Type of document: Prosecution Directive
Effective date: November 14, 2017

A strong and effective DNA Data Bank benefits the criminal justice system by assisting law enforcement agencies to identify persons who have committed crimes. The collection and storage of DNA from convicted offenders has additional broader purposes including:

  • to deter potential repeat offenders
  • to promote the safety of the community
  • to detect the presence of a serial offender
  • to assist in solving old cases
  • to streamline investigations
  • to exclude innocent suspects
  • to exonerate those wrongfully convicted.

The issuance of a DNA order will usually be in the best interests of the administration of justice. The greater the number of offender DNA profiles that are entered onto the Convicted Offenders Index of the National DNA Data Bank, the more effective the use of the Data Bank and its ability to fulfill its purposes.

Duty of the Prosecutor

For the purpose of DNA collections, the Criminal Code designates eligible offences as either compulsory primary offences, other primary offences or secondary offences.

Compulsory primary designated offences

The Criminal Code directs that the court shall make a DNA Data Bank order for an adult convicted or discharged or for a young person found guilty of a “compulsory primary designated offence”. The Prosecutor must remind the court of its obligation to make the order.

Other primary designated offences

The Criminal Code directs that the court shall make a DNA Data Bank order for “other primary designated offences”. However, the court is not required to make the order if it is satisfied the offender has established that the impact of such an order on their 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. The Prosecutor must advocate for a DNA Data Bank order for “other primary designated offences”.

Secondary designated offence

The Criminal Code directs that upon application by the Prosecutor the court may make a DNA Data Bank order where it is in the best interests of the administration of justice for secondary designated offences. Given the number and nature of previously unsolved criminal investigations that were solved by samples taken on secondary designated offences, the Prosecutor should apply for a DNA Data Bank order for these offences. The Prosecutor should apply for an order in relation to each count even if an order was made on another count. In exceptional circumstances, the Prosecutor need not apply for the order where she determines that seeking a DNA Data Bank order is not in the interests of justice.

Not Criminally Responsible (NCR)

In the case of an accused found NCR, the Criminal Code directs that a court may make a DNA Data Bank order for compulsory primary, other primary or secondary offences, upon application of the Prosecutor, where it is in the best interests of the administration of justice. The Prosecutor must advocate for a DNA Data Bank order for compulsory primary or other primary offences when an accused is found NCR. For secondary offences, the Prosecutor should apply for a DNA Data Bank order if it is in the best interests of the administration of justice. Reference should be made to the Mentally Ill Accused Directives.

Resolution discussions and sentencing

Given the importance of the DNA Data Bank in the investigation and prosecution of crime, Prosecutors must not agree to withdraw a DNA designated offence as part of the negotiation process solely for the purpose of avoiding a DNA order.

Where the Prosecutor becomes aware that a DNA order was not considered at the time of conviction or sentencing, the Prosecutor must, absent exceptional circumstances, either take steps to have the matter brought back before the court or bring it to the attention of the Crown Attorney or designate.

Where the Prosecutor becomes aware of any problems with or errors in a particular DNA Data Bank order, including any issues relating to the execution or endorsement of orders, the Prosecutor must, absent exceptional circumstance, bring this to the attention of the Crown Attorney or designate.