Bill C-13 (Historical)

Rob Nicholson Niagara Falls, ON

First of all, there was no attempt to gloss over the Rodgers decision by the Supreme Court of Canada, but we believe the rationale in that particular case is consistent with the legislation you have before you. In any case, our analysis of this doesn't rest on one particular case. It's an overall analysis of this particular area of the law and what we believe, in our analysis, is going to withstand any particular challenge.

So I am quite confident that the bill you have before you is constitutional and will stand scrutiny, and quite frankly is an improvement that I think most people will agree with. It does two things: as you indicated, it clears up the Bill C-13 provisions that weren't or couldn't be enacted for a number of reasons, and I think it brings some other technical clarity to this bill that will withstand a challenge.

Mr. Yost has indicated to me that he would like to add some comments.

Rob Nicholson Minister of Justice

Thank you very much, Mr. Chairman.

I apologize if there was a bit of a mix-up. I had this on my schedule for 10 o'clock; this actually works out better. I'm now subject to House duty. This is a function that I didn't have as House leader or whip. I was always impressing upon others the importance of House duty, and now I have it myself. So this will work out very well.

I'm glad to be joined here by two colleagues who are experts on this particular piece of legislation, and I'm glad to have them at the table with me.

It's a pleasure for me, Mr. Chairman, to appear before you today to discuss a bill that addresses concerns that we all share about how to make better use of DNA to assist law enforcement, a bill that has been supported at second reading, I'm pleased to say, by all parties within the House.

As members are aware, the last Parliament passed Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act. As introduced, Bill C-13 included an expansion of the retroactive scheme to include persons convicted of a single murder and also of a single sexual offence committed at different times. There were some additions to the list of primary offences, including robbery and break and enter of a dwelling, and some additions to the secondary offence list, including criminal harassment and uttering threats.

Bill C-13 was the first opportunity Parliament had to consider the DNA scheme since it had come into force in June 2000. It was always recognized that the DNA legislation, which was pioneering, would have to be revisited in light of experience with its provisions, judicial considerations of the legislation, and developments in the rapidly developing DNA science and technology. Indeed, the legislation itself required a parliamentary review within five years, and I will come back to that point in a minute.

Even though Bill C-13 was never intended to replace the review, the hearings were quite extensive. Major amendments were made to the bill in committee that greatly extended the reach of the DNA databank provisions, including creating a new category of offences where judges would have no discretion and including all offences that are prosecuted by indictment and are punishable by five years under the Criminal Code as secondary designated offences.

The fact is, Mr. Chairman, most of Bill C-13 is not in force. There are technical glitches that must be addressed before it comes into force to make its provisions more effective in carrying out Parliament's intention.

The previous government recognized the need to make changes and introduced Bill C-72 in November 2005. Bill C-72 died on the order paper, and we have now introduced Bill C-18 to make the changes proposed in Bill C-72, along with other technical improvements in the legislation that were identified by federal and provincial officials after Bill C-72 was introduced into the House.

Bill C-18 is complicated in its drafting because some sections amend the former Bill C-13, so that when Bill C-13 is proclaimed, the new provisions will work better. I'm pleased to have the officials here with me who will be able to answer any questions you may have on how these two bills will work together.

To assist the committee, my department has prepared an unofficial consolidation to show how the Criminal Code DNA provisions will read if Bill C-18 is passed and then Bill C-13 is proclaimed, and I have provided copies to the clerk. There's also an excellent summary of the bill, including its background, which has been prepared, I understand, by the parliamentary information and research service.

Colleagues, as members know, DNA has had an immense impact on our criminal justice system. It has exonerated many people who were innocent but were convicted on the basis of witness testimony and circumstantial evidence. It has led to thousands of convictions where accused, who might have been able to go undetected in the past, are identified through DNA matches to known persons, thereby giving police the lead they need.

Moreover, cases in the past that might have gone to trial with the defence casting doubt on the accuracy of the victims' and other witnesses' recollections of events now are resolved by a guilty plea because the defence knows it cannot explain away the DNA evidence or cast doubt on the reliability of the science.

