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Do I have to give a bodily sample to the police?

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Do I have to give a bodily sample to the police?

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Reviewed: 
October, 2016
Answer

A bodily sample may include:

  • a urine sample
  • a blood sample
  • a piece of hair
  • a swab from the inside of your mouth  

You must give the police a bodily sample if:

  • they believe you have been drinking and driving and they can’t get a breath sample,
  • they have a warrant that says you must give them a sample, or
  • the court has ordered you to give them a sample.

The court may give the police a warrant to collect a bodily sample from you to do:

If the police have a warrant to collect a bodily sample from you and you refuse, you may be charged with obstruction or assault, depending on the circumstances. The police can use as much force as necessary to get the bodily sample authorized by the warrant.

It is a criminal offence to fail to comply with a court order

It is also a criminal offence to fail to comply with a demand for a breath sample if the police have reasonable grounds to believe you are drinking and driving.

When you can refuse

If the police don't have a warrant or court order that says you must give them a bodily sample, you don't have to agree to give them a sample. Talk to a lawyer right away if the police ask you to give them a bodily sample.

If you refuse to comply with a demand for a bodily sample when the police believe you have been driving while impaired, you can be charged criminally with failure to comply with a demand.

The Canadian Charter of Rights and Freedoms protects you from unreasonable search and seizure. It also protects you from being deprived unnecessarily of your life, liberty, and security. Taking bodily samples from a suspect without a warrant violates these rights.

1. Learn when you have to give a bodily sample

You must give a bodily sample if:

Blood alcohol concentration test 

If the police think you’ve been drinking and driving, they can demand that you take a roadside breath test. If you are not able to provide a breath sample, the police may take a blood sample without a warrant. For example, if you are in an accident and unconscious, or you have respiratory illness.

Your blood sample is used to determine the concentration of alcohol in your blood.

Refusing to comply with a demand to provide a blood sample is a criminal offence. If you refuse a blood test, you will be charged with failing to comply with a demand to provide a sample. A court will decide whether you had a reasonable excuse for refusing. It’s hard to show a reasonable excuse. If the police ask for a blood test, it's best to give them one.

The blood sample must be taken by a qualified medical practitioner or technician.

If you're unconscious, the sample will be sealed. The police will have to apply for a warrant to have the sample unsealed and tested later.

DNA warrants

The court will only give the police a warrant that allows them to get a bodily sample from you if you're suspected of specific types of crimes. These crimes are called designated offences.

Designated offences include a wide range of crimes, such as:

  • murder
  • sexual assault
  • drug trafficking in some cases
  • criminal harassment in some cases

The police use your bodily sample to do a DNA profile. Your DNA profile is compared to the DNA profiles from the crime scene. If the profiles match, it may prove that you were at the crime scene. If the profiles don't match, it may help eliminate you as a suspect. 

The police can use your DNA profile to prove you aren't a suspect, or as evidence that you might be connected to the crime. But they can't store your DNA profile in the national DNA data bank unless you're convicted of a designated offence.

DNA orders for designated offences

If you've been convicted of a designated offence, you will be ordered to provide a bodily sample for the national DNA data bank. You do not have a right to refuse to provide a sample if it is ordered as part of your sentence.

Law enforcement agencies use the DNA profiles from people who have been convicted of a designated offenceto investigate crimes. The DNA profiles let law enforcement agencies determine whether a specific person could have been involved in an offence.

It is a criminal offence to fail to comply with a court order. If the police have a warrant or a court order to collect a bodily sample from you and you refuse, you will be charged criminally.

Reviewed: 
January, 2017
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2. Learn when you can refuse to give a bodily sample

If the police don't have a warrant or a court order that says you must give them a bodily sample, you don't have to agree to give them a sample.

If you are being investigated for drinking and driving and you are unable to give a suitable breath sample because of a respiratory illness, the police may demand that you give them a blood sample.

Your blood sample is used to determine the concentration of alcohol in your blood.

Refusing to provide a blood sample is a criminal offence. If you refuse a blood test, you will be charged with failing to comply with a demand to provide a sample. A court will decide whether you had a reasonable excuse for refusing. It’s hard to show a reasonable excuse. If the police ask for a blood test, it's best to give them one.

Talk to a lawyer right away if the police ask you to give them a bodily sample.

A lawyer can help you to understand what might happen if you give the police a bodily sample. Always talk to a lawyer before agreeing to any type of search or seizure by the police.

The police must tell you about Legal Aid Ontario. Legal Aid Ontario pays lawyers known as duty counsel to give free legal advice. This advice is available 24 hours a day. If you've been arrested or detained, you can contact duty counsel immediately. If they don’t tell you, ask the police for the toll-free phone number for duty counsel.

Reviewed: 
January, 2017
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3. Check that there is a warrant

The police need a warrant or a court order to take a bodily sample from you for a DNA profile. Before you give the police a bodily sample for a DNA profile, check that they have a warrant or court order that says they can take a sample from you.

Your rights

Before taking a bodily sample, the police officer must tell you:

  • what the warrant says,
  • why the samples are being taken, and
  • how the samples will be used to investigate the offence

Getting a warrant

The police must apply for a warrant under the Criminal Code. Before the warrant is issued, a judge determines whether it's appropriate for the police to get a bodily sample from you.

A bodily sample can only be ordered for people suspected of designated offences such as:

  • murder
  • sexual assault
  • drug trafficking in some cases
  • criminal harassment in some cases

The Criminal Code identifies which crimes are designated offences.

Before a judge can order the DNA warrant, there must be reasonable grounds to believe:

  • one of the designated offences was committed,
  • a bodily sample was obtained from the victim, crime scene or other location involved in the offence,
  • the person named in the warrant was involved in the offence, and
  • comparing the suspect’s bodily sample with samples from the crime scene will provide evidence about the crime.

The judge will balance your rights against the need to solve crimes and enforce the law. 

Reviewed: 
January, 2017
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4. Give a bodily sample

If the police have a warrant for a bodily sample, you don't have the right to refuse. If you refuse, the police can use force to get the sample from you. If you refuse they can also charge you criminally with obstruction or assault in some cases.

DNA profile

Your bodily sample for a DNA profile may include:

  • a piece of hair
  • a blood sample
  • a swab from the inside of your mouth

The Criminal Code says that:

  • the sample must be taken by a police officer trained to take bodily samples, and
  • your privacy must be respected, based on what is reasonable in the circumstances

Blood alcohol concentration test

The police can demand that you give them a blood sample without a warrant if they have reasonable and probable grounds to believe you've been driving while impaired, and they can't get a breath sample. For example, if you are in an accident and unconscious, or you have respiratory illness.

They will use your blood sample to determine the concentration of alcohol in your blood.

The blood sample must be taken by a qualified medical practitioner or technician. If you're unconscious, the sample will be sealed. The police will have to apply for a warrant to have the sample unsealed and tested later.

Reviewed: 
November, 2016
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