Young offenders have their own special rights and privileges, but do they have to provide DNA samples and are they indexed in the DNA Data Bank?
The DNA Identification Act allows courts to order DNA analysis and store the DNA profile in a convicted offender’s index in the data bank. Not every conviction results in a DNA Order and only 4 types of orders are available.
The 4 Types of DNA Orders
Primary Designated Offence
A DNA Order is issued or granted when the offender is convicted or discharged of a primary designated offence. Sexual assault, for example, is a primary designated offence that if the Crown requests a DNA Order the Court shall issue it.
Secondary Designated Offence
The Prosecution can request that a Judge issue a DNA Order when an offender has been guilty of a secondary designated offence. The Judge has some discretion when deciding to grant a DNA Order for a secondary designated offence (e.g. common assault). The Crown must satisfy that the order is in the best interest of the administrative justice system.
An accused person always has the benefit of the law as it was when they are said to have committed the offence. When offenders are convicted of historical offences, such as sexual assaults that took place decades before DNA Data Bank Legislation, before there were primary and secondary designated offences, a Crown can still request a DNA Order. Since DNA Orders are not considered a ‘punishment’ Courts have granted DNA Order under these circumstances.
A retroactive DNA Order applies where a person met certain criteria before the DNA Data Bank Legislation came into force:
- Declared a dangerous offender
- Convicted of more than one sexual offence, and serving a sentence of at least 2 years for one of those offences (at time of the application)
- Convicted of more than one murder on separate occasions
DNA Orders Can Apply to Young Offenders
DNA Orders are not as automatic for youth as they are for adults. Courts recognize that youths are more vulnerable and often do not make the best decisions. The Youth Criminal Justice Act acknowledges these factors, putting its focus on rehabilitation rather than punishment.
DNA Orders are only given in youth criminal cases where the public interest outweighs the offender’s privacy. So, while young offenders are less likely to have to provide blood samples, certain offences can still attract orders.
Primary Designated Offences
Serious offences, like Assault with a Weapon, are more likely to attract a DNA Order. But even primary designated offences do not automatically require young offenders to provide a DNA sample. The order is generally only given is the privacy and security of the offender are proportionate to the public interest.
Secondary Designated Offences
Secondary designated offences have a lower likelihood of resulting in a youth DNA Order. As with a primary offence, the Crown needs to satisfy that the order is in the best interest of justice. Furthermore, a youth DNA Order for a secondary offence requires meeting other statutory factors:
- Criminal Record
- Nature of the Offence & Circumstances Surrounding Commission
- Impact on the Youth’s Privacy & Security
Do DNA Records Remain After a Youth Criminal Record is Destroyed?
After a young offender is convicted, their criminal record remains open during an access period. Once this period ends the record can longer be accessed, and the DNA sample may also be destroyed as well. But, in some instances, the sample may be kept indefinitely in the National DNA data bank where it can be accessed by:
- Your Lawyer
- Your Parent(s)
- Crown Attorney
- Police (For purposes relating to your case)
- The Court (That hears your case)
- Others who can demonstrate to the Court that they have a valid interest.
If you are asked to provide a DNA sample, it’s best to seek the advice of a criminal defence lawyer before consenting.
Hire A Youth Criminal Defence Lawyer
If a young offender is facing charges, it’s important to ensure they have the right representation. An experienced young offender lawyer makes sure their Charter rights are protected and followed.
Contact us today for questions or consultation.