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(e) includes several repealed sexual offences (indecent assault male, indecent assault female and gross indecency) as designated offences and sexual offences referred to in paragraph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

An Act to amend certain Acts in relation to DNA Identification

[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.

[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.

An Act to Amend Certain Acts in Relation to DNA Identification

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I am pleased to speak to Bill C-18, An Act to amend certain Acts in relation to DNA identification.

Bill C-18 is largely a technical bill but it builds on some initiatives from the last Parliament before it was dissolved when Parliament passed Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act. This was the Liberal government's original DNA data bank legislation. There was some keen interest to have this legislation passed quickly and efficiently for a couple of reasons.

There were a number of high profile people being detained in penitentiaries who were about to be released, and without this legislation in place they would have been able to have left the penitentiary without giving a DNA sample.

DNA samples are very helpful to law enforcement to solve crimes and to prevent crimes. That was one of the imperatives that led to a very speedy passage with all-party agreement in the House and I think all-party agreement in the other place and royal assent in the last Parliament. It was done very quickly.

There were amendments made at the committee level that were quite complicated. I think in the rush to get the bill through, there were some slip-ups in some of the language in the bill. This bill is designed to correct some of those technical problems with original BillC-13.

Bill C-13 in the last Parliament was a very good example of how parliamentarians of all stripes in the committee worked together. The Liberal government had a minority government at the time, but at committee we worked together to make changes to the bill, which I think improved the bill and helped its speedy passage through the House of Commons and the other place.

To give some background, before the bill came to Parliament and to committee, the RCMP were reporting that only about 50% of the DNA samples that were meant to be going to the RCMP DNA data bank were actually getting into the data bank. This was a cause for concern by myself and others. At the time I happened to have the honour to serve as parliamentary secretary to the minister of public safety and emergency preparedness, so it was an issue that I took up with the justice department and others. I could not quite understand why only 50% of the DNA samples were finding their way into the DNA data bank.

It turns out that the way the law was written, the judges had discretion as to what DNA would be passed on to the DNA data bank and what DNA would not be passed on to the DNA data bank. I found this quite puzzling because I could not ascertain under what circumstances the judge in his or her wisdom would decide that it was not in the public interest to pass the DNA of a convicted person to the DNA data bank.

In fairness to all concerned, following the establishment of the DNA data bank, there was some confusion among the crown prosecutors and judges. The DNA order has to be an order that is presented to the trial judge asking the judge to order that the DNA sample be taken and passed to the DNA data bank and there was a lack of communication or a lack of education on what DNA had to be passed over to the RCMP DNA data bank.

As I recall, the Department of Public Safety and the Department of Justice mounted a program to get the word out to the judiciary and to the prosecutors that this order had to be prepared by the crown prosecutors and presented to the judge before the DNA could be taken and submitted to the DNA data bank.

When the bill was sent to committee, these questions were asked. As a result of a lot of collaboration among all parties, the Bloc Québécois, the Conservative Party, the Liberal Party and the NDP, we made some significant amendments to the bill.

We started out with a very long list of crimes where the judge would not have any discretion, where the DNA would automatically have to be taken and sent to the DNA data bank. There was much discussion around this point with the Department of Justice. The view was that there was a possibility if we included all crimes, this would be challenged under the charter and the good parts of the bill would be tossed out with the parts that would be turfed out in any sort of challenge under the charter.

At committee we put a little water in our wine and we said that for the most heinous of crimes there had to be no discretion, in the judgment of the committee members. For acts such as murder and rape, what the bill did when it was amended was it removed any judicial discretion so that the DNA automatically had to go to the DNA data bank.

That was a very proud moment for me. It really pointed out that even though there was a lot of discussion that the minority Parliament was not working at a certain level, I felt that at the committee level, certainly at the justice subcommittee level, there was a lot of good cooperation. I think we improved the legislation in front of the committee. We did some other work with respect to child pornography. Subsequently Parliament was dissolved and we had an election. But for Canadians this committee was working very well.

I was very proud that we were able to pass Bill C-13 which received royal assent. There were some technical matters which came to light through the Department of Justice later and that is what the current bill is meant to reflect. Bill C-13 was a follow-up on our Liberal government's commitment to law and order to give the police the tools they need to fight crime.

That is why I am sorely disappointed that the Conservative government is seeking the scrapping of the gun registry. We know the gun registry is working very efficiently, very effectively. Yes it is true that it cost too much to develop, but those are sunk costs. Anyone who knows anything about economics or finance knows that once there is a sunk cost there is not really much point in going back and analyzing what to do about that cost because it is historic. The question before us is whether the gun registry performing today a useful purpose, and the answer is a resounding yes.

For example, law enforcement officers are making something in the order of 6,000 inquiries per day on the gun registry data bank. Do law enforcement officers have the time to sit around and tinker away on the computer if it is not relevant information for them? They are very busy people. They have many different competing priorities. They have to decide which call to take. They have to rationalize that. Do we think they sit at a computer keyboard and tinker around for the fun of it? Of course not. We know for sure that especially in domestic violence situations the police find this to be a very useful tool.

Does it mean if they go to the gun registry and the registry shows that there are no guns registered at a particular residence that they can stroll in and be happy campers and not worry? Of course not. Police officers across Canada are not so naive, but by the same token, if they go to the gun registry data bank and discover there are guns in that residence, it helps them establish their modus operandi of how they are going to approach that situation.

I will give another example of why DNA and the gun registry are so important in terms of law enforcement. The gun registry supports something in the order of 7,000 or 8,000 affidavits to date that they have signed which has helped crown prosecutors obtain convictions. The gun licensing component of the Firearms Centre screens out many individuals who would otherwise like to have a gun but because of certain instabilities or criminal records in their past, they are precluded from owning a gun. In fairness to the Conservative government, it is not suggesting that we ban or do away with gun licensing, but it is making a serious mistake with respect to the long gun registry.

The other myth I would like to focus on again today is that some would argue that long guns are not involved so much in criminality, that they are owned by people in rural parts of Canada. The facts are just the opposite. Long guns are involved in more homicides and suicides in Canada, or in just as many as are handguns. Handguns are more of a problem in the urban centres and long guns are a problem in the rural parts of Canada.

I certainly will be supporting the DNA bill because Bill C-13 was very important in terms of law enforcement and law and order in Canada. This bill tidies up some of the language, some very important language, so that the bill can be that much more effective.

I will expand a bit on Bill C-13 and the list of those offences which the committee and ultimately Parliament and the other place approved in this legislation. The offences that were put on the list of those where a judge would have no discretion with respect to the DNA that would have to go into the DNA data bank, we included crimes like murder, manslaughter and aggravated assault. Internet luring of children, child pornography and organized crime offences were also added to the list of designated offences for a data bank order. This is absolutely necessary so that the DNA can be used by law enforcement agencies to either solve crimes or prevent crimes.

I was very proud of the work of that committee. Now I am very happy to speak in support of this bill because it makes the technical changes that are needed to make the original bill even more efficient and more effective.

By way of example, Bill C-18 makes it an offence to fail to appear for DNA sampling. It is an important part. The court can order a DNA sample, but if the individual does not appear, how could one possibly get a DNA sample? There are sanctions for not appearing for a DNA sample.

The Conservative government, and frankly I support what it is doing here, has also added some additional heinous crimes to the list where a judge would have no discretion but to send the DNA sample to the DNA data bank. Those offences include attempted murder and conspiracy to commit murder. Those also are covered by the retroactive provisions which apply to offenders convicted of a single murder, sexual offence or manslaughter prior to June 30, 2000 when the legislation that enabled the creation of the national DNA data bank came into force.

It sounds like a lot of gobbledygook, but in fact these are very important technical changes and I am hoping the House will support them. The purpose of the bill is that the government is trying to capture as much DNA as possible to get into the data bank so that law enforcement can use that DNA to fight crime and to prevent crime.

Another example of one of the technical fixes to the legislation is that it ensures information provided by the national DNA data bank can be used to investigate all criminal offences. It may sound somewhat obvious, but if it is not written in the legislation, then someone will argue that the DNA could be used to investigate certain offences but not other offences. It makes this particular point crystal clear.

I will go back for a moment to the list of crimes where the judge has no discretion. The committee at the time had somewhat of a debate on that issue. Frankly, I support a certain level of judicial discretion but if, for whatever reason, the Parliament of Canada believes judicial discretion is not being exercised in a way that is appropriate in the judgment of parliamentarians, then I think it is quite appropriate for Parliament to remove that judicial discretion.

