INTRODUCTION AND BRIEF DESCRIPTION
The Attorney General is required to review orders and authorizations related to DNA identification if they are found to be defective.
SECTION WORDING
487.0911(1) On receipt of a notice from the Commissioner of the Royal Canadian Mounted Police under subsection 5.2(1) of the DNA Identification Act that an order made under section 487.051 or an authorization granted under section 487.091 appears to be defective, the Attorney General shall review the order or authorization and the court record.
EXPLANATION
Section 487.0911(1) of the Criminal Code of Canada is an important provision that deals with the process of reviewing orders and authorizations that are granted under the DNA Identification Act and the Criminal Code of Canada. The provision requires the Attorney General to review any order or authorization that appears to be defective, on receiving a notice from the Commissioner of the Royal Canadian Mounted Police (RCMP) under subsection 5.2(1) of the DNA Identification Act. This provision is essential because it helps protect the rights of individuals and ensures that the legal process is fair and just. If an order or authorization is found to be defective, it may have serious consequences for the accused, such as prolonged detention, loss of liberty, or even wrongful conviction. Therefore, it is crucial to have an independent body review these orders and authorizations to ensure their validity and compliance with the law. The Attorney General's review involves examining the order or authorization, as well as the court record, and determining whether there are any defects in the legal proceeding. This may include issues such as a lack of evidence, procedural errors, or violations of the accused's rights. If any defects are found, the Attorney General may revoke or modify the order or authorization. In summary, Section 487.0911(1) is a vital provision that ensures the protection of individuals' rights and fairness in the legal process. It mandates the Attorney General to review orders and authorizations that appear to be defective, which can help prevent wrongful convictions and uphold the integrity of the justice system.
COMMENTARY
Section 487.0911(1) of the Criminal Code of Canada is a provision that outlines the procedures for the review of orders or authorizations related to DNA identification. According to this section, upon receiving a notice from the Commissioner of the Royal Canadian Mounted Police that an order or authorization appears to be defective, the Attorney General is required to review the order or authorization and the court record. The DNA Identification Act was introduced in Canada in 2000, and it provides a framework for the collection and use of DNA samples for identification purposes. The Act allows law enforcement agencies to collect DNA samples from individuals who are accused of certain crimes or who have been convicted of certain offences. However, the Act also contains important safeguards to ensure that the collection and use of DNA evidence is conducted in a fair and lawful manner. One of the key safeguards in the DNA Identification Act is the requirement for judicial oversight. Section 487.051 of the Criminal Code allows a judge to order an individual to provide a DNA sample if they have been charged with certain offences, while section 487.091 allows law enforcement agencies to apply for an authorization to collect DNA samples from individuals who are not charged but are under investigation for certain offences. However, these orders and authorizations must meet certain criteria and must be reviewed by the court to ensure that they are valid and lawful. In some cases, however, it may come to light that an order or authorization was defective in some way. This may happen, for example, if the order or authorization was granted based on inaccurate information or if there were procedural errors in the application process. In such cases, it is important to have a mechanism for review to ensure that the rights of the accused are protected and that the integrity of the criminal justice system is maintained. This is where section 487.0911(1) of the Criminal Code comes in. This provision requires the Attorney General to review any orders or authorizations that are found to be defective by the Commissioner of the Royal Canadian Mounted Police. The review is intended to ensure that the order or authorization was valid and lawful, and to determine whether any action needs to be taken to remedy the defect. The importance of this provision cannot be overstated. It helps to ensure that the collection and use of DNA evidence is conducted in a fair and transparent manner, and that any defects in the process are identified and addressed. It also helps to protect the rights of the accused and to maintain the integrity of the criminal justice system. At the same time, it is important to recognize that the review process cannot guarantee that errors or defects will never occur. The collection and use of DNA evidence is a complex process, and mistakes can and do happen. However, by providing a mechanism for review and oversight, section 487.0911(1) helps to minimize the risk of errors and to ensure that any defects are identified and addressed in a timely and appropriate manner. In conclusion, section 487.0911(1) of the Criminal Code of Canada is an important provision that helps to ensure that the collection and use of DNA evidence is conducted in a fair and lawful manner. By requiring the Attorney General to review any orders or authorizations that are found to be defective, this provision helps to protect the rights of the accused and to maintain the integrity of the criminal justice system. While no system is perfect, the review process provided for in this provision helps to minimize the risk of errors and to ensure that any defects are identified and addressed.
STRATEGY
Section 487.0911(1) of the Criminal Code of Canada requires the Attorney General to review orders and authorizations related to DNA sample collection and analysis when notified by the Commissioner of the Royal Canadian Mounted Police of a potential defect. The parameters of this section have important strategic implications for prosecutors, law enforcement officials, and defence counsel, given the need to ensure that criminal investigations remain effective and fair. From a prosecutorial perspective, one key strategic consideration is the need to balance the benefits of DNA sample collection and analysis in solving crimes with the rights of the accused. The Supreme Court of Canada has established that DNA evidence can be highly probative and may even be capable of providing exculpatory evidence in some cases. This means that prosecutors must be mindful of the potential impact that a defect in an order or authorization may have on the fairness of a trial. At the same time, prosecutors may choose to engage in strategic delays to ensure that DNA evidence is included in a trial, or to negotiate a plea bargain to reduce the likelihood of a trial. In contrast, law enforcement officials may be focused on gathering as much evidence as possible in order to build a case against a suspect. This means that they may be more willing to take risks with orders and authorizations related to DNA sample collection and analysis, in order to be more aggressive in their investigations. For example, they may seek to increase the ease and speed at which they can collect DNA samples from potential suspects, in order to expedite the investigative process. However, this strategy may be risky, as a potential defect in an order or authorization could derail a case entirely. Defence counsel also have a strategic role to play in terms of assessing the validity of an order or authorization related to DNA sample collection and analysis. As highlighted by numerous cases in Canadian courts, defence counsel may challenge the admissibility of DNA evidence on several grounds, including the validity of the collection process, the chain of custody of the samples, and the reliability of the lab analysis process. Given the high stakes involved in criminal trials, defence counsel may choose to engage in protracted legal efforts to challenge a previously authorized DNA sample collection, in order to ensure that their client's rights are protected. Strategies that can be employed in relation to section 487.0911(1) include proactive communication between the Commissioner of the Royal Canadian Mounted Police and the Attorney General, in order to minimize the number of defects that require review. Prosecutors may also seek to ensure that collection and analysis processes adhere closely to established legal requirements, in order to minimize potential defects and challenges to thrown out evidence. Additionally, defence counsel may choose to remain mindful of potential defects when reviewing evidence, in order to be in a better position to challenge the admissibility of the evidence and ultimately protect the rights of their clients. Overall, section 487.0911(1) of the Criminal Code of Canada has significant strategic implications for all stakeholders involved in criminal investigations and trials. Given the centrality of DNA evidence in contemporary criminal justice proceedings, it is essential that prosecutors, law enforcement officials, and defence counsel remain aware of the potential risks and benefits associated with this tool. By exercising care and attention to detail, these stakeholders can contribute to fair and effective criminal justice outcomes for all Canadians.