Bill C-35 (Historical)
An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act
This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.
Irwin Cotler Liberal
Referral to Committee Before Second Reading
(This bill did not become law.)
An Act to amend Certain Acts in relation to DNA Identification
October 3rd, 2006 / 12:50 p.m.
Vic Toews Minister of Justice and Attorney General of Canada
moved that Bill C-18, An Act to amend certain Acts in relation to DNA identification, be read the second time and referred to a committee.
Mr. Speaker, I am pleased to rise today to speak on Bill C-18, An Act to amend certain Acts in relation to DNA identification, and to recommend to the House that this bill be given second reading and referred to committee.
This bill is highly technical. It is necessary, however, to make these technical changes so that we can proclaim former Bill C-13, which was passed in the last Parliament with all party support.
Many members are familiar with the background of this bill because they were here when Bill C-13 was passed, but I will provide a brief background for the benefit of new members.
The National DNA Data Bank, which is operated by the Royal Canadian Mounted Police, began operating on June 30, 2000. Basically, it compares DNA profiles of convicted offenders with DNA profiles found at crime scenes. It now contains almost 100,000 profiles from convicted offenders and about 30,000 profiles from crime scenes. The data bank has assisted almost 6,500 police investigations.
In 2001, federal and provincial prosecutors and officials identified a number of deficiencies in the legislation. The Uniform Law Conference, which includes representatives of the defence bar, passed resolutions calling for high priority to be given to remedying seven problems.
The government launched public consultations in the fall of 2002. It was only in May 2004 that former Bill C-35 was introduced to correct the problems that had been identified. The bill died on the order paper when the election was called and was reintroduced as former Bill C-13 in October 2004.
I believe it would be fair to say that while all parties supported the DNA data bank and the changes proposed in the former Bill C-13, many members wanted to make more extensive changes.
There were negotiations among the parties to develop a package of changes that could secure unanimous support for the bill. In May 2005, three key amendments to the bill were adopted.
First was extending the retroactive scheme to cover persons convicted of one murder, manslaughter or sexual assault. I recall that our party, in opposition, was particularly keen in bringing that issue forward.
Second was creating a category of very violent offences where the court would have no discretion to refuse to make the DNA order. Again, this was another initiative of the party that I am in, which made that recommendation in the last Parliament.
Third was extending the definition of secondary designated offences to cover all offences under the Criminal Code or the Controlled Drugs and Substances Act that are punishable on indictment by five years or more.
The bill then moved with lightning speed and with all party support through the House and the Senate because of an impending confidence vote on the budget.
The provisions of former Bill C-13 that came into force upon receiving royal assent were those dealing with the expansion of the retroactive scheme, which makes about 4,400 more offenders eligible to be sampled, the procedure for dealing with DNA orders that appear on their face to have been improperly made, and the procedures for dealing with moderate DNA matches.
The major amendments that have not yet been brought into force are the following.
First is allowing courts to make DNA data bank orders against a person who has been found “not criminally responsible on account of mental disorder”.
Second is adding Internet luring of a child, uttering threats, criminal harassment, and “criminal organization” offences to the list of designated offences.
Third is moving “robbery” and “break and enter into a dwelling house” and child pornography related offences from the list of secondary designated offences to the list of primary designated offences.
Fourth is creating a new sub-category of the primary designated offence list of 16 extremely violent offences for which the courts will have no discretion whatsoever and must make the order.
Fifth is expanding the definition of secondary designated offences to include all offences that are punishable by imprisonment for five years or more.
Most members will agree that these are significant changes that will enhance the ability of the police to use the data bank and to protect Canadians from criminals.
Why, then, are they not yet in force? Federal, provincial and territorial officials, who were preparing for the proclamation of the remaining provisions of Bill C-13, identified a number of serious technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase efficiency and reduce costs. The former government, therefore, introduced Bill C-72 in November 2005 to make the necessary changes. However, that bill died when the election was called.
Officials have continued their work and they have identified more changes that would clarify Parliament's intent in passing former Bill C-13 and the procedures that should be modified to make the DNA legislation more effective.
As a former provincial crown prosecutor, I know how important it is to have clear procedures set out in the Criminal Code if legislation is to be effective. I am pleased that my department took the initiative of holding a two day meeting with prosecutors, police, forensic scientists and correctional personnel to go over Bill C-13 with a fine tooth comb.
Bill C-18, the present bill, proposes about a dozen changes that were not in the former Bill C-72, and those changes flowed directly from that meeting. Bill C-18 proposes no changes in the underlying policies or procedures already adopted by Parliament. It contains mainly drafting changes, such as the creation of 10 new forms. These changes are not dramatic and they will not grab the headlines, but they will be welcomed by the people in the field who need to make what Parliament passes work.
Bill C-18 also contains some substantive changes that I believe will be supported by all members of the House. In particular, it would add attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions. These are very serious offences that indicate an elevated risk of reoffending and are punishable by life imprisonment, a higher punishment than for the sexual offences that are already included in the retroactive scheme.
It would also permit the Crown to apply for retroactive DNA data bank order where the offender was convicted prior to June 30, 2000 of one of the listed offences and is still under sentence for that offence, rather than requiring that the person be serving a sentence of two years or more.
