Bill C-13 (Historical)

An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act

This enactment amends the provisions in the Criminal Code respecting the taking of bodily substances for forensic DNA analysis and the inclusion of DNA profiles in the national DNA data bank and makes related amendments to the DNA Identification Act and National Defence Act. It clarifies that the forensic DNA analysis of the bodily substances taken from convicted offenders for the purposes of the national DNA data bank will be conducted by the Commissioner of the Royal Canadian Mounted Police.
In particular, the enactment
(a) adds offences to the lists of designated offences in the Criminal Code, including participating in the activities of a criminal organization, the commission of an offence for a criminal organization, instructing the commission of an offence for a criminal organization, uttering threats and criminal harassment;
(b) reclassifies robbery and break and enter into a dwelling-house as primary designated offences;
(c) provides for the making of DNA data bank orders against a person who has committed a designated offence but who was found not criminally responsible by reason of mental disorder;
(d) provides for the making of DNA data bank orders against a person who committed one murder and one sexual offence at different times before the coming into force of the legislation;
(e) includes several repealed sexual offences (indecent assault male, indecent assault female and gross indecency) as designated offences and sexual offences referred to in paragraph 487.055(3)(b) of the Criminal Code;
(f) provides for the review of defective DNA data bank orders and for the destruction of the bodily substances taken under them;
(g) compels offenders to appear at a certain time and place to provide a DNA sample; and
(h) allows for a DNA data bank order to be made after sentence has been imposed.

Criminal Code

[Deepak Obhrai, Conservative, Calgary East, AB]

Madam Speaker, it is a pleasure for me to rise and speak to Bill C-13.

I spoke before on the bill dealing with the DNA database that was introduced in the last Parliament. At that time the Conservative Party had many objections. It was not a good bill and needed more amendments. It had too many loopholes. We highlighted our concerns at that time, but the government brushed them aside. We are back at it again with a few more amendments. The government is now trying to fix it because it was not fixed back then. My colleagues have been saying the same thing. There are flaws in this legislation.

We in the Conservative Party support a DNA database. As everyone has already highlighted, it is one of the strongest tools that police enforcement agencies need to fight crime and make our streets safer. We have to give them the power and the tools that they need, and this is one of those tools. Nobody is opposing the DNA database at all. Nobody is opposing the intent of this legislation. It is high time it happened and we are glad that it is happening.

We cannot allow loopholes to take place. Things can slide out and then it becomes an ineffective tool. What is the point in making legislation with loopholes if law enforcement agencies will have difficulties to enforce it?

My esteemed friend from Yorkton--Melville highlighted his concerns about why the DNA database would not be an effective tool even though it would be available. I want to repeat what he said about the DNA database in England and about how effective the act was in the U.K. He talked about 1,700 hits on that database. I want to tell people who are listening tonight what he meant by a hit. It simply meant that the police were able to go to the database and were able to have 1,700 hits tying criminals to the crime scene. That is a very good enforcement tool for police officers.

We have forgotten the victims of crime. Instead, we have concentrated on rehabilitating and treating criminals who break the law. That is fine because that is one of the many tools we have. However, we must never forget the victims of crime. That of course takes us to the bigger issue.

Last week the Minister of Justice talked about Steven Truscott. What I want to highlight about the Steven Truscott story is the fact that we need effective tools. This case highlighted something that was wrong. This young man was sentenced to death. If I read the reports correctly, the only reason he missed the noose was because he was a young fellow and Canada did not want to execute a young person. Would that mean that if he had been around 30 years old, he probably would have been hanged? We know now that would have been a terrible miscarriage of justice. That is the reason why I am opposed to the death penalty. Mistakes cannot be made. When we go to that extreme, we cannot make a mistake because it cannot be undone.

The DNA testing tools given to our police agencies allow them to make their jobs effective. It is also meant for those who have been charged but do not want to be wrongfully convicted. That is why the police need these tools.

Let us look at what my colleague stated. He reminded us that last year the RCMP laboratory in Regina was closed down. As a matter of fact, my colleague told me that there is a shortage of 60 RCMP officers in Saskatchewan.

If we are not going to provide the tools, the people and the resources to address these issues of crime, then what is the point of bringing in legislation? It is a band-aid answer to crime. As my colleagues who have already spoken said, all police and enforcement agencies want this tool so that they can effectively do their jobs. At the end of the day, they are subject to criticism when things do not happen and they get frustrated.

I remember with great sadness when two officers from the Toronto police sex crime unit came to our caucus and made a presentation on child pornography. That was one of the most disgusting things I have ever seen in my life. Some of us could not even stand and watch what these police officers were showing. They were saying that they needed the tools to fight the heinous crime of pornography.

The government said that DNA testing would go a long way toward doing that, but what these officers and enforcement agencies were saying was that this was not sufficiently enough. I fail to understand why we do not listen to them. Of course, on the other side of the coin one has to ensure that liberty and a person's civil rights are not abused. It is not a blank cheque where the police will utilize it without checks and balances.

Let us look at the case in Saskatchewan where this young aboriginal was found frozen to death. The internal review indicated that the police officers may have over-used their force. We cannot allow this kind of thing in our society. We need to have checks and balances. In the overall scheme of things our law enforcement people need the legislative tools to fight crime. The House is where we debate. We must give them the tools so they can make our streets safe.

We have highlighted the things that are wrong with the bill. When we take it to committee, hopefully the government will listen and make amendments so that the bill can become more effective in fighting crime. I thank my colleagues who are highlighting this issue and saying that we need to make this bill stronger.

[Gurmant Grewal, Conservative, Newton—North Delta, BC]

Madam Speaker, congratulations on your appointment. It is nice to see you in the chair.

I am very pleased to rise today on behalf of the constituents of Newton--North Delta to participate in the debate on Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

In 1998 Bill C-3 enacted a national DNA data bank. The data bank officially opened on July 5, 2000. Bill C-35 in May 2004 introduced minor amendments to the act and now Bill C-13 adds further amendments which still do not address the concerns that I and my colleagues have raised. I have raised them in many speeches in the past.

The bill seeks to strengthen the laws regarding DNA collection and storage. Specifically, it adds more Criminal Code offences, moving some offences from the secondary designated offences list to the primary list. It allows DNA collection from a mentally disordered criminal, expands retroactive provisions, compels an offender to provide a sample, allows an order for a DNA sample after sentencing, and of course, permits the destruction of a sample.

Looking into the background, DNA identification, if used to its full potential, could be the single most important development in fighting crime since the introduction of fingerprints. However, police and provincial attorneys general have long argued that the legislation as enacted denied law enforcement agencies the full use of this wonderful technology.

The DNA Identification Act came into force in June 2000 and established the national DNA data bank which is operated by the RCMP. It allows judges to order the collection of DNA samples from convicted offenders and have the resulting profile stored in a convicted offenders index.

The national DNA data bank also includes a crime scene index containing profiles of DNA samples collected from crime scenes. This allows samples from various crime scenes to be compared with the convicted offenders index.

The act created two types of offences: primary and secondary. Primary designated offences are those which are the most serious, such as sexual offences, murder and manslaughter. Secondary designated offences are less serious, such as an assault or arson. Of course they are serious too but it depends on how one judges them.

For primary offences a DNA sample can be ordered by the court, unless the offender can prove it is not needed. For secondary offences a sample can be ordered if the judge believes it is needed.

Law enforcement agencies are critical of this legislation because, among other reasons, it does not allow for the taking of DNA samples at the time of charge, as fingerprints are. Also it does not permit samples to be taken retroactively from incarcerated criminals other than designated dangerous offenders, multiple sex offenders and multiple murderers.