This is not for petty crime where the DNA must go to the data bank. This is not for shoplifting, nor is it for someone who is caught speeding. This is for murder, rape, attempted murder, conspiracy to commit murder and a whole list of other heinous crimes. I think it is quite appropriate that judges are required without discretion to ensure the DNA goes to the DNA data bank.

Another example of one of the technical amendments to this bill that is before us today is to simplify the procedure to destroy samples taken from those convicted of an offence not intended to be included in the DNA data bank. Again, it is somewhat a procedural but an important procedure so that samples can be destroyed if they are not intended to be included in the data bank.

When we get into DNA there is often this debate, a debate we had in committee as well, about the privacy issues of Canadians. Privacy is an important aspect that we need to consider as parliamentarians.

I do not pretend to reflect the views of all Canadians on this point, but if someone wants to take a follicle of my hair and put it into a DNA data bank, frankly, I say go to it. However, I understand and respect that some people might see this as impacting their privacy, which is why the legislation that we bring before Parliament needs to be mindful of those considerations. We need to ensure that only DNA that is required by legislation and that meets certain tests of Parliament is actually proceeded with.

Another example of one of the technical changes in this bill is to help to ensure that the DNA data bank orders can be carried out even when, for logistical reasons, it may not be possible to take the sample at the precise time set out in the order. Again, this is somewhat procedural. Unfortunately, there is a whole body of jurisprudence and lawyers who will try to find reasons why their client should not be required to submit a DNA sample. They might say that they could not comply with the order in the timelines provided in the order.

This provision makes it clear that even though it is not at the precise time that is laid out in the order, the DNA must be presented.

It also clarifies definitions in procedures for obtaining a DNA data bank order and for sharing information with international law enforcement partners. There is a whole range of sharing of information that goes on between Interpol and other law enforcement agencies around the world and one has to be mindful of the privacy concerns of Canadians. This amendment makes it clear what the rules are for the sharing of that sort of information.

I hope the House passes this bill. It would be helpful to our law and order agencies to prosecute and prevent crimes. I am sure our party will work with all sides of the House to ensure the speedy passage of this bill. I will be supporting the bill and I hope others will as well.

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

Mr. Speaker, thank you for giving me this opportunity to speak about Bill C-18.

I was just thinking two thoughts by way of introduction. The member for Wild Rose is right. The viewing public might think with the numbers C-18, C-72 and C-13 that this is just a well-dressed bingo game that we are playing, but it is actually very serious material.

The combination of these bills will culminate in a better method and tool for police officers and the police forces to do their jobs both in inculpating, finding the people who have done crimes, but also as my speech will indicate, exculpating people when they are actually not guilty.

I also might give my friend from Fundy Royal compliments on his good speech. I think that people in our community, he and I share an undefended border between Westmorland County and Albert County, share the same belief system and the same community values.

The people in Albert and Westmorland counties might think that the member for Fundy Royal and I are dominating the debate. I think it is just because we are on the committee together and we work on these subjects, not always together but certainly with the same view. That view is to make the laws of Canada better and more effective.

With that I am pleased to have this opportunity to speak to Bill C-18, a law designed to help implement the DNA databank legislative reforms. It does, however, and it must be said, build on the good Liberal Bill C-72. This was an excellent effort of the previous government to clean up some of these outdated and, frankly, awkward and lugubrious anomalies that exist in the current system.

The success of the DNA databank is impressive. It has provided critical evidence leading to convictions in nearly 2,300 serious crimes. It has been crucial in helping police solve over 300 armed robberies, 1,200 break and enters, 200 murders, and the member for Wild Rose might want this statistic, and 400 sexual assault cases in Canadian communities from coast to coast to coast. These are impressive numbers.

It is an extraordinary success. In addition, the national DNA data bank is one of the most powerful tools available to the country's police forces and courts. Even more importantly, the national DNA data bank makes it possible to exonerate innocent people and punish the real criminals.

We forget too often in the law and order rhetoric of the other side that there are people who have been falsely accused and falsely convicted of crimes. One of those falsely accused and falsely convicted cases is one too many. Not only is the DNA databank a great success story, it is an amazing example of technological use in the betterment of our justice system by providing indisputable evidence.

That is why I am pleased to see that the Conservative minority government introduced Bill C-18 and this is largely, as I indicated, based on former BillC-72 presented by the Liberal government.

The new modifications proposed by Bill C-18, and as they were in Bill C-72, will enable a number of modifications and ameliorations to the DNA databank in accordance with the proposed Liberal reform of the DNA databank included in Bill C-13 which received royal assent in May 2005. These improvements are eagerly awaited for by the police departments, the provinces and territories, and they cannot come too soon.

I must echo at this time two comments made by the hon. member for Windsor—Tecumseh. One of them is that the Criminal Code of Canada, a large document that is roughly incoherent notwithstanding that it was created by a Conservative justice minister in the late 1800s, has been added to like a big overgrown shrub that needs pruning and frankly needs to be completely redone. Those sentiments are not just those of the member for Windsor—Tecumseh. The hon. members for Fundy Royal and for Wild Rose will know that the esteemed professor from the University of Ottawa, David Paciocco, suggested that to us just recently at the standing committee.

In the beautiful province of Quebec, respected professor Daniel Grégoire has also called for these reforms.

The second point about the need to pass the bill, which is why we are in favour of it, is that the justice committee is bogged down with so many justice bills right now that we have to be sure the government is sincere. I have heard the expressions of sincerity from the hon. members of the committee, whom I know well. I take it that the committee is sincere in passing the bill, in getting it through committee and back to the House and into effect. Since we all agree on its raw and innate goodness, let us get it through the committee quickly and get it passed into law.

Once again, the current minority government is trying to show, however, that its great legislative agenda is its own. In fact, any bill that comes before us that has more than three pages was probably one that was introduced by the Liberal government and died on the order paper, not one of the new bills produced by the Conservative department of haste in bills. I call it the hasty bill writing department that the government must have over there.

For those keeping score, this is one of the good bills. This was a Liberal bill that a new number has been attached to. We will happily call it a Conservative bill for now, if we can just get it through committee. That being said, the DNA data bank, just as any other governmental program or legislative measure, raises concerns about privacy.

As many examples have shown in the past, personal information can travel fast over the legal borders that exist and over all the limitations that we think exist as well. This is why I stress the need to strike a balance between all citizens' rights to privacy, including suspects, and the need to protect our society as a whole from crime and criminality.

The respect of privacy has been so far protected in the DNA data bank by ensuring that the identity of all suspects is kept confidential to ensure fair treatment. We must ensure that the proposed changes do respect the boundaries of the current privacy provisions in the law of Canada.

The technology used in DNA identification has proven itself on many occasions over the years. DNA identification can play a vital role in convicting or exonerating people suspected of major crimes including murder, as well as other crimes that caused the death of innocent victims.

The changes currently proposed by Bill C-18 will allow even more law-abiding citizens to be exonerated of charges and will strengthen the current legislation on DNA sampling.

In fact, attempting to escape or avoid having a DNA sample taken seems to me to be sufficient reason for doubt about the motivations and motives of a suspect.

There is certainly reason to wonder why a potential suspect would do everything possible to avoid having a DNA sample taken when, in fact, the sample could lift all suspicion from that person, if he is innocent, of course.

Since the DNA data bank is a fairly recent tool, it is understandable that it needs to be tweaked and bettered to ensure that it reaches its maximum potential.

This is why adding attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions makes sense. The law is organic and it must grow with what is occurring out there in our communities.

Those added offences are serious. They are important. Those individuals, dangerous as they may be, should contribute a DNA sample to the DNA data bank to ensure that other crimes they might have committed in the past, or could commit in the future, will be linked to them and their DNA.

It is important for us on this side of the House to underline that we are a party, and I think all parliamentarians would agree, that respects and wants a rule of law in this country. We are a party--and I think as parliamentarians as well we could join in this statement--that wants a safer community. If the DNA data bank, improved as it would be by this bill, helps us catch more criminals who have done harm or who will do harm, this is a good thing.

Furthermore, I do believe that law-abiding citizens' rights to live peacefully should always be the first objective of all proposed legislation. It would not make sense to actually protect criminals from other criminal offences, and this is why it simply and clearly makes sense to ensure that information provided by the DNA data bank should be used, and needs to be, to investigate all criminal offences. Canadians will in the end benefit from criminals being better investigated, and perhaps having them linked to accusations and criminal offences as alleged would be a good thing as well.