There are a few cases of persons who, prior to June 30, 2000, received multiple consecutive sentences for various offences, including some of the offences that make an offender eligible for retroactive sampling and who are still under sentence. Although the court clearly considered them to be serious offenders, it did not impose a sentence of two years or more for any one of the relevant offences. It would also allow a DNA order to be made within 90 days after the sentence is pronounced.
It is believed that the main reason orders are not being made in many cases where they are already authorized is that prosecutors are extremely busy and are forgetting to remind the court to consider the issue. This would give both the prosecutor and the judge the time to review the files and, if the matter was simply missed, to have a hearing where the prosecution and the offender can present their arguments to the judge, who will decide whether to make the order.
It would also make it an offence to fail to appear for DNA sampling. It is expected that having a specific offence will better emphasize to the offender the necessity of appearing for sampling and so increase compliance with DNA data bank orders. It would authorize any police force that arrests the person for failing to appear for a DNA sample to take the sample.
It would be very expensive if offenders arrested in one province had to be sent back to the province where the order was made to have the sample taken. It would permit a police agency that has been authorized to take a DNA sample to authorize another police agency to take the sample if that would be less expensive. The police have been hampered in their efforts to execute the orders where the offender has been incarcerated outside its jurisdiction or been conditionally released but resides outside its jurisdiction.
The procedure to have the order transferred to a court having jurisdiction and obtaining another order are time consuming and use up resources unnecessarily.
There are also some changes being made to ensure that the National DNA Data Bank can communicate with the forensic laboratories and with its international partners more effectively.
Parliament certainly wanted to encourage these exchanges, but the amendment, as passed in Bill C-13, is not as clear as it should be. As well, the National Defence Act is being amended so that the DNA regime applicable to the military continues to mirror the civilian regime.
There are many other technical changes of this nature in the bill and I am sure that when the bill gets to committee for detailed consideration, officials will explain them all. I trust this is sufficient, however, for members to realize that the changes proposed by this bill will be very helpful to law enforcement, prosecutors and judges who have to use the legislation on a daily basis.
Passage of this bill will allow for the proclamation of the rest of former Bill C-13 and should ensure that it is implemented smoothly.
It is, of course, not the end of the changes to the DNA legislation. As members are aware, the five year parliamentary review of the DNA legislation should have begun by June 30, 2005. Officials of my department, the Department of Public Safety, the RCMP and the National DNA Data Bank are ready to assist the committee as soon as it is mandated to commence the review.
The delay in beginning the review is not entirely unfortunate. The committee will be able to consider such issues as making the taking of a DNA sample automatic upon conviction, or even more variations in light of the strong endorsement of the existing legislation by the Supreme Court in R. v. Rogers, which was decided in April of this year.
Rogers was primarily a case involving the ex parte nature of retroactive hearings, but Rogers also challenged the constitutionality of the scheme.
It is useful to consider the Supreme Court's detailed reasons upholding the constitutionality of the legislation. I want to quote from this because it is important for our discussions. The Supreme Court stated:
There is no question that DNA evidence has revolutionized the way many crimes are investigated and prosecuted. The use of this new technology has not only led to the successful identification and prosecution of many dangerous criminals, it has served to exonerate many persons who were wrongfully suspected or convicted. The importance of this forensic development to the administration of justice can hardly be overstated. At the same time, the profound implications of government seizure and use of DNA samples on the privacy and security of the person cannot be ignored. A proper balance between these competing interests must be achieved within our constitutional framework.
The court continues to state:
For reasons that follow, I have concluded that the collection of DNA samples for data bank purposes from designated classes of convicted offenders is reasonable within the meaning of s. 8 of the Charter.
That is the section of the charter dealing with the protection against unreasonable search and seizure.
The court continues to state:
Society’s interest in using this powerful new technology to assist law enforcement agencies in the identification of offenders is beyond dispute. The resulting impact on the physical integrity of the targeted offenders is minimal. The potential invasive impact on the right to privacy has carefully been circumscribed by legislative safeguards that restrict the use of the DNA data bank as an identification tool only.
The Supreme Court continues to state:
Unlike the warrant provisions, the DNA data bank provisions do not target suspected offenders in respect of particular offences. Rather, they target offenders who have been convicted of different categories of offences. They do not provide for the gathering of evidence for use in a specific prosecution. Rather, they provide for the collection of samples solely for the purpose of creating DNA profiles for inclusion in the data bank. In any future investigation, a comparison between DNA evidence obtained at a crime scene and the data bank DNA profile will either serve to exonerate or identify a suspect. However, if a crime scene DNA profile matches an existing profile in the data bank, the sample is not released. Usual investigative methods, including DNA warrants, must be resorted to in order to gather evidence in pursuit of the investigation.
The court continues to state:
In my view, in considering the purpose of the DNA data bank provisions, the appropriate analogy is to fingerprinting and other identification measures taken for law enforcement purposes. The purpose of the legislative scheme is expressly set out in s. 3 of the DNA Identification Act, “...to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.”
The court continues to state:
The DNA data bank provisions contained in the DNA Identification Act and the Criminal Code are intended to put modern DNA technology to use in the identification of potential and known offenders. The DNA Identification Act is a modern supplement to the Identification of Criminals Act.
I am sure the committee will undertake a full review of the DNA legislation and it will want to consider carefully the implications of this judgment. I hope all parties on the committee will be able to come to an agreement as to the best way to proceed so as to protect Canadians while continuing to respect their charter and privacy rights.