Unfortunately while Bill C-13 offers some improvements on the original legislation, it does not address many of the concerns raised by police, the provincial attorneys general and the official opposition.

Specifically Bill C-13 does not address the requirement for a judicial order to make a data bank authorization for any offence committed before the law came into force in June 2000.

Police have also 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.

Another major flaw in the bill is that it does not provide for DNA collection upon conviction for all indictable offences, again as in the case of fingerprints.

An additional concern is the ability of a convicted offender to appeal to the court in order to prevent the collection of DNA. The DNA collection should flow automatically upon conviction. This is simply one more unnecessary impediment to effective law enforcement.

Furthermore, the DNA testing system is so backlogged that until sufficient resources are provided, any legislative changes made will not be meaningful. 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. We need better tools.

For more than a decade the government has failed to provide law enforcement agencies with the tools and resources they need to effectively fight crime. In my riding of Newton—North Delta, marijuana grow ops, organized crime and gang violence are flourishing. Many murders have been committed in the vicinity and remain unsolved.

Past cuts to the RCMP by the government have only served to exacerbate matters. The Canadian Police Association says that the RCMP needs an immediate $250 million cash infusion, but news stories indicate the Liberal government is now considering another $100 million cut. It is shameful. This is just another demonstration of Liberal misplaced priorities.

What does it mean in real terms? Consider as an example Project Snowball. This massive RCMP probe into Canada's largest child pornography investigation tracked more than 2,000 Canadians, including 406 in British Columbia, among them 23 in my constituency in Surrey, suspected of possessing and distributing sexually explicit pictures of children. Remarkably, in over two years we have arrested less than 5% of those suspects. Many police forces in Canada still could not take any action, despite getting a list of suspects in January 2001. They simply do not have the resources nor the officers who are trained to do the job.

Project Snowball also underscored the lack of cooperation between the federal, provincial and municipal police forces in such major investigations. Police say that national cooperation is a nightmare, blaming a lack of resources, a lack of a coordinated national strategy, and laws that exact too light a sentence on pedophiles.

Police also need more help from the courts. They are fed up with the revolving door judicial system. Police work is frequently frustrated when officers are rearresting over and over the same criminals while they are on parole, house arrest and other largely ineffective court sanctions. That is shameful. There must be stiffer penalties for criminals, especially those with lengthy records or those who have committed violent crimes. While some criminals can be rehabilitated, others simply need to be taken off our streets. They should be behind bars.

Canadian police have a daunting task when battling child pornography. It is estimated that more than 100,000 child porn websites are on the worldwide web. This is a serious issue. I have lots of data I could share, but time is short.

Clifford Olson confessed to murdering 11 children. Around 55 women were murdered in British Columbia. All may have been saved if the DNA data bank had been established long ago and the police had more and better resources.

In conclusion, law enforcement must become a higher priority for the federal government. It is our collective responsibility as elected representatives in Parliament to make laws that have teeth. The onus is on the Liberal government to introduce meaningful legislation and accept important, meaningful amendments. So what if they come from the official opposition?

Bill C-13 does not go far enough in addressing the concerns my colleagues and I have raised. Ineffective legislation is good for nothing. This legislation must be strengthened and must be able to provide a powerful tool to fight crime in our communities.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Madam Speaker, I look forward to putting a few remarks on the record concerning Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

With all due respect, a lot of good things are happening with the bill. We now have the technology and science to identify criminals and to protect wrongfully charged people. We have the capacity now in the technology and science to put the record straight.

However, I want to talk about something that has not been mentioned a great deal in the debate this afternoon. We have a modus operandi out there in the justice field that talks about the rights of criminals. With all due respect, I believe everyone has the right to be heard, everyone has a right of free speech and all the rest of it. There is a problem when victims do not have the rights that they need.

In Bill C-13 we have to be very cognizant of the rights of the victim of horrendous crimes. I have seen many young women and, as a former teacher, I have counselled many young women who have been assaulted and who are afraid to come forward. They thought that no matter what they said, their perpetrator would not come to justice.

As the mother of a police officer, I have seen and felt the despondency in the police force when they knew something had happened, they knew that a crime had been committed and yet the criminal was let off the hook.

We have the best of both worlds here. Within these halls, we have the wisdom to bring forth a bill that has some teeth. We can bring forth a bill that will not only protect the victim and ensure that people who are wrongfully charged are free, but also get the people who over and over again commit the same crimes.

I talk specifically about in the province of Manitoba. Recently in the Winnipeg Free Press , the president of the Winnipeg police association talked about the morale of the police force. Now, being the mother of a police officer, I have privy to many conversations that go on at my kitchen table and in the police association. As the former critic for justice in the province of Manitoba, I was privy to many conversations with police officers who were feeling a lot of stress. Their stress came from the fact that their hands were tied when criminals reoffended and got off the hook.

Here we have a DNA bank that if properly utilized could bring these perpetrators to justice in a very common sense, realistic way. Yet it would ensure that the victims of those crimes could be reassured that coming forward, speaking out and testifying would be something they could do without feeling they were at their wits end because they did not know what would happen at the end.

I also want to read something from the Winnipeg Sun that came to my attention. This is from the Winnipeg police association president, Loren Schinkel. He said:

I think that the morale and the stressors are at a peak, certainly when it comes to what's happening right now.

[The police officers are] certainly stretched very thin. Everybody's managing because you pull together. You just hope the violence stops and that everybody can catch their breath.

We have a relatively new crime out there. It was not really widely advertised or widely talked about, and it has to do with child pornography on the Internet. We have relatively new awareness of this crime. It is a heinous crime forced on innocent victims.

The child pornography Internet situation has to be stopped. Our child protection registry is a step forward, but it is still not strong enough. We need to ensure that we do not have inadequate laws and bills. We have to ensure that we have bills that are strong and that have the real teeth to get the job done.

It is widely understood by the front line police officers that we need to have a retroactive DNA data bank. We need to have one that allows for DNA sampling at the time of being charged of the crime so the courts can move forward in a very fast, swift way, especially for the families and the victims themselves.

When we talk about rights, we have to talk about victims' rights. We have to talk about the rights of families like ours who go to work every day, who want to educate their children and who want to live in a safe and free community. This is an extremely important bill, but it is too soft. There are too many loopholes.

I have a lot of problems when people who have been charged can appeal to the courts so they do not have to give a DNA sample. If people are innocent, my question would be, why would they worry about giving a DNA sample? A DNA sample should be something they give gladly.

The DNA identification, if used to its full potential, is the single most important development in fighting crime since the introduction of fingerprints. When the introduction of fingerprinting came about, there was a whole revolution on the side of justice for the victims of crime.

Police and provincial attorneys have argued that the legislation, as enacted, Bill C-3 introduced in 1998, denied law enforcement the full use of this technology. When we are at a point where we have the technology and science to identify criminals and to bring them to justice, it behooves us as government officials in our great nation to ensure that this happens. One thing we are obligated to do is ensure that our communities are safe and to use, as I said earlier, the wisdom and the knowledge for the benefit of citizens across our great nation.

Bill C-3 did not allow for the taking of DNA samples at the time of charge, as are fingerprints. It did not permit samples to be taken retroactively from incarcerated criminals other than designated dangerous offenders, multiple sex offenders and multiple murders. One murder is one murder too many. One sex offence is one sex offence too many.

