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.

[Rob Moore, Conservative, Fundy Royal, NB]

I hear what people are saying. My thought is that we should stick to our regular schedule when it comes to the bill. So if we're scheduled to meet Tuesday and Thursday, we should meet Tuesday and Thursday on what we were scheduled for.

If we're going to study the judges, then I think that should be the extra day, not one of the days we've already scheduled to study Bill C-18 or Bill C-22. I don't want anything to impede our study of Bill C-22.

If we have an extra day to study this, as Mr. Ménard is suggesting, then I think that should be the extra day.

[The Chair, Conservative, Art Hanger]

If I may clarify the schedule for next week, we have Bill C-18, witnesses on DNA. On March 1, which is Thursday, we have clause-by-clause.

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

Thank you, Chair. I appreciate that.

I've had discussions with both Monsieur Ménard and Mr. Moore about how there seems to be a consensus, on the part of the majority, at least, that the intent of Monsieur Ménard's motion has support from the Liberal members. I'm not sure about the government members.

However, I would propose that point two of Monsieur Ménard's motion--which stipulates that as soon as the study of Bill C-18 is completed, the committee devote three sessions to hearing witnesses who will inform the committee and so on and so forth--be amended in order to state that the committee would devote two sessions to hearing witnesses and that one session would take place the week coming up.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I'd like to briefly discuss my motion. I shouldn't need much time, because it is quite clear.

First off, we committed to completing our consideration of Bill C-18. I understand that that should take place rather quickly, that we only have one meeting left and that we will be moving to clause-by-clause at the same time as we hear from witnesses. All parties are in favour of Bill C-18.

You know full well, Mr. Chairman, that the government has chosen to change the rules of the game regarding judicial appointments and that this debate has triggered much emotion in civil society and caused a great deal of concern within the legal community. I think it is part of our duty as parliamentarians, and not only on the opposition side. I expect members on the government side to contribute. I think we need to make sure we receive information from a number of witnesses.

That is the purpose of my motion. I would be very disappointed if this motion was interpreted as a stalling tactic. It is the result of a genuine desire to do some serious work. The appointment of judges is an integral part of our democracy. If the government chooses to change the rules of the game, I think it is only natural for the legislative committee to be involved.

In closing, Mr. Chairman, I have heard that some colleagues—Ms. Jennings may have a word to say in this regard—intend to amend this motion, and to consider that amendment. I am very open to that type of amendment.

[The Chair, Conservative, Art Hanger]

The steering committee has decided on everything up to the DNA bill, Bill C-18. There have been no specified times allotted for your motions, because times were going to be something that would be discussed. Now Bill C-22, even though it was discussed earlier at the steering committee, is on the floor here as well.

A motion has been put forward. We'll deal with the motion. There has been no decision on either of Mr. Ménard's motions that are on the agenda here as far as time is concerned.

[Réal Ménard, Bloc, Hochelaga, QC]

I would like to ask the Speaker of the House and our procedural experts to clarify certain points.

I think that Mr. Lee inadvertently misled the committee members. The committee is totally independent with respect to the way that it organizes its work. Of course, a government bill is given priority, but it is the prerogative of the committee to organize its work. Neither Marleau and Montpetit nor jurisprudence states that it is impossible for a committee to spend time on something other than the bill that has been referred to it for study. And yet, I heard comments to the contrary on several occasions. I am surprised that this is coming from opposition colleagues.

I'm going to ask for legal advice from the Speaker of the House. We are the masters of our work. When procedural issues are raised with the Speaker of the House, he reminds us often about this principle.

To conclude, I would like to point out that we are not responsible for the government's legislative activism. We are not responsible for the fact that the government has chosen, for ideological reasons, to create a bottleneck here, in the committee. Some committees have yet to receive one piece of legislation since the government was elected, whereas we have had to review nine. Consequently, the Standing Committee on Justice will never have any time to do something other than review government bills.

The government cannot be hegemonic. We have to strike a balance, and we have found it. We took upon ourselves to examine Bill C-9 and C-10, we looked at section 25 of the Criminal Code and now we are about to examine Bill C-18. Nevertheless, in addition to studying the government bills, it is understandable that parliamentarians, be they members from the opposition, make recommendations. That is part of our job.

