DNA Data Bank Legislation - Consultation Paper 2002

Consultation Questions

ISSUE 5: Whether there is a need to provide for re-sampling in some cases where access to the offender's DNA profile has, by operation of law, been permanently removed from the national DNA data bank

The effect of a successful appeal on the comprehensiveness of the DNA data bank

Section 487.053 of the Criminal Code prevents the making of a DNA data bank order if the offender's DNA profile is already contained in the national DNA data bank. This provision was intended to avoid unnecessary sampling of convicted offenders and enhance cost-effectiveness in the operation of the national DNA data bank.

A situation may arise where an offender is convicted of a designated offence and his or her DNA profile is included in the convicted offenders index of the national DNA data bank while the conviction is appealed. Under the DNA Identification Act, if the appeal is successful, access to the offender's DNA profile in the convicted offenders index shall be permanently removed without delay after the conviction is quashed and a final acquittal entered.²³ If, between the time when the offender's DNA profile is added to the convicted offenders index and the time when the first conviction is overturned, this offender has been convicted of another designated offence no further DNA order will be made. Under the present law it would not be possible to return to the judge who could have made a DNA data bank order in respect of the second conviction notwithstanding the fact that the offender was convicted of a designated offence.

Questions

• Should the legislation be amended to ensure that it is possible to seek a DNA data bank order in such circumstances?

• If so, to what court should the application be made and should the offender receive notice of the application?

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²³Subs. 9(2) and s. 9.1 of the DNA Identification Act.

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