Bodily Substance Warrants Under s. 487.05

Some criminal law fun!

In my criminal procedure and evidence class at MRU, we discussed warrants to take bodily substances for DNA analysis under s. 487.05 of the Criminal Code. Such samples must be taken in accordance with the investigative procedures as set out in s. 487.06, which include taking samples by the plucking hairs, by the taking of buccal swabs, or by the taking of blood by "pricking the skin surface with a sterile lancet." A peace officer, who "by virtue of training or experience" may be authorized under the warrant to take these samples.

Okay. I was a little concerned with this. Potentially a non-medical person can be authorized to take a sample of blood based on "experience" only? In the words of my teenage daughter: OMG. Calm down you say - under s. 487.06 this procedure is done by "pricking the skin surface with a sterile lancet." Sounds easy doesn't it? Well, take a look at the WHO Guidelines for Drawing Blood and it doesn't look so easy or, quite frankly, so safe. This is a medical procedure and there are possible medical outcomes.

In contrast, take a look at the blood sample warrant authorization for imparied/over 80 offences involving death or bodily harm under s. 256. Such samples must be taken by a qualified medical practitioner "who is satisfied that taking the samples would not endanger the person's life or health." This is what we want! We want medical procedures to be done by qualified people. We want samples to be taken only if the benfits outweigh the harm. Why are we not providing the same protection for taking bodily samples for DNA purposes?

Yes, s. 256 authorizes the taking of blood samples, which is more invasive than a skin prick by lancet. Agreed. But there are still potential health risks whenever blood is taken. Particularly when the person taking the sample may be doing it "by virtue" of experience and not necessarily training. 

Answer? We need some safeguards albeit not the high level of safety mandated by s.256. Otherwise, such authorization may be contrary to Charter rights and values. But I will leave that discussion to you.