House of Commons Hansard #154 of the 38th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was cultural.

Topics

Export and Import of Rough Diamonds Act
Government Orders

4 p.m.

Yukon
Yukon

Liberal

Larry Bagnell Parliamentary Secretary to the Minister of Natural Resources

Mr. Speaker, since coming to Parliament I have attended many meetings and dealt with many items within the parliamentary system and I must commend the member. He has done incredible work for the disadvantaged and those who are not protected by their own governments around the world, especially in Africa. He has been to many of the most dangerous spots in the world where people are being murdered, abducted and genocide is occurring. He has worked within the parliamentary system to bring attention to and action on these issues. I think few of us in this House have done as much work as he has in this area, and those people who cannot speak for themselves are very appreciative.

The member outlined the torture, the slaughter, the amputations and the rape of children and women that the quest for diamonds can cause. I thank all parties for their unanimous support of the bill which, administratively, puts Canada in line with all the other countries that are working on this in a system that is preventing this from happening.

Export and Import of Rough Diamonds Act
Government Orders

4:05 p.m.

Liberal

Keith Martin Esquimalt—Juan de Fuca, BC

Mr. Speaker, I thank the hon. parliamentary secretary for his work. He has worked with the minister to craft the bill and, in conjunction with other parties, they have created a bill that is really apolitical by its very nature.

He comes from Yellowknife, an area where mining is extremely important. He has worked tirelessly to improve the socio-economic conditions of his constituents in the north. He has been a tireless advocate for the needs of the north which are vast and the bill would go a long way to enabling our mining industry in the north, which has just started to take off, to generate large amounts of resources that will be quite extraordinary for the people of the north.

I also join him in thanking the other political parties in the House for supporting the bill. They can go home and say to themselves and their constituents that they have been participants in passing a bill that will go part way in saving lives and choke off the supply of resources which despotic, venal, murderous thugs can actually utilize for their own nefarious ends. We can save many people's lives in many parts of the world who desperately need an opportunity to simply live in peace.

Export and Import of Rough Diamonds Act
Government Orders

4:05 p.m.

The Acting Speaker (Mr. Marcel Proulx)

Is the House ready for the question?

Export and Import of Rough Diamonds Act
Government Orders

4:05 p.m.

Some hon. members

Question.

Export and Import of Rough Diamonds Act
Government Orders

4:05 p.m.

The Acting Speaker (Mr. Marcel Proulx)

The question is on the motion. Is it the pleasure of the House to adopt the motion?

Export and Import of Rough Diamonds Act
Government Orders

4:05 p.m.

Some hon. members

Agreed.

Export and Import of Rough Diamonds Act
Government Orders

4:05 p.m.

Some hon. members

On division.

Export and Import of Rough Diamonds Act
Government Orders

4:05 p.m.

The Acting Speaker (Mr. Marcel Proulx)

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Foreign Affairs and International Trade.

(Motion agreed to, bill read the second time and referred to a committee)

(Bill C-72. On the Order: Government Orders:)

November 2, 2005--The Minister of Justice--Second reading and reference to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness of Bill C-72, an act to amend certain acts in relation to DNA Identification.

Criminal Code
Government Orders

November 21st, 2005 / 4:05 p.m.

Vancouver Kingsway
B.C.

Liberal

David Emerson for the Minister of Justice

Mr. Speaker, I move

That Bill C-72, an act to amend certain acts in relation to DNA identification, be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

Criminal Code
Government Orders

4:05 p.m.

Northumberland—Quinte West
Ontario

Liberal

Paul MacKlin Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, as members are aware, Bill C-13, an act to amend the Criminal Code, DNA Identification Act and the National Defence Act was passed, one might say, with some haste by the House and the Senate last May.

Major amendments were adopted by the House standing committee, including amendments to effect a compromise among the parties, that expanded the definition of “designated offence” and the scope of the retroactive DNA data bank order provisions which were aimed at collecting DNA from offenders convicted of serious crimes prior to June 30, 2000. The bill, as amended, received the support of all parties.