Of course, these measures have to work both ways. Although law enforcement agencies should be able to use the DNA data bank information to investigate all criminal offences of certain individuals, it should not create some sort of tightly secured DNA data bank from which no information can be deleted. There is, in fact, a time limit to the efficacy of the DNA data bank.

Accessing and destroying specific information from the DNA data bank is essential to ensure errors can be corrected and true justice can be served. This is why simplifying the procedure for destroying samples also makes sense and is a very important part of an efficient DNA data bank.

As the DNA bank continues to grow with each sample taken, the usefulness of this extraordinary tool also continues to grow. It will make Canada a place where Canadian justice—as well as our police forces and investigators—is as fair and equitable as it can be.

The National DNA Data Bank is an impressive and wonderful resource. It is one of the most powerful investigative tools the justice system has ever had. Bill C-18 would make it even more efficient.

It is very important to underline for us on this side of the House that none of these bills being proposed by the government will work unless there are adequate resources to back them up. The only program statements that have been made with respect to justice in the past couple of weeks have been cuts.

Whether they are cuts to the judicial contestation program or cuts in the RCMP budget for a trial method of catching people at the roadside who are committing violations of our Criminal Code while impaired from drug abuse, these are the actions that back up the words of the government with respect to its law and order agenda.

I can only hope that through discussions such as these and the discussions that might happen at committee the government can see the folly of pronouncing grand statements about how the Conservatives are the stewards of law and order when they do not back that up with the allocation of resources necessary to put in effect the laws the Conservatives so proudly pronounce from every church steeple, city hall and mall encounter.

In short, and in conclusion, the Liberal Party and I, as a member of the justice committee, will in good faith give our word to support this bill in principle, to work diligently at committee to improve it and, more important, to move it along to put it into law, because after all, it is just Bill C-72 in new clothing. It was our idea. We put it together. Perhaps once, in a non-partisan way, I can say we do not care if the government gets the credit for it, because we know in our hearts that we put it into place.

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I have the great pleasure today of speaking in favour of Bill C-18 and in favour of sending Bill C-18 to the committee for further study.

The National DNA Data Bank is a great Canadian success story. It has assisted the police in their investigations of thousands of serious crimes. It is making an invaluable contribution to the safety of all Canadians. This bill can only increase that success.

Much of what I will say will be familiar to those who were involved in the debate on former bill C-13 in the last Parliament, and in particular, to members who were on the standing committee during its hearings into the bill because, as the minister stated, this bill paves the way for the proclamation of former Bill C-13. Nevertheless, it is important to outline for all members the way the legislation and the DNA system work.

The National DNA Data Bank carries out four principal functions and assists law enforcement agencies in solving crimes by one, linking crimes together where there are no suspects. The DNA data bank would advise the police forces involved so that they can compare notes on their respective investigations.

Two, it helps to identify suspects. When the DNA data bank provides a match between a crime scene profile and a convicted offender profile, the police agency is advised and it can focus its investigations on that identified offender.

Three, it assists by in fact eliminating suspects where there is no match between crime scene DNA and a profile in the data bank. This is often overlooked in debate about the DNA registry or amendments to the legislation impacting on the DNA registry, but a DNA registry has been used to eliminate suspects and in fact exonerate people. A lack of a match tells the police that none of the 100,000 convicted offenders whose DNA is in the data bank was involved.

Last, the DNA data bank is used to determine whether a serial offender is involved. The DNA bank would advise the police force that several crimes appear to have been committed by the same person. This is a very important fact indeed when police are assessing a certain criminal act as it is certainly helpful in their investigation to know whether it is someone who is acting in a repetitive or serial way.

As David Griffin, an executive officer of the Canadian Police Association, told the standing committee during hearings on former Bill C-13:

DNA analysis has proven to be a breakthrough technology in policing and the administration of justice. It is a science that assists in detecting and convicting offenders and acquitting the innocent. In serious police investigations, the cost savings in reducing the time spent on investigations and in identifying and confirming or eliminating suspects can be extraordinary. This is particularly important in crimes such as child abductions by strangers, where precious hours can be critical to finding the victim alive.

DNA orders can only be made against an offender for a limited number of offences. Judges retain a discretion to refuse to make an order in all but the most serious cases. The use of the information is strictly limited to the investigation of criminal offences. That again is an important fact that is often overlooked by those who would criticize the national DNA data bank, that it is only used for the investigation of criminal offences.

Bill C-18 does not change the fundamentals of the Criminal Code DNA provisions and the DNA Identification Act. The five year parliamentary review that is yet to begin is the proper form for considering more far-reaching changes. This bill is limited to technical improvements to the existing system.

The minister has already spoken of the ringing endorsement of the present legislation by the Supreme Court in the Rodgers case. Members can be assured that this bill is consistent with the charter. Moreover, the strong protections for privacy which are built into the scheme are also unchanged.

Canada has probably the strongest protections against the misuse of our DNA profiles, stronger in fact than any other country. In particular, the legislation provides that bodily samples collected pursuant to a DNA data bank authorization for inclusion in the National DNA Data Bank may only be used for forensic DNA analysis. Unused portions of bodily samples are required to be safely stored at the National DNA Data Bank.

Further, it is a criminal offence to use bodily samples or results of forensic DNA analysis obtained under a DNA data bank authorization other than for the transmission to the National DNA Data Bank. A breach of that provision is a hybrid offence that is subject to a maximum penalty of two years' imprisonment when prosecuted by indictment.

Use of DNA profiles and bodily samples at the National DNA Data Bank is strictly limited to the narrow purposes of comparing offender profiles with crime scene profiles. Any use of stored information or bodily samples or communication of information that they may contain is strictly limited to the narrow identification purposes of the act. Again, this is something that is often lost on those who are critical of the data bank. In fact, any breach of those provisions is a criminal offence subject to a maximum of two years' imprisonment.

Communication of information as to whether a person's DNA profile is contained in the offenders index may only be made to appropriate law enforcement agencies or laboratories for investigative purposes or to authorized users of the RCMP automated conviction records retrieval system.

Although the seized bodily samples are retained for safekeeping in the DNA data bank after analysis, they may only be used for further forensic DNA analysis where significant technological advances have been made since the time the original DNA profile was derived. The results of such subsequent DNA analysis and any residue of the bodily sample are subject to the same rigid controls as the original profile and the original sample.

The sharing of DNA profiles with foreign governments and international organizations is only allowed for legitimate law enforcement purposes and only pursuant to specific agreements that must include safeguards to protect the privacy of the personal information disclosed.

I repeat that these legal protections are untouched by Bill C-18. All of those protections that protect the rights of Canadians against any possible misuse of the DNA data bank or any use outside of aiding our police in the protection of Canadians and society as a whole is unchanged and untouched by Bill C-18. In practice, they are buttressed by the procedural safeguards developed by the National DNA Data Bank.

By international agreement the DNA analysis process used by the data bank and other data banks in the world examines only a small segment of the entire human DNA blueprint. Scientists internationally have chosen 13 loci to analyze because there is a wide variation in those among the world's population. The DNA that is analyzed is often called anonymous DNA because apart from the ability to identify gender, there is no link to physical or medical attributes. Therefore, the profile generated by the DNA data bank will not reveal a person's hair, skin or eye colour.

The variations mean that except for identical twins, every person's DNA is unique. It is this power to identify a person beyond a shadow of a doubt that makes the DNA data bank and data collection such a valuable tool for law enforcement. It can identify an individual beyond a doubt.

The RCMP has developed internal procedures to ensure that there is no manipulation of the data. Upon receipt of a kit, the data bank separates the genetic material from the personal data. The biological sample and the identifying information are given the same unique bar code. The data bank keeps the biological sample and analyzes it. The personal information and full set of fingerprints of convicted offenders are sent to the Canadian Criminal Records Information Services, which retains them under strict security provisions. Therefore, the data bank has no idea whose sample it is analyzing or, in the case of a match, which convicted offender is linked to the crime scene.

It is important to emphasize that we have gone to great lengths to separate the information contained in the DNA sample and the information attributed to the person to whom that DNA belongs. It simply advises Canadian Criminal Records Information Services of the bar code and the service retrieves the identifying information and sends it to the laboratory that uploaded the profile to the crime scene index. It is of course not possible for unauthorized persons to enter the data bank or the Criminal Records Information Services to view or retrieve data.

The National DNA Data Bank's website has a wealth of information about how it actually operates and about the history and science behind it. I also hope that the members of the standing committee who have not had the opportunity to tour the National DNA Data Bank will arrange to do so. I know the staff would be most happy to show them how the system works and to answer all their questions. Certainly a tour of the data bank made it much easier for members who were considering former Bill C-13 to understand the submissions of the witnesses and to formulate their recommendations for amendments.

