An Act to amend certain Acts in relation to DNA identification

This bill was last introduced in the 39th Parliament, 1st Session, which ended in October 2007.

Sponsor

Vic Toews  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code, the DNA Identification Act and the National Defence Act to facilitate the implementation of An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005. The enactment makes certain technical changes to those Acts. It also
(a) specifies that the provisions in section 487.051 of the Criminal Code relating to orders for the taking of samples of bodily substances for forensic DNA analysis apply to persons who are sentenced or are discharged under section 730 of, or are found not criminally responsible on account of mental disorder for, designated offences committed at any time, including before June 30, 2000, and makes similar amendments to the National Defence Act;
(b) allows an order to be made under section 487.051 of the Criminal Code at a hearing whose date is set within 90 days after the day on which a person is sentenced, discharged under section 730 or found not criminally responsible on account of mental disorder, and makes similar amendments to the National Defence Act;
(c) adds attempted murder and conspiracy to commit murder or to cause another person to be murdered to the offences covered by section 487.055 of the Criminal Code;
(d) permits an application to be made under section 487.055 of the Criminal Code when a person is still serving a sentence of imprisonment for one of the specified offences, rather than requiring that they be serving a sentence of imprisonment of two years or more for that offence;
(e) in certain circumstances, allows a court to require a person who wishes to participate in a hearing relating to an order or authorization under the Criminal Code for the taking of samples of bodily substances for forensic DNA analysis to appear by closed-circuit television or a similar means of communication;
(f) allows samples of bodily substances to be taken under the Criminal Code and the National Defence Act at the place, day and time set by an order or a summons or as soon as feasible afterwards;
(g) specifies that it is an offence under the Criminal Code and the National Defence Act to fail to comply with such an order or summons;
(h) requires the Commissioner of the Royal Canadian Mounted Police to destroy the bodily substances collected under an order or authorization and the information transmitted with them if, in the opinion of the Attorney General or the Director of Military Prosecutions, as the case may be, the offence to which the order or authorization relates is not a designated offence;
(i) enables the Commissioner to communicate internationally the information that may be communicated within Canada under subsection 6(1) of the DNA Identification Act; and
(j) allows the Commissioner to communicate information for the purpose of the investigation of criminal offences, and allows the subsequent communication of that information for the purpose of the investigation and prosecution of criminal offences.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

February 27th, 2007 / 10:20 a.m.
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Director General, Forensic Science and Identification Services, Royal Canadian Mounted Police

A/Commr Joe Buckle

Our estimate of what the impact of Bill C-18 will be on the labs is exactly that. It's an estimate based on past conviction rates. We feel that our estimate was fairly robust; however, it doesn't anticipate potential changes in municipal priorities or provincial priorities, or even a shift in federal priorities that could increase the types of cases we see coming in. For example, if Calgary PD decided they wanted to make break and enter a priority and they were going to try to resolve those crimes, we would likely see a spike in those types of cases coming in that we hadn't anticipated up front.

With regard to the idea of a backlog impacting the system, I explained previously that I think we will always have a capacity issue, because since 1989 when we introduced DNA we have seen steady increases all the time for demand for that particular technology. I believe it's prudent for us to ensure that the resources that we are spending on it are expended in the most efficient and effective manner possible. That's ensuring that we address the most serious cases first. Our goal is to ensure that we respond to the police in the most timely fashion possible on those serious cases.

February 27th, 2007 / 9:35 a.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

I mean in Bill C-18.

February 27th, 2007 / 9:35 a.m.
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Senior Legal Counsel, Royal Canadian Mounted Police

David Bird

You're talking about in Bill C-18?

February 27th, 2007 / 9:35 a.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Okay. But the additional offences that we're moving into primary and the new ones that we're moving into secondary don't do anything to correct the problems we had with Bill C-13. This is an increase in the mandate.

Let me make this statement to you so you can see the context I'm coming from. I see part of Bill C-18 as simply being mandate creep, that we're expanding the use of the DNA in certain offences.... I understand that's what we're doing. I don't see that this does anything to correct any of the problems we had in Bill C-13.

February 27th, 2007 / 9:30 a.m.
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Senior Legal Counsel, Royal Canadian Mounted Police

David Bird

The problem with Bill C-13was that when we looked at it, we didn't have the drafting authority to go that much further before it got to you. The end result was that it mirrored the old regime for international but not for the current recognized need to do moderate matching internationally as well. Without that, we will not effectively be able to share information abroad. That's one of the reasons Bill C-18 was put in place.

