saliva from a person. However, this can only be done with the approval of a provincial court judge in accordance with the procedures set out in Forms 5.08 and 5.09. The purpose of this section is to permit law enforcement authorities to obtain additional DNA evidence, which may be crucial in solving crimes and bringing offenders to justice. However, the authorization for such testing must follow strict legal procedures to protect the rights and privacy of the individuals involved.
COMMENTARY
Section 487.091(1) of the Criminal Code of Canada outlines the conditions under which a provincial court judge may authorize the taking of additional samples of bodily substances from individuals for the purpose of forensic DNA analysis. In particular, this section stipulates that such authorization can only be granted through an ex parte application made in Form 5.08 and authorization granted in Form 5.09. The investigative procedures described in subsection 487.06(1) can be used to take the additional samples, which must be reasonably required" for the purpose of forensic DNA analysis. There are two sets of conditions that must be met in order for a judge to grant authorization for the taking of additional samples under this section. The first set of conditions pertains to cases where a DNA profile cannot be derived from the bodily substances that were taken from the person under an order made under section 487.051 or an authorization granted under section 487.055. This may occur if the original samples were inadequate or contaminated, or if the DNA sample was insufficiently preserved. In such cases, it may be necessary to take additional samples in order to obtain a valid DNA profile. The second set of conditions pertains to cases where the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost. The DNA Identification Act provides for a national DNA databank, which contains DNA profiles from convicted offenders, as well as from individuals who are under investigation for certain designated offences. The regulations governing the databank may require individuals to provide specific types of bodily substances, or to provide samples at certain stages of the investigation or prosecution. If an individual fails to provide the required samples, or if the samples are somehow lost or compromised, additional samples may need to be taken in order to comply with the regulations and populate the databank. It is important to note that authorization under this section can only be granted by a provincial court judge, and only through an ex parte application. This means that the application is made and considered without notice to the person from whom the additional samples are to be taken. This is an important safeguard, as it ensures that the person does not have the opportunity to interfere with the taking of the samples or to destroy or conceal evidence. However, ex parte applications can be controversial, as they may raise issues of fairness and due process. Despite the potential controversies surrounding ex parte applications, section 487.091(1) plays an important role in ensuring that DNA evidence is properly collected and analyzed in criminal investigations and prosecutions. DNA evidence can play a critical role in linking suspects to crimes, identifying perpetrators, and exonerating innocent individuals. However, the quality and reliability of DNA evidence depends on the integrity of the samples and the procedures used to collect and analyze them. By providing a mechanism for taking additional samples in certain limited circumstances, section 487.091(1) helps to ensure that DNA evidence is as accurate and reliable as possible - thereby enhancing the fairness and effectiveness of the criminal justice system.
STRATEGY
Section 487.091(1) of the Criminal Code of Canada deals with the authorization of additional samples of bodily substances for forensic DNA analysis. This section of the Criminal Code has significant implications for those working in law enforcement, forensic science, and the legal profession. Several strategic considerations need to be taken into account when dealing with this section of the Criminal Code. In this essay, we will discuss some of these considerations and possible strategies that could be employed to address them. One of the first considerations is the legality of the application for additional samples. The application must be made in Form 5.08 in an ex parte matter. This means that the prosecutor is the only party to the application. There are no adversarial proceedings, and the accused party is not present. Therefore, it is crucial to ensure that the application is made in compliance with the rules of procedure, as any procedural errors may result in the exclusion of the evidence at trial. Another critical consideration is the potential invasion of privacy. The taking of bodily substances is an invasive procedure that can result in discomfort, pain, and a loss of privacy. Therefore, it is essential to ensure that the application is made only when it is reasonably required for forensic DNA analysis. This can be achieved by demonstrating that other investigative techniques have been exhausted or that the additional samples are necessary for a proper investigation. Another consideration is the potential for a challenge to the authorization. The accused may challenge the authorization on the grounds of unreasonableness or a breach of his or her Charter rights. Therefore, it is crucial to ensure that the application is made only when there is a reasonable basis for forensic DNA analysis and that the authorization is made in compliance with the Charter of Rights and Freedoms. Possible strategies that could be employed when dealing with this section of the Criminal Code include conducting a thorough investigation to determine whether the taking of additional samples is reasonably required for forensic DNA analysis. This may involve interviewing witnesses, analyzing physical evidence, and exploring alternative investigative techniques. Another strategy may be to ensure that the application is made in compliance with the rules of procedure and is supported by relevant evidence. This may involve preparing a detailed affidavit outlining the grounds for the application, explaining why the additional samples are reasonably required, and addressing any potential privacy or Charter issues. Finally, an effective strategy may be to work collaboratively with other professionals, such as forensic scientists, to ensure that the additional samples are collected in a manner that is consistent with best practices and ethical guidelines. This may involve ensuring that the samples are collected by qualified personnel and that the chain of custody is maintained to ensure the reliability of the evidence. In conclusion, section 487.091(1) of the Criminal Code of Canada is a critical provision that enables law enforcement and forensic professionals to access additional bodily samples for forensic DNA analysis. However, there are several strategic considerations that must be taken into account when dealing with this section of the Criminal Code. By employing the strategies discussed in this essay, legal professionals can ensure that any application for additional samples is made in compliance with the rules of procedure, respects individual privacy and Charter rights, and is supported by relevant evidence.