We have to support our front line police officers. We have to support the citizens who live in our communities. We have to support our victims of crime. We have to ensure that Bill C-13 has amendments that make it representative of a bill that will be effective and that brings justice to criminals who perpetrate the crimes on innocent victims.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Madam Speaker, I want to say at the outset that from what I can understand, I think all of us in the chamber, and certainly the official opposition joins with the other parties in stating that this is a step in the right direction. I do not think there is any question of that. However, it is our role also to do a very careful analysis of legislation as it comes forward. It is our job to bring forward what we feel are constructive suggestions about legislation as it comes before the House.

Certainly Bill C-13, the bill dealing with the DNA data bank is no different in that sense. We want to have the best tools possible for our law enforcement officers across the country. We want to ensure, as some of my colleagues have said before me, that the guilty are indeed brought to justice, that they are punished, and especially with the best interests of the victims in mind, that we hold those people accountable for their crimes.

Obviously, the DNA data bank is designed for the best interests of victims and their families. It is designed to protect potential victims. It is designed to ensure that innocent people do not go to jail for crimes they did not commit. All of those things have been addressed, at least partially, by colleagues who have spoken already.

I feel very strongly that we cannot allow what I consider the legal industry, which is not to be confused with the justice system, in Canada to rob our society of a very important scientific tool. That is not to say that I am dismissing the concerns of human rights and privacy activists in connection with this legislation and the establishment of the DNA data bank. Certainly there is potential for abuse or even misuse of the DNA collection and we must take all the necessary security precautions to safeguard this very personal information. However, I believe we cannot, out of fear of potentially invading someone's privacy, throw the baby out with the bathwater.

Personally, and speaking for the constituents of Prince George--Peace River whom I have spoken to about this issue, I believe that if we are going to err on this issue, we should err on the side of holding people accountable and responsible for the crimes that they commit. Unfortunately, we believe that this legislation allows for too many loopholes that would allow a criminal to escape justice.

Average Canadians, whether they are from Prince George--Peace River up in northern British Columbia or in downtown Ottawa and anywhere between, understand this issue. When we talk to them they understand this.

To gather evidence of this, I recently mailed out a householder and provided information on this issue. I asked the constituents of Prince George--Peace River if they believed the government should expand the number and types of crimes for which a convict must provide a DNA sample. Constituents have just begun receiving this booklet over the last couple of weeks, but already the survey responses have been pouring into my mailbox. Just 5% of my constituents responded no to additional DNA testing. Ten per cent indicated they were unsure on the issue. However, 85% said yes, more criminals should be forced to provide DNA samples.

However, in Bill C-13, the bill before us today, there are far too many provisions that would allow a convict to avoid providing a DNA sample. For example, if the person committed the crime before June 2000, a judicial order would have to be sought for a DNA sample. Also, a convicted offender could always appeal to the court in order to prevent the collection of DNA. If we were to ask the people on the street about this, they do not understand it when the rights of a criminal to privacy under the charter come up against the rights of the generally accepted protection of society and the protection of the most vulnerable citizens in society as all too often we are talking about women and children in cases where it is necessary to gather DNA samples.

Police have asked for the ability to collect DNA at the time of charge, as with fingerprints. Here again we can have a debate and it is good that we have that debate. Whether it would be appropriate at the time of arrest, or whether it would be more appropriate at the time of the charge being laid or whether it would be more appropriate at the time of conviction, or whatever, we need to have a debate on this. We should not have the government proceed and allow the loopholes to exist. Lawyers would have a field day with this. By not being forced to provide a DNA sample, they could get people, who should be held accountable, off on these technicalities.

As so often happens in our legal system, and with this government, the rights and privacy of convicts and criminals seem to take precedence over the rights of victims and their families. I believe the government has to start becoming as obsessed with the compassion for victims as it seems to be with the legal rights of criminals. When I think about DNA collection, I think about what that information can do for victims in my riding and for their families who may never know what happened to their loved ones or see justice done to their killers or attackers.

If our DNA data bank were strengthened through substantive amendments to the legislation, I wonder whether investigators would be able to solve the disappearance of six teenage girls and women along what has been come known as “the highway of tears” on highway 16 between Prince George in my riding and Prince Rupert? This is a series of sad and disturbing unsolved disappearances between those two cities. Three of the girls were found murdered and three have never been found.

I wonder, and I have often thought about this, if their killer or abductors would have been found, charged and convicted by now if our legal system had enough teeth to ensure that DNA of violent criminals was on file. It is possible that their killer or killers could have been in and out of jail for other violent convictions and if DNA collection were mandatory and there was no room for loopholes, they might have been stopped. We will never know.

I am not a great fan of reality television. There seems to be such an abundance of them on television nowadays. I do not waste much time watching them. However, one show I watch, which is reality television, is something called Cold Case Files . It is extremely interesting to see how the technology has changed and how they have gone back to some of the cold cases of decades of old murders and rapes. They are solving them because of DNA. Through DNA, they have found that someone who is in prison for some other crime is accountable for some other unsolved crime.

I will end by talking a bit about the other side of the issue, and that is the wrongfully convicted. Many of them have simply given up or do not have the access to the family support. I think of the David Milgaards and Steven Truscott, who was recently in the news as he still struggles to try to clear his name, and what a proper functioning DNA data bank could do in proving people are innocent.

I believe we have the technology and the science to ensure that others do not suffer as these men have and to ensure that their victims and the victims' families do not have to endure decades long turmoil and uncertainty as well. It is not only the wrongfully convicted who suffer, it is also the their families. They know someone out there did this horrendous crime and they got away with it. They have never had to serve their time. They have never been held accountable and responsible for their actions.

I look forward to seeing the bill, hopefully, amended to put some real teeth in it and have a tool that the police and the courts can use to hold those accountable responsible for their actions and to ensure that people who have not committed crimes do not serve time for something they did not commit.

[Rob Moore, Conservative, Fundy, NB]

Madam Speaker, it is a privilege to speak to Bill C-13.

I have many concerns which some of my colleagues have raised already. In the larger context of our criminal justice system, a trend has developed over the last several years whereby the government introduces a piece of legislation which common sense would tell us would be wholly ineffective but has some merit on its face. When experts such as front line police officers, child protection advocates, and victims groups look at it and dig beneath the rhetoric a bit, we see there are some fundamental flaws. I want to touch on a couple of examples.

I would like to speak about our sex offender registry in the larger context of criminal justice. When that was first introduced, the opposition recognized some serious flaws, one being that it was not retroactive. It was a blank sheet of paper and would do nothing to protect Canadians. There was considerable public outcry about it and we were able to make some headway by advocating some changes to it. For some time the registry was not retroactive and did not have any names in it.

Another example is the child protection legislation which was recently introduced. Once again, on the same theme, this is a piece of legislation that does not close defences for the possession of child pornography. I do not know what rights we are balancing here but it seems to err on the side of protecting those in possession of the material rather than protecting society at large.

I acknowledge there are many positive aspects to Bill C-13 such as broadening the more serious offences where the onus would be on a defendant to prove why DNA samples should not be taken. That is a good move. Another positive aspect is the broadening of the total list of offences.

Seven years ago when the DNA data bank for Canada was being debated, organizations like the Canadian Police Association argued that for a data bank to be truly effective, samples would have to be taken at the time of arrest. Their pleas were largely ignored. We have to recognize where those pleas were coming from. They were coming from front line police officers, people whose job is to protect Canadians and to investigate offences, whose job is to work with crown prosecutors to ensure that we are protected. Their opinion was that it was too late to wait until a conviction.

A very real situation has been raised today. If someone has been arrested and charged and knows that if convicted, he or she would have to provide a DNA sample and knows it would positively link him or her to a crime he or she committed in the past, the chances of flight by that individual would go up exponentially.