A number of issues were found with respect to the changes to the retroactive scheme and the forum surrounding DNA orders because of the new changes to “not criminally responsible” and associated reasons for making such orders. You'll see that there are a number of changes to the forum. These are small technical changes that we saw as being required. Then there are a number of other.... As we look at this, as Mr. Thompson pointed out, it's not a simple series of understandings that you have to go through to interrelate the requirements of the Criminal Code, as to what's a designated offence, with all the qualifying offences that are now in place. A number of changes are being put in place to make it clear what a mandatory order is, what a discretionary order by the judge is, and which has to be done by the prosecutor.

We try to make it clear and make the forums clear so that we have a coordinated approach between the amendments proposed by the committee that expanded the scope of the DNA qualifying offences by virtue of the amendments the committee recommended. That happened at that time before the committee, so we had to go back and make consequential changes to make this flow clearer and take care of technical problems with respect to definitions.

February 27th, 2007 / 9:30 a.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

All we're doing with Bill C-18 is expanding--

February 27th, 2007 / 9:30 a.m.
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Senior Legal Counsel, Royal Canadian Mounted Police

David Bird

That's one of the Bill C-18 changes, so it changes that.

Another change, which the RCMP asked for, was to deal with this issue of moderate match reporting, which it didn't have the authority to do under the DNA Identification Act as it was written prior to Bill C-13.

February 27th, 2007 / 9:30 a.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Thank you, Mr. Chair.

Thank you, gentlemen and madam, for being here.

Mr. Bird, I'll go to you first, because we didn't get to ask this question at the last session when the minister was here. We're being told that Bill C-13, now chapter 25, has not been put to use because of technical purposes, and that Bill C-18 corrects those. I don't see that. I don't see where Bill C-18 does anything to advance Bill C-13, so could you point out to us where it does that?

February 27th, 2007 / 9:15 a.m.
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Senior Legal Counsel, Royal Canadian Mounted Police

David Bird

I'll try my best.

Your first question is about the wisdom of allowing this to take place. In essence what happened in Bill C-25--or it's Bill C-13 now--chapter 25 of the Statutes of Canada 2005, was to permit the domestic sharing of information concerning what we call a moderate match.

I don't know if you recall the last testimony that we had—I think you had to leave when I tried to respond to your previous question on this—but it should be on the record.

Moderate matches are cases where we don't understand whether or not we have a clear match, given the scientific problems of analysis. I understand there are cases where you have mixtures of DNA from victims and perpetrators. You have cases where DNA evidence is degraded due to age. It's an old crime scene, or bodies are found and it's difficult to be absolutely certain what those amplified DNA profiles are.

So in the convicted offender index you have what we call, or at least what the scientists inform me is, a gold standard. These are samples, body substances, taken from people at the time—usually blood in clean circumstances—from which they are able to derive very good profiles. In most cases the amount of scientific failure to derive a profile is statistically very small in the number of rejected cases. I can't tell you what exactly that is, but it's very small. So we have a high reliance on the convicted offender index profiles. The crime scene profiles can be mixtures, degraded profiles, so it may be difficult to tell whether or not there is exactly the same profile from the crime scene.

So the ability was put into Bill C-13 to allow moderate match profiles to be exchanged. There's no personal information. It's simply a matter of putting to the people in the crime scene labs: here's the profile we have; is it possible that the profile you have is the same but you just misread it, or you weren't able to derive it properly? Then they can reanalyze and say yes, this is a match, or no, it's not. The personal information would then be requested separately for further investigation. It may be linked to another crime scene; it may be linked to the convicted offender index. That's the reason we have this provision in Bill C-13.

What we're asking for in Bill C-18 is the ability to do exactly the same thing with national comparisons.

As I tried to explain before, there is a great chance that international comparisons will be using parts of the DNA profile that we don't necessarily analyze in our system, but they do. So there may be only a limited number of matches between the same loci, and that leads to a higher incidence of probability of moderate match requirements to determine whether we have an exact match.

If this work isn't done at one level, in other words, as much as possible to reduce the potential matches.... It speeds up the investigations internally. It could be in the interests of our police forces to know whether we have an international offender, and it's certainly of interest to the foreign countries, for the same reason, to link crime scenes or offenders who are operating internationally together. Hence speed is of the essence in many of these investigations.