Finally, I remind the House that a National DNA Data Bank Advisory Committee has been established by regulation. Its membership includes eminent scientists, specialists in privacy and human rights law, and a former justice of the Supreme Court. The committee's duties encompass any matter related to the establishment and operation of the DNA data bank.

Members will find much wisdom in the reports that the advisory committee has made over the years. Members of the advisory committee will, I trust, be witnesses when the parliamentary review of the legislation gets under way.

I now wish to turn to some of the specifics of Bill C-18. Fundamentally, the effectiveness of the National DNA Data Bank depends on three factors: one, the number of profiles from crime scenes; two, the number of profiles from convicted offenders; and three, the resources of the police to pursue leads generated by the data bank.

Upon passage of Bill C-18 and the proclamation of former Bill C-13, there will be many more offenders eligible for a DNA data bank order and the police will be able to upload many more crime scene profiles to the National DNA Data Bank. This will undoubtedly lead to more matches between crime scene samples and the convicted offender samples and more matches between crime scenes. That is ultimately the goal of the DNA data bank, to provide those matches.

As for the resources of the police, we earmarked $15 million over two years to increase the capacity of the National DNA Data Bank to process convicted offender samples and the capacity of the regional laboratories to process crime scene samples. Without these additional resources and without the changes proposed in Bill C-18, the proclamation of former Bill C-13 would be largely ineffective in achieving Parliament's purpose.

Former Bill C-13, however, contained flaws that required correction. The previous government introduced former Bill C-72 to correct problems in Bill C-13. That bill would have one, re-enacted the definition so as to make the various amendments fit together in a logical order; two, changed the forms to reflect the changes made in the procedures for obtaining an order in retroactive proceedings; three, ensured that the commissioner provided further information regarding a possible match only at the request of the laboratory or police; and finally, corrected a difference in the French and English versions of the section authorized in the international sharing of DNA profiles.

Former Bill C-72 contained many other changes to the drafting of Bill C-13 and two procedural changes requested by the provinces to reduce cost: a provision to permit retroactive hearings by video; and a simpler defective order procedure that would have eliminated the application to a court of appeal for the order to be quashed and substituted certification by the attorney general. These changes are reintroduced in Bill C-18 which is before us today. It contains, as the minister has said, many further clarifications and improvements that have been suggested by officials since former Bill C-72 was tabled.

Members should be aware that it will take several months for the provinces to be ready. They have to train their prosecutors, police, court administrators and clerical staff in the new procedures. Understandably, they will not begin that process until the bill has received royal assent.

We believe the House should move swiftly to send Bill C-18 to committee and it is therefore with pleasure that I urge the House to give Bill C-18 second reading.

An Act to amend Certain Acts in relation to DNA Identification

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, the Bloc Québécois will support this bill in principle, that is, we want police forces to have the tools they need to solve investigations quickly. During investigations, the police may need to collect DNA samples. We also understand the need to have a DNA data bank managed by the RCMP. We will therefore vote in favour of sending this bill to committee after second reading, and we will raise a number of questions.

We feel it is our duty to do so, especially since, in the very recent past—just now, actually—the RCMP's actions were not beyond reproach regarding the collection and sharing of information. In our opinion, there must be extremely firm guarantees that the appropriate recipients of such information will be correctly identified.

Since 1998, the Bloc Québécois has supported these measures. In 1998, we began voting on the first measures concerning the collection of DNA samples. Furthermore, we supported Bill C-13. This is really a question of judges having the ability to impose an order that will be mandatory in some cases, but optional in other cases. This will allow something extremely intrusive in terms of human rights, that is, collecting DNA samples.

We understand fully—and the minister was right to point it out—that when an individual is imprisoned and convicted of an offence under the Criminal Code, it is not unreasonable to ask for a DNA sample.

I will close by sharing our questions on this matter. Bill C-13 deals with the primary designated offences that involve the most violence and relate to sexual assault, and I will name them. There are 16 cases where the courts must issue mandatory orders to take DNA samples. The DNA information is kept in a data bank that is managed by the largest police force, the RCMP. Sampling is mandatory in the following cases: prostitution, living on the avails of prostitution, murder, manslaughter, aggravated assault, sexual assault, kidnapping, robbery, extortion, etc. This list of primary designated offences also includes offences such as breaking and entering a dwelling house and participation in the activities of a criminal organization.

Section 467 of the Criminal Code was created in response to the conflicts between outlaw motorcycle gangs in major urban centres. A new offence was added to the Criminal Code: gangsterism, which consists in committing an offence for a criminal organization. Now, in cases of luring children using the Internet or procuring, the Crown must prove that the mandatory sampling order will better serve the interests of justice. In the case of secondary designated offences—all crimes punishable by more than five years in prison—the prosecution must request an order and demonstrate that it is in the interests of justice.

The Bloc Québécois was in favour of all these provisions that would give the police additional resources, because we voted in favour of Bill C-13.

One aspect of Bill C-18 that might warrant further discussion is the fact that, in addition to the existing provisions, the government wants everyone who has been convicted since 2000 of conspiracy and attempted murder to be included in the national DNA data bank.

Obviously there is some grey area. Conspiracy corresponds to a fairly broad provision in criminal law. There are situations where conspiracy leads to the commission of criminal acts, but conspiracy in and of itself is closer to plotting than actually committing the criminal act.

I asked the minister a question earlier, but unfortunately he was unable to provide an answer. Our question is on a provision in the bill that will allow the RCMP—the entity in charge of administering this data bank—to use the information, and thus the DNA.

This data bank has two major indices. The first index includes DNA samples of people who have indeed been convicted of one of the 16 designated offences I mentioned earlier. As far as the second index is concerned, it has to do with scenes of crimes, including unresolved crimes. I will give you an example. A murder occurs on a property and the guilty party is not identified, but there are traces of blood, bodily fluid and other substances. The RCMP collects samples and they become part of the crime scene index. Even when no suspect is identified, there is still anonymous information left by DNA, bodily fluids and blood.

This information is found in two major indices. I was somewhat surprised to see that Bill C-18, if passed in its current form, would allow the Commissioner of the RCMP, Mr. Zaccardelli, to use DNA information for all criminal investigations and offences.

I hope the Minister of Transport, Infrastructure and Communities shares my opinion, but, at the risk of repeating myself, I maintain that we must be extremely careful when it comes to distributing personal information. The RCMP is not above reproach. That is why we will leave the parliamentary committee to do its work.

I have read the O'Connor report on the Arar case and it is clear that the RCMP was given a lot of power. It can even respond to requests from other countries and both parties may want to share information.

In investigating an offence that is not necessarily on the list of 16 designated offences that I was talking about, if there is information to do with the DNA of bodily fluids and blood, in other words a genetic profile, the RCMP could distribute this genetic information, affecting potential suspects, to different police bodies and to independent investigators. Obviously we are concerned.

Once again, I recognize the importance of Bill C-18 . In 1998, the Bloc Québécois agreed to the creation of a data bank. We even collaborated on Bill C-13, which was passed unanimously, but we have always expressed reservations concerning the extent to which the information may be shared. This is very important for genetic profile information, and it makes a significant contribution to resolving criminal investigations.

In the absence of a perfect match, Bill C-18 would also enable the RCMP commissioner to communicate similar genetic profiles to foreign authorities.

This is extremely important. Since Bill C-13 was passed, the international communication of profiles has been limited to the validation of DNA samples found at crimes scenes outside of Canada. In such cases, the information in the profile is communicated to police authorities in countries that request it. If there is no match—if the DNA sample is not validated—all the RCMP is authorized to say, according to Bill C-13, is that the DNA profile requested for validation does not correspond to any information in the current data bank.

Bill C-18 takes this a little farther. It would permit identification by DNA profile in the communication of possible matches. This may seem very technical, but it is not just technical. This is about the concerns and the balance we have to have. We accept that convicted individuals who have harmed a person or property and been imprisoned may be subject to an RCMP investigation. However, we are not prepared to say that all foreign police forces can have access to the information in the data bank, even if a suspect has not yet been identified.

These are the issues the committee will discuss. I will take a break for member statements under Standing Order 31, and I will continue my speech after oral question period.

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I rise today on Bill C-18, An Act to amend certain Acts in relation to DNA identification. Bill C-18 impacts the Criminal Code, the DNA Identification Act and the National Defence Act.

