Bill C-18 (Historical)

An Act to amend certain Acts in relation to DNA identification

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.

An Act to amend certain Acts in relation to DNA Identification

[An hon. member]

It is overdue.

[Roy Cullen, Liberal, Etobicoke North, ON]

Yes, it is overdue. We should be reviewing it because it is an act of Parliament. I would support a move in that direction.

As I was the parliamentary secretary at the time, I know there was extensive consultation on Bill C-13 but that does not replace a parliamentary review. I think the point is well taken.

I was quite involved with respect to the missing persons index and the member for Saanich—Gulf Islands was the person promoting it. He has, of course, had to pass it on to someone else now. At that point in time the federal government supported the missing persons index. However, the issue involved jurisdiction. In other words, the impetus really had to come from the provinces and territories because it fit within their constitutional jurisdictions.

However, extensive consultations were held across Canada with the provinces and territories to sort that out and to see what sort of support would be provided by them. I think it was put on the justice minister's agenda with his or her colleagues across Canada. There were some issues around privacy but the general view was that those issues were surmountable.

I certainly support the missing persons index. However, it is critical that we have the provinces onside and the modus operandi laid out very clearly as to how it will work, how the information will be fed into the DNA data bank and how it will be used.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

Mr. Speaker, I noticed in my hon. friend's speech that he brought in some analogies to the rather disastrous federal long gun registry. One thing he did not note was the difference in costs between this DNA registry and the long gun registry which cost approximately $1 billion. This registry will be considerably more reasonable in its overall costs.

I wonder if he might comment on the costs since the original cost for the long gun registry was supposed to be $2 million. Now that we have a different government in place perhaps this registry will not experience the same cost overruns as the previous attempts at a registry.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, it actually cost more than $2 million to set up the gun registry. I believe the member meant a figure beyond $2 million but the figure of $2 billion that has been bandied about is totally fallacious. However, it is true that it was pushing $1 billion to build the gun registry data bank over a five or six year period.

I worked in the private sector and I have seen mega information technology projects, where the business requirements and the policies were changing. I have seen a lot of badly derailed IT projects in the private sector as well. It is not just government that can blow IT projects. This was a blown project. There were many reasons for it, which we will not get into today. I do not know if the member, who has an economic background, was listening or just did not hear, but there is a concept of some cost.

We, as a government when we were in power, took the measures necessary to rearrange the governance of the firearms centre. Some management changes were made. The question before us today is the gun registry which is costing now around $20 million a year to operate. The police are making 6,000 plus inquiries per day. At a cost of $22 million a year, if that can save one life, if it can save two lives, it is well worth it. The other ironic thing that the member did not mention is that it is supported by the Canadian Association of Chiefs of Police and by the rank and file police officers who passed a resolution at their last convention supporting the gun registry.

The Conservative government is on the wrong footing by dismantling the long gun registry. I stand by my point that we should be retaining that important tool.

[Lloyd St. Amand, Liberal, Brant, ON]

Mr. Speaker, how far along the science of DNA has come in the last 10 to 12 years. I remember in 1995 when O.J. Simpson was found not guilty by a jury in spite of what was seemingly overwhelming DNA evidence.

One of the commentators mentioned that the jury, in that instance, ignoring the DNA evidence, was the equivalent of a jury a century ago ignoring a photograph of a killer shooting someone because the photograph was taken as a result of this newfangled device called a camera. How far along we have come.

I have a question for my colleague, who, in my view, gave a sterling speech on this topic. With the wrongful convictions that, regrettably, have taken place, such as the cases of David Milgaard who spent 25 years in prison and of Guy Paul Morin who spent some 18 months in prison, DNA ultimately, thank goodness, exonerated those individuals. I am wondering if my hon. colleague sees for all us significant benefit to advancing DNA.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I had the great good fortune of being in the riding of my colleague from Brant this summer and meeting many of his constituents who speak highly of my colleague's commitment to good policy and serving his constituents so well.

He is absolutely right with respect to DNA. The technology has advanced considerably. Canada is actually a leader in this and if more work is needed to advance it more fully, I think that is something the government should support.

The other facet that has changed is the improvement in the science behind DNA technology. I also think law enforcement people are much more careful around the construct of a crime scene and the way that the DNA is handled step by step. This is a very important element because if the DNA gets into the wrong file or is contaminated with something else, and I will not get into the merits of the O.J. Simpson trial, but I think that was a lesson learned because certainly the defence lawyers picked holes in that. I think we need to move on both fronts, the crime scene and the DNA technology.

