DNA Data Bank Legislation - Consultation Paper 2002

Consultation Questions

ISSUE 2: Whether there is a need to amend the Criminal Code to allow DNA samples to be taken from individuals found not criminally responsible by reason of mental disorder for inclusion in the DNA data bank

In Canada no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.¹⁷ An accused who has committed the act or made the omission that formed the basis of the designated offence charged but who at the time of its commission was suffering from a "mental disorder" would be found not criminally responsible by reason of mental disorder if the court held that the disorder "rendered the person incapable of appreciating the nature or quality of the act or omission."¹⁸ As a result, such a person would not be "convicted" of the offence¹⁹ and would be excluded from the DNA data bank regime in the Criminal Code. Consequently, that person's DNA profile would not be included in the convicted offenders index where it might help resolve previous or subsequent designated offences that the person may have committed or may commit in the future.

Questions

• Should judges be allowed to order that DNA samples be taken from persons found not criminally responsible? If so, why? Should this be restricted to certain designated offences? Why? If so, which ones?

• If judges were to be allowed to order that DNA samples be taken from persons found not criminally responsible, should the burden always be on the prosecutor to apply to the judge for such an order? What criteria should be considered by the judge in making such an order?

• If judges were to be allowed to order that DNA samples be taken from persons found not criminally responsible, should they be allowed to make such orders prospectively, retrospectively or retroactively? Why?

• ¹⁷Subs. 16(1) of the Criminal Code.

• ¹⁸Section 672.34 of the Criminal Code provides:
  
  Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

• ¹⁹Section 672.35 of the Criminal Code provides:
  
  Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but –

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