If you are convicted of a designated serious offence in Canada, a judge will likely issue a DNA Data Bank Order. Refusing to provide a blood or saliva sample to the police under this order is a separate criminal offence under Section 487.0552 of the Criminal Code. You will be arrested, charged anew, and ultimately compelled to provide the sample.
DNA technology has revolutionized how Canadian law enforcement solves crimes. The National DNA Data Bank (NDDB), operated by the RCMP, stores the genetic profiles of thousands of convicted offenders. However, the police cannot simply take your DNA whenever they want. The collection of bodily substances is a profound invasion of privacy, protected under Section 8 of the Canadian Charter of Rights and Freedoms.
Usually, a DNA sample is required only after you have been convicted of a “designated offence” under the Criminal Code. When a judge issues a formal DNA Order, you are legally obligated to report to the local police station to provide a sample. Ignoring this order, or physically refusing to let the officer take a swab, carries severe legal consequences that will multiply your legal troubles significantly.
Step-by-Step Process: The DNA Order and Collection
Understanding the timeline of a DNA order can help you avoid accidental non-compliance. The process moves quickly following a conviction, and strict deadlines apply.
Step 1: The Judicial DNA Order (Form 5.03)
Upon sentencing for a primary designated offence (such as sexual assault, manslaughter, or aggravated assault), the judge is legally required to issue a DNA Data Bank Order. For secondary designated offences (like simple assault or drug trafficking), the judge has discretion. You will be handed a physical document (Form 5.03) detailing exactly when and where you must report to provide the sample.
Step 2: Reporting to the Police Station
The order will specify a deadline, often requiring you to report to the local police headquarters within 48 to 72 hours of your sentencing, or immediately before being transferred to a provincial or federal prison. You must bring photo identification and the court order with you.
Step 3: The Collection Method
In Canada, police are authorized to collect DNA using one of three methods: a finger prick for a drop of blood, a buccal swab (rubbing a Q-tip inside your cheek), or plucking a few hairs with the root attached. The buccal swab is the most common and least invasive method used today. The process takes less than five minutes.
Step 4: The Consequences of Refusal
If you fail to show up, or if you show up but refuse to open your mouth for the swab, the police will not physically assault you to get the sample. Instead, they will arrest you and charge you under Section 487.0552 of the Criminal Code for failing to comply with a DNA order. This is a hybrid offence. You will then be held for a bail hearing, and a judge will issue a new warrant authorizing police to use reasonable force, if necessary, to collect the sample.
Primary vs. Secondary Designated Offences
| Offence Type | Examples in Criminal Code | Is the DNA Order Mandatory? |
|---|---|---|
| Primary Designated Offence | Murder, Sexual Assault, Robbery. | Yes. The judge must issue the order upon conviction. |
| Secondary Designated Offence | Simple Assault, Uttering Threats. | Discretionary. The Crown must apply, and the judge decides. |
| Summary Non-Designated Offence | Cause Disturbance, Minor Mischief. | No. Police cannot demand DNA for these convictions. |
How Much Does it Cost to Defend a DNA Charge?
Failing to provide a DNA sample generates a brand-new criminal charge, which means incurring new legal expenses.
- New Legal Fees: Hiring a criminal defence lawyer to represent you on a “fail to comply” charge will generally cost between $1,500 and $3,500 CAD.
- Bail Hearing Costs: If you are arrested for refusing the order, a lawyer will charge approximately $500 to $1,500 CAD to conduct a bail hearing to get you out of custody.
- Fines: If convicted of failing to comply, you could face fines, probation, or additional jail time, further complicating your criminal record.
How Long Does the Process Take?
If you comply with the judge’s order, the actual appointment at the police station takes about 15 to 30 minutes. Once collected, your profile is uploaded to the RCMP’s National DNA Data Bank. Your DNA profile is kept indefinitely. However, if your conviction is later overturned on appeal, or if you eventually receive a federal Record Suspension (pardon) for a summary offence, the RCMP is legally required to destroy your biological sample and remove your profile from the database.
Frequently Asked Questions (FAQ)
Can police take my DNA when they arrest me, before trial?
Generally, no. Unlike taking fingerprints, police cannot routinely take a DNA swab upon arrest. To obtain DNA before a conviction, police must convince a judge to issue a specific DNA warrant by proving there are reasonable grounds to believe your DNA will match evidence found at a crime scene.
What happens to my physical DNA sample after it is analyzed?
Once the RCMP laboratory analyzes your buccal swab and extracts the numerical genetic profile (a string of numbers), the physical biological sample is safely stored. It is highly restricted and can only be used for forensic identification purposes, never for medical or genetic health testing.
Can I appeal a DNA order?
Yes. If you are convicted of a secondary designated offence, your lawyer can argue at sentencing that a DNA order would be grossly disproportionate to the crime. If the judge still issues the order, you can appeal the sentence to a higher court, but you must still provide the sample in the meantime unless a stay is granted.
Do police keep my DNA if I am found not guilty?
If the police obtained your DNA through a pre-trial warrant, and you are subsequently acquitted or the charges are withdrawn, the DNA Identification Act requires the RCMP to destroy the biological sample and delete the profile from their systems.
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