I, along with many in this chamber, was a member of the House when the DNA Identification Act was created in 1998. The act came into force on June 30, 2000.

Section 13 specifically provides that within five years of the coming into force of the act a review of the provisions and operations should be undertaken by a committee of the House, the Senate, or by both. This review has not yet taken place and the current Minister of Justice by letter earlier this year states that the review “should begin as soon as possible after this bill receives royal assent”.

I believe for many reasons that the review should happen as soon as possible. I would like to know from the minister if his assurance for the mandated review really means only after more of his so-called law and order bills come before the House or if the review can take place within the next year in a reasonable amount of time. Where exactly is the review on the list of priorities of the minority government?

In a letter which I believe was sent to all members of the justice committee, the minister identified various issues he wished to be discussed and they are important areas for discussion. Among them are: having only one list of designated offences; the scope of judicial discretion with respect to making an order; taking DNA under the Identification of Criminals Act; international sharing; the one I just mentioned moments ago, kinship analysis; volunteer samples; victim samples; and exoneration.

The current Minister of Justice whom we have just heard from has urged that the amendments in Bill C-18 are needed to give the benefits of changes made under the former government's Bill C-13 passed recently. Former Bill C-13 was adopted on May 19, 2005 and only some parts of Bill C-13 are currently in force.

For people who may have not been part of that legislative process, it may be useful to set out the purpose of the DNA Identification Act. Section 3 states:

The purpose of this Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.

The principles of the act are contained in section 4 and include:

(a) the protection of society and the administration of justice are well served by the early detection, arrest and conviction of offenders, which can be facilitated by the use of DNA profiles;

(b) the DNA profiles, as well as samples of bodily substances from which the profiles are derived, may be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose; and

(c) to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on

(i) the use and communication of, and access to, DNA profiles and other information contained in the national DNA data bank, and

(ii) the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act.

The use of DNA analysis in solving crime has emerged as one of the most powerful tools that is currently available to law enforcement agencies for the administration of justice in our land. This has taken place in just over a decade. Actually it is remarkable. Its impact is akin to the introduction of fingerprint evidence in court over 100 years ago.

In the science of police investigation, DNA evidence is a major enhancement for the safety of Canadians. What is the value of DNA to public investigations? We should know that biological samples collected from a crime scene can either link a suspect to the scene or rule the suspect out as a donor of the DNA. Evidence from different crime scenes can be compared to link the same perpetrator to multiple offences, whether they occurred next door, across the country, or halfway around the world. It can also identify a victim through DNA from close relatives.

DNA is referred to often as the blueprint of life. It is a fundamental building block of a person's complete and entire genetic makeup. DNA is found in virtually every tissue in the human body. Experts tell us that the DNA in a person's blood is the same in the skin cells, the saliva, the hair and other bodily parts. Highly discriminating other than with respect to identical twins, it is a powerful tool for identification. Every person's DNA is unique to them, again with the exception of identical twins.

The DNA molecule itself can last significant environmental challenges. It is very stable. This enables the forensic experts to obtain new information from very old biological evidence, or establish important data from very badly degraded samples, which can occur when say a body is found or a crime scene is unearthed long after the fact of incidence.

The stability of the molecule and the fact we have very discriminating features of individual DNA and the accuracy of the analysis techniques that the current DNA people use make this a very efficient and strong human identification technology. It is a most vital component of most of our police investigations today of a very serious nature.

I should state that the national data bank respects the considerations, as it should, of the genetic privacy of individuals and follows strict guidelines as specified in the DNA Identification Act. The biological samples that are collected from convicted offenders and the resulting DNA profiles can only be used for law enforcement purposes. Thus, the National DNA Data Bank assists the law enforcement communities in solving crimes by linking crimes together where there are no suspects, by helping to identify suspects or conversely by eliminating suspects where there is no match between the crime scene DNA and the DNA profile in the national data bank. Further, it assists in determining whether a serial offender is involved.

By statute, the national data bank, which is located here in Ottawa, is responsible for two principal indices. The first is a convicted offenders index, which is an electronic index that has been developed from DNA profiles, collected from offenders convicted by designated primary and secondary offences identified in section 487.04 of the Criminal Code. I believe, as of mid-May 2006, the convicted offender index had nearly 100,000 entries.

The second is the crime scene index, which is a separate electronic index composed of DNA profiles obtained from crime scene investigations of the same designated offences addressed under the act. Thus we have several thousands, as the minister said, of the DNA samples from convicted offenders, which are included in the National DNA Data Bank along with the samples from various crime scenes across the country.

Large numbers of police officers from every province and territory jurisdiction in Canada have been the recipients of specific and proper training on how to collect and forward the DNA samples, which are then sent to the data bank in Ottawa for the proper analysis.

We know that the National DNA Data Bank has recorded over 5,200 crime scene to offender matches and more than 750 crime scene to crime scene matches. As everyone should appreciate, this developing science has to be managed very appropriately and properly to safeguard people's constitutional rights.

We have had, though, over the last number of years continuous consultations with provinces and territories and the public at large. They all have been instrumental in developing the amending legislation over the last couple of bills. Again, under the former Liberal government in Bill C-13, changes were made to improve the public safety and the approach of the bill continued to respect the constitutionally protected rights of individuals and their privacy interests. This is the problematic challenge area of concern for many.

When the bill was before committee the last time, the Privacy Commissioner was there expressing some concerns. It is right that these types of debates happen. That is why it is totally necessary we have the overall review and, hopefully, that will not be delayed.

Under the act, we currently have both primary and secondary designated offences. The primary designated offences are considered the most serious criminal offences. They are, for example, sexual offences, murder and manslaughter. The significant but relatively less serious offences would come under the threshold of secondary designated offences in the act. Two examples that have been shown would be assault and arson.

For people to understand the practical difference, a judge who convicts a person of a primary designated offence is required to make an order for the collection of the DNA sample from the offender, unless the offender can convince the court otherwise, under a specific section, subsection 487.051(2) of the Criminal Code. It is usually mandatory unless there are strict criteria.

With a secondary designated offence, and this is the difference, a DNA sample collection order may be granted if the court, upon application of the Crown, is satisfied that it is in the best interests of justice to do so. It should be noted that if a person was convicted or discharged of any designated offence after June 30 of the year 2000, but the act was committed before that date, then the same criteria for granting an order under the secondary designated offence would apply.

Bill C-13 moved a number of previously listed secondary designated offences and the new offence of Internet luring of a child to the primary list. Also Bill C-13 proposed additions to the list of secondary designated offences. Examples of certain offences that moved to the primary list included child pornography and robbery.

Bill C-13 also made changes to the National Defence Act to ensure that the military justice system would remain consistent with the civilian justice system.

The former Liberal government also introduced Bill C-72 in November 2005, less than a year ago. That bill had a series of amendments to help implement the DNA data bank references that were endorsed by Parliament under Bill C-13, which I have just discussed. These technical amendments were to clarify definitions and procedures for obtaining a DNA data bank order and for sharing information. There was a provision to help DNA data bank orders to be carried out, even when, for logistical reasons, it may not have been possible to take the sample at the precise time as set out in the original order.

Bill C-72, which also died when the government fell last year, would have also simplified the procedure to destroy samples taken from those convicted of an offence not intended to be included in the DNA data bank. This is a whole specialized area. There is a lot of concern about whether samples ever really get destroyed or whether we just do not do the matching any more and we lose the ability to match properly.

Among other issues, Bill C-72 was to allow for hearings by video to reduce costs and security associated with two party and greater numbers of offenders eligible for a retroactive sampling as a result of Bill C-13. Therefore, Bill C-72 essentially picked up on some of the issues identified by the stakeholders during the consultations on the implementation of Bill C-13 and also from the committee debate. It was intended to have the technical amendment made under Bill C-72 come into force before the coming into force of the unproclaimed provision of Bill C-13 in order to increase the efficiency of the data bank system and reduce costs.

This has been a somewhat dry and truncated history of the legislation, but it puts us where we are today with the sections.

Bill C-18, introduced by the government based on the work of the former government, is supposed to represent a reincarnation of Bill C-72. Upon looking at the bill, amended forms, which were not ready for Bill C-72, have now been included in Bill C-18. As mentioned previously, we are now further behind the overall review of the legislation. We are again being asked by the Minister of Justice to do the technical amendments before the broader policy and review.

Bill C-18 has some substantive provisions also. I am not going to go through all of them today, that is what we have committee for, but I will give an example. It will make it an offence to fail to appear for DNA sampling. This is similar to the situation in the code where we have an offence for failing to show up for fingerprinting. This seems entirely logical to me. It also proposes to add attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions.

