196.11 The definitions in this section apply in this Division.

“Commissioner” means the Commissioner of the Royal Canadian Mounted Police.

“designated offence” means a primary designated offence or a secondary designated offence.

“DNA” means deoxyribonucleic acid.

“DNA profile” means the results of forensic DNA analysis.

“forensic DNA analysis”

(a) in relation to a bodily substance that is taken in execution of a warrant under section 196.12, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 196.12(1)(b), and includes any incidental tests associated with that analysis; and

(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or taken in execution of an order under section 196.14 or 196.15 or under an authorization under section 196.24, or a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance.

“peace officer” means

(a) a police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process; or

(b) an officer or a non-commissioned member of the Canadian Forces who is appointed for the purpose of section 156 or employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer.

“prescribed form” means a form prescribed in the regulations made by the Governor in Council.

“primary designated offence” means a primary designated offence within the meaning of section 487.04 of the Criminal Code that is punishable under section 130.

“secondary designated offence” means

(a) a secondary designated offence within the meaning of paragraph (a) or (b) of the definition “secondary designated offence” in section 487.04 of the Criminal Code that is punishable under section 130;

(b) an offence under any of the following provisions of this Act:

(i) paragraph 77(a) (violence to person bringing materiel to forces),

(ii) section 79 (mutiny with violence),

(iii) section 84 (striking a superior officer),

(iv) paragraph 87(b) (violence while in custody),

(v) section 95 (striking a subordinate),

(vi) paragraph 107(a) (endangering a person on an aircraft), or

(vii) section 127 (handling of dangerous substances); and

(c) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit any offence referred to in paragraph (a) or (b).

2000, c. 10, s. 1.

196.12 (1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of justice to do so and that there are reasonable grounds to believe

(a) that a designated offence has been committed;

(b) that a bodily substance has been found or obtained

(i) at the place where the offence was committed,

(ii) on or within the body of the victim of the offence,

(iii) on anything worn or carried by the victim at the time the offence was committed, or

(iv) on or within the body of any person or thing or at any place associated with the commission of the offence;

(c) that the person subject to the Code of Service Discipline was a party to the offence; and

(d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person.

(2) In considering whether to issue the warrant, the military judge shall have regard to all relevant matters, including

(a) the nature of the offence and the circumstances surrounding its commission; and

(b) whether there is

(i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, or

(ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.

2000, c. 10, s. 1.

196.13 (1) If a peace officer believes that it would be impracticable to appear personally before a military judge to apply for a warrant, the peace officer may submit an information on oath to the judge by telephone or other means of telecommunication.

(2) An information submitted by telephone or other means of telecommunication shall include, in addition to the information described in subsection 196.12(1),

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a military judge; and

(b) a statement as to any prior application for a warrant under this section.

(3) If the telecommunication is in written form, a written statement by the peace officer that all matters contained in the information are true to the officer’s knowledge and belief is deemed to be a statement made under oath.

(4) The military judge shall, as soon as practicable, certify the information as to time and date of receipt, and cause it to be filed with the Court Martial Administrator. If the telecommunication is not in written form, the information that is to be filed is the verbatim record, or a transcription of it, certified by the judge as to its contents and time and date of receipt.

(5) When a military judge issues a warrant by telephone or other means of telecommunication that is not in written form,

(a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

(b) the peace officer, on the direction of the judge, shall complete, in duplicate, a facsimile of the warrant in the prescribed form, noting on its face the name of the judge and the time, date and place of issuance; and

(c) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the Court Martial Administrator.

(6) When a military judge issues a warrant by a means of telecommunication in written form,

(a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

(b) the judge shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information, and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (5)(b);

(c) the peace officer shall procure another facsimile of the warrant; and

(d) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with Court Martial Administrator.

(7) In any proceeding in which it is material for a court to be satisfied that the taking of samples of a bodily substance was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the military judge and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the taking of the samples was not authorized.

(8) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purpose of subsection (7).

2000, c. 10, s. 1.

196.14 (1) Subject to section 196.16, if a person is found guilty of a designated offence, the court martial

(a) shall, subject to subsection (2), in the case of a primary designated offence, make an order in the prescribed form authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose; or

(b) may, in the case of a secondary designated offence, make an order in the prescribed form authorizing the taking of such samples if the court martial is satisfied that it is in the best interests of the administration of justice to do so.

(2) The court martial is not required to make an order under paragraph (1)(a) if it is satisfied that the person has established that, were the order made, the impact on the privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.

(3) In deciding whether to make an order under paragraph (1)(b), the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court and the impact such an order would have on the privacy and security of the person and shall give reasons for its decision.