The bill provided for a limited number of amendments to come into force on royal assent and the rest to come into force on proclamation. The important amendments in force are those that expand the retroactive DNA collection scheme in the Criminal Code and those that simplify communication of DNA profiles between laboratories to determine whether a crime scene profile matches another profile in the national DNA data bank.

The major amendments in Bill C-13 that have not yet been brought into force include the changes to the definitions of designated offences which will allow for the making of many more DNA data bank orders and will allow the police to apply for a DNA warrant in many more cases and the provisions allowing a judge to fix a time and place for taking a DNA sample from a convicted offender and authorizing the issuing of a warrant for the arrest of that offender if he does not show up as required.

Officials from Justice Canada, Public Safety and Emergency Preparedness Canada, Correctional Service Canada, the RCMP, the national DNA data bank and the provinces have been preparing for the proclamation of the remaining provisions. They have identified certain technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase the efficiency and reduce costs.

Because it is urgent to adopt this bill before the budget may be defeated, the changes were drafted and passed, even though their thorough examination, the review of the necessary consequential amendments and the identification of all the consequences and of the changes required, which took place at report stage, at third reading or in the other place, were not available.

I will not list all the technical problems in Bill C-13 that the officials have requested to be fixed and which have led to the amendments that have been incorporated in Bill C-72. However Bill C-72 includes provisions to amend the legislation to address the following problems.

First, the amendments to the definitions of primary designated offence and secondary designated offence do not fit together.

Second, the forms were not changed to reflect the changes made in the procedures for obtaining an order in retroactive proceedings and in the definition of secondary designated offence.

Third, the French and English versions of the clause in the DNA Identification Act authorizing the commissioner to provide further information in a moderate match case are different.

Fourth, the French and English versions of the section authorizing the international sharing of DNA profiles set out different information the commissioner can provide. The English version forbids the sending of profiles internationally, which could hamper Canada assisting its international partners through Interpol.

Bill C-72 also proposes changes requested by the provinces to streamline procedures and reduce costs.

The decision to amend Bill C-13 so that those convicted of murder, sexual offence or manslaughter are targeted by the provisions on the taking of DNA samples resulted in an additional 4,000 individuals being targeted by these provisions.

The Criminal Code provides that, in these cases, hearings are held ex parte. However, the Ontario Court of Appeal ruled that an offender has the right to get a notice of the order for retroactive application and to appear during the hearing for that application, unless there is a risk that the individual might flee.

Because a decision of the Supreme Court of Canada is not expected for more than a year, the other provinces have decided, as a precaution against an adverse judgment, to serve notice on all persons against whom they are seeking an authorization to take a DNA sample, including incarcerated offenders. Many offenders are incarcerated in a province other than the one where they committed the offence. The police and the Crown in the jurisdiction where the offence took place are best placed to make the application for the order.

There is concern that many of these offenders will seek to be represented. Transporting these incarcerated offenders around the country for hearings would be very expensive for Correctional Services Canada and could present serious risk of flight by offenders who are serving lengthy sentences with little prospect of being released. The officials have therefore proposed that the DNA legislation permit retroactive hearings by video link, and this change is proposed in Bill C-72.

Another procedural change that will simplify procedures and reduce costs is the amendment proposed by Bill C-72 with respect to the procedure respecting those cases where the national DNA data bank has received, for inclusion in the convicted offenders' index, a sample taken pursuant to an order that on its face does not refer to a conviction for a designated offence. As members know, the Criminal Code only authorizes the making of a DNA data bank order where the person has been convicted of a designated offence. Nevertheless, the data bank has now received more than 700 such orders and accompanying seized samples of body substances.

Section 5.1 of the DNA Identification Act, as enacted by the former bill, Bill C-13, provides that the commissioner of the RCMP is to return such orders to the attorney general for the province where the conviction was obtained or to the director of military prosecutions. They are to investigate the matter and if they conclude that the making of an order was, indeed, not authorized by the Criminal Code or the National Defence Act because the person had not been convicted of a designated offence, they are to seek from a judge of the appellate court an order quashing the authorization.