The result would be a speedier resolution of whether or not we have a match. If that information can't be sent abroad, then chances are it would be simply said that we don't have enough information to tell you whether or not you have a match. Then the information may be stalled, even though that could result in information of use to the police as an investigative lead in resolving an international serial offender, a terrorist, or some other event that is going on.

So the impetus for this international sharing is to simply ensure that the correct information about matches can be resolved scientifically between the analysts. There will be no sharing of personal information or even the resolution of a potential crime scene until it's resolved between the scientists whether or not they have a match, or a close enough match, that they'd want the information about the offenders or the other crime scene that it would link to.

So it's really to allow internationally the same thing we've been allowed to do domestically, and no more information will be shared internationally than would be allowed domestically for the same purposes. It's subject to our international agreement through INTERPOL, which limits the use of all of this information for the investigation and prosecution of a criminal offence. That's required now of the commissioner by the legislation and the DNA Identification Act, and it's been done through an INTERPOL master agreement. Each exchange of information is subject to a reiteration of the conditions that apply to the transfer of that DNA profile.

February 27th, 2007 / 9:15 a.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

So you're not in a position to comment on the wisdom of the provision in Bill C-18 that would allow the RCMP commissioner and his or her delegate to communicate information contained in the national DNA bank to any foreign entity or agency thereof.

February 27th, 2007 / 9:10 a.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

You might not be the right person to be asking this, but another question I have is about subclause 31(1) of Bill C-C-18, which would authorize the communication of the DNA profile not only for the reasons of an investigation on a designated offence but for all investigations related to any criminal infraction. Have you taken that into account in terms of increased demands for crime scene investigation DNA analysis?

February 27th, 2007 / 9:10 a.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

That means in subsequent years, and that's if Bill C-18 is adopted as is and your conservative calculations prove to be right on the money, your operating budget, not accounting for inflation, etc., would be $17 million.

February 27th, 2007 / 9:10 a.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

Thank you very much for your presentation.

You talked about the increased costs should Bill C-18 be adopted as it now is, where you have primary and secondary infractions that become reason for the collection of DNA that is added to the National DNA Data Bank. When you say you would need approximately $15 million, is that $15 million in addition to your current operating budget in the first year?

February 27th, 2007 / 9 a.m.
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A/Commr Joe Buckle Director General, Forensic Science and Identification Services, Royal Canadian Mounted Police

Thank you very much, Mr. Chair.

Ladies and gentlemen, thank you for this opportunity to appear before you today. I have a brief statement prepared that I will present to you at this time. I brought copies of the statement in this morning for your perusal.

In 1892 an Argentinian police official used for the first time a small data bank of fingerprints that he had amassed from the local population to solve the murder of two children. The use of fingerprints was the gold standard of forensic identification technologies for over 100 years around the world.

The reign of fingerprinting as the pinnacle of human identification tools came to an end in the late 1980s when a British scientist, Dr. Alex Jeffries, who was conducting evolution research using DNA technology, applied his research to a couple of murders under investigation by British police. Not only did this application lead to the conviction of a suspect, but it was also used to exonerate another individual.

In 1989 the RCMP first used the new DNA technology in the investigation of a sexual assault. The victim identified her assailant, and a DNA analysis later confirmed him as the perpetrator. This was the first time in which DNA evidence led to a conviction in Canada and the first time in which a law enforcement laboratory developed its own DNA evidence and presented the findings in a Canadian court.

Not since the first use of fingerprints in 1892 has a forensic application witnessed such proliferation of usage and acceptance within the scientific community and, more importantly, in the courts. The use of DNA has become an important and powerful tool in combatting crime. Canada signaled its intention to make broader use of the power of DNA with the passage of the DNA Identification Act, which was proclaimed in force on June 30, 2000.

The act created the National DNA Data Bank, which began operations upon proclamation and is responsible for two indices: the convicted offender index, which contains the DNA profiles of offenders convicted of designated offences as identified in section 487.04 of the Criminal Code; and the crime scene index, which contains DNA profiles of bodily substances recovered from crime scenes of designated offences.

The data bank assists law enforcement agencies in solving crimes by linking crimes together where there are no suspects, helping to identify suspects, eliminating suspects where there is no match between crime scene DNA and a DNA profile already in the data bank, and determining whether a serial offender is involved.

Physically the National DNA Data Bank, with its laboratories, sophisticated analytical equipment, computing facilities, and team of scientists and technicians, is located in Ottawa at the RCMP Headquarters. The data bank is part of the RCMP National Police Services.