2000, c. 10, s. 1.

*196.15 (1) Subject to section 196.16, if a person is found guilty of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court martial may, on application by the prosecutor, make an order in the prescribed form authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, if the court martial is satisfied that it is in the best interests of the administration of justice to do so.

* [Note: Subsection 5(1) of the DNA Identification Act in force June 30, 2000, see SI/2000-60.]

(2) In deciding whether to make the order, the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court and the impact such an order would have on the privacy and security of the person and shall give reasons for its decision.

2000, c. 10, s. 1.

196.16 An order shall not be made under section 196.14 or 196.15 if the prosecutor advises the court martial that the order is not required because the national DNA data bank, established under the DNA Identification Act, contains a DNA profile of the person in question.

2000, c. 10, s. 1.

196.17 (1) Samples of bodily substances referred to in sections 196.14 and 196.15 shall be taken at the time the person is found guilty or as soon as is feasible afterwards, even though an appeal may have been taken.

(2) The samples shall be taken by

(a) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person; or

(b) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.

2000, c. 10, s. 1.

196.18 (1) A peace officer who is authorized to take samples of bodily substances, or to direct another person to take them, in execution of a warrant under section 196.12 or 196.13, an order under section 196.14 or 196.15 or an authorization under section 196.24 shall, as soon as is feasible after the samples have been taken, make a written report in the prescribed form and cause the report to be filed with

(a) the military judge who issued the warrant or authorization, or another military judge; or

(b) the Court Martial Administrator, in the case of an order.

(2) The report shall state the time and date the samples were taken, and describe the bodily substances that were taken.

(3) If a peace officer does not execute a warrant that was issued in accordance with section 196.13, the peace officer must make a report stating the reasons why the warrant was not executed.

2000, c. 10, s. 1.

196.19 No peace officer or person acting under a peace officer’s direction incurs any disciplinary, criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances in execution of a warrant under section 196.12 or 196.13, an order under section 196.14 or 196.15 or an authorization under section 196.24.

2000, c. 10, s. 1.

196.2 (1) A peace officer or person acting under a peace officer’s direction is authorized to take samples of bodily substances by a warrant under section 196.12 or 196.13, an order under section 196.14 or 196.15 or an authorization under section 196.24 by any of the following means:

(a) the plucking of individual hairs, including the root sheath;

(b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or

(c) the taking of blood by pricking the skin surface with a sterile lancet.

(2) The warrant or order shall include any terms and conditions that the military judge considers advisable to ensure that the taking of the samples is reasonable in the circumstances.

(3) A peace officer, or any person acting under a peace officer’s direction, who is authorized to take samples of bodily substances from a person by an order under section 196.14 or 196.15 or an authorization under section 196.24 may take fingerprints from the person for the purpose of the DNA Identification Act.

2000, c. 10, s. 1.

196.21 (1) Before taking samples of bodily substances, or directing them to be taken, in execution of a warrant under section 196.12 or 196.13, an order under section 196.14 or 196.15 or an authorization under section 196.24, a peace officer shall inform the person from whom the samples are to be taken of

(a) the contents of the warrant or order;

(b) the nature of the investigative procedures by means of which the samples are to be taken;

(c) the purpose of taking the samples;

(d) the authority of the peace officer and any person acting under the officer’s direction to use as much force as is reasonably necessary for the purpose of taking the samples; and

(e) in the case of samples of bodily substances taken in execution of a warrant, the possibility that the results of forensic DNA analysis may be used in evidence.

(2) A person from whom samples of bodily substances are to be taken may, for that purpose, be detained for a period that is reasonable in the circumstances and be required to accompany a peace officer.

(3) A peace officer, or any person acting under a peace officer’s direction, who takes samples of bodily substances from a person shall ensure that the person’s privacy is respected in a manner that is reasonable in the circumstances.

2000, c. 10, s. 1.

196.22 (1) There shall be transmitted to the Commissioner for entry in the convicted offenders index of the national DNA data bank established under the DNA Identification Act the results of forensic DNA analysis of bodily substances that are taken in execution of an order under section 196.14 or 196.15 or an authorization under section 196.24.

(2) Any portions of samples of bodily substances that are not used in forensic DNA analysis shall be transmitted to the Commissioner for the purposes of the DNA Identification Act.

2000, c. 10, s. 1.