In the late eighties and early nineties, prosecutors began to use DNA, but it was only in 1995 that the Criminal Code first allowed for a judge to compel a person to provide a sample for DNA analysis, a provision that was unanimously upheld as constitutional by the Supreme Court of Canada.

It was in 1998 that Parliament passed the legislation necessary to take DNA samples from convicted offenders and to create the national DNA data bank to compare those samples with DNA samples found at crime scenes. I understand that members of the committee were able to tour the national DNA data bank yesterday. I'm sure you were impressed by the facility, and especially by the dedication and professionalism of the staff. It is certainly a most cost-effective institution, of which all Canadians can justly be proud.

The effectiveness of the data bank depends on the number of profiles in the convicted offenders index and the number in the crime scene index. The passage of this bill, and the subsequent proclamation of Bill C-13, will increase the number of samples in the convicted offenders index in a number of ways.

Firstly, it will create a new category of 16 extremely serious offences for which a judge will have no discretion not to make the data bank order. There are cases where persons convicted of these offences have not been required to provide a DNA sample for analysis.

Secondly, this bill will move some offences—most importantly, break and enter into a dwelling place and all child pornography offences—from the secondary designated offence list to the primary designated offence list, so that there will be a far greater likelihood that an order will be made.

Thirdly, this bill will add many more offences to the secondary designated offence list, including offences under the Criminal Code and under the Controlled Drugs and Substances Act that are prosecuted by indictment and that have a maximum sentence of five years or more.

Fourthly, it will provide many procedural changes to make it more likely that an order will be executed, for example, by allowing a judge to set a time and place for a person to appear to provide a DNA sample rather than having to do it at the time of sentencing, and providing for a warrant to be issued for the person's arrest if the person fails to show.

Fifthly, persons who are found not criminally responsible on account of mental disorder will be brought within the scheme.

Sixthly, a new procedure will allow a judge to set a date for a hearing to consider whether to make a DNA order within 90 days of imposing a sentence. This is intended for the situations that inevitably occur in our busy courts, where a trial is concluded and a sentence is imposed but nobody remembered that a DNA order could be made in the particular case.

We cannot be certain how many more samples from convicted offenders will be submitted to the data bank for analysis and for uploading to the convicted offenders lists as a result of these changes. Much depends on the courts, prosecutors, and police. We trust they will use the new provisions to the fullest extent.

It seems certain, however, that these changes will at least double, and could triple, the number of samples coming in. I believe this legislation will have a similar effect on the number of samples being uploaded to the crime scene index. Certainly, the changes to the definitions of primary and secondary designated offences mean that samples from many more crimes could be uploaded, because the DNA data bank only uploads samples from those crime scenes involving a designated offence. For example, it will be possible, when the legislation comes into force, to upload samples from drug offences.

However, as I believe members are aware, the forensic DNA laboratories across Canada are struggling to meet the workload they now have. The advances in DNA technology mean that scientists can now extract DNA from small samples, such as the saliva that moistened glue on an envelope. Since police do not know which items found at a crime scene may have DNA, they may want dozens of items analyzed—chewing gum, beer cans, cigarette butts, clothing and sheets—in the hope of finding the one that has the offender's DNA.

Crime scene analysis is a labour-intensive process. Every step of the process has to be meticulously documented because the successful prosecution of an offence based on DNA evidence will require the police and the lab to show they did not mix up the samples or allow contamination of the sample. This is not work that can be done by untrained personnel or that lends itself to robotics. Accordingly, there is an almost insatiable demand by the police for DNA analysis and there is a limited supply of persons competent to do the crime scene analysis.

In conclusion, Mr. Chair, I would make two observations.

First, I believe it is urgent that Parliament pass Bill C-18 so that we can begin to feel its benefits. Certainly it may be possible that more extensive changes, then, are proposed in either Bill C-13 or Bill C-18 and can be made, particularly in light of the endorsement of the DNA legislation by the Supreme Court of Canada in the Rodgers case last April. However, such changes should be made after a full hearing of all the stakeholders and should not be grafted onto Bill C-18.