There are literally thousands of unsolved sexual assaults, murders, and kidnappings in Canada. In all likelihood some of those will never be solved. There may be people who have been wrongfully convicted and could be exonerated if only the samples had been taken before a conviction was reached. If samples were taken at the time an individual was charged with a serious indictable offence, it would seem wholly reasonable that we would at that point require them to submit a DNA sample.

This could have the effect of linking them to an unsolved crime in the past. We have seen that one of the great benefits of a DNA data bank is it could have the effect of exonerating someone who has been wrongfully convicted. However, there is this serious shortfall.

I mentioned front line police officers. I want to quote the chief of the largest municipal police force in Canada which is that of the city of Toronto. What he said was not about the original data bank but about this new legislation that we are debating today, he said that it is not enough and it is not adequate. He went on to say:

Here in Canada we have a great deal of room to grow. It seems that whatever progress we make with respect to advances in the criminal-justice system, it is at best a piecemeal endeavour.

That seems to be a trend that we have seen in all legislation dealing with criminal matters, certainly in this session and in past sessions. On the face of it or at first blush it sounds like a good idea but when we dig a little deeper, we realize that it is not going to be as effective as it could be. I for one believe that paramountcy must be given to protection of Canadians, society and children.

I heard a lot of comment on the other side that the court is agreeable with this, that the court seems to have acknowledged this step or that the court finds this is necessary. Yes, talk to the court but we also have to talk to a family that has had a crime perpetrated against it, someone who has been assaulted, someone who has a family member who has been kidnapped or murdered. That has to take paramountcy and has to be at the forefront of our criminal justice system.

We have to ensure that those who would victimize Canadians are put behind bars and that Canadians are protected. Certainly we must do whatever we can to prevent someone from being wrongfully convicted. It is a win-win scenario by broadening the use of our DNA data bank capabilities.

Bill C-13 does not address this one serious shortfall. Further, as was the case with the sex offender registry, the DNA data bank is not retroactive. It does not include all criminals convicted of a serious criminal offence.

Thousands of unsolved crimes could continue to go unsolved. It could mean that hundreds of people who perhaps were wrongfully convicted continue to remain behind bars. We have to broaden the application. That is one thing that I would certainly argue.

It does not go far enough by not including all indictable offences as is required with fingerprinting. Fingerprinting as we know is done at the time of arrest. At one time fingerprinting was a modern miracle. It has been the staple of law enforcement and the criminal justice system for a century but now we are into a new era of DNA data banks. We need to be as proactive as possible with this and realize its full potential.

It is quite clear, if we listen to people who are on the front line and in the know, this is not what is currently being done by this legislation. We must be retroactive. We must include all indictable offences. We have to broaden the scope.

Beyond the legislative shortfalls, there is also the practical shortfalls. We have heard in recent times of the RCMP having serious shortfalls with its ability to process DNA cases. There is a huge backlog. We have to address not just the legislative but also the practical implications of this system.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Madam Speaker, I am pleased to speak today to Bill C-13 that proposes a number of improvements to the DNA data bank legislation, which was passed by Parliament in 1998, came into force in June 2000 and appears to be working very well. Since that time the DNA data bank has been a boon to Canadian police.

Since that time, the DNA data bank has been a boon to Canadian police. 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 the DNA profiles of convicted offenders in the national DNA data bank.

DNA evidence also has been a great benefit to the courts. We all know that there have been miscarriages of justice in the past. The courts have become more comfortable with the science behind DNA matches. They are aware that a particular DNA profile will only appear in one out of billions of persons. It is not, however, definitive. There may be an innocent explanation, but if the person's DNA has been found, for example, in or on the body of a victim of a sexual assault and that person is a stranger to the victim, there is some explaining to do. Often the DNA match results in the person pleading guilty, which saves a great deal of court time and spares the victim additional trauma.

I believe all members want to make the legislation even more effective. Bill C-13 would accomplish that goal, and members can be certain that Bill C-13 would do so in a way that would respect the charter and privacy rights of Canadians. 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 that it has been challenged.

The Criminal Code establishes the process that can lead to a judicial order authorizing the taking of samples of bodily substances for analysis and inclusion in the DNA data bank from persons who have been convicted of certain designated offences. The most serious offences such as murder and sexual assault are primary designated offences. Where a person has been convicted or discharged of a primary designated offence, the judge is required to make a data bank order unless the judge is satisfied that the impact on the offender's privacy and security of the person would be grossly disproportionate to the public interest, the protection of society and the proper administration of justice. The courts have consistently held that this is a very high burden for the offender to discharge, and so DNA orders for primary designated offences are almost automatic.

Secondary designated offences are less serious offences, for example assault or leaving the scene of an accident. 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 deciding whether to grant the order, the 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 person.

The court is required to give reasons for its decision to make or to deny making a DNA data bank order. The courts have consistently found that the impact on a person's privacy and security of the person is minimal. Although DNA can reveal a great deal about a person, the DNA data bank only analyzes what is known as “junk” DNA, that is, chromosomes that do not reveal anything, like hair colour, about the person.

Moreover, the legislation has strict protections on the use of both the bodily substances and the resulting DNA profile. They can only be used for forensic DNA analysis or other uses specified in the DNA Identification Act. It is an offence to use them for any other purpose than the investigation of crimes. The DNA profiles cannot, for example, be used in any research.

The Royal Canadian Mounted Police, which operates the national DNA data bank, has developed a system of tracking the DNA profile and the identifying information. The bodily sample that is to be analyzed and the identifying information on the offender, which is based on fingerprints, are tracked by the identical bar code. The DNA data bank keeps a sample and sends the identifying information to the RCMP's Canadian Criminal Records Information Services. 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 Criminal Records Information Services of the bar code and that service identifies the convicted offender.

With such strong protections for the offender's privacy and the great value of DNA evidence, the courts have welcomed the legislation. In Briggs, a decision of the Ontario Court of Appeal handed down August 2001, the DNA legislation was found to comply with constitutional requirements. The reasoning of the Ontario Court of Appeal in Briggs has since been endorsed by several other provincial courts of appeal in Canada. The decision in Briggs dealt with many of the issues that might arise in considering the legislation and pointed out that the purpose of obtaining a DNA profile from an offender was not simply to detect further crimes committed by this offender. Rather the provisions have much broader purposes, including the following: to deter potential repeat offenders; to promote the safety of the community; to detect when a serial offender is at work; to assist in the solving of what could be called cold crimes; to streamline investigations; and to assist the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.

In another decision of the Ontario Court of Appeal that has been widely referred to 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”.

The House 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 warrants scheme and has many of the same safeguards, Regina v. S.A.B. provides strong support for the constitutionality of the data bank legislation.

I believe we need to have no concern about the constitutionality of Bill C-13, although the committee will undoubtedly want to hear from the experts on that point. By expanding the number of designated offences and by clarifying procedures, Bill C-13 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. Therefore, I urge members in the House to support the motion to refer the bill to committee.

[Peter MacKay, Conservative, Central Nova, NS]

Mr. Speaker, I commend my colleagues from all parties who have spoken in support of this important bill. The legislation is very forward looking in its intent. Overall the attempts that have been made by virtue of this newly amended bill, which has been reintroduced from the previous Parliament, are commendable. However I must say that I find some of the provisions a disappointment.

The Conservative Party hopes, with the cooperation of other members, including government members, to make an attempt at improving the legislation at committee level, which is why we support the motion to send the legislation to committee where we can hear from experts and from the stakeholders most affected, including victims, the police, representatives of the bar and the judiciary. We must try to get this right because one of the important elements of the legislation that is often overlooked is not only that the legislation can be used to convict, it can also be used to exonerate.

