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(e) includes several repealed sexual offences (indecent assault male, indecent assault female and gross indecency) as designated offences and sexual offences referred to in paragraph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

[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.

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

Mr. Speaker, we will continue this afternoon with the debate on the Conservative opposition day motion.

On Friday we will debate a motion of reference before second reading of Bill C-10, the mental disorder legislation. We will then turn to a motion of reference before second reading of Bill C-12, the Quarantine Act amendments. We will then resume this debate commencing on Tuesday and follow it with second reading of Bill C-7, the parks reorganization, and Bill C-8, the public service human resources agency bill.

We would then turn to second reading of Bill C-14, the Tlicho legislation. This will be followed by reference before second reading of Bill C-13, the DNA bill, followed by Bill C-9, the Quebec regional development bill.

Next Thursday will be an allotted day.

On Monday, instead of a normal sitting of the House, there will be an address to both Houses by President Fox of Mexico. This will take place at 2:15 p.m.

With respect to my hon. friend's last question, that legislation will be coming forward in due course.

Criminal Code

[Irwin Cotler, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

(Motions deemed adopted, bill read the first time and printed)