However, we do not know when the committee will be struck, start its hearings or make its recommendations. I am speaking of the committee that will do the entire review that Parliament mandated a committee to do. We should not wait for this longer and broader process to implement changes that are generally acknowledged to be needed right now.
Therefore, I am pleased to recommend that Bill C-18 be given a second reading and sent to the standing committee for its review.
May 12th, 2004 / 4:45 p.m.
Derek Lee Scarborough—Rouge River, ON
Mr. Speaker, I am pleased to speak to the motion to send Bill C-35 to committee before second reading.
Bill C-35 contains a number of technical and remedial amendments to the Criminal Code, the DNA Identification Act and the National Defence Act intended to clarify and strengthen the present law which governs the taking of bodily substances for purposes of the national DNA data bank.
I intend to focus my remarks today on those amendments that will address a particular problem that has been identified by the commissioner of the Royal Canadian Mounted Police who manages the DNA data bank on behalf of Canadians.
Great care was taken in the initial design of the DNA data bank legislation to carefully balance the protection of society achieved through the early detection, arrest, prosecution of offenders using DNA technology and the privacy rights of individuals on the other hand. Up until now, under the Criminal Code, judges have only been authorized to make DNA data bank orders against offenders convicted of a specific designated Criminal Code offence.
A DNA data bank order made by a judge under the Criminal Code authorizes the police to take samples of bodily substances from a convicted offender for the purposes of the data bank. After the samples are collected, the police forward them along with a copy of the judge's order to the national DNA data bank in Ottawa.
Under procedures established by the commissioner of the RCMP, before the samples of bodily substances from a convicted offender are subjected to a forensic DNA analysis, the DNA order is examined again to verify whether it in fact relates to a designated offence. However, since the DNA data bank legislation came into force, almost four years ago, over 400 DNA data bank orders have been made against persons who on the face of those orders appear not to have been convicted of a designated offence.
These are referred to as facially defective DNA orders. In essence, there is a mistake on the face of the document which shows the order of the court. The biological samples that accompany these defective DNA data bank orders have not been analyzed by the data bank. To have processed the samples could have violated the privacy of those persons and undermined the integrity of the data bank.
The commissioner of the RCMP should be congratulated in this case for having respected the intent of Parliament by carefully examining and screening the data bank orders submitted to him.
There is now a need to create a procedure to determine whether the errors on the face of these orders are merely a clerical error which can be corrected or whether they are clearly cases where the court lacked authority to make the order. In the latter case, there is a need for the DNA Identification Act to provide clear authority to the commissioner to destroy the bodily substance obtained under these orders.
I want to say a few words about the procedure set out in the proposed legislation which will ensure that only those DNA samples that have been taken in conformity with the law are analyzed.
First, one observes that there is now a duty imposed on the commissioner to review the information transmitted to him, along with the DNA sample taken from a convicted offender, to ensure that the offence referred to in the DNA order is a designated offence.
Second, if the commissioner is of the opinion that the offence referred to in the DNA order is not a designated offence, he is required to retain the DNA sample and to communicate with the attorney general of the province, where the order was made, to initiate a review of that order. The attorney general of the province is responsible for the prosecution of Criminal Code offences in that jurisdiction and will review the order and the court record to determine whether the offence referred to in the DNA order is in fact a designated offence. A defective order will have to be revoked by the court of appeal for that province and in that procedure.
If the attorney general is advised that the DNA order has been revoked, the commissioner will have a duty to destroy the DNA samples that accompanied the original order. In a case where there was just a clerical error in the drafting of the order and the commissioner receives a corrected DNA order in which the offence referred to is a designated offence, he can proceed to analyze the DNA sample and to include the offender's DNA profile in the convicted offenders index in the national DNA data bank.
Under the DNA Identification Act, DNA profiles of convicted offenders that have been placed in the convicted offenders index are compared with the DNA profiles derived from biological substances found on or in something related to the commission of an unsolved designated offence. Where there is a match the local police are advised of the identity of a suspect.
In closing, I also wish to indicate my support to adopt the bill here prior to second reading and send it to committee. I note there is substantial support around the House for this. In the context of the time we have now, I suppose I could say we had better hurry, but I am sure when the House has an opportunity to deal with this bill again, it will receive prompt disposition and passage.
May 12th, 2004 / 4:30 p.m.
Réal Ménard Hochelaga—Maisonneuve, QC
Mr. Speaker, I believe it is now known that the Bloc Quebecois is in favour of the principle of this bill. We obviously recognize that any provision in the Criminal Code that facilitates the administration of justice is a positive thing.
This bill will contribute to the administration of justice, because it will provide additional guarantees with respect to sentencing.
Mr. Speaker, I believe you were a member of this House a few years ago when a heinous crime was committed against a young girl named Manning. There were a few difficulties at the trial because the way in which the bodily substances had been collected for establishing guilt was called into question.
If memory serves me correctly, we passed at first, second and third readings, in 48 hours, a bill on the creation of a national DNA databank and the administration of evidence in the case of DNA samples. It was done quite quickly. Public indignation was extremely high. At around the same time, in 1995, 1996, or 1997, we discovered with horror the influential power of organized crime.
I will turn 42 tomorrow. Imagine that. I must stop saying I am 41, with a birthday coming tomorrow.