Last August, Ontario proposed a resolution in the criminal law section of the Uniform Law Conference that this procedure be changed so that:

where the Attorney General agrees that the order was taken for a non-designated offence, the Attorney General confirms this in writing to the Commissioner of the National Databank who would then be authorized to destroy the sample.

This resolution was adopted and, having reviewed this matter in light of the discussions at the Uniform Law Conference, the government has concluded that it is not necessary to revoke the DNA data bank orders as they have been carried out precisely as the court had ordered.

The commissioner of the RCMP is not, however, blindly to process the bodily sample and enter the profile in accordance with the order that is received. He has an independent duty to decide whether the order meets the requirements of the DNA Identification Act.

The proposed amendment in Bill C-72 would simplify the procedure for the attorney general or the director of military prosecutions, setting out what they are to follow where the order should not have been made. Instead of having to make an application with its attendant costs and delays, the attorney general can confirm that the person was not convicted of a designated offence.

I believe members will agree that this procedure is appropriate as the question involves no legal issues to be decided by the appeal court but simply the question of fact of whether the offender was convicted of the designated offence, which can be answered simply by reviewing the file.

I believe Bill C-72 is an important bill which, if adopted, will greatly facilitate the implementation of Bill C-13. Accordingly, I would urge all parties of this House to adopt the bill as quickly as possible.

Criminal Code
Government Orders

4:20 p.m.

Conservative

Vic Toews Provencher, MB

Mr. Speaker, I am pleased to rise today address Bill C-72, an act to amend certain acts in relation to DNA identification.

While I support this legislation, I want to place on the record some of my concerns generally with respect to DNA legislation. It has been a great source of frustration for many Canadians and particularly for law enforcement that the Liberal government has been dragging its feet on much needed DNA data bank legislation that would help safeguard our communities.

The use of forensic DNA analysis in solving crime is proving to be revolutionary. Biological samples collected from a crime scene can either help link to or eliminate a suspect from the crime scene. DNA donor suspects can help prove their innocence. Evidence from multiple crime scenes can be compared to link the same perpetrator to different offences in different locations. It can also identify a victim through DNA from close relatives.

Therefore, it is essential to have effective legislation in place so that our men and women in uniform can best serve to protect Canadian citizens.

Canadian police have for some time called for the creation of an effective DNA data bank to assist police investigations. The government was slow to respond, but finally assented to the DNA Identification Act on December 10 1998. The legislation allowed a DNA data bank to be created and amended the Criminal Code to provide for justices to order persons convicted of DNA offences to provide DNA samples. However, the legislation only came into effect in June 2000 and unfortunately included many loopholes.

Bill C-13 ultimately received unanimous support by all parties because it expanded and altered the offences and the offenders on the secondary and primary designation list who could be compelled to provide samples both retroactively and concurrently and after sentencing. It also permitted the destruction of samples taken, and judicial discretion was curtailed.

As I stated at the time of the royal assent to Bill C-13:

The success of this bill is a shining example of how a minority Parliament can work positively in the best interests of Canada. While everyone made compromises, I think we have a solid piece of legislation that will go a long way to address concerns about loopholes in our DNA law.

Bill C-13 still falls far short of the Conservative Party's expectations for appropriate legislation. Although DNA samples in Great Britain, and as is the case for fingerprinting in Canada, are taken at the time of charge, at a minimum all indictable offences should be deemed designated offences for DNA data banking and there should be no discretion for judges to decline to order a sample upon conviction.

The British experience shows that criminals who commit property offences are also involved in more serious indictable offences such as sexual assault and murder. There is no justification for excluding indictable offences such as break and enter from the mandatory taking of DNA samples, especially if there has been a conviction.

Moreover, the legislation has not yet been proclaimed into effect. The government has continued to delay this much needed piece of legislation because of allegedly necessary amendments to technical errors and omissions.