Also, there are simple, or not so simple, procedural changes in Bill C-18. Examples of these amendments include allowing a DNA order to be made within 90 days after the sentence is pronounced and allowing the law enforcement agency authorized to take a DNA sample to authorize another law enforcement agency to do it on its behalf when the offender has moved or been incarcerated outside of the jurisdiction. This would save time and money. As opposed to moving the offender back and forth, we would do the sampling in another jurisdiction, as long as all the orders had been properly made.

These are practical amendments that would assist in an efficient process and rectify some of the on the ground problems that are being experienced by people who have to deal with the various systems, from the justice system courthouse, all the way to the analysis here at the data bank.

For the most part, Bill C-18 is an enhanced version of previous government bills. Since we have last had the occasion to discuss DNA legislation, the Supreme Court of Canada, in R. v. Rogers, has held, among other things, that the collection of DNA samples for data bank purposes from designated class of offenders is reasonable, reasonable as an infringement in our constitutional sense of the word.

In conclusion, I believe it is very appropriate to send the bill to committee for careful consideration. I will restate that I also think it is very appropriate that the House, our Parliament and some of the committees consider a full review so we can have a proper discussion about further emerging areas that need to be addressed, not only those outlined in the Minister of Justice's letters, but maybe some of the concerns of some of the other stakeholders. I think that would be a useful thing to do.

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

moved that Bill C-18, An Act to amend certain Acts in relation to DNA identification, be read the second time and referred to a committee.

Mr. Speaker, I am pleased to rise today to speak on Bill C-18, An Act to amend certain Acts in relation to DNA identification, and to recommend to the House that this bill be given second reading and referred to committee.

This bill is highly technical. It is necessary, however, to make these technical changes so that we can proclaim former Bill C-13, which was passed in the last Parliament with all party support.

Many members are familiar with the background of this bill because they were here when Bill C-13 was passed, but I will provide a brief background for the benefit of new members.

The National DNA Data Bank, which is operated by the Royal Canadian Mounted Police, began operating on June 30, 2000. Basically, it compares DNA profiles of convicted offenders with DNA profiles found at crime scenes. It now contains almost 100,000 profiles from convicted offenders and about 30,000 profiles from crime scenes. The data bank has assisted almost 6,500 police investigations.

In 2001, federal and provincial prosecutors and officials identified a number of deficiencies in the legislation. The Uniform Law Conference, which includes representatives of the defence bar, passed resolutions calling for high priority to be given to remedying seven problems.

The government launched public consultations in the fall of 2002. It was only in May 2004 that former Bill C-35 was introduced to correct the problems that had been identified. The bill died on the order paper when the election was called and was reintroduced as former Bill C-13 in October 2004.

I believe it would be fair to say that while all parties supported the DNA data bank and the changes proposed in the former Bill C-13, many members wanted to make more extensive changes.

There were negotiations among the parties to develop a package of changes that could secure unanimous support for the bill. In May 2005, three key amendments to the bill were adopted.

First was extending the retroactive scheme to cover persons convicted of one murder, manslaughter or sexual assault. I recall that our party, in opposition, was particularly keen in bringing that issue forward.

Second was creating a category of very violent offences where the court would have no discretion to refuse to make the DNA order. Again, this was another initiative of the party that I am in, which made that recommendation in the last Parliament.

Third was extending the definition of secondary designated offences to cover all offences under the Criminal Code or the Controlled Drugs and Substances Act that are punishable on indictment by five years or more.

The bill then moved with lightning speed and with all party support through the House and the Senate because of an impending confidence vote on the budget.

The provisions of former Bill C-13 that came into force upon receiving royal assent were those dealing with the expansion of the retroactive scheme, which makes about 4,400 more offenders eligible to be sampled, the procedure for dealing with DNA orders that appear on their face to have been improperly made, and the procedures for dealing with moderate DNA matches.

The major amendments that have not yet been brought into force are the following.

First is allowing courts to make DNA data bank orders against a person who has been found “not criminally responsible on account of mental disorder”.

Second is adding Internet luring of a child, uttering threats, criminal harassment, and “criminal organization” offences to the list of designated offences.

Third is moving “robbery” and “break and enter into a dwelling house” and child pornography related offences from the list of secondary designated offences to the list of primary designated offences.

Fourth is creating a new sub-category of the primary designated offence list of 16 extremely violent offences for which the courts will have no discretion whatsoever and must make the order.

Fifth is expanding the definition of secondary designated offences to include all offences that are punishable by imprisonment for five years or more.

Most members will agree that these are significant changes that will enhance the ability of the police to use the data bank and to protect Canadians from criminals.

Why, then, are they not yet in force? Federal, provincial and territorial officials, who were preparing for the proclamation of the remaining provisions of Bill C-13, identified a number of serious technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase efficiency and reduce costs. The former government, therefore, introduced Bill C-72 in November 2005 to make the necessary changes. However, that bill died when the election was called.

Officials have continued their work and they have identified more changes that would clarify Parliament's intent in passing former Bill C-13 and the procedures that should be modified to make the DNA legislation more effective.

As a former provincial crown prosecutor, I know how important it is to have clear procedures set out in the Criminal Code if legislation is to be effective. I am pleased that my department took the initiative of holding a two day meeting with prosecutors, police, forensic scientists and correctional personnel to go over Bill C-13 with a fine tooth comb.

Bill C-18, the present bill, proposes about a dozen changes that were not in the former Bill C-72, and those changes flowed directly from that meeting. Bill C-18 proposes no changes in the underlying policies or procedures already adopted by Parliament. It contains mainly drafting changes, such as the creation of 10 new forms. These changes are not dramatic and they will not grab the headlines, but they will be welcomed by the people in the field who need to make what Parliament passes work.

Bill C-18 also contains some substantive changes that I believe will be supported by all members of the House. In particular, it would add attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions. These are very serious offences that indicate an elevated risk of reoffending and are punishable by life imprisonment, a higher punishment than for the sexual offences that are already included in the retroactive scheme.

It would also permit the Crown to apply for retroactive DNA data bank order where the offender was convicted prior to June 30, 2000 of one of the listed offences and is still under sentence for that offence, rather than requiring that the person be serving a sentence of two years or more.

There are a few cases of persons who, prior to June 30, 2000, received multiple consecutive sentences for various offences, including some of the offences that make an offender eligible for retroactive sampling and who are still under sentence. Although the court clearly considered them to be serious offenders, it did not impose a sentence of two years or more for any one of the relevant offences. It would also allow a DNA order to be made within 90 days after the sentence is pronounced.

It is believed that the main reason orders are not being made in many cases where they are already authorized is that prosecutors are extremely busy and are forgetting to remind the court to consider the issue. This would give both the prosecutor and the judge the time to review the files and, if the matter was simply missed, to have a hearing where the prosecution and the offender can present their arguments to the judge, who will decide whether to make the order.

It would also make it an offence to fail to appear for DNA sampling. It is expected that having a specific offence will better emphasize to the offender the necessity of appearing for sampling and so increase compliance with DNA data bank orders. It would authorize any police force that arrests the person for failing to appear for a DNA sample to take the sample.

It would be very expensive if offenders arrested in one province had to be sent back to the province where the order was made to have the sample taken. It would permit a police agency that has been authorized to take a DNA sample to authorize another police agency to take the sample if that would be less expensive. The police have been hampered in their efforts to execute the orders where the offender has been incarcerated outside its jurisdiction or been conditionally released but resides outside its jurisdiction.

The procedure to have the order transferred to a court having jurisdiction and obtaining another order are time consuming and use up resources unnecessarily.

There are also some changes being made to ensure that the National DNA Data Bank can communicate with the forensic laboratories and with its international partners more effectively.

Parliament certainly wanted to encourage these exchanges, but the amendment, as passed in Bill C-13, is not as clear as it should be. As well, the National Defence Act is being amended so that the DNA regime applicable to the military continues to mirror the civilian regime.

There are many other technical changes of this nature in the bill and I am sure that when the bill gets to committee for detailed consideration, officials will explain them all. I trust this is sufficient, however, for members to realize that the changes proposed by this bill will be very helpful to law enforcement, prosecutors and judges who have to use the legislation on a daily basis.

Passage of this bill will allow for the proclamation of the rest of former Bill C-13 and should ensure that it is implemented smoothly.