I did not grow up hearing as much about organized crime as the member for Mercier, who has clearer memories than I of the commission of inquiry into organized crime. People came to know more about it, or at least people a little older than me, because of the CIOC. Things calmed down for a while, and then by the mid-90s our communities began to realize how much power organized crime again had.
We know that three conditions are required for organized crime to flourish: a relatively rich society, a society with well-developed means of communication, and a society where there are guarantees of rights. As far as communications are concerned, we know that ports, highways, and airports are unfortunately often the focus of those engaged in smuggling.
So where is the link between that and Bill C-35? It used to be possible for a judge to issue a warrant for collecting bodily substances from an inmate or accused. This would provide DNA profiles to be kept in a national data bank under RCMP responsibility.
The way DNA profiles were assessed, and the way they were taken, was governed by the category of offence. There were two categories of offence. The first was primary designated offences, where it was virtually automatic for a judge to order a DNA profile. This category of offence includes generally extremely serious offences under criminal law.
Now section 487.04 of the Criminal Code lists the offences, including those for which a DNA profile may be ordered.
The new bill adds to these sexual exploitation of person with disability, and causing bodilyharm with intent—air gun or pistol.
Also added are: administeringnoxious thing with intention to endangerlife or cause bodily harm; overcoming resistanceto commission of offence; robbery; extortion; breakingand entering a dwelling-house; and finally, intimidation of ajustice system participant or journalist.
Hon. members might recall that we had three bills to fight against organized crime. Bill C-95 was very important. I was the first member of Parliament to introduce an anti-gang bill. On August 9, 1995, in my riding of Hochelaga—Maisonneuve, a car bomb went off on Adam Street, right across from the Très-Saint-Nom-de-Jésus church. A young man, Daniel Desrochers, who happened to be in the wrong place at the wrong time, was killed. That is why we started looking for the best means to dismantle organized crime.
The first piece of legislation we had against organized crime offences was Bill C-95, which was introduced by the then justice minister, Allan Rock. I think I am allowed to name him, since he is no longer a member of Parliament. The main offence that was mentioned in Bill C-95 was the criminal organization offence. If five or more persons were part of a group, or if these five persons had committed five indictable offences in the last five years for which the maximum punishment was imprisonment for five years or more—the three fives rule—we had a criminal organization offence.
Do you know what happened? Major gangs such as the Hells Angels, the Bandidos and the Rock Machines started spinning off satellite criminal groups. They recruited people who did not have a criminal record but who joined gangs in order to get their badge. It became extremely difficult for the Crown to lay charges under Bill C-95.
Bill C-95 was all the more difficult to administer because, a few years previously, the Supreme Court handed down a ruling, the Stinchcombe decision. This extremely important criminal law ruling imposes obligations on the Crown.
As we know, criminal investigations may last three, four, up to seven years. The process is an extremely long one. Under the Stinchcombe ruling, the Crown must disclose all of the evidence it has against the accused. That meant that a police officer involved in shadowing during an investigation, in a bar for example, had to table the notes that allowed the investigation to progress.
The Stinchcombe ruling was extremely controversial. Of course, coming from the Supreme Court, it created new law. The attorney general could not appeal the ruling. It made it very difficult to bring investigations to an end, and it thus became necessary to further refine the administration of evidence and hence the gathering of DNA samples.
So, we got Bill C-95. Then came Bill C-24 and Bill C-36. There was a lot of legislative activity in criminal law. Today the three fives rule has been simplified. An organized crime activity is described as three persons engaged in certain offences.
The new bill refers to journalism. Quebeckers or even people in the gallery might remember the attack on the journalist Michel Auger in the parking lot of the Journal de Montréal .
Mr. Michel Auger, a crime reporter, was victim not only of intimidation but of an attack on his life. As a matter of fact, it is the former member for Berthier—Montcalm, Mr. Michel Bellehumeur, now a Quebec court judge, who had suggested that bill include a reference to the intimidation of not only members of Parliament, police officers, judges and commissioners, but also journalists.
We want to see Bill C-35 go to committee as soon as possible.
May 12th, 2004 / 4:25 p.m.
Yvon Charbonneau Parliamentary Secretary to the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness (Emergency Preparedness)
Mr. Speaker, I am very pleased to rise to recommend that Bill C-35 be referred to a committee, as suggested by my colleagues. I think that all the parties in the House support the national DNA data bank and want to make it a tool that is as effective as possible to implement the act.
As hon. members know, DNA evidence has had what some are calling a revolutionary impact on the legal system. Canada can be proud of its DNA data bank. Indeed, our country is a world leader in this area and it has developed methods to protect privacy which, apparently, are being copied all over the world. However, while the DNA data bank is a success, it must be recognized that some difficulties have been encountered when using it, and the implementation of the act has also run into problems in court.
As hon. members know, the legislation that initially established the DNA data bank provided for a parliamentary review within five years of the coming into effect of this measure, that is by June 30, 2005. This is why I think the government acted responsibly by introducing Bill C-35 at this point in time. Indeed, we do not know when the review will actually begin and, more importantly, when it will be completed.
The problems that we are trying to solve with this legislation were raised by the Uniform Law Conference of Canada, by the provincial governments, which deal with the overwhelming majority of cases involving a DNA data bank order, and by the RCMP, which is responsible for the bank.
Every year, the criminal justice section of the Uniform Law Conference of Canada brings together federal and provincial government officials and also defence counsel to discuss various resolutions on changes to the Criminal Code and other acts relating to criminal law.