This is the type of technology that is extremely forward looking. It is the type of technology that would help to avoid some of the worst travesties we have seen in this country as far as wrongful convictions.

The taking of DNA is the type of forensic evidence that can prove categorically a person's presence at a crime scene. It can both convict and exonerate. The legislation falls short of the potential in allowing investigators to do their important work, to collect that type of crime scene evidence and use it, through forensic labs, to examine and present a case.

The changes that have been put forward in the bill, although they go far in a technical sense to expanding the primary and secondary list of offences that are included as far as the use of DNA, it is astounding to think that some offences have not found their way into the primary designation, including such things as robbery and child pornography. Those are changes that we accept and support, but what I fear is that some of the attempts to sing the praises and the marvels of the legislation were to distract the public away from the real issue, which is that we are not using DNA to its full potential.

Individuals, front line police officers most notably, are calling for the use and the collection of DNA at the time of charge. That level of reasonable and probable grounds has been achieved. It is much akin to the collection of a fingerprint for the purposes of analysis. DNA, let us be quite frank, is a genetic fingerprint. I have yet to hear a cogent argument that can differentiate. I understand those who are concerned about privacy and individuals who talk of the use of DNA for health related data. However, as I understand it, the information in the data bank is completely safe. It can only be accessed by those with the proper authority, those seeking a warrant.

To that end, even collecting the DNA and holding it until conviction would help avoid what I consider to be a very serious anomaly in the legislation. I will put it in very straightforward terms. Let us talk about an individual who has been connected to a serious crime on the west coast, for example, be it sexual assault, violence or murder, and the person is picked up in the province of Ontario or my own province of Nova Scotia for another unrelated offence. Knowing full well that under the parameters of the legislation the person would be compelled upon conviction to give the DNA, there is an additional incentive to run and a disincentive for the justice system to prevail.

The rationale is very straightforward and common sense. Taking that DNA at the time of charge, holding it in abeyance, not necessarily entering it immediately into the data bank for cross reference to the outstanding offence, would allow the authorities, the police, the justice system to hold on to that very critical evidence for use in a future trial.

With the number of unsolved murders and unsolved sexual assaults we know that many of those perpetrators are currently languishing in Canadian jails. This is the type of legislation that, if put in its proper application, would allow the police to solve some of those crimes, to help locate missing persons and to take preventive measures to ensure that miscarriages of justice do not occur.

The potential for the bill to enhance our justice system is good but not in its current form. The bill would not allow police to take DNA at the time of charge. The police can collect fingerprints. Other members have made reference to the fact that Great Britain, from which we have taken our lead on many important matters, such as how we govern this country, including the Parliament of Canada and the Westminster system, is currently allowing its law enforcement agents to take DNA at the time of charge.

By refusing to allow officers to do so, I would suggest strongly that we are removing a critical key for our law enforcement community in doing its job.

Former police chief Julian Fantino of Metro Toronto recently appeared at a conference of sex crime investigators. He stated:

We need to collect D.N.A. at the front end when we arrest suspects and run it through the data bank and we know how many people are serial offenders and how many offences are committed by a relatively small number of people who are aggressive and committed to committing crimes. We need to do better in using science and technologies to protect innocent victims.

I put a great deal of emphasis on Mr. Fantino and his experience. He is speaking for a lot of front line police officers when he encourages the Parliament of Canada to take this important step.

We have seen far too many vicious crimes perpetrated in this country. We know that a relatively small number, if they continue unchecked and if we continue not convicting them, continue to pose a serious threat to our communities. This is about protecting the public. The fundamental, underlying theme that we can never get away from is the deterrent. The important element of deterrence is implicit in everything we do.

Police currently can arrest an individual after matching DNA found on a victim or at a crime scene and make that link and present it to the court as the telling factor for conviction. Bill C-13 continues the listing of primary and secondary designated offences, which I would suggest we do away with entirely. We should simply merge those systems and have a single list that would require judges, upon conviction, to allow for the taking of DNA. We could still have a reverse onus provision that would allow a challenge from a defence lawyer to put forward a case as to why that DNA should not be taken.

The Conservative Party of Canada will be proposing a number of important amendments. I would suggest that these efforts, in particular, when it comes to the taking of DNA samples and the protection of our children, our children should be a huge motivating factor as to why we have to get it right in this current context. Police officers should be allowed to take DNA samples for all indictable offences at the time of the official laying of the charge and hold that in abeyance until a conviction.

As has been outlined, the bill would also require that a secondary process, a judicial hearing, take place. Having worked in the court system, both in a defence and a crown capacity, we have a massive backlog that prevents the use of proper investigative tools that will hold back our system to adequately process these cases through the courts. Lack of resources is a huge issue. By putting in place a convoluted process such as this I would suggest that we would be furthering some of the difficulties currently faced by crown prosecutors, our courts and the justice system generally.

We need resources dedicated to this data bank. We are underutilizing it now in terms of the number of entries. As many members have mentioned, thousands of entries are made on a weekly basis in Great Britain, whereas in Canada we are still languishing in that regard.

We currently have 1,700 DNA cases on a backlog in the DNA data bank. They have not been able to enter that data. It is the timeliness. If that data were entered and used in an investigation of an outstanding murder, I would suggest it would save lives. It is that dramatic.

We look forward to having this matter before the committee and to hearing from experts from all areas. At that point the Conservative Party will be putting forward what we consider to be substantive, common sense amendments to improve the bill.

[Shawn Murphy, Liberal, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, I am pleased to speak to the motion to send Bill C-13 to committee before second reading. Bill C-13 is nearly identical to Bill C-35 that was tabled in the House last May but died on the order paper. At that time all parties, while naturally reserving their position until they heard from the witnesses in committee, expressed general support for the use of DNA and favoured referring this bill to committee.

Bill C-13 contains proposed amendments to the Criminal Code, the DNA Identification Act and the National Defence Act, intended to clarify and strengthen the present regime concerning the taking a bodily substances for the purposes of the national DNA data bank.

I expect the committee will be paying close attention to the proposed changes to the list of designated offences. This is appropriate and is to be expected. Indeed, the expansion of the list to include such grave offences as sexual exploitation of a person with a disability, Internet luring of a child and extortion will, I am sure, be welcomed by all members of the House.

However, I intend to focus my remarks today on those legislative amendments in the bill that will address the procedural problems with the legislation. These changes are very important. They are not glamorous, and a lot of people watching this on CPAC may find them boring, but they are welcomed by police and the courts who have to make the legislation work on the ground each and every day.

The bill responds to a series of issues that had been raised primarily by the provinces. As members know provincial crown prosecutors and police deal with this legislation in the courts each and every day. Many of these proposed changes were recommended by the Uniform Law Conference of Canada which includes representatives of the defence bar and some judges, as well as provincial and federal justice officials.

They identified three problems that had to be fixed. First, there was no method to compel the offender to attend in court at a hearing to determine whether a DNA data bank order should be made. The existing legislation contemplates that a DNA order will be made at the same time as sentences is imposed. For various reasons, that is not always possible, but there is a danger that, if the judge imposes sentence but delays consideration of whether or not to make a DNA order, the judge may actually lose jurisdiction over the accused or the offender.

Bill C-13 specifically provides the following:

The court may set a date and time for a subsequent hearing to determine whether to make the order. The court retains jurisdiction over the matter and may compel the attendance at the hearing of any person who may be subject to the order.