It is, of course, not the end of the changes to the DNA legislation. As members are aware, the five year parliamentary review of the DNA legislation should have begun by June 30, 2005. Officials of my department, the Department of Public Safety, the RCMP and the National DNA Data Bank are ready to assist the committee as soon as it is mandated to commence the review.

The delay in beginning the review is not entirely unfortunate. The committee will be able to consider such issues as making the taking of a DNA sample automatic upon conviction, or even more variations in light of the strong endorsement of the existing legislation by the Supreme Court in R. v. Rogers, which was decided in April of this year.

Rogers was primarily a case involving the ex parte nature of retroactive hearings, but Rogers also challenged the constitutionality of the scheme.

It is useful to consider the Supreme Court's detailed reasons upholding the constitutionality of the legislation. I want to quote from this because it is important for our discussions. The Supreme Court stated:

There is no question that DNA evidence has revolutionized the way many crimes are investigated and prosecuted. The use of this new technology has not only led to the successful identification and prosecution of many dangerous criminals, it has served to exonerate many persons who were wrongfully suspected or convicted. The importance of this forensic development to the administration of justice can hardly be overstated. At the same time, the profound implications of government seizure and use of DNA samples on the privacy and security of the person cannot be ignored. A proper balance between these competing interests must be achieved within our constitutional framework.

The court continues to state:

For reasons that follow, I have concluded that the collection of DNA samples for data bank purposes from designated classes of convicted offenders is reasonable within the meaning of s. 8 of the Charter.

That is the section of the charter dealing with the protection against unreasonable search and seizure.

The court continues to state:

Society’s interest in using this powerful new technology to assist law enforcement agencies in the identification of offenders is beyond dispute. The resulting impact on the physical integrity of the targeted offenders is minimal. The potential invasive impact on the right to privacy has carefully been circumscribed by legislative safeguards that restrict the use of the DNA data bank as an identification tool only.

The Supreme Court continues to state:

Unlike the warrant provisions, the DNA data bank provisions do not target suspected offenders in respect of particular offences. Rather, they target offenders who have been convicted of different categories of offences. They do not provide for the gathering of evidence for use in a specific prosecution. Rather, they provide for the collection of samples solely for the purpose of creating DNA profiles for inclusion in the data bank. In any future investigation, a comparison between DNA evidence obtained at a crime scene and the data bank DNA profile will either serve to exonerate or identify a suspect. However, if a crime scene DNA profile matches an existing profile in the data bank, the sample is not released. Usual investigative methods, including DNA warrants, must be resorted to in order to gather evidence in pursuit of the investigation.

The court continues to state:

In my view, in considering the purpose of the DNA data bank provisions, the appropriate analogy is to fingerprinting and other identification measures taken for law enforcement purposes. The purpose of the legislative scheme is expressly set out in s. 3 of the DNA Identification Act, “...to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.”

The court continues to state:

The DNA data bank provisions contained in the DNA Identification Act and the Criminal Code are intended to put modern DNA technology to use in the identification of potential and known offenders. The DNA Identification Act is a modern supplement to the Identification of Criminals Act.

I am sure the committee will undertake a full review of the DNA legislation and it will want to consider carefully the implications of this judgment. I hope all parties on the committee will be able to come to an agreement as to the best way to proceed so as to protect Canadians while continuing to respect their charter and privacy rights.

However, we do not know when the committee will be struck, start its hearings or make its recommendations. I am speaking of the committee that will do the entire review that Parliament mandated a committee to do. We should not wait for this longer and broader process to implement changes that are generally acknowledged to be needed right now.

Therefore, I am pleased to recommend that Bill C-18 be given a second reading and sent to the standing committee for its review.

Criminal Code

[Don Boudria, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Speaker, I will be brief so as not to delay the adoption at second reading of this bill, which will undergo consideration in committee very shortly.

We know that this is the second attempt—if that is the right term—to legislate in this area . As other parliamentarians have noted, there was Bill C-13. The use of DNA to identify genetic ties and so forth is completely new to all of us, the criminal justice system and even other sectors.

This completely new technology has been used for such purposes for several years now. It has proved effective, to the point that it can now be integrated into our criminal law procedures, particularly with regard to taking DNA samples. Previously, for example, fingerprints were taken or other methods used. Now, of course, our methods are much more sophisticated and the applications very different from those in the past.

According to the bill summary, the bill seeks to amend the Criminal Code, the DNA Identification Act—meaning Bill C-13—and the National Defence Act to facilitate the implementation of the acts in question.

The first element is somewhat different from the others. It:

(a) allows a court to require a person who is given notice of an application under subsection 487.055(1) of the Criminal Code and who wishes to participate in the hearing to appear by closed-circuit television or a similar means of communication;

Once again, this is very different, in technological terms, from the rest of the bill. However, this technology enables and allows Canadian criminal law to better function.

The second element also mentions the following:

(b) allows samples of bodily substances to be taken as soon as feasible after the time set by an order or a summons for the taking of the samples....

This is very important in order for a proper inquiry to take place to have a summons and then be able to utilize that instrument to obtain bodily samples in order to make the later determinations that are required.

The next element of the bill reads:

(c) requires the Commissioner of the Royal Canadian Mounted Policy to destroy the bodily substances collected under an order or authorization and the information transmitted with it 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;

In other words, if the material was accumulated and it was not one of the designated offences, this is an order to have what was acquired destroyed. I believe a colleague from the New Democratic Party referred to these data banks based on people not having been convicted of anything or at least not having been convicted of offences where this would normally be permitted. In other words, we do not utilize the process for an offence that is not covered, obtain the information and then keep it in case someone does commit an offence in which it would qualify. Obviously that would not be appropriate.

The next element reads:

(d) enables the Commissioner to communicate internationally the information that may be communicated within Canada....

Consequently, if data has been collected in Canada in connection with what I have just listed, we are allowed, but only in keeping with Canadian legislation, to share that data with similar authorities in other countries. Once again, this is very logical, provided we keep within the guidelines we have set for ourselves in Canada, so as not to provide to a foreign authority information that it would not be acceptable to disclose within this country.

Lastly, the commissioner is authorized to communicate information for the purpose of the investigation of criminal offences, and to subsequently communicate that information for the purpose of the investigation and prosecution of criminal offences.

That is the main thrust of this bill, a bill I recommend to the House and will be pleased to support myself. I will not take up any more of the House's time, but will close by saying that I hope to see this bill passed in the very near future.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, we have been seized with this bill for some time with regard to the former Bill C-13 and the upcoming review. An element in this particular bill which interests me has to do with the charter rights of individuals and privacy provisions, specifically with regard to bodily samples being taken as soon as possible.

The member is a learned individual in this area. I wonder if there are any risk areas with regard to charter provisions or with regard to privacy laws in Canada.

[Mario Laframboise, Bloc, Argenteuil—Mirabel, QC]

Mr. Speaker, it is a pleasure for me to speak, on behalf of the Bloc Québécois, on Bill C-72. I will not read the entire bill, but, for the benefit of those listening, I want to read the bill summary:

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—

This act corresponds to Bill C-13, which is currently being considered by the Senate. So, Bill C-72 seeks to amend Bill C-13, or to apply that bill, which is currently before the Senate.

It makes technical changes to those acts and addresses five points:

(a) allows a court to require a person who is given notice of an application under subsection 487.055(1) of the Criminal Code and who wishes to participate in the hearing to appear by closed-circuit television or a similar means of communication;

(b) allows samples of bodily substances to be taken as soon as feasible after the time set by an order or a summons for the taking of the samples or, if no such time is set, as soon as feasible after the day on which an order is made or after an authorization is granted;

(c) 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 it 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;

(d) enables the Commissioner to communicate internationally the information that may be communicated within Canada under subsection 6(1) of the DNA Identification Act; and

(e) 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.

Bill C-72, which seeks to clarify Bill C-13, mainly focuses on the taking of samples of bodily substances. Bill C-13 was passed as a result of negotiations among all the parties in this House, including the Bloc Québécois. It was a compromise that was passed unanimously in order to give ensure the taking of samples of bodily substances after certain crimes.

Bill C-13, which received the unanimous consent of the House, is currently being considered by the Senate at first reading stage.

What does Bill C-13 have to add? That is an important question. I will explain how DNA samples could be taken before we had this bill. Previously, an order authorizing the taking of DNA could be issued when the offender was convicted of a designated offence. These designated offences were divided in two categories: primary offences and secondary offences. As long as Bill C-13 is not in effect—I mentioned earlier that is under consideration by the Senate—the list of primary offences will be limited and will include serious personal injury offences such as murder, aggravated assault or sexual assault, while the list of secondary offences will include crimes against persons as well as crimes against property causing danger to human life such as robbery, break and enter, assault or arson.

