INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the requirements for an application to be made regarding DNA profiling in criminal investigations.
SECTION WORDING
487.091(2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost.
EXPLANATION
Section 487.091(2) of the Criminal Code of Canada outlines the requirements for an individual to make an application to a judge or justice for an order to obtain bodily substances for DNA analysis. The section states that the application must include a clear explanation as to why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost. The purpose of this section is to ensure that the application for a DNA order is legitimate and necessary. The applicant must demonstrate that all reasonable measures have been taken to obtain the necessary bodily substances or information before turning to the courts for an order. This requirement helps to prevent frivolous or unnecessary applications, which could potentially violate an individual's privacy rights and waste valuable resources. Furthermore, the section emphasizes the importance of following regulations concerning the storage, handling and transmission of bodily substances for DNA analysis. This ensures that the evidence obtained is reliable and admissible in court. Failure to comply with regulations could result in the loss or contamination of evidence, which could ultimately harm the integrity of the trial process. In summary, Section 487.091(2) of the Criminal Code of Canada is a crucial provision that sets out the requirements for individuals seeking to obtain bodily substances for DNA analysis. It reinforces the importance of following regulations and highlights the need for a legitimate and reasonable basis for seeking a DNA order. Overall, the provision reflects the Canadian legal system's commitment to protecting civil liberties while ensuring justice is served.
COMMENTARY
Section 487.091(2) of the Criminal Code of Canada deals with the situation where the bodily substances required for the extraction of DNA profiles are not available or have been lost. In such cases, an application must be filed that explains why the DNA profile cannot be derived, or why the information or bodily substances were not transmitted or lost in accordance with regulations. This section is an important safeguard for individuals whose bodily substances are collected for forensic purposes, as it ensures that their rights to privacy and protection of personal information are respected. The extraction of DNA profiles can reveal sensitive personal information about an individual, such as their medical history, family relationships, and ancestry. Therefore, the use of DNA profiles must be strictly regulated and subject to appropriate safeguards. One reason why a DNA profile may not be derived from bodily substances is if the sample is too small or of poor quality. This can happen if, for example, the sample was contaminated, degraded, or did not contain enough viable DNA. In such cases, an application must explain why alternative methods of analysis, such as mitochondrial DNA testing or Y-chromosome analysis, were not feasible or appropriate. Another reason for the unavailability of a DNA profile could be due to the failure to follow regulations for collecting, handling, and transmitting bodily substances. In Canada, there are strict guidelines for the handling of forensic samples, including the use of appropriate collection kits, chain of custody protocols, and storage protocols. If these regulations are not followed, the sample may become degraded or contaminated, making it unusable for DNA analysis. In some cases, bodily substances themselves may be lost or destroyed, either through negligence or accident. This could happen, for example, if a sample is mislabeled, improperly stored, or exposed to environmental factors that degrade DNA. In such cases, an application must explain the circumstances under which the sample was lost and any efforts made to recover or replace it. Overall, Section 487.091(2) of the Criminal Code of Canada is an important safeguard for the privacy and protection of personal information of individuals whose bodily substances are collected for forensic purposes. It ensures that DNA profiles are only extracted under appropriate circumstances and when the bodily substances are available and of sufficient quality for analysis. It also holds forensic investigators accountable for following proper protocols and procedures for handling and transmitting samples, which is critical for maintaining the integrity and reliability of forensic evidence.
STRATEGY
Section 487.091(2) of the Criminal Code of Canada presents several strategic considerations when dealing with it. Firstly, the provision allows for the application of DNA evidence in criminal investigations where there might be some challenges in obtaining a clean sample. As such, any legal or investigative strategy must take into account the standards of evidence required in a criminal trial. Secondly, applicants must provide a compelling reason for the inadmissibility of the DNA sample. A distinct challenge presented by this provision is the successful definition of why the DNA sample in question cannot be derived from the bodily substance provided. Parties may need to employ professional expertise to demonstrate the required level of specificity in order to achieve the desired outcome. For example, if the sample has been contaminated during the collection process, the expert's opinion may help show how this may have affected the results. In addition, parties may decide to challenge the admissibility of DNA evidence that is contingent on this section's provisions. For example, an accused person may argue that the Crown has not provided a sufficient reason to support the admissibility of the DNA evidence as per the requirements of 487.091(2). The accused may argue that the Crown has not met the evidentiary threshold to show that the information or bodily substances were genuinely unavailable due to reasonable factors or whether the samples were lost as a result of human error. Another possible strategy to consider is whether the parties can agree to proceed to trial without relying on DNA evidence. The defence may agree not to contest a charge if the prosecutor agrees not to introduce DNA evidence in the case. This strategy might be attractive to a defendant facing criminal charges where DNA evidence is the only significant piece of evidence that the Crown is relying upon to prove its case. In such cases, the accused may argue that the DNA evidence's probative value is tenuous, and the negative impact of introducing the DNA outweighs its benefits. Ultimately, the use of 487.091(2) requires a strategic and research-based approach to both legal and investigative practices. The parties must consider the evidentiary threshold and the potential impact on the case by fighting or conceding its admissibility. As with any legal provision, there are avenues for challenging its application to the case, and a careful process of analysis, investigation, and communication by all parties will be necessary to achieve the desired outcome.