In August 2001, the criminal law section of the Uniform Law Conference of Canada adopted a number of resolutions that called on the Department of Justice to consider, in consultation with the provinces, the territories and other interested stakeholders, amendments relating to the scope and application of the DNA data bank legislation in the Criminal Code. In particular, it recommended that seven issues be addressed on a priority basis. Subsequently, these proposed amendments were studied thoroughly by the Department of Justice, particularly during its legislative consultations in the fall of 2002. The amendments were discussed with the provinces and they urged the federal government to make the changes.I am pleased to advise the House that all seven of the priority items have been addressed in Bill C-35.
The bill will make significant amendments to the DNA Identification Act which governs the operation of the DNA data bank. While these changes are important, I will restrict my remarks to the main proposals for change in the Criminal Code, which, in my view, are the most significant: the inclusion of the offences of indecent assault female, indecent assault male and gross indecency in the list of designated offences and the list of sexual offences.
Moreover, there are persons who should be in the DNA data bank as a result of having committed a series of these offences prior to the legislation coming into force. The Criminal Code does allow for persons convicted of two or more sexual offences to be sampled so this change to the definition of sexual offence will allow the Crown to apply to a judge to have them included.
The Uniform Law Conference and the provinces also proposed the inclusion of those individuals found not criminally responsible by reason of mental disorder within the DNA data bank scheme. We currently have in the House Bill C-29 which proposes important changes to the provisions of the Criminal Code dealing with the mentally disordered offender.
While those accused are not convicted of the crime, the court has found beyond a reasonable doubt that they have in fact done the act that constitutes the physical element of the offence. While they should not be sentenced to jail, it is clear they may be very dangerous. They are therefore put under the jurisdiction of a provincial review board. By making it possible for a judge to order that they DNA profiles be included in the DNA data bank, we may be solving crimes that they committed in the past. More importantly, if they should be released and commit a crime where they leave their DNA, we may solve that crime.
Members should remember, however, that having their DNA in the data bank could be a benefit to a mentally disordered offender who has been released into the community. These offenders are likely to be suspects, but if their DNA does not match the DNA from the crime scene, the police will know they are innocent.
The bill also contains a process, which the Criminal Law Section and the provinces wanted, for compelling the offender to attend in court at a hearing to determine whether a DNA data bank order should be made. Usually, this hearing takes place as part of sentencing, but there are occasions where the parties are not ready and the matter should be set over to another date. The bill contains a provision which ensures that the judge retains jurisdiction to order the person to show up for the hearing and, if the person does not show up, for a warrant for the person's arrest to be issued.
The Criminal Law Section and the provinces also recommended creating a process that would permit a judge to make, upon request, a second DNA data bank order, where the national DNA data bank has declined to process the first one because of police error in completing the forms that must accompany the bodily substances submitted for analysis.
The Criminal Code contains a provision permitting such a second sample if, for some reason, a DNA profile cannot be derived from the bodily substance. It is entirely appropriate if there has been a clerical error, for example in mixing up bar codes making identification of the offender impossible, that it should be possible to seek another order. Again, this bill will make this possible.
The provinces also wanted a mechanism to require the offender to appear for the purpose of providing a DNA sample. The law, as it currently stands, only makes provision for the DNA sample to be taken when the order is made. This has proven to be impractical. The police simply cannot have trained personnel in every criminal courtroom in the land. It is far more practical for the court to order the person to go to the police station at a fixed time. The bill provides for such an order and enables the judge to issue an arrest warrant, where necessary.
The bill also proposes changes in the list of designated offences covered by the DNA data scheme. Probably the most important additions to the list will be uttering threats and criminal harassment. As these will be secondary offences, the crown will have to apply for the order. People who engage in these activities present an elevated risk of subsequent violence, particularly to the victim of the offence. Having their DNA in the data bank may assist in deterring them.
The bill also proposes to move robbery and break and enter into a dwelling house from the list of secondary designated offences to the list of primary designated offences. This should increase the likelihood that a court would make a DNA data bank order in the case of these very serious offences.
I believe this review of the highlights of Bill C-35 shows clearly how important it will be in promoting the safety of the public and how it responds to the suggestions made by the provinces.
Of course, identical changes are being made in the National Defence Act to ensure that the military justice system remains consistent with the Criminal Code.
The sooner that review begins, the better. Therefore, I urge members to send Bill C-35 to committee.
May 12th, 2004 / 4:15 p.m.
Lorne Nystrom Regina—Qu'Appelle, SK
Mr. Speaker, we in the NDP support Bill C-35 being sent to committee. I assume, like everyone else, that the Prime Minister will probably drop the writ for an election campaign very shortly and this debate will not continue until the fall sitting of the next Parliament.
However, I do want to make a few comments on the substance of the bill even though the motion before us today is to refer it to the standing committee for greater study. That is important because it will give the committee a chance to call in some expert witnesses. It will also give the committee a chance to see whether or not it is a useful bill for the prevention of crime and for the common good of the people of this country.
The bill itself would add certain criminal offences relating to criminal harassment to the list of designated offences to which a DNA data bank order can be made. In other words, the police can make a DNA data bank order for offences that are not now available for DNA orders. In principle, that is a good thing to do.