Second, a process was sought that would permit a judge to make a second DNA data bank order where the national DNA data bank had declined to process the first one because of a police error in completing the forms that must accompany the bodily substances submitted for analysis.

The present legislation only allows the Crown to seek another order where a DNA sample cannot be derived from the sample of bodily fluids. However, there may have been problems in filling out the forms or in the identification of the accused. It could be that the bar codes were mixed up. It is vitally important that these offenders should have their DNA profiles in the DNA data bank despite these problems.

Bill C-13 will permit an application to be made for re-sampling. As the House can appreciate, these are highly technical, but important amendments.

Finally, a way was sought to require the offender to appear for the purpose of providing a DNA sample. The legislation currently requires that a sample be taken at the time the order is made but in many cases this is not possible. The police cannot have a trained officer attending all the court houses in the land at all times in case a DNA order is made. Accordingly, Bill C-13 allows for the judge to set a time and place for the sample to be taken and it provides for a warrant to arrest the offender if he does not show up.

These are not the only procedural changes made in this legislation. There are new provisions regarding the process when an offender is ordered to provide a DNA sample, but the offender's DNA profile is already in the data bank.

As well, the legislation was originally drafted on the basis that the convicted offenders' bodily substances would be analyzed in the regions and the profiles sent to the Royal Canadian Mounted Police data bank.

In fact, it was subsequently decided to have all analysis done here in Ottawa so that there are several provisions of the Criminal Code and DNA Identification Act that require amendment to clarify that the samples of bodily substances taken in execution of an order are transmitted along with a copy of that order, or authorization, and any other materials required under regulations to the RCMP for forensic DNA analysis, and that the results of this analysis are then to be entered into the convicted offenders' index of the national DNA data bank index.

There is as well an important new procedure which is necessary to address a problem that no one could have envisaged when this legislation was originally passed; namely, the making of DNA orders when there is no authority under law to do so.

Under the Criminal Code judges have only been authorized to make DNA data bank orders against offenders convicted of a designated Criminal Code offence. A DNA data bank order authorizes the police to take samples of bodily substances from a convicted offender for the purposes of the national DNA 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 already established by the Commissioner of the Royal Canadian Mounted Police, who is responsible for the operation of this data bank, before the samples of bodily substances taken from a convicted offender are subjected to forensic DNA analysis, the DNA order, the original order issued by the judge, is examined to verify that it in fact relates to a designated offence.

Since the DNA data bank legislation came into force almost four years ago, approximately 500 DNA data bank act orders have been made against persons who, according to the information that appeared on the face of the order, do not appear to have been convicted of a designated offence. These are referred as facially defective DNA data bank act orders.

There is a need, and this is corrected in this legislation, to create a procedure to have these defective DNA bank act orders reviewed to determine whether the error, on the face of the document, is either a procedural error or a substantive error. If it is a procedural error, it can then be corrected and the bodily samples analyzed. If it is a substantive error, then the court lacks the authority to make the order and the Commissioner of the RCMP then goes on to destroy the bodily substances obtained under the faulty orders.

I want to say a few words about the procedures set out in the proposed legislation to ensure only those DNA samples that are taken in conformity with the will of Parliament are analyzed.

There would be a duty imposed on the commissioner by virtue of Bill C-13 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 data bank order is a designated offence.

I understand that this bill has been discussed with the provinces and the provinces all agree. I believe it is incumbent now upon this House to refer the bill to the appropriate committee, the justice committee. At that point in time it will certainly be analyzed by all members of the committee. I urge the passing of this motion.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I rise to speak to Bill C-13 from the perspective that we are dealing with relatively new technology and some amendments would normally cause us a good deal of concern.

DNA samples have been gathered only since 2000. It should have been done much earlier, but the current government was very slow in moving the bill through the House to final fruition. Once in place, it became quite obvious that there were some significant limitations in it, and the government is now attempting to address those. We will not know whether it has been successful until we hear from the criminal defence bar, prosecutors, some police associations and some victims' rights groups. That is why we are supportive of the legislation going to committee prior to second reading. If the government were looking for support in principle for the bill at second reading, my party would not be able to support it.

There are several points in the bill that cause us particular concern. Overall we believe the direction in which it is moving is the appropriate direction. Certain charges are being moved from the secondary list to the primary list and we believe that is appropriate.

On the other hand, we are quite concerned about the bill being made retroactive. There has been a great deal of debate in the House and across the country over this issue. Certain individuals currently in prison will be paroled shortly because they have served their entire time. It would be quite desirable for society as a whole to obtain a DNA sample from them and have it in the data bank on an ongoing basis. On the other hand, whether it is appropriate for retroactivity to apply to all people who will be released shortly still gives us some cause for concern.

It almost goes without saying that under common law, the history in England and Canada, all legislatures have been reluctant to ever pass legislation that is retroactive. That aspect of the bill will require some close attention by the justice committee when Bill C-13 gets there.

Members of the Conservative Party are concerned about when the DNA sample should be taken. We have heard from some police associations that they are pressing quite strongly for the sample to be taken, as fingerprints are, at the time the individual is charged. That is generally being done in England at this time, as opposed to other alternatives such as upon conviction, upon sentencing or after all appeals have been exhausted. Those are all possibilities. They will have to be canvassed in front of the committee which will be hearing from people who work in this area such as police associations, bar associations and, in particular, the criminal defence bar.

We know from some of the wrongful conviction cases, which have been in the news in the last few years, that DNA samples could be an excellent tool to acquit people. However, they are also quite widespread in convicting people. As I said in my opening comments, this is a new technology. I know from some of the work I did in private practice, that in the initial stages the assessment of these samples left something to be desired. Even though experts on the stand said that it was an absolute, that it was 99.99% perfect, reality was that it was not specific as we began to understand the technology better and understand what was needed to get proper assessments.

In terms of the use of the DNA data bank, we must be conscious of the fact that it is a new technology. We must be conscious of the fact that we may see somewhere down the road someone challenging its validity and its accuracy on a scientific basis. We must be very careful when we are imposing the types of pressure and the types of law on convicted criminals. We have to be very careful with that.

There are charges that are being moved, and these would be after conviction, from the secondary list up to the primary list. Those will have to be looked at closely as well, as to whether that is also all appropriate, or whether in fact there should be additional charges moved on to the primary list.

That is important because if the charge and the conviction are based on a criminal offence that falls into the primary list, the DNA sample must be ordered by the judge convicting the individual unless that person can show, for privacy or personal security reasons, why it should not be taken. That has not happened in the past. I cannot imagine it happening other than in very rare occasions in the future.

If the charge is on that primary list and the person is convicted of that charge, it is almost a certainty that the sample will be ordered and taken.

If it is on the secondary list the onus is reversed. The prosecutor in that situation must establish why the sample should be taken. The defence can argue, but the primary responsibility lies with the prosecution to establish that.

So we do have to be careful. First, have we put enough charges on the primary list? Have we put too many charges on the primary list? That has to be canvassed and again I am looking forward to the committee looking into that to some degree.

The question is the same with regard to the secondary list. Should we be adding additional charges or should we be taking some of them off that are being proposed or already on?

Bill C-13 is a relatively modest bill. The provisions that also bother us are those sections in the act that move the gathering of DNA samples under the National Defence Act in the court martial situation. I am not clear and I really do want to investigate whether the full protection of the law will be meted out under the defence act as it is under the code, both in terms of what we already have and the amendments that are being proposed. That is an additional item that has to be looked at.

Let me conclude by saying that the use of the technology is new. It has obviously been a boon to the prosecutor in a number of cases establishing proof of guilt beyond a reasonable doubt. Similarly, in a number of well known cases and a number of others that are not as well known, it has been a substantial benefit to those accused. Their defence counsel are able to establish little or no likelihood of them having been the perpetrators of the particular offence.