I am not going to accept this analysis and I am going to raise a question of privilege in the House in order to have the Speaker validate this position. We are the masters of our business, and nothing compels us to organize our business according to the sequence of bills submitted by the government.

You should know, Mr. Chairman, that when people talk about me in Montreal or on Parliament Hill, I am defined first and foremost as a reasonable man. I will always live up to this reputation.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Speaking to the ninth report issue and our future agenda, the first point I've got to make is that when the House refers a bill to a committee, that bill has to have, at a minimum, at least some notional priority to other business.

I realize occasionally you get a little bit of a pinch point or a logjam, and there may be reasons to refer stuff out to a legislative committee. That has been done here on one occasion—for the second time, actually, in this Parliament--but the relative expertise in dealing with bills in this envelope is generally in this committee, and we ought to be making room.

I appreciate the efforts of Monsieur Ménard to offer business items and agenda items for us. As I look at this ninth report, I think three of the five items have been suggested by Monsieur Ménard. That's just wonderful, but the fact is that the government and the House have referred a whole bunch of other items to us, and I think we've got to work on those.

We've already done a side trip on another issue. We have to do that occasionally as a standing committee, but I want to see the age of consent bill get dealt with, Bill C-22. It's already been referred to us and it absolutely has to have priority over the issues of proceeds of crime or the appointment of judges. These are, of course, important public issues, but we have our work agenda established primarily by the House; we are a creature of the House. If we could find a way to wedge in a review of judges or proceeds of crime or other things, I'm happy to do that, but we absolutely have to get to the bills that have been referred to us. I would support any initiative that would get Bill C-22 in here right after Bill C-18, the DNA bill. Let's do our homework here, as the House wants us to.

[David Bird]

Thank you, Mr. Hanger.

I would agree with the assertion that Mr. Thompson put forward, that it is a complicated process to determine what is or is not a designated offence. The courts have a problem determining that, because we do have a number of what we call non-designated offences issued for orders with which we have a problem. A number of historical offences, such as rape, are listed in the definition of primary and secondary designated offences, going back to the old sections of the Criminal Code. These are specifically listed in the definition.

Another principle is that where offences that existed in the Criminal Code historically have been renumbered due to a statute revision act, those references to the present law go back and apply to those old offences. So where we have those cases coming before us, we have to get out and do some research to determine whether or not those are non-designated offences or actually qualify under that provision.

So it is not an easy step, and the courts are grappling with it. We also have provisions in Bill C-18 , started in Bill C-13, to deal with this issue of how we handle these orders that we cannot justify in terms of that kind of rationale. That's one of the reasons for Bill C-18, to help us resolve those kinds of cases.

But it's not an easy situation for the courts to determine in all cases whether an offence on its face, where it's historical, qualifies for a DNA data bank order. There will probably be a discussion between the Crown and the defence and the court as to whether or not an order should be issued at that time.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Yes, and I will be quick.

Thank you, Mr. Minister, for appearing again.

I'd like to ask a question. I, too, am in support of this bill. Our mantra over here is that we want to make sure we have legislation that will work. This may be more of a question for the legal people here, but, Mr. Minister, you glossed over R. v. Rodgers, the decision of the Supreme Court of Canada, as being supportive. On the face of it, it is. I actually took the time to read it and then became a little more uncertain about how helpful it will be.

Here's my brief question. That decision came out in April of last year, 2006. Bill C-13, presumably, was drafted and tabled and commenced. I wasn't here, but the train started for Bill C-13 in advance of that. Bill C-18 ratchets up Bill C-13 in a number of areas we've talked about.

Let's review Rodgers for a moment: the person in question was convicted and sentenced to four years for sexual assault, and he committed that offence while he was on probation for a conviction of sexual interference. I know this case happened before the act, and there were a lot of complications, but the bottom line is if anybody should have been subject to a DNA identification order, it was this individual. Yet, it was a four to three decision at the Supreme Court of Canada. It was tight, and that was before Bill C-13 hit the road, because it actually never got passed. And it was before Bill C-18, which ratchets this up a little bit, and which is presumably going to sail through the committee.