My second observation, Mr. Chairman, deals with how we might consider major changes to the DNA system. As members know, Parliament was supposed to have begun the parliamentary review no later than June 30, 2005. We are now more than 18 months past that date. Bill C-13 was intended to address the problems in the system identified in the first two years of the operation of the DNA data bank. It followed consultations undertaken in 2002, and at that time the consultation paper specifically stated that the consultations led by the Department of Justice in cooperation with the Department of the Solicitor General of Canada are part of the government's ongoing commitment to review and refine existing laws in response to evolving experience and stakeholder feedback. They are intended to support a parliamentary review scheduled for June 2005.

Many respondents to that consultation made it clear they wanted the whole system rethought and looked forward to the parliamentary review. The Canadian Association of Police Boards, for example, before answering the 12 questions in the consultation paper, stated:

The CAPB believes that at this juncture, the core issue is whether the incremental approach, such as is signalled in the consultation paper, remains appropriate, or whether legislators should instead be considering a much more comprehensive and wide scale use of DNA testing and collection.

How can we best advance the consideration of a comprehensive review that the CAPB and many others have been waiting for? Officials of the Department of Justice, the Department of Public Safety, the RCMP, and the national DNA data bank have all been ready for the beginning of the hearings since 2005. I understand they had prepared a discussion paper on the issues and a series of questions. Of course, Parliament was dissolved before the committee was able to conduct the review and the paper prepared by the officials has languished ever since. The paper could be quickly updated and form the basis of a consultation by the Department of Justice and the Department of Public Safety. The consultation could probably be completed by September, and the results of the consultation would form the basis for recommendations by government on how to change the legislation. Hearings on those recommendations would allow for a focused review on the use of DNA in the criminal justice system to begin late this year or early in 2008.

As always, I would appreciate the views of the committee on whether this would be an appropriate way to proceed.

Mr. Chairman, thank you very much for the opportunity to appear again before this committee.

John Maloney Welland, ON

Mr. Speaker, I am pleased this evening to speak to Bill C-18 which introduces a series of technical amendments to strengthen Canada's DNA databank laws. Canada is one of only a few number of countries in the world to have a National DNA Data Bank.

The legislation is similar to Bill C-72 introduced in the 38th Parliament. That Parliament came to an abrupt end when the current Conservative government collaborated with the other opposition parties to prematurely bring down the Liberal minority government.

These new legislative changes will allow for the implementation of Bill C-13, the former Liberal government's original DNA databank legislation. At the urging of the Canadian Association of Chiefs of Police and police organizations across the country, the former Liberal government undertook a wide range of consultations with government agencies, privacy groups, and forensic and genetic organizations which led to the introduction and passage of Bill C-13. Bill C-13 is acknowledged as a key law enforcement tool.

Forensic DNA analysis has been instrumental not only in securing convictions but also in exonerating wrongly convicted individuals as some recent high profile cases have shown. Mr. Milgaard and Mr. Guy Paul Morin were just mentioned a few minutes ago.

As one of the most accurate methods of obtaining solid evidence in criminal investigations, deoxyribonucleic acid, DNA as it is commonly known, is found within the chromosomes of every living organism. Except for identical twins, it is believed that no two people have the same DNA. Based on that premise, DNA from bodily substances found at a crime scene may be compared with the DNA obtained from a suspect in order to determine whether both samples came from the same person.

The benefits of using such a system are numerous. Police are able to identify and arrest repeat offenders by comparing DNA information from a crime scene to the convicted offender's index. They are also able to determine whether a series of offences was committed by the same offender or whether more than one perpetrator was involved. Police are able to cross reference and link DNA profiles to other cases within and across jurisdictions.

Using DNA profiles help focus police investigations by more quickly eliminating suspects whose DNA is already in the databank in a case where no match from crime scene evidence is found.

Finally, the knowledge of DNA testing to solve crimes may also deter offenders from committing further crimes.