This excuse is weakened by the fact that Bill C-72 comes sandwiched between Bill C-13 and a review of the DNA act, mandated in the legislation and reiterated in a justice department press release, which was to have been undertaken in 2005. Technical errors and omissions should be dealt with in that review. What is needed now is not further delay but rather leadership from the government to help facilitate the apprehension of criminals by using DNA evidence.

On November 2, 2005, the government introduced Bill C-72 to deal with these technical omissions and errors in Bill C-13. Numbers of amendments were made, which I will not detail.

There was, however, one provision that caused me some concern. That was to provide discretionary powers to the attorney general or the director of military prosecutions; if in their opinion the bodily substance collected was for a non-designated offence then the Commissioner of the Royal Canadian Mounted Police must destroy the substance collected. I have in fact reviewed that amendment. I have received assurances that the discretion afforded to the attorney general and the director of military prosecutions is appropriate and that it is also supported by police and provincial attorneys general. Therefore, I am consenting to that amendment as well.

Although these amendments in the bill are in fact an improvement on the status quo, they do not address many of the concerns raised by police and by provincial attorneys general.

Police have asked for the ability to collect a DNA sample at the time of charge, as is done with fingerprints, instead of upon conviction. There is no evidence or jurisprudence suggesting that such provisions would be in violation of the Constitution. Indeed, my position is that, at a minimum, all indictable offences upon conviction should be subject to the mandatory taking of DNA. There clearly is no constitutional basis for suggesting that such a provision after a conviction could in any way be unconstitutional.

Indeed, in other western democracies such as Great Britain, DNA samples are taken at the time of charge, as opposed to conviction. That has proven to be highly successful, not only in deterring crime and capturing criminals but in ensuring that innocent people are not convicted.

I also want to point out that our DNA testing system is so backlogged that until sufficient resources are provided, any legislated changes made will not be significantly meaningful. They will not improve the operation of the system.

This legislation still does not address the issue of timely production of DNA results to bring dangerous offenders to justice and to ensure the safety of our communities.

The government has insisted that DNA legislation is of the utmost importance and that we must expedite the passing of Bill C-72. However, if this is the case, why has the government waited five months to table new legislation in order to enforce Bill C-13? These rectifications are, as the parliamentary secretary has said, technical amendments and omissions and in fact simply delay the actual implementation of Bill C-13.

If the Minister of Justice wanted to add amendments, these could have been dealt with in the requisite review of the DNA Identification Act set to occur this year. However, that DNA review never took place.

Let me say in conclusion that the national DNA data bank is an important example of the increasing significance of science and technology in modern law enforcement. To stay ahead of the criminals, we must make better use of cutting edge science such as forensic DNA.

Data as of November 14, 2005, shows that over 4,000 cases have successfully linked crime scene DNA to offenders. It is imperative that the government create the legislative framework and provide the resources necessary to use this great crime-fighting tool.

To date the government has put forward legislation that takes steps in the right direction, but clearly, in view of the success enjoyed in other jurisdictions, these steps do not go far enough. The government's slow approach in implementing this needed legislation is disheartening.

I can assure members that a Conservative government will stand up for more effective DNA data bank legislation. A Conservative government will increase the number of cases where a mandatory sample upon conviction will be included for DNA sampling. Also, a Conservative government will stand up for the tools needed by our law enforcement officers to fight crime by providing them with the resources in order to make legislative tools effective.

Criminal Code
Government Orders

4:25 p.m.

The Acting Speaker (Mr. Marcel Proulx)

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Renfrew—Nipissing—Pembroke, National Defence; the hon. member for Charleswood St. James—Assiniboia, Health; the hon. member for Churchill, Aboriginal Affairs.

Criminal Code
Government Orders

4:30 p.m.

Bloc

Mario Laframboise Argenteuil—Mirabel, QC

Mr. Speaker, it is a pleasure for me to speak, on behalf of the Bloc Québécois, on Bill C-72. I will not read the entire bill, but, for the benefit of those listening, I want to read the bill summary:

This enactment amends the Criminal Code, the DNA Identification Act and the National Defence Act to facilitate the implementation of An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act—

This act corresponds to Bill C-13, which is currently being considered by the Senate. So, Bill C-72 seeks to amend Bill C-13, or to apply that bill, which is currently before the Senate.

