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DNA Order – What You need to know.

A Windsor man was recently sentenced to two years for animal cruelty. Along with his jail sentence and probation, the judge made a DNA order. This means that a sample of the man’s DNA will go into a national database, which is maintained by the RCMP. Justice Micheline Rawlins of the Ontario Superior Court of Justice, felt that this order was necessary due to the cruel nature of the crime and, in her words, “people who become serial killers begin with small animals”. The DNA order has some raising privacy concerns.

DNA Order

DNA orders come from section 487.051 of the Criminal Code of Canada. There are two different types of offences for DNA orders. If the offence is a primary designated offence, then the sentencing judge must make a DNA order. These offences would be the most serious – such as murder, aggravated assault, and any type of sexual offence. Secondary designated offences are also serious offences but in those cases the sentencing judge has discretion as to whether or not to make the DNA order. Examples include: drug offences (beyond simple possession), assault, arson, impaired driving, unlawfully in a dwelling house, and any offence prosecuted by indictment with a maximum of five years or more.


In the case where the order is discretionary the Crown Attorney and defence counsel both make submissions as to why the order is necessary/unnecessary, unjust, etc. In making his/her decision, the sentencing judge considers the following:

“…the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person…” (CCC s 487.051(3))

Considering the wide range of offences that fall under the primary and secondary designated offences, it’s an important factor to consider if you have been charged with a crime. There are concerns about privacy, security of the person, and some argue that it goes against presumption of innocence to suggest that someone may reoffend because they have done so in the past. The storage, use, and access of DNA samples is regulated by the DNA Identification Act.

If you have been charged with a crime it is important to be aware of possible consequences beyond jail time and probation. The lawyers at Smordin Law can help you understand what sentence you may be facing and can fight to keep your personal information out of the national databank.


Criminal Code of Canada

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