Due to privacy and contamination concerns, and by virtue of the DNA Identification Act, the data bank is a self-contained unit. The data bank is a success in every sense and has fully met the expectations and spirit of the legislation. It has never experienced a capacity problem and continues to grow each year. It is, however, engaged only with the analysis of convicted offender samples.

The data bank employs 30 scientists and technicians and receives between 350 and 450 convicted offender samples each week. As of February 19, 2007, the data bank had 6,522 matches between the convicted offender index and the crime scene index.

It is important to draw a distinction between the activities and environment of the National DNA Data Bank and the Forensic Laboratory Services. The forensic services are also a part of the RCMP National Police Services. The FLS provides forensic services to the provinces and territories that contract with the federal government for provincial and territorial policing services. Ontario and Quebec have their own provincial police departments, as well as their own forensic laboratory systems. The forensic laboratories are key partners of the data bank, as they analyze crime scene evidence in support of criminal investigations and supply DNA profiles to the crime scene index.

While DNA analysis has become a large part of the work of the forensic laboratories, these labs also undertake ballistics analysis, paint typing, chemical and drug analysis, and other forms of forensic services.

The RCMP Forensic Laboratory Services has 120 DNA scientists and technologists and produces DNA case reports from five locations across Canada: in Vancouver, Edmonton, Regina, Ottawa, and Halifax.

The impact of DNA technology on law enforcement and judicial systems has resulted in an enhanced desire to use DNA technology to resolve criminal investigations and an exponential increase in the number of cases submitted to forensic laboratories.

The number of new cases received by FLS in 2005-06 was 23% higher than the number of new cases received in 2001-02. The FLS has responded to this by redeploying resources from other forensic areas into the DNA area, developing new DNA technologies, and enhancing processes. As well, the FLS uses individual and unit performance measures to ensure maximum performance, and a priority rating system to ensure that the most serious cases are handled first.

During the past two years, the FLS has in fact exceeded the casework quotas specified in the federal-provincial-territorial biology casework analysis agreements, BCAAs, for each province and territory. As well, it should be noted that due to reorganization and process enhancements, the Forensic Laboratory Services was capable of meeting these quotas while engaged with the Pickton murder investigation in British Columbia, to which the FLS contributed significantly.

There is, however, a greater demand for DNA casework than the Forensic Laboratory Services has the present capacity to handle. To respond to this capacity issue, in part, the RCMP will increase funding to the FLS at the beginning of the 2007-08 fiscal year. This will assist the FLS to reduce DNA casework response times within the existing demand, but will not be sufficient to handle increased casework demands imposed by legislative changes resulting from Bill C-18. An enhancement of the DNA Identification Act via Bill C-18 will have an impact on the FLS.

An analysis of conviction rates for primary and secondary designated cases showed that changes to the legislation will increase the FLS caseload by approximately 42% annually. This is a conservative calculation dependent upon the present rates of conviction and does not reflect the number of investigations undertaken. A change in federal or provincial government priorities or a shift in judicial priorities would see an increase in this number. As well, the number of convicted offender samples submitted to the National DNA Data Bank will increase by at least one third, again based upon conviction rates.

The FLS will have to increase its human and scientific resources to meet this enhanced demand. It has estimated that acquisition of staff and equipment will require approximately $15 million just for the Forensic Laboratory Services--$15 million in the first year, with an ongoing budget of about $7 million. It must be recognized, however, that it will require between 18 and 24 months from time of funding before operational benefits are realized. Activities pertaining to hiring staff, training, equipment acquisition, set-up and validation, and accreditation are protracted and must be undertaken in a manner that assures quality and effectiveness.

The RCMP is committed to the provision of safe homes and safe communities and is eager to work with the government to enhance this very important forensic and law enforcement tool.

Thank you very much.

February 27th, 2007 / 9 a.m.
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Conservative

The Chair Conservative Art Hanger

I'd like to call to order the Standing Committee on Justice and Human Rights. Our agenda, of course, is before you. Our order of reference of Wednesday, October 4, 2006, is to examine Bill C-18, An Act to amend certain Acts in relation to DNA identification.

As witnesses before the committee, we have members of the RCMP: Mr. David Bird, senior legal counsel; Mr. J. Bowen, acting director, biology project; and Mr. Joe Buckle, director general, Forensic Science and Identification Services; and I understand that Ms. Anne-Elizabeth Charland, officer in charge of management services, is also here, but not at the table.

Thank you all for being here.

Mr. Buckle, I would ask that you begin. I understand you're making the presentation today.