Canadian Criminal Sentencing/Ancillary Orders/DNA Orders

DNA Orders
DNA Orders are court orders permitting certain law enforcement persons to take bodily substance samples for the purpose of adding a record of the offender's DNA to the national database. A DNA order can be made by a sentencing judge where the offence being sentenced is either a "primary designated offence", for which it is mandatory, or a "secondary designated offence", for which it is discretionary.

Primary Designated Offences
Under s. 487.04, a "primary designated offence" is defined as:

The sample will only be refused where "the impact of the order on the offender's privacy and security of the person [is] 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"

Factors to be considered include "the nature of the offence, the nature of the intrusion and the circumstances of the individual who will be the subject of the intrusion."

Secondary designated offences
Distinct from "primary designated offences" are the "secondary designated offences" which is defined as:

Offences that are classified as "secondary designated offences" consist of:

Under s. 487.051(3)(b), DNA orders can only be granted for secondary offences where the prosecution applies and where the court is “satisfied that it is in the best interests of the administration of justice to do so, make [a DNA order] … in relation to…(b) a person who is convicted…of an offence…if that offence is a secondary designated offence when the person is sentenced or discharged.”

Due to the wording of the provision, the court has no authority to seek a DNA order for a secondary offence where the crown is not seeking one.

List of Secondary Designated Offences

 * Possession of a Forged Passport (57)
 * Taking Explosives or Weapons on Board a Plane (78)
 * Breach of Duty of Care Regarding Explosives Causing Bodily Harm or Death (80)
 * Possession of a Weapon for a Dangerous Purpose (88)
 * Carrying a Concealed Weapon (90)
 * Unauthorized Possession of a Firearm (91)
 * Possession of a Firearm Knowing Possession is Unauthorized (92)
 * Possession of a Restricted or Prohibited Firearm with Ammo (95)
 * Weapons Trafficking (99)
 * Possession of a Weapon for Purpose of Trafficking (100)
 * Perjury (131)
 * Contradictory Evidence with Intent to Mislead (136)
 * Fabricating Evidence (137)
 * Obstructing Justice (139(2))
 * Public Mischief (140)
 * Prison Breach (144)
 * Bestiality (160)
 * Impaired Driving and Driving While Over 80 (253)
 * Refusal to Provide a Breath or Blood Sample (254)

NB: This list is not complete