The National DNA Data Bank is maintained by the Royal Canadian Mounted Police and is used to assist Canada's law enforcement agencies in the investigation of a serious crime. The databank has two indices or data indicators. The crime scene index would contain DNA profiles from bodily substance found at the scene of a designated offence or within the body of a victim or any other person or thing associated with the commission of a designated offence.

The convicted offenders index contains DNA profiles taken from offenders either on their consent or following an order by the courts. It applies to offenders convicted of designated Criminal Code offences as well as people who are subject to the military code of service discipline and convicted of a designated offence under the National Defence Act.

We are keenly aware of the significant privacy concerns, particularly in relation to the retention of biological samples. Strong arguments have been advanced by the scientific community indicating that in its view the retention of biological samples is essential for the DNA databank to be able to adapt to technological changes in the future.

We are aware that the field of forensic DNA analysis is developing rapidly and forensic scientists have told us that as the technology evolves the DNA profiles of today are likely to become obsolete later on. Samples retained can be reanalyzed using new technology thereby insuring that Canada's databank is able to keep pace with technological advances.

Bill C-13, the DNA Identification Act, will authorize police to collect DNA samples from offenders convicted of designated criminal offences. The 38 primary designated offences were selected because of the nature of the offence, the seriousness of the offence, and the likelihood that some biological evidence would be left at the crime scene by the perpetrator. These include the most serious personal injury crimes including homicide and sexual offences. The legislation also provided for the inclusion of DNA to be collected from offenders of designated offences committed before the DNA Identification Act came into force.

The DNA databank is of little or no use for identifying serious offenders unless it already contains their DNA profile. There are criminological studies which suggest that offenders who commit serious offences have previously committed less serious ones. Some have advocated expanding the primary designated offence to include less serious offences.

In Canada, any broadening of the category of designated offences to provide for mandatory DNA sampling would be subjected to the charter of rights scrutiny. The taking of bodily substances from individuals is considered an intrusive process constituting a search. The challenge is to seek a reasonable balance between the rights of an individual and the desired protection of society.

Bill C-18 would add attempted murder and conspiracy to commit murder or to cause another person to be murdered to the offences covered by the retroactive provisions which would apply to offenders convicted of a single murder, sexual offence or manslaughter prior to June 30, 2002, when the legislation establishing a DNA databank came into effect.

During the course of the original hearings on the DNA databank, consultations indicated strong support for the creation of a National DNA Data Bank, but there were also concerns regarding Canadian values of privacy, public protection and individual rights guaranteed by the charter.

Various interest groups, including the Privacy Commissioner and the Barreau du Québec, suggested the bill did not contain sufficient safeguards to protect the use of DNA profiles from the samples of victims, cleared suspects, and people who volunteered samples to help police in their investigations.

As a consequence, the former government brought a motion to clarify that access to the information contained in the crime scene index shall be permanently removed if it relates to a victim or person who has been eliminated as a suspect in a criminal investigation.

The current legislation also proposed a change permitting the destruction of samples when the provincial attorney general certifies that the order was made for an offence not intended to be included in the DNA databank. This simpler approach would eliminate the expense of having the attorney general make an application to a court to have the order quashed.

In certain circumstances, the legislation would also allow a court to require a person, who wishes to participate in a hearing relating to an order for the taking of samples of bodily substances for forensic DNA analysis, to appear by video links, such as a closed-circuit television or a similar means of communication, for the retroactive hearings. This would significantly reduce the costs and security associated with transporting the offenders eligible for retroactive sampling.

As we all know, crime and criminal activity knows no borders. Offenders must be apprehended and prosecuted whenever they are found and law enforcement agencies must have the tools to do so. This legislation would allow a foreign law enforcement agency, for the purpose of the investigation or prosecution of a criminal offence, to submit a DNA profile for analysis and would allow the results thereof to be communicated to the foreign government by the commissioner.

The series of technical amendments set out in Bill C-18 would strengthen our country's DNA databank law and would improve law enforcement, not only within this country but beyond our borders as well.