I don't want to segue into picking the proclivities of your judges on the Supreme Court, because we're not going to talk about judicial nominations and what they think, but when you have Chief Justice McLachlin, who has been critical of the government, in support of this legislation--by reference to Rodgers, I suggest--as well as having Justices Bastarache, Abella, and Charron--not exactly the right wing of the Supreme Court-- support it, I guess my question is how secure you feel, if the only case you have is Rodgers, that Bill C-18 will pass muster with respect to the discussion of ex parte hearings, and the presumptions, the taking away of judicial discretion implied in all of these issues, and section 8 of the charter? There's a mouthful for you to answer.

[David Bird]

Thank you, Minister.

I should clarify that there are two aspects to international DNA exchanges. One is at the request of Canadian law enforcement agencies, who would ask that the crime scene DNA profile they've derived, and for which they have no suspect or answer, would be sent abroad for comparison with international profiles. This would be sent through Interpol to any country the investigating law enforcement agencies had asked or requested the RCMP to send it to—subject to the conditions we explained. They would only be permitted to use that profile for the investigation or prosecution of a criminal offence. They'd have to agree to that particular condition.

At this time, internationally, this is the only way to send a DNA profile—and only the DNA profile, not the sample or the stain that could be analyzed for all the other genetic propensities. These are the 13 loci that were derived, or nine, in some cases, with the RCMP labs, that are sent abroad for comparison. All they would have would be those double numbers that you saw on your tour yesterday. It would be the two, or sometimes only one, at each of those sites they send, those alleles. The foreign country to which it was sent by the RCMP through Interpol would then be able to respond back as to whether or not they have a match with their database for their investigative procedures. This would then be referred to the law enforcement agency, which would use the normal means of communication to identify what information in their investigation matched the foreign information. This would not be done through the national DNA data bank, but directly between the two law enforcements agencies involved—the one in the foreign country and the RCMP.

With respect to foreign requests, when they send a DNA profile here for a search, only now are we able to tell them whether or not we have a match, as a result of the changes in Bill C-13 . We could not tell them and give them a copy of our DNA profile at all. It would simply say, yes, we have a match, are you interested in the personal information? Then they would have to agree to accept the personal information we have through the criminal records section of the RCMP that identified the person. That information would then be subject to the same international Interpol agreement, and we would insist that the information only be used for the investigation or prosecution of a criminal offence.

The problem in many cases is that we don't know whether we have a match, because different systems are used abroad to analyze DNA. They use what we call different analysis kits. Kits are, as I understand them, and I'm not a technical expert, designed so that certain enzymes in those kits produce the DNA profiles from specific engineered zones in the DNA. Certain countries use different zones than we do. In many respects, all we can do is find out that we have a match at three, four, five, or six of the zones of our normal 13, and we don't know whether they match the rest. So in regard to our international exchanges, there is a great propensity for us not to be in a position to tell them definitively whether we have a match, unless we send them the other profiles so they can potentially re-analyze them or examine their information to determine whether we in fact have a match.

So what we're proposing in Bill C-18 is to allow us to do what we can now do domestically in Canada under Bill C-13 , which is to actually send them a profile and ask them if it really matches theirs, or if the profiles are potentially the same because they're close. We'd ask, did you make a mistake in your analysis, or did you report a number inversely and get them mixed up? Then we could say, there was a clerical, technical, or scientific error, and would you re-analyze them? They might be dealing with a mixture of samples. Which profile were they reporting on in their crime scene? Was it correct in their crime scene? There may be a number of reasons, such as a degraded sample that didn't amplify as strongly as it might have. It's for that kind of reason we want to be able to send a profile abroad. We can now do that domestically under Bill C-13 , and we're simply asking for the same power to do it internationally, to ensure that in the many cases that might arise internationally, we can be certain we have a match. Once we know there's a match, we would then go to the normal rules we have in place.