Bill C-35 would permit a data bank order to be made against a person who has committed an offence but found not criminally responsible on account of a mental disorder. If someone with a mental disorder is found not criminally responsible, the police can apply for a data bank order to be made against that individual.
Bill C-35 would expand the list of sexual offences under the retroactive scheme for persons prior to June 30, 2000 by adding historical sexual offences like indecent assault and committing a sexual offence, and the offence of break and enter.
A new class of offender would be added to the list of offenders who may be candidates for the retroactive scheme, for example, those who have committed one murder and one sexual assault at separate times.
The legislation would create the means to compel an offender to appear at a certain time and place to provide a sample of DNA evidence. Bill C-35 would create a procedure for a review of DNA data bank orders that appear to have been made for a non-designated offence and the destruction of samples taken from those offences.
Those are five examples of different things Bill C-35 would do to change the law. The NDP certainly supports the bill being referred to committee. In principle, it looks like we are going in the right direction. On behalf of the New Democratic Party of Canada, I want to reserve our final position on this legislation until we have had a chance to examine witnesses, study it further, and look at possible amendments.
Our party does have some concerns about any changes made to criminal law, particularly when it comes to something like DNA and fingerprinting. We are concerned about an individual's right to privacy. We want to ensure that an individual's privacy is not going to be violated by the suggested changes. We are also concerned about the individual's security. We want to ensure that there will be no violation of fundamental rights that are guaranteed under the Charter of Rights and Freedoms.
In principle, many positive things appear to be happening with the bill in terms of increasing the effectiveness of DNA samples as an investigative tool to be used by the police. Providing it is not a violation of people's security or an infringement on their civil liberties, it is certainly a step in the right direction.
The potential of DNA evidence is enormous. It has great power toward solving crimes, and ensuring that the guilty are convicted and the innocent are exonerated. It is one of the miracles of modern justice. We must ensure however that DNA evidence is accurate and is gathered without infringement on the rights of all Canadians to be free of unreasonable search and seizure. Bill C-35 should be sent to committee for further study.
I want to make one comment on the miracle of DNA evidence. It was brought home very clearly to a lot of us in my Province of Saskatchewan a few years ago. I am referring to the case of David Milgaard.
David Milgaard was convicted for a 1969 murder of a young Saskatoon nurse named Gail Miller. My recollection is that he spent 22 to 23 years in prison for a crime which was later proven he did not commit. David Milgaard might be still in prison had it not been for DNA evidence and DNA technology 10 or so years ago that proved that he was not the person who committed this gruesome and unfortunate act of murder. Someone else is now serving time, having been convicted for the murder of Gail Miller.
This is something that is a miracle of modern technology in terms of convicting those who should be convicted and ensuring that those who are innocent are not wrongfully convicted.
Over the sweep of history in our country, and indeed around the world, there have been many people who have been wrongfully convicted. There have been many cases in this country. I think of the Marshall case and many other cases that I do not want to get into at this particular time.
However, David Milgaard stands as a very good example of this. I commend the courage of his mother, Joyce Milgaard, for the fight to free her son. They came from rural Saskatchewan and one time lived in the Town of Langenburg which was part of my former riding of Yorkton--Melville. David Milgaard then moved around after that to Regina and other parts of Saskatchewan. This is a good example where DNA evidence has freed an innocent man and helped convict a guilty man of a murder.
We certainly support the reference of the bill to committee. The committee will have hearings and cross examine witnesses. I assume we will be making some amendments, after we hear the expert witnesses, and come out of this with something that is positive for the protection of Canadian society in order to bring individuals to justice, convict those who have done wrong, and ensure those who are innocent are not falsely convicted.
May 12th, 2004 / 3:50 p.m.
Sue Barnes Parliamentary Secretary to the Minister of Justice and Attorney General of Canada
Mr. Speaker, in proposing a series of changes that come within the existing structure of the DNA data bank legislation, the government is building upon legislation that has been upheld by the courts every time it has been challenged.
I am not an expert but I understand that a particular pattern of DNA will only appear in one out of billions of samples taken. There are few things harder to explain than the presence of an accused's DNA in or on the body of a victim of a sexual assault. The courts are well aware that DNA evidence provides a virtual guarantee against convicting the innocent, and the miscarriages of justice that have been brought to light by the testing of old exhibits for DNA. Convictions that preceded the development of DNA evidence have been overturned and the real perpetrators identified.
The national DNA data bank contributes to the administration of justice and the safety of Canadians by ensuring that those who commit serious crimes are identified more quickly across all police jurisdictions in Canada, while innocent people are eliminated from suspicion. It assists law enforcement agencies in solving crimes by linking crimes together where there are no suspects, helping to identify suspects, eliminating suspects where there is no match between crime scene DNA and a DNA profile on the national DNA data bank, and determining whether a serial offender is involved.
The Criminal Code establishes the process that can lead to a judicial order authorizing the taking of samples of bodily substances from certain convicted offenders for analysis and inclusion in the DNA data bank. Where a person has been convicted or discharged of a primary designated offence committed after the DNA Identification Act came into force, the judge is required to make a data bank order except in the most exceptional circumstances. The judge must be satisfied that the impact on the offender's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. The court is also required to give reasons for its decision to make or to deny making a DNA data bank order.