It makes technical changes to those acts and addresses five points:

(a) allows a court to require a person who is given notice of an application under subsection 487.055(1) of the Criminal Code and who wishes to participate in the hearing to appear by closed-circuit television or a similar means of communication;

(b) allows samples of bodily substances to be taken as soon as feasible after the time set by an order or a summons for the taking of the samples or, if no such time is set, as soon as feasible after the day on which an order is made or after an authorization is granted;

(c) requires the Commissioner of the Royal Canadian Mounted Police to destroy the bodily substances collected under an order or authorization and the information transmitted with it if, in the opinion of the Attorney General or the Director of Military Prosecutions, as the case may be, the offence to which the order or authorization relates is not a designated offence;

(d) enables the Commissioner to communicate internationally the information that may be communicated within Canada under subsection 6(1) of the DNA Identification Act; and

(e) allows the Commissioner to communicate information for the purpose of the investigation of criminal offences, and allows the subsequent communication of that information for the purpose of the investigation and prosecution of criminal offences.

Bill C-72, which seeks to clarify Bill C-13, mainly focuses on the taking of samples of bodily substances. Bill C-13 was passed as a result of negotiations among all the parties in this House, including the Bloc Québécois. It was a compromise that was passed unanimously in order to give ensure the taking of samples of bodily substances after certain crimes.

Bill C-13, which received the unanimous consent of the House, is currently being considered by the Senate at first reading stage.

What does Bill C-13 have to add? That is an important question. I will explain how DNA samples could be taken before we had this bill. Previously, an order authorizing the taking of DNA could be issued when the offender was convicted of a designated offence. These designated offences were divided in two categories: primary offences and secondary offences. As long as Bill C-13 is not in effect—I mentioned earlier that is under consideration by the Senate—the list of primary offences will be limited and will include serious personal injury offences such as murder, aggravated assault or sexual assault, while the list of secondary offences will include crimes against persons as well as crimes against property causing danger to human life such as robbery, break and enter, assault or arson.

In the case of primary offences, that is the most serious cases, the collection order is virtually automatic. The judge is required to make an order for the collection of a DNA sample from the offender, unless the offender can convince the court that this would have an effect on his privacy and safety markedly out of proportion with the protection of society. On the other hand, for secondary offences, the sample will be ordered on request from the Crown provided it can convince the judge that this is necessary in the interest of justice. That is the way things are at present.

Put more succinctly, in serious crimes such as murders, aggravated assaults and sex crimes, the order has been virtually automatic until now, unless the accused has been able to prove that his privacy and safety were affected. For secondary offences, the order was made in response to a request from the Crown.

When Bill C-13 comes into effect, these rules will be substantially changed.

Bill C-72 applies Bill C-13. For better understanding, we need to know that Bill C-13 divides offences into two categories: primary and secondary, and provides lists for each. These are, therefore, list A and list B, and DNA samples are handled differently for each. The A list contains the most violent offences. Under Bill C-13, the judge is obliged to order that a sample be taken as soon as the individual is found guilty of one of the offences in list A. There will be no discretion. I will read that list of offences. It is important for those listening to us to hear them.

These offences are: living on the avails of prostitution of a person under 18; murder, manslaughter; attempted murder; assault with a weapon or causing bodily harm with intent; discharge of compressed air gun with intent to endanger life; administering a noxious thing with intent to endanger life or to cause bodily harm; overcoming resistance to the commission of an offence; aggravated assault; unlawfully causing bodily harm; sexual assault with a weapon, threats to a third party or causing bodily harm; aggravated sexual assault; kidnapping; robbery and extortion.

Therefore, in the context of C-13, these 16 offences will become primary designated offences for which a judge will be required to order a sample be taken following an individual's conviction.