That's all the information that would be sent; it wouldn't be any other genetic information. The sample wouldn't be sent. They wouldn't be able to do a separate analysis, other than what they have on their own files and in their own labs. They would only have this information saying there's the potential of a probable match, and we want to show you our profile to see whether or not it matches yours. The people doing this comparison would not know the personal information; they would not decide to send any personal information about the individuals that we have until they've concluded there is in fact a match that could be sent abroad.

[Greg Yost]

If you're referring to the national DNA data bank, they receive the blood samples on those nice clean cards and they put them to the robotics, and they usually have them uploaded within a week. They have no backlog. Their capacity was originally set for 30,000 and they're receiving about 18,000, so they have excess capacity at the national DNA data bank. Clearly, if we begin to get more samples coming in, there will be some extra costs, but they have the equipment, etc., so that's not a problem.

The issue, and I'm certainly not the expert, and I'd certainly want to defer to Public Safety on this one, is at the forensic labs where they're doing the crime scene work. When Bill C-13 as amended by Bill C-18 comes into force, we hope the scope of things that are considered as designated offences will be greatly expanded, because all of those offences punishable by five years become designated offences. They're secondary, but that's still sufficient.

The police could, if they had the resources, go out and get many more samples and submit them to the labs. If the labs had more resources, they could analyse them and produce more leads. You heard yesterday of the efforts being made by the RCMP to reorganize, etc. There is definitely a seemingly insatiable demand for more DNA analysis to be done, but there is a very limited supply of people who are capable, who have the training, and who are able to do that.

On the convicted offender side, we're quite confident that Bill C-13 will be handled within the resources of the national DNA data bank. It will present challenges to the forensic labs.

[Greg Yost]

Most of the 172 offences are punishable by indictment and carry prison terms of five years or more, like drug offences and so on.

So these offences would be added in Bill C-13, as amended by Bill C-18.

[Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice]

I'd simply like to clarify one point. The minister said that we were adding 172 offences; that's true, but they were added in the old bill, C-13. The present bill, C-18, adds no offences to the list that was previously adopted in Bill C-13.

[David Bird, Senior Legal Counsel, Royal Canadian Mounted Police]

Thank you.

It may be useful to simply go back to the fact that the power to share DNA profiles internationally, through the national DNA data bank, is now in the legislation of the DNA Identification Act. It provides that the data bank can, on receiving a request from a foreign country, search the national DNA data bank for any profile that's submitted to it and then report on whether or not there is a match in the DNA data bank, and any other information, except the profile itself.

One of the amendments that we're hoping Bill C-18 will improve is the ability to actually share DNA profiles, where we're not certain that we have an exact match or not. All that would be shared would be a similar or close match, and that would mean that after discussion between the national DNA data bank and the foreign country officials...whether or not they agree that they do have a match. After that, the new amendments would then permit, as we do now, the sharing of the personal information, the identification information.

Yesterday, during your tour, you may have noted that the personal information is separated from the DNA information at receipt of the DNA kits into the national DNA data bank, which ensures that the people at the national DNA data bank do not know the personal information that relates to any profile they have. So this discussion would take place anonymously between the national DNA data bank people and the officials in a foreign country as to whether or not they have a match. Once they conclude they have a match, then the information would be sent to the criminal history people, who would not get the DNA profile but who could then say, yes, we have a match with this person in a foreign country, and then decide how much information they would share internationally with the foreign country about the identity of that person, without sending any further DNA information. The safeguard is that there would be no ability for a random assortment of DNA profiles and personal information to be kept abroad. There would be that separation taking place.

The protection is also statutorily imposed that we have to have an international agreement that meets paragraph 8(2)(f) of the Privacy Act. These international agreements are all done through an Interpol-covering agreement--where all our DNA information is sent through Interpol--that the receiving country would agree to abide by the conditions we impose. The conditions we impose are that this personal information they receive would only be used for the prosecution or investigation of a criminal offence in that country. This would be a requirement bound through their charter agreements through Interpol that they would only use it for that purpose. These would be the caveats and conditions imposed on all exchanges of DNA information now and in the future, unless we amend our legislation.

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

I have two areas where I have some concerns. I do understand that Bill C-18 is largely a reproduction of the previous Bill C-72, which had been presented by the previous Liberal government.

As you can understand, Liberals, in general, were supportive of this bill.