[John Maloney, Liberal, Welland, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, when the member for Windsor—Tecumseh was speaking earlier, he raised a number of issues. I did not hear them specifically raised in this speech and so far, I do not think we have the answers that the House would need. One of them is that the current system was supposed to have undergone a review that was mandated to have happened, I believe, in 2005 and yet, this bill specifically does not address that particular review.

I wonder if the member could comment on that specific aspect which is missing in this current piece of legislation that is before the House.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, certainly, the mandatory review is overdue by perhaps nine months. Unfortunately, the justice committee who had undertaken this review is a very busy committee, with many bills before it. Quite frankly, I have some sympathy for the members of the committee. They are really overwhelmed by the job that they have in front of them. It is just a matter, I believe, of resources to bring this forward.

This review will happen and this bill will not take away from that, but these technical amendments were required now to strengthen Bill C-18 and to make it a very workable piece of legislation which would further increase the law enforcement tools of our country.

To wait for the review for us to put forward these amendments would not be right either. I see the Minister of Justice is with us. I am sure that he will ensure that this review comes forward as effectively and as fast as possible.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I appreciate the fact that a review is time consuming, but it does seem that we are actually duplicating work by approaching the numerous justice bills that are coming before this House and before the justice committee on a piecemeal basis.

The member for Windsor—Tecumseh also referenced the Law Commission and as we know, as a result of the Conservatives' cuts that were announced last week, the Law Commission is on the chopping block.

The Law Commission has played a very valuable role in Canada in regard to the development of policy and perhaps provided an arm's-length view that provided some advice to this House. The member had previously suggested that the Law Commission could play a valuable role in looking at the overhaul that is needed of the Criminal Code.

I wonder if the member could comment on that specific role that perhaps the Law Commission could play in this House.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I was not here when the member for Windsor—Tecumseh made his intervention, but I know this individual is very thorough and concerned on the issues of privacy.

I share the member's concerns about the cuts recently announced where the Law Commission will no longer be with us. However, I am not sure I want to abrogate my role and function, and the role of the justice committee to another authority. This review should be done by Parliament and I am sure, the message is there, that we will bring this forward as quickly as we can.

It is important and we all realize this. I think this law will probably pass almost unanimously and there will be a lot of cooperation in getting the review of the act done. It will be studied very intensely because it is a very serious intrusion on the rights of individuals. It is such a terrific law enforcement tool that we want to improve it for the betterment of society, not only within Canada, as I said, but across the globe.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I want to follow up on the last point. I was going to ask about the balance between the rights and the benefits of the bill, but specifically about the rights of personal privacy.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, that is the key question with this legislation. It is a very intrusive process and the storing of this material can certainly reveal a lot about individuals. As scientific expertise improves, we do not know what the DNA analysis will provide. We are amazed at what it provides us now.

For those who know, when we toured the facilities at the RCMP offices here in Ottawa and saw how analyses were done and what a DNA sample goes through, it was very enlightening. It is always a balance between the protection of society and the rights of the individual. We have in a very fair way balanced that and will continue to do so.

We are certainly mindful of our requirements regarding the charter. If we exceed our boundaries, I am sure the courts will bring us back on line and if amendments are required to the legislation to conform with the judicial precedents and decisions, then we will do so.

[Vic Toews, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, I have a brief comment. I noted that a comment was made that DNA is intrusive. In fact, the Supreme Court of Canada, in the recent Rodgers decision, said there was minimal intrusion involved in DNA sampling. It was in fact focused entirely on identification.

The court, in the Rodgers decision, looked at the scheme very thoroughly, upheld its constitutionality, indicated that there was an appropriate balance, and commended this DNA tool. Certainly, there is nothing in this bill that in any way upsets that balance. As we know, this is in fact a bill that was by and large introduced by the previous government with some new amendments.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, perhaps the intrusiveness was not in the method of taking the sample. It is a pin prick, which many diabetics do daily, or the plucking of a piece of hair.

What information an analysis of a sample can reveal could be of concern in years to come, but I agree with the member that this is mirror duplication of Bill C-72. I certainly will be pleased to support it. It is good legislation. It is needed legislation. It will improve enforcement when used as an enforcement tool and assist our law enforcement agencies.