Where a person has been convicted or discharged of a secondary designated offence, the order may be granted if the judge, on application by the Crown, is satisfied that it is in the best interests of justice to do so. In granting or refusing an order with respect to a secondary designated offence, a judge must consider the criminal record of the individual, the nature of the offence, and the circumstances surrounding its commission and the impact such an order would have on the person's privacy and security of the person. Again the court is required to give reasons for its decision to make or to deny making a DNA data bank order.
The legislation contains important protection against the misuse of DNA profiles. It is an offence to use them for any other purpose than the investigation of crimes.
I understand that the Royal Canadian Mounted Police, which operates the national DNA data bank, has developed a system of separating the DNA profile from the identifying information. The bodily sample that is to be analyzed and the identifying information on the offender, which is based on finger prints, are identified by the identical bar code. The DNA data bank keeps the sample and sends the identifying information to the criminal identification branch. The analysis is tracked by the bar code, and the DNA data bank does not know who the offender is.
When there is a match, it advises the criminal identification branch of the bar code, and the criminal identification branch identifies the convicted offender. Moreover, the DNA data bank only analyzes so-called junk DNA, that is, strands of DNA that do not provide any information regarding the personal characteristics of the offender, such as hair or eye colour. The committee, I am sure, will want to hear from the management of the DNA data bank regarding these privacy protections.
With such strong protections for the offender's privacy and the great value of DNA evidence, the courts have welcomed the legislation. I am advised that there has not been a single trial or appellate court judge who has found a violation of the charter in the existing legislation. In this charter sensitive era, when many claim that judges are activists and are eager to strike down legislation, this unanimous support for the legislation is little short of amazing.
In Briggs, a decision of the Ontario Court of Appeal handed down in August 2001, the DNA legislation was unanimously endorsed. Its reasoning has since been endorsed by several other provincial courts of appeal. The court dealt with many of the issues that may arise in considering the legislation and held that:
One, whether or not there is evidence at the scene of the crime of which the offender was convicted that would likely yield a DNA profile of the perpetrator is not necessarily a relevant consideration.
Two, the phrase “best interests of the administration of justice” does not import as a prerequisite to making the order that there be reasonable and probable grounds to believe a further offence will be committed.
Three, the state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by the offender. Rather, the provisions have much broader purposes including: deterring potential repeat offenders; promoting the safety of the community; detection when a serial offender is at work; assisting in the solving of cold crimes; streamlining investigations; and most important, assisting the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.
Four, provisions in the Criminal Code and the DNA Identification Act restricting the use that could be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender's privacy.
Five, the procedures for obtaining bodily substances authorized by the provisions are of short duration and involve none or minimal discomfort. There is a minimal intrusion with no unacceptable affront to human dignity.
Six, a person convicted of a crime has a lesser expectation of privacy.
Seven, the trial judge is entitled to look at the offender's entire record, not just the crimes that may be designated offences.
In Hendry, another decision of the Ontario Court of Appeal that has been widely quoted in decisions in other provinces upholding the legislation, the court held that:
In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender, the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender, there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order.
With no judge dissenting, it seems that this legislation may never make it to the Supreme Court. However, members should be aware that in R. v. S.A.B. decided on October 31, 2003, the Supreme Court of Canada unanimously upheld the constitutional validity of the DNA warrant scheme. It found that:
Generally, the DNA provisions appropriately balance the public interest in law enforcement and the rights of individuals to dignity, physical integrity, and to control the release of personal information about themselves.
As the DNA data bank scheme is based on the same designated offences as the DNA warrant scheme and has many of the same safeguards, R. v. S.A.B. provides strong support for the constitutionality of the data bank legislation.
I believe we need have no concern about the constitutionality of Bill C-35, although the committee will undoubtedly want to hear from experts on that particular point.
Across Canada judges are deciding every day whether to make an order against an individual offender. Bill C-35, by expanding the number of offences and by clarifying procedures, will make the law even more effective. It will continue to be based on the same protections that have already led to its endorsement by the courts.
I urge all members of the House to support the motion to refer the bill to committee.
May 12th, 2004 / 3:50 p.m.
May 12th, 2004 / 3:45 p.m.
The Acting Speaker (Mr. Bélair)
At the request of the assistant whip of the government, the vote has been deferred until after government orders tonight.
Bill C-35. On the Order: Government Orders
May 7, 2004--The Minister of Justice--Second reading and reference to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness of Bill C-35, an Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.
May 7th, 2004 / noon
Oral Question Period
March 22nd, 2004 / 3:05 p.m.
I am ready to rule on the question of privilege raised on March 10 by the hon. member for St. John's West concerning the format of the main estimates for 2004-05.
I would like to thank the hon. member for St. John's West for having raised this important matter and I would also like to thank the hon. President of the Treasury Board, the hon. member for Pictou—Antigonish—Guysborough and the hon. member for Yorkton—Melville for their contributions on this point.
In raising the form in which the main estimates 2004-05 were tabled in the House, the hon. member for St. John's West asserted that by its own omission the government had tabled estimates which did not represent its real spending plans for the coming fiscal year. He made reference to a media release issued on February 24, 2004 which stated:
Due to the extent of the machinery of government changes announced in December 2003, it is the intention of the Government to table a revised set of Main Estimates later during the 2004-2005 fiscal year. This will allow new and restructured organizations sufficient time to finalize resource discussions as well as to develop their plans and priorities in time for Parliament to consider appropriation bills to authorize final spending. At the same time, it will allow the Government to seek additional spending authority for expenditures that were not sufficiently known in time for the Main Estimates and which are normally sought from Parliament through Supplementary Estimates later during the fiscal year.