It is there, but it is a new technology. We need to look at it very closely. It is one of the bills that will require some expert witnesses from perhaps other jurisdictions, but certainly from the scientific and legal community in order for us to get an accurate appraisal of where this legislation should be going, and whether in fact we have achieved it with this bill or whether significant amendments will be required.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I am pleased to have this opportunity to speak on Bill C-13 to amend the Criminal Code. The battle against organized crime, or to put it more broadly, the administration of criminal evidence, has always been of great importance to the Bloc Québécois and to all my colleagues.

I cannot help but make the connection between Bill C-13, which we have before us at this time, and the very pertinent activism of the member for Charlesbourg—Jacques-Cartier and other colleagues in this House. In fact, all opposition parties tabled a bill calling for the burden of proof to be reversed in the case of the proceeds of crime, once guilt has been established, of course.

In the mid-90s, a heinous crime was committed; a young girl called Tara Manning was murdered. A problem arose when it came to determining guilt. There was no provision for collecting DNA samples in order to prove that a suspect was guilty.

It was a very important time when this House acted with great diligence, because the bill in question was passed through all stages in less than 48 hours. It was proof that, when members work together, this House can act very quickly. It was also proof that, in all our deliberations, the issue of criminal law and the fight against organized crime have grown considerably in importance in recent years.

I recall that young Daniel Desrochers was murdered in 1995 in my riding of Hochelaga. At the time, there was no anti-gang legislation nor any provisions regarding organized crime, such as we have now.

I had organized a meeting between young Daniel Desrocher's mother and Allan Rock, who was then justice minister. It was not easy to achieve a balance between bringing members of large criminal organizations such as the Hells Angels, Rock Machine and Bandidos to justice and ensuring that the Charter of Rights and Freedoms was respected.

The bill before us today refers directly to the national DNA data bank. I was mentioning the case of young Ms. Manning. It was after that case that we established the national DNA data bank, which the Crown may consult.

The Conservative Party of Canada's justice critic has reminded us that it is not automatic. It is true that when the Crown wishes to take a sample of a bodily substance, it must ask for a court order. In one way, this is understandable, because taking samples of bodily substances is something quite intimate.

Criminal law always involves a delicate balance between the expectation of privacy and the sound administration of justice by means of evidence. In criminal matters, there must not only be a preponderance of evidence. The same test is not found in civil law. In criminal matters, the evidence must be beyond any doubt. That is understandable.

In criminal law, when the evidence has been weighed, a sentence 10, 15, 20 or 25 years in prison may be given. It is normal and desirable that the day on which the sentence is passed, all elements of proof should be not only conclusive, but irreproachable and beyond any shadow of a doubt.

Therefore, Canada has a national DNA data bank.

Before the bill before us was presented by the Minister of Justice, a distinction had been made between primary designated offences and secondary designated offences. The Crown's responsibility differed for the two types of offence.

Primary designated offences are offences of a sexual nature, involving child pornography, procuring, and living on the avails of prostitution and juvenile prostitution. These are extremely serious and shocking offences, and our fellow citizens expect those found guilty of such offences to be heavily sentenced.

For offences under section 487.4 of the Criminal Code, the Crown could automatically request a court order for samples. The court was not as vigilant in the case of secondary designated offences. It is not that the court took these offences less seriously, but stronger arguments had to be presented in order to obtain samples for this type of offence.

I am talking about offences that are nonetheless criminal, for which criminal charges can be laid or summary proceedings taken, but the charges are less serious than charges related to sexual offences. These offences include criminal harassment, uttering threats, breaking and entering, intimidation, arson, and so on.

Bill C-13 extends the list for both categories of offence. Obviously, it links with the legislation we passed on child pornography and adds to existing offences. The bill offers something quite new. Only prosecutors will be able to request court orders. If a prosecutor, which in most cases is a crown prosecutor, wants samples of bodily substances taken in relation to the charges before the court to be submitted to the national DNA data bank, then it is up to the prosecutor to do so. Nothing will be done automatically any more.

It is understandable that bodily substances, be they hair, nails or any nasal secretion, are very important in building evidence. I need only mention a certain decision of the Supreme Court. The story goes like this. An individual was arrested for stealing a truck, charged and read his constitutional rights. He was taken in for questioning, during which he blew his nose. Without his knowledge, the prosecution collected the tissue, which was admitted in evidence and would contribute to his conviction. As it turned out, the prosecution's evidence was ruled inadmissible under section 24.2 of the Charter, because it was collected without the individual's knowledge.

This goes to show the very important a role in terms of evidence played by bodily substances through their almost unequivocal identification of offenders. The bill before us adds offences to the list of primary and secondary offences, but requires the Crown, the prosecution, not only to initiate proceedings but also to request that substances taken from an indicted offender be included in the national DNA data bank.

The Bloc Québécois is generally in favour of the bill, with a few incidental changes.

[Vic Toews, Conservative, Provencher, MB]

Mr. Speaker, I am pleased to rise today to address Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act. The purpose of this bill is to broaden the provisions governing the national DNA data bank.

However, I must say at the onset that this bill falls short of what the official opposition, the Conservative Party of Canada, feels is necessary to effectively combat crime. We are joined in those concerns by members of the police right across this country.

I just heard the speech of the parliamentary secretary, indeed nothing more than wishful thinking. Unfortunately, his government is not prepared to take the steps that are necessary to take full advantage of this very important crime fighting tool.

The original legislation, Bill C-3, that created our national data bank was enacted in 1998 and officially opened July 5, 2000, and is maintained by the RCMP. This DNA identification, if used to its full potential, could be the single most important development in fighting crime since the introduction of fingerprints.

For example, DNA played a major role in solving the Holly Jones case last year which resulted in a first degree murder conviction in June. However police, attorneys general and crown attorneys have long argued that the legislation, as enacted, denied law enforcement the full use of this technology.

Bill C-3 did not allow for the taking of DNA samples at the time of charge, as fingerprints are, and it did not permit samples to be taken retroactively from incarcerated criminals other than designated dangerous offenders, multiple sex offenders, and multiple murderers. Bill C-3 did however provide potentially dangerous exemptions authorizing judges not to make orders even in situations where there have been convictions.

Although some amendments contained in Bill C-13 are improvements on the status quo, they do not raise in any substantial way and answer the concerns that have been raised by the police and the attorneys general.

Amendments contained in Bill C-13 would add several offences to the list of designated offences for which a national DNA data bank order can be made. This of course is a positive step, but it begs the question, why can this DNA data bank not include all indictable offences as is the case for fingerprints?

Such is essentially the case in Great Britain, where in England and Wales, for example, police have the power to take and retain biological samples from those charged with or informed that they will be charged with any recordable offence, which is essentially any offence which might carry a prison term. They can in fact order the taking of DNA where a police inspector has reasonable grounds to suspect the involvement of the individual in a recordable offence. The DNA sample will tend to confirm or disprove the person's involvement in a particular offence.

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.

In the United Kingdom there is legislation pending that would allow police to automatically take a biological sample from anyone arrested for a reportable offence. This would eliminate the requirement for an inspector's assessment and approval. Such approval would then be necessary only in a case where a suspect had not yet been arrested. In Britain, DNA is not only used to convict the guilty but in fact to eliminate suspects and to prove innocence.