196.23 (1) Subject to subsection (2), bodily substances that are taken from a person in execution of a warrant under section 196.12 and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after

(a) the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person;

(b) the person is finally acquitted of the designated offence and of any other offence in respect of the same transaction; or

(c) the expiry of one year after the charge is withdrawn unless during that year the person is again charged with the designated offence or any other offence in respect of the same transaction.

(2) A military judge may order that the bodily substances that are taken from a person and the results of forensic DNA analysis not be destroyed during any period that the judge considers appropriate if the judge is satisfied that they might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.

(3) Bodily substances that are provided voluntarily by a person and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person.

2000, c. 10, s. 1.

196.24 (1) If a DNA profile could not be derived from the bodily substances that were taken in execution of an order under section 196.14 or 196.15, a military judge may, on ex parte application in the prescribed form, within a reasonable time after it is determined that the DNA profile could not be derived, authorize, in the prescribed form, the taking of any number of additional samples of bodily substances that is required for the purpose of forensic DNA analysis.

(2) The application shall state the reasons why a DNA profile could not be derived from the bodily substances that were taken from the person under the initial order or authorization.

(3) Samples of bodily substances shall be taken, as soon as is feasible after the authorization is granted, by

(a) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person; or

(b) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.

2000, c. 10, s. 1.

196.25 (1) A military judge may, on application made at the time of issuing a warrant, make an order prohibiting access to and the disclosure of any information relating to the warrant on the ground that

(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

(2) For the purpose of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

(a) if disclosure of the information would

(i) compromise the identity of a confidential informant,

(ii) compromise the nature and extent of an ongoing investigation,

(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

(iv) prejudice the interests of an innocent person; and

(b) for any other sufficient reason.

(3) If an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the military judge considers desirable in the circumstances, including terms and conditions concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the military judge immediately on determination of the application, and that packet shall be kept in the custody of the Court Martial Administrator in a place to which the public has no access or in any other place that the judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).

(4) An application to terminate the order or vary any of its terms and conditions may be made to the military judge who made the order or to another military judge.

2000, c. 10, s. 1.

196.26 In this Division, “designated offence” means an offence under any of the following provisions of this Act:

(a) paragraphs 75(a) to (d) (offences related to security);

(b) paragraphs 77(a) and (d) to (i) (offences related to operations);

(c) section 78 (spying for the enemy);

(d) section 79 (mutiny with violence);

(e) section 80 (mutiny without violence);

(f) paragraphs 81(a) and (b) (offences related to mutiny);

(g) section 84 (striking or offering violence to a superior officer);

(h) paragraphs 87(a) to (c) (resisting arrest or custody);

(i) section 95 (abuse of subordinates);

(j) section 100 (setting free without authority or allowing or assisting escape);

(k) section 101 (escape from custody);

(l) section 101.1 (failure to comply with conditions);

(m) section 102 (hindering arrest or confinement or withholding assistance);

(n) paragraphs 111(1)(a) and (b) (improper driving of vehicles);

(o) section 113 (causing fires);

(p) section 114 (stealing);

(q) section 115 (receiving);

(r) paragraphs 116(a) and (b) (destruction, damage, loss or improper disposal), if the conduct is wilful;

(s) paragraphs 117(a) to (d) and (f) (miscellaneous offences), except where the offender unlawfully obtains transportation by fraud;

(t) section 118 (offences in relation to tribunals);

(u) section 118.1 (failure to appear or attend);

(v) section 119 (false evidence);

(w) section 124 (negligent performance of duties), if the negligence results in death or bodily harm;

(x) section 127 (negligent handling of dangerous substances);

(y) section 128 (conspiracy); or

(z) section 130 (service trial of civil offences), if the act or omission is punishable under any other Act of Parliament and constitutes an offence under that other Act that is an indictable offence or is deemed to be an indictable offence by paragraph 34(1)(a) of the Interpretation Act.

2002, c. 13, s. 88.

196.27 (1) Any person who is charged with, or convicted by a court martial of, a designated offence may be fingerprinted or photographed or subjected to any other measurement, process or operation having the object of identifying persons that is approved by order of the Governor in Council under the Identification of Criminals Act.

(2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).

(3) The results of the measurements, processes and operations to which a person has been subjected under subsection (1) may be published for the purpose of affording information to peace officers within the meaning of Division 6.1 and others engaged in the execution or administration of the law.

2002, c. 13, s. 88.

196.28 No civil or criminal liability shall be incurred by any person for anything lawfully done under this Division or by any person concerned in the publication of results for the purpose of subsection 196.27(3).

2002, c. 13, s. 88.

196.29 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay

(a) if the person is tried by summary trial in respect of that charge; or

(b) on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

2002, c. 13, s. 88.