In the view of the member for St. John's West, these statements represent an admission by the government that the main estimates, tabled on February 24, 2004, do not reflect the government's real spending plans and hence are invalid. He claimed, therefore, that committees to which the estimates have been referred will be unable accurately to assess the government's request for funds and cannot properly carry out what all members recognize as one of their most fundamental duties.
The President of Treasury Board pointed out that the government has an obligation under the Standing Orders to present the Main Estimates to the House by no later than March 1 each year. This obligation is set out in Standing Order 81(4) which reads:
In every session the main estimates to cover the incoming fiscal year for every department of government shall be deemed referred to standing committees on or before March 1 of the then expiring fiscal year. Each such committee shall consider and shall report, or shall be deemed to have reported, the same back to the House not later than May 31 of the then current fiscal year.
He indicated that the main estimates were tabled in their current form in order to comply with that requirement in the standing orders. He also stated that, in addition to presenting the main estimates in their current form, the government had also provided additional information concerning its reorganization plans and its intention to present revised spending estimates following legislative approval of that reorganization.
The hon. member for Yorkton—Melville pointed out that Standing Orders 81(4)(a) and (b) give the leader of the official opposition the responsibility both for selecting a set of estimates to receive extended study in committee and, in consultation with the other opposition leaders, to designate two sets of estimates for consideration in committee of the whole. He indicated that it would be difficult for the Leader of the Opposition to carry out these responsibilities if he were forced to base his decisions on estimates that are only provisional.
When this matter was raised, I undertook to examine the records of the House in order to ascertain what our practice had been during previous government reorganizations. I have done that and will outline for the House the results of my inquiries. First, however, I think it may be useful to set out two facts concerning our procedures with respect to the study of estimates.
First, as the President of the Treasury Board has pointed out, the requirement that the main estimates be tabled by March 1 each year is an obligation placed on the government by the House. There is an additional requirement that the government may request funds only for programs and activities that have already received parliamentary approval. It may not present in the estimates, requests for departments, agencies or activities which have not yet been granted the appropriate legislative authority by Parliament. Mr. Speaker Jerome, in a ruling given on this point, stated, and I quote from the Journals of March 22, 1977, page 607:
--(I)t is my view that the government receives from Parliament the authority to act through the passage of legislation and receives the money to finance such authorized action through the passage by Parliament of an appropriation act. A supply item in my opinion ought not, therefore, to be used to obtain authority which is the proper subject of legislation;...
The President of Treasury Board has indicated that the government intends to introduce legislation related to the division of assets and responsibilities among departments. No such legislation is yet before the House and the House has therefore not had the opportunity either to approve or reject the government's proposals. It would be unacceptable for those potential charges to be anticipated in the Main Estimates now before committees of the House.
The second point I wish to make is perhaps elementary, but it is pertinent to the issue before us. The main spending estimates for a given fiscal year are just that: estimates. Our rules recognize this fact by explicitly providing for the tabling and consideration of supplementary estimates throughout the fiscal year.
All hon. members understand that it is impossible to predict months in advance the exact amounts and destination of all government expenditures during the year to come. Nor would the House wish to deprive the government of the flexibility it may require to respond in the best interests of Canadians to emerging circumstances. At the same time, any changes to the amounts or the destination of funds which may be required over the course of the fiscal year must be submitted to the House for its approval.
I would now like to turn briefly to past practice with respect to changes to government organization. In 1983 the government introduced legislation, the Government Organization Act, 1983, which had as part of its purpose to replace the Department of Industry, Trade and Commerce with the Department of Regional Industrial Expansion.
The main estimates tabled on February 22, 1983, and I refer to the Journals of that same date, at page 5628, contained votes under the Department of Industry, Trade and Commerce. Although the government introduced legislation to replace that department on May 5, and that was Bill C-152, the Government Organization Act, 1983, the House nevertheless approved the main estimates without reference to the new department on June 14, 1983. I refer the hon. member to the Journals for that same date, at pages 6008 to 6028.
In another case, in 1978, as part of its reorganization, the government sought legislative approval for the creation of the Department of Fisheries and Oceans. In that instance, the government presented legislation to reorganize government departments on December 20, 1978, and that was Bill C-35, the Government Organization Act, 1979. I refer to the Journals of that same date, at page 274. I think hon. members will agree that the tabling of such a bill represents a clear intention to modify the administrative structure of the government.
Nevertheless, the main estimates for 1979-80, tabled two months later on February 19, 1979, contained no reference to a Department of Fisheries and Oceans. The estimates for fisheries programs remained under the Department of the Environment, which continued to be responsible for them until the Government Reorganization Act, 1979 came into force.
My examination of the records of the House found no deviation from this practice. The Main Estimates reflect the existing structure of government at the time that they are presented to the House.
I must conclude then, that the form of the main estimates 2004-05 not only respects the requirement of the Standing Orders and the principles set out by Mr. Speaker Jerome, but also conforms with what has been the practice of the House during previous reorganization exercises.
I therefore rule that there does not exist a prima facie breach of privilege in the present case.
I would like once again to thank the hon. member for St. John's West for raising this matter. Given the renewed importance that the scrutiny of the estimates has taken on both sides of the House, his close attention to questions of this kind is of benefit to all hon. members.