Canadian Criminal Procedure and Practice/Search and Seizure/Bodily Samples

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Introduction[edit]

Bodily samples cannot be taken without a warrant where the subject does not consent.[1]

There are several methods of obtaining bodily samples:

  • general warrant (s.487);
  • DNA Sample (s.487.05);
  • blood sample demand (s.254(3));
  • DRE blood sample (s.254(3.4));
  • blood sample warrant (s.256)

A bodily sample can also be obtained by consent.[2]

DNA Sample (s.487.05)[edit]

Information for warrant to take bodily substances for forensic DNA analysis
487.05 (1) A provincial court judge who on ex parte application made in Form 5.01 is satisfied by information on oath 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 when 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 a person 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 and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1).

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

(a) the nature of the designated offence and the circumstances of its commission; and
(b) whether there is
(i) a peace officer who is able, by virtue of training or experience, to take samples of bodily substances from the person, by means of the investigative procedures described in subsection 487.06(1), or
(ii) another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures.
Telewarrant
(3) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.

1995, c. 27, s. 1; 1997, c. 18, s. 44; 1998, c. 37, s. 16; 2005, c. 25, s. 2(F).

CCC

This provision is only one of several ways to seize an item for the purpose of obtaining DNA. An item that contains a bodily substance can likewise be obtained through other means such as a warrant under s.487.[1]

This section authorizing the taking of the sample is constitutional. [2]

Validity
The ITO must contain sufficient details to be valid.[3]

Basis for warrant:

  • the applicable designated offence that is being investigated (s.487.04)
  • belief that a bodily substance was found or obtained at the scene
  • belief that accused was party to the offence

The warrant must include:

  • appropriate terms and conditions of sampling (s. 487.06(2)
  • special requirements must comply with s. 487.07

Execution of the warrant
The sample must be taken by a peace officer with the necessary training to take bodily samples. The peace officers are permitted to use reasonable force to extract the sample if the accused resists or refuses to submit to the taking of the sample.

Use of DNA
The sample may only be used with respect to the offence under investigation.[s. 487.08]

  1. R. v. Kaba 2008 QCCA 116; R. v. Gettin ,[2003] OJ No. 4758 (Ont. CA.) R. v. Dofer ,[1996] BCJ No. 332 (BCCA).
  2. R. v. Rodgers, 2006 SCC 15, [2006] 1 SCR 554 at para. 5
  3. R. v. Brighteyes, 1998 3 WWR 276 [1]

Blood sample demand (s.254 (3))[edit]

254.

...

Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and
(b) if necessary, to accompany the peace officer for that purpose.

...

Condition
(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.

... R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

If the investigating officer has reasonable grounds to believe that the person is impaired by drugs and could be charged for operation or control of a vehicle while impaired, they may make a demand for either urine sample or blood sample. A blood sample must be done by a medical practitioner.[1] However, a urine or oral fluid sample seems to be taken by any individual.

  1. s. 254(4)

DRE Blood sample demand (s.254 (3.4))[edit]

s.254...
Samples of bodily substances
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

Condition
(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.

... R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

See also Canadian_Criminal_Law/Offences/Impaired_Driving_and_Over_80/Proof_of_Impairment#Proof_of_Impairment_by_Drugs

Blood sample warrant (s. 256)[edit]

Warrants to obtain blood samples
256. (1) Subject to subsection (2), if a justice is satisfied, on an information on oath in Form 1 or on an information on oath submitted to the justice under section 487.1 by telephone or other means of telecommunication, that there are reasonable grounds to believe that

(a) a person has, within the preceding four hours, committed, as a result of the consumption of alcohol or a drug, an offence under section 253 and the person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person, and
(b) a qualified medical practitioner is of the opinion that
(i) by reason of any physical or mental condition of the person that resulted from the consumption of alcohol or a drug, the accident or any other occurrence related to or resulting from the accident, the person is unable to consent to the taking of samples of his or her blood, and
(ii) the taking of samples of blood from the person would not endanger the life or health of the person, the justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner to take, or to cause to be taken by a qualified technician under the direction of the qualified medical practitioner, the samples of the blood of the person that in the opinion of the person taking the samples are necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol or drugs in the person’s blood.

Form
(2) A warrant issued pursuant to subsection (1) may be in Form 5 or 5.1 varied to suit the case.

Information on oath
(3) Notwithstanding paragraphs 487.1(4)(b) and (c), an information on oath submitted by telephone or other means of telecommunication for the purposes of this section shall include, instead of the statements referred to in those paragraphs, a statement setting out the offence alleged to have been committed and identifying the person from whom blood samples are to be taken.

Duration of warrant
(4) Samples of blood may be taken from a person pursuant to a warrant issued pursuant to subsection (1) only during such time as a qualified medical practitioner is satisfied that the conditions referred to in subparagraphs (1)(b)(i) and (ii) continue to exist in respect of that person.

Copy or facsimile to person
(5) When a warrant issued under subsection (1) is executed, the peace officer shall, as soon as practicable, give a copy of it — or, in the case of a warrant issued by telephone or other means of telecommunication, a facsimile — to the person from whom the blood samples are taken.

R.S., 1985, c. C-46, s. 256; R.S., 1985, c. 27 (1st Supp.), s. 36; 1992, c. 1, s. 58; 1994, c. 44, s. 13; 2000, c. 25, s. 3; 2008, c. 6, s. 22.CCC

This method of obtaining a blood sample requires the following :

  1. the application be made to a JP within 4 hours of an offence under s. 253
  2. the offence involved bodily harm or death to the accused or another person
  3. a qualified medical practitioner is of the opinion that:
    1. the person is unable to consent to the taking of a sample
    2. the taking of the sample would not endanger the life or health of the person

This method is not frequently seen as the requirements under s. 487 are simpler.

Body Print Impression Warrant (487.092)[edit]

Section 487.092 was enacted on June 16, 1997 through Bill C-17.

Information for impression warrant
487.092 (1) A justice may issue a warrant in writing authorizing a peace officer to do any thing, or cause any thing to be done under the direction of the peace officer, described in the warrant in order to obtain any handprint, fingerprint, footprint, foot impression, teeth impression or other print or impression of the body or any part of the body in respect of a person if the justice is satisfied

(a) by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been committed and that information concerning the offence will be obtained by the print or impression; and
(b) that it is in the best interests of the administration of justice to issue the warrant.

Search or seizure to be reasonable
(2) A warrant issued under subsection (1) shall contain such terms and conditions as the justice considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.

...

1997, c. 18, s. 45; 1998, c. 37, s. 23.

CCC

See Also[edit]