Bill C-72 adds something. Under C-13, the judge must order a sample on conviction, while under C-72, bodily substances may be taken as soon as feasible after the time set by an order or a summons for the taking of the samples or, if no such time is set, as soon as feasible after the day on which an order is made or after an authorization is granted. That clarifies matters. Once an individual is convicted, a number of steps follow in a process. So this clarifies things and tells us that the sample will be taken as soon as it is feasible after the moment set by an order. Accordingly, once a charge has been laid, the sample may be taken. It will be mandatory in the case of the 16 offences I listed, the primary designated offences contained in list A.

In list B of the primary designated offences, the sampling order is almost automatic, unlike in the case of list A, where it is automatic. The judge is obliged to order DNA sampling, unless the offender can show that the sample would have an impact on his personal life or safety that would far outweigh any protection it would afford society.

List B includes some 20 offences for which the judge must authorize the sample unless the accused convinces him otherwise. The list includes sexual assault—except for aggravated sexual assault; hostage taking; breaking and entering a dwelling-house; intimidation of a justice system participant or journalist; attack on premises, residence or transport of an internationally protected person; attack on premises, accommodation or transport of United Nations or associated personnel; explosive or other lethal device; participation in activities of a criminal organization; commission of offence for a criminal organization; instructing commission of offence for a criminal organization; luring a child; child pornography; sexual exploitation of a person with disability; procuring; and offences historically of a sexual nature, in other words offences that have been replaced by modern crimes, including indecent assault.

For the primary offences mentioned in list A there will be an automatic requirement to take a sample. For the offences in list B, unless the accused manages to prove that this infringes upon his privacy, a sample will be taken. Furthermore, some secondary offences that are non designated offences in the primary categories are punishable by a maximum of imprisonment for five years.

Under the secondary offence system, the judge can authorize the taking of a DNA sample if the Crown proves it is in the interest of justice.

That means in 200 offences where a DNA sample is taken a series of 16 will be mandatory, as will a series of 20, unless the accused manages to prove that this infringes on his privacy and safety. As for the secondary offences, if ever the Crown proves it is in the interest of justice to proceed, DNA tests will be mandatory.

Clearly, the Bloc Québécois is in favour of Bill C-72. It clarifies Bill C-13 and allows, once and for all, for criminals not only to be able but to be required to give DNA samples, samples of bodily substances, so that we can confront them with their crimes.

Criminal Code
Government Orders

4:40 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, it is important that the House understand the history of our DNA legislation and how it applies as an investigative tool for our police forces across the country.

Approximately five years ago, after quite a long investigation by various parliamentary committees, we finally had legislation with regard to taking DNA samples. The justice committee spent a good deal of time during the spring and fall of 2004 analyzing a new bill, which passed in the spring of 2005. This issue is back before the House because a number of points were missed in that legislation. This may be the Irish in me coming out, but I want to say “I told you so” because we rammed the initial bill through too quickly.

When we went to implement that law, it became apparent that a number of points needed to be corrected. That has now been done in Bill C-72. A good deal of these points concern forms that have to be updated to comply with the new legislation. Most came to the attention of the government as a result of a federal-provincial conference of attorneys general and solicitors general that was held in the late spring. There really is nothing in this bill that would not have been in it in the spring. We are going to support these changes because they are badly needed.

It is hard to say how effective this technology has been without pointing to specific cases. Another case was broken this week concerning a murder that happened about 21 years ago in one of the western provinces. Officials were able to make a positive match as a result of a DNA sample that was made available as a result of the legislation we passed in the spring. The person, who is in custody in Ontario for other crimes, has been charged with that murder because of the DNA evidence. That is being repeated many times.

It is really important that this legislation be in an effective format so that it can be used efficiently by our police forces across the country. For all these reasons, we will be supporting Bill C-72.

Criminal Code
Government Orders

4:45 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, we have been seized with this bill for some time with regard to the former Bill C-13 and the upcoming review. An element in this particular bill which interests me has to do with the charter rights of individuals and privacy provisions, specifically with regard to bodily samples being taken as soon as possible.

The member is a learned individual in this area. I wonder if there are any risk areas with regard to charter provisions or with regard to privacy laws in Canada.