This bill also fails to sufficiently broaden police powers to take samples from those convicted of designated offences before the DNA data bank came into force. We can have this discussion, whether DNA should be taken upon the time of charge or upon conviction; however, there is not even an automatic taking of DNA where there has been a conviction, where a person's guilt has been proven beyond a reasonable doubt. Currently this is permitted only in specific circumstances such as with dangerous offenders, multiple sex offenders and multiple murders.

The case of James Doherty illustrates why these powers need to be broadened. In 1992 Mr. Doherty murdered two women in Courtenay, British Columbia. In 2003 the crown attorney requested that a DNA sample be collected and a judge complied, but Doherty appealed on the grounds that the murders had taken place at the same time. He was saying that because these two murders occurred as part of the same event, the current law would exclude the jurisdiction of a judge to order that.

It would seem that multiple murders must take place in different events. In effect, this is the same old Liberal theory that someone should have at least one free murder or one free sexual assault.

Our party believes that we do not get a free murder or a free sexual assault if there is evidence that could either convict or eliminate an individual as a suspect, then that DNA evidence should be taken.

An additional concern is the ability for a convicted offender to appeal to the court in order to prevent the collection of DNA. Even convicted murderers and repeat sex offenders can now request a hearing after conviction that DNA should not be taken.

The Liberals are trying to jam up the court system so that it discourages crown attorneys from actually proceeding on these kind of hearings. With respect to secondary offences, the onus is on the Crown to prove that it would not be contrary to the interests of justice to have a convicted offender give DNA. This is in the case of convicted offenders. Even when they are convicted of primary offences, murders, serious sexual assaults, there is still an ability to have a judicial hearing after conviction.

We know what is going to happen. This will clog up the justice system. This is a deliberate attempt to ensure that DNA is not used as effectively as it should be. This does not deal with any charter argument. This is simply a feeling by Liberals that convicted criminals still have these rights in order to avoid responsibility for other crimes for which they may be responsible. This is one more impediment to effective law enforcement.

A 1998 study predicted that the data bank would receive samples from an estimated 19,000 individuals a year convicted of primary offences. It also said we will get about 10% of those convicted of secondary offences. Instead it is not even meeting those goals. It is getting half of that number.

In contrast, England's database contains more than two million DNA profiles and each week 1,700 hits link suspects to crime scenes. Why do we not do that? I will tell members why. Our government is simply not interested in effective law enforcement.

The other point that I want to raise is the issue of resources. The Liberals will not resource the RCMP. For example, today the Minister of Justice announced a new drug driving law. In fact, the minister knows that RCMP officers are being taken off the highway. For example, in Manitoba, 35 of the 65 highway patrolmen are being moved out of highway patrol. It does not matter about the laws. There are no resources.

This minister knows that. Not only is the government putting forward bad laws, it is not prepared to put the resources in to support our police whether it is DNA, whether it is impaired driving, whether it is murders or whether it is rapes. It is unfortunate that the government would rather let the victims suffer than ensure that a guilty murderer or multiple sex offender is brought to justice.

[Larry Bagnell, Liberal, Parliamentary Secretary to the Minister of Natural Resources]

Mr. Speaker, I have the distinct pleasure today of speaking in favour of sending Bill C-13 to committee.

The national DNA data bank is a great Canadian success story and the bill can only increase that success.

The DNA data bank brings together justice, scientific innovation and world class technology. It highlights the unique Canadian knowhow and strong Canadian leadership, reaching well beyond our borders.

The DNA data bank is about the administration of justice and the most powerful investigative tool so far discovered.

Forensic DNA analysis has revolutionized criminal investigation and proceedings. It has helped in the investigation of hundreds of serious crimes in the past few years alone. It has speeded up the investigation of some of the most difficult sexual assaults or offences involving violence that Canadian police forces have had to deal with.

More powerful than fingerprints, DNA is a silent but credible witness, helping to convict the guilty while protecting the innocent. When properly handled and profiled, it offers indisputable evidence linking a suspect with a crime.

The DNA data bank's most recent annual report, which was tabled in the House on October 21, gives us an insight into how this jewel in the Canadian criminal justice crown actually operates. The report also tells us about the history and science behind the DNA data bank. I am not going to go over all of that here today, but let me select some key highlights.

DNA is the fundamental building block for our entire genetic makeup. With the exception of identical twins, triplets and quadruplets, each person's DNA is unique. The national DNA data bank, established as a result of legislation enacted by Parliament almost six years ago, is at the forefront of forensic DNA science.

With royal assent in 1998, the RCMP committed to build a national DNA data bank and to make it operational within 18 months. The project was completed on time and under budget.

The DNA data bank is recognized worldwide for its quality of work and the professionalism of the scientists who work there. The technology that it has developed is now being snapped up by other countries.

Since it opened in June 2000, the DNA data bank has helped solve 165 murders and almost 400 sexual assault cases in communities from coast to coast to coast. It has been crucial in helping police solve over 300 armed robberies and over 1,200 break and enters. The national DNA data bank has provided critical evidence leading to convictions in nearly 2,300 serious crimes.

It is important that our legislation keep up with what we have learned from the DNA data bank's operations to date. As my colleague emphasized, this bill is a carefully crafted set of mid-course adjustments before the full parliamentary review next year. We need to ensure that the DNA data bank works as effectively as possible within the parameters set out for it in law.

In these days of biometrics and genetic cloning, any initiative that touches on personal genetic information naturally raises concerns about privacy. The nationwide consultations that contributed to the creation of the DNA data bank stressed the need to balance a suspect's right to privacy and the need to protect society by facilitating the early detection, arrest and conviction of offenders.

Indeed, Canadian parliamentarians reflected the need for this balance in the careful crafting of the legislative provisions. The legislation imposes strict procedures to govern the handling of DNA profiles and biological samples to ensure that the privacy interests are protected.

The Canadian data bank is unique in keeping strictly separate from DNA profiles any identifying information. The people working with the DNA have no way of knowing whose DNA they are dealing with or any of the background to the case. Information collected by the DNA data bank is used for law enforcement purposes only. This bill continues all of those protections.

Some members of the House will know that a national DNA data bank advisory committee oversees the operation and offers advice to the Commissioner of the RCMP. This is a unique group of experts in law, science, ethics and privacy, including a former Supreme Court of Canada judge and an assistant privacy commissioner.

[Bill Graham, Liberal, for the Minister of Justice]

moved:

That Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

Tlicho Land Claims and Self-Government Act

[The Acting Speaker (Mr. Marcel Proulx)]

The division stands deferred until tomorrow, Tuesday, at 6:15 p.m.

(Bill C-13. On the Order: Government Orders:)

October 15, 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-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

Business of the House

[Tony Valeri, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, this afternoon we will continue with the allotted day.

Tomorrow and the first part of next week, the order of legislation will be second reading of Bill C-14, the Tlicho governance agreement, and reference before second reading of Bill C-13, the DNA data bank bill.

We will then proceed to the reference before second reading of Bill C-15, respecting the convention on migratory birds and second reading of Bill C-9, respecting a regional development agency in Quebec.

We would then turn to the reference before second reading of bills to be introduced early next week dealing with the Competition Act, first nations fiscal institutions, Telefilm, certain controlled substances, and an amendment to the Criminal Code with respect to impaired driving.

I will be discussing with the other parties the exact order of these bills. We would hope, by the end of the week, that we would be in a position to deal with report stage and third reading of Bill C-4, respecting aircraft equipment.

Next Thursday will be an allotted day.

On Tuesday evening there will be a take note debate on the compensation for victims of hepatitis C.

With respect to the specific question asked by the hon. member across the way, certainly it will be very forthcoming in the near future and I am sure we will also have a discussion among House leaders.