INTRODUCTION AND BRIEF DESCRIPTION
A person not under an order can apply to be exempt from obligation within a year of receiving notice.
SECTION WORDING
490.023(1) A person who is not subject to an order under section 490.012 of this Act or section 227.01 of the National Defence Act may apply for an order exempting them from the obligation within one year after they are served with a notice under section 490.021 of this Act or section 227.08 of the National Defence Act.
EXPLANATION
Section 490.023(1) of the Criminal Code of Canada refers to the ability of an individual who has been served with a notice under section 490.021 or section 227.08 of the National Defence Act to apply for an order exempting them from the obligation. Such individuals are not subject to an order under section 490.012 or section 227.01 of the National Defence Act. Section 490.021 of the Criminal Code of Canada pertains to the obligation to provide a DNA sample in certain criminal investigations. Under this section, a peace officer may require an individual to provide a DNA sample if the individual is arrested for certain designated offences. Similarly, Section 227.08 of the National Defence Act requires the collection of DNA samples from members of the Canadian Armed Forces who are subject to certain legal proceedings. If an individual is served with a notice under section 490.021 or section 227.08, they may apply for an order exempting them from providing a DNA sample within one year. This order may be granted if the individual can demonstrate that the taking of the DNA sample would be contrary to the principles of fundamental justice. In summary, Section 490.023(1) of the Criminal Code of Canada provides individuals who have been served with a notice under section 490.021 or section 227.08 with the ability to seek an exemption from the requirement to provide a DNA sample. This order may be granted if the individual can demonstrate that the collection of the DNA sample would be unjust.
COMMENTARY
Section 490.023(1) of the Criminal Code of Canada provides a mechanism for individuals who are not subject to an order under section 490.012 of the Criminal Code or section 227.01 of the National Defence Act to apply for an order exempting them from the obligation to provide a DNA sample. The obligation to provide a DNA sample is a result of being charged or convicted of certain designated offences. In Canada, the collection of DNA samples from individuals who are charged or convicted of designated offences was introduced in 2000 with the passage of the DNA Identification Act. The Act was introduced in order to enhance the effectiveness of the criminal justice system by providing law enforcement agencies with additional tools to assist in the identification of suspects and the solving of crimes. The collection of DNA samples has been successful in solving numerous crimes and has been especially helpful in cases where other evidence is lacking. However, the collection of DNA samples from individuals who have been charged or convicted of offences, regardless of whether they present a risk to public safety, is not without controversy. Critics argue that the blanket collection of DNA from individuals who have not been convicted of a crime violates their privacy rights and creates a database that can be used to track individuals even after their sentence has been served. Additionally, concerns have been raised about the potential for racial profiling and discrimination in the collection and use of DNA samples. Section 490.023(1) of the Criminal Code of Canada provides individuals who are not subject to an order under section 490.012 of the Criminal Code or section 227.01 of the National Defence Act with an opportunity to seek an exemption from the DNA collection obligation. This provision recognizes that not all individuals who have been charged with an offence pose a risk to public safety and that the collection of DNA samples from these individuals may not be necessary. The provision also recognizes that individuals have a right to privacy and that there may be circumstances where the obligation to provide a DNA sample would be unjustified or disproportionate to the offence committed. For example, an individual who is charged with a minor offence may argue that the collection of their DNA sample would be an unnecessary invasion of privacy. However, it is important to note that the exemption process is not automatic and the onus is on the individual to apply for an exemption within one year after they are served with a notice under section 490.021 of the Criminal Code or section 227.08 of the National Defence Act. The application must be supported by evidence and the court must take into account a number of factors, including the nature of the offence, the age of the individual, and any prior criminal record. In summary, section 490.023(1) of the Criminal Code of Canada provides individuals who are not subject to an order under section 490.012 of the Criminal Code or section 227.01 of the National Defence Act with an opportunity to seek an exemption from the obligation to provide a DNA sample. This provision strikes a balance between the need to enhance public safety through the collection of DNA samples and the recognition of individuals' privacy rights and the potential for unjustified or disproportionate invasions of privacy.
STRATEGY
Section 490.023(1) of the Criminal Code of Canada provides for a way in which a person can apply for an order exempting them from the obligation to provide a sample of a bodily substance for forensic DNA analysis. This obligation arises when a person is served with a notice under section 490.021 of the Act or section 227.08 of the National Defence Act. There are several strategic considerations that one needs to keep in mind when dealing with this section of the Criminal Code of Canada. One of the most important considerations is timing. The application for an exemption must be made within one year after the notice is served. This means that it is important to act quickly and seek legal advice as soon as possible after receiving the notice. If an application is not made within the one-year timeframe, the right to do so will be lost. Another strategic consideration is the grounds on which the exemption is sought. The Criminal Code of Canada sets out several grounds on which an exemption may be granted, including where the DNA analysis would be prejudicial to the person's health, would be contrary to their religious beliefs or would violate their privacy rights. It is important to identify the most appropriate grounds for seeking an exemption and to ensure that there is supporting evidence to back up the application. A third strategic consideration is the process for making the application. The Criminal Code of Canada requires that the application be made to a judge of the superior court of the province where the person resides. It is important to follow the correct process and ensure that all necessary documents are filed with the court. This may include affidavits from medical or religious experts, as well as any other evidence that supports the application. A fourth strategic consideration is the possibility of appeal. If the application is denied, there is a right to appeal the decision to the Court of Appeal. It is important to be aware of the time limits for filing an appeal and to ensure that the appropriate legal arguments are made. In terms of strategies that could be employed when dealing with this section of the Criminal Code of Canada, one approach is to seek out legal advice as soon as possible after receiving the notice. A lawyer can provide guidance on the grounds for seeking an exemption and can help ensure that all necessary documents are filed with the court. Another strategy is to gather as much evidence as possible to support the application. This may involve obtaining medical or religious expert opinions, as well as any other evidence that supports the grounds for seeking an exemption. A third strategy is to be prepared in case the application is denied. This may involve having a plan in place for appealing the decision and identifying any weaknesses in the original application that can be addressed in the appeal. Overall, there are several strategic considerations to keep in mind when dealing with section 490.023(1) of the Criminal Code of Canada. By acting quickly, identifying the most appropriate grounds for seeking an exemption and ensuring that all necessary documents are filed with the court, it is possible to increase the chances of success when seeking an exemption from the obligation to provide a sample of a bodily substance for forensic DNA analysis.