In the case of primary offences, that is the most serious cases, the collection order is virtually automatic. The judge is required to make an order for the collection of a DNA sample from the offender, unless the offender can convince the court that this would have an effect on his privacy and safety markedly out of proportion with the protection of society. On the other hand, for secondary offences, the sample will be ordered on request from the Crown provided it can convince the judge that this is necessary in the interest of justice. That is the way things are at present.

Put more succinctly, in serious crimes such as murders, aggravated assaults and sex crimes, the order has been virtually automatic until now, unless the accused has been able to prove that his privacy and safety were affected. For secondary offences, the order was made in response to a request from the Crown.

When Bill C-13 comes into effect, these rules will be substantially changed.

Bill C-72 applies Bill C-13. For better understanding, we need to know that Bill C-13 divides offences into two categories: primary and secondary, and provides lists for each. These are, therefore, list A and list B, and DNA samples are handled differently for each. The A list contains the most violent offences. Under Bill C-13, the judge is obliged to order that a sample be taken as soon as the individual is found guilty of one of the offences in list A. There will be no discretion. I will read that list of offences. It is important for those listening to us to hear them.

These offences are: living on the avails of prostitution of a person under 18; murder, manslaughter; attempted murder; assault with a weapon or causing bodily harm with intent; discharge of compressed air gun with intent to endanger life; administering a noxious thing with intent to endanger life or to cause bodily harm; overcoming resistance to the commission of an offence; aggravated assault; unlawfully causing bodily harm; sexual assault with a weapon, threats to a third party or causing bodily harm; aggravated sexual assault; kidnapping; robbery and extortion.

Therefore, in the context of C-13, these 16 offences will become primary designated offences for which a judge will be required to order a sample be taken following an individual's conviction.

Bill C-72 adds something. Under C-13, the judge must order a sample on conviction, while under C-72, bodily substances may be taken as soon as feasible after the time set by an order or a summons for the taking of the samples or, if no such time is set, as soon as feasible after the day on which an order is made or after an authorization is granted. That clarifies matters. Once an individual is convicted, a number of steps follow in a process. So this clarifies things and tells us that the sample will be taken as soon as it is feasible after the moment set by an order. Accordingly, once a charge has been laid, the sample may be taken. It will be mandatory in the case of the 16 offences I listed, the primary designated offences contained in list A.

In list B of the primary designated offences, the sampling order is almost automatic, unlike in the case of list A, where it is automatic. The judge is obliged to order DNA sampling, unless the offender can show that the sample would have an impact on his personal life or safety that would far outweigh any protection it would afford society.

List B includes some 20 offences for which the judge must authorize the sample unless the accused convinces him otherwise. The list includes sexual assault—except for aggravated sexual assault; hostage taking; breaking and entering a dwelling-house; intimidation of a justice system participant or journalist; attack on premises, residence or transport of an internationally protected person; attack on premises, accommodation or transport of United Nations or associated personnel; explosive or other lethal device; participation in activities of a criminal organization; commission of offence for a criminal organization; instructing commission of offence for a criminal organization; luring a child; child pornography; sexual exploitation of a person with disability; procuring; and offences historically of a sexual nature, in other words offences that have been replaced by modern crimes, including indecent assault.

For the primary offences mentioned in list A there will be an automatic requirement to take a sample. For the offences in list B, unless the accused manages to prove that this infringes upon his privacy, a sample will be taken. Furthermore, some secondary offences that are non designated offences in the primary categories are punishable by a maximum of imprisonment for five years.

Under the secondary offence system, the judge can authorize the taking of a DNA sample if the Crown proves it is in the interest of justice.

That means in 200 offences where a DNA sample is taken a series of 16 will be mandatory, as will a series of 20, unless the accused manages to prove that this infringes on his privacy and safety. As for the secondary offences, if ever the Crown proves it is in the interest of justice to proceed, DNA tests will be mandatory.

Clearly, the Bloc Québécois is in favour of Bill C-72. It clarifies Bill C-13 and allows, once and for all, for criminals not only to be able but to be required to give DNA samples, samples of bodily substances, so that we can confront them with their crimes.

[Vic Toews, Conservative, Provencher, MB]

Mr. Speaker, I am pleased to rise today address Bill C-72, an act to amend certain acts in relation to DNA identification.

While I support this legislation, I want to place on the record some of my concerns generally with respect to DNA legislation. It has been a great source of frustration for many Canadians and particularly for law enforcement that the Liberal government has been dragging its feet on much needed DNA data bank legislation that would help safeguard our communities.

The use of forensic DNA analysis in solving crime is proving to be revolutionary. Biological samples collected from a crime scene can either help link to or eliminate a suspect from the crime scene. DNA donor suspects can help prove their innocence. Evidence from multiple crime scenes can be compared to link the same perpetrator to different offences in different locations. It can also identify a victim through DNA from close relatives.

Therefore, it is essential to have effective legislation in place so that our men and women in uniform can best serve to protect Canadian citizens.

Canadian police have for some time called for the creation of an effective DNA data bank to assist police investigations. The government was slow to respond, but finally assented to the DNA Identification Act on December 10 1998. The legislation allowed a DNA data bank to be created and amended the Criminal Code to provide for justices to order persons convicted of DNA offences to provide DNA samples. However, the legislation only came into effect in June 2000 and unfortunately included many loopholes.

Bill C-13 ultimately received unanimous support by all parties because it expanded and altered the offences and the offenders on the secondary and primary designation list who could be compelled to provide samples both retroactively and concurrently and after sentencing. It also permitted the destruction of samples taken, and judicial discretion was curtailed.

As I stated at the time of the royal assent to Bill C-13:

The success of this bill is a shining example of how a minority Parliament can work positively in the best interests of Canada. While everyone made compromises, I think we have a solid piece of legislation that will go a long way to address concerns about loopholes in our DNA law.

Bill C-13 still falls far short of the Conservative Party's expectations for appropriate legislation. Although DNA samples in Great Britain, and as is the case for fingerprinting in Canada, are taken at the time of charge, at a minimum all indictable offences should be deemed designated offences for DNA data banking and there should be no discretion for judges to decline to order a sample upon conviction.

The British experience shows that criminals who commit property offences are also involved in more serious indictable offences such as sexual assault and murder. There is no justification for excluding indictable offences such as break and enter from the mandatory taking of DNA samples, especially if there has been a conviction.

Moreover, the legislation has not yet been proclaimed into effect. The government has continued to delay this much needed piece of legislation because of allegedly necessary amendments to technical errors and omissions.

This excuse is weakened by the fact that Bill C-72 comes sandwiched between Bill C-13 and a review of the DNA act, mandated in the legislation and reiterated in a justice department press release, which was to have been undertaken in 2005. Technical errors and omissions should be dealt with in that review. What is needed now is not further delay but rather leadership from the government to help facilitate the apprehension of criminals by using DNA evidence.

On November 2, 2005, the government introduced Bill C-72 to deal with these technical omissions and errors in Bill C-13. Numbers of amendments were made, which I will not detail.

There was, however, one provision that caused me some concern. That was to provide discretionary powers to the attorney general or the director of military prosecutions; if in their opinion the bodily substance collected was for a non-designated offence then the Commissioner of the Royal Canadian Mounted Police must destroy the substance collected. I have in fact reviewed that amendment. I have received assurances that the discretion afforded to the attorney general and the director of military prosecutions is appropriate and that it is also supported by police and provincial attorneys general. Therefore, I am consenting to that amendment as well.

Although these amendments in the bill are in fact an improvement on the status quo, they do not address many of the concerns raised by police and by provincial attorneys general.

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. Indeed, my position is that, at a minimum, all indictable offences upon conviction should be subject to the mandatory taking of DNA. There clearly is no constitutional basis for suggesting that such a provision after a conviction could in any way be unconstitutional.

Indeed, in other western democracies such as Great Britain, DNA samples are taken at the time of charge, as opposed to conviction. That has proven to be highly successful, not only in deterring crime and capturing criminals but in ensuring that innocent people are not convicted.

I also want to point out that our DNA testing system is so backlogged that until sufficient resources are provided, any legislated changes made will not be significantly meaningful. They will not improve the operation of the system.

This legislation still does not address the issue of timely production of DNA results to bring dangerous offenders to justice and to ensure the safety of our communities.

The government has insisted that DNA legislation is of the utmost importance and that we must expedite the passing of Bill C-72. However, if this is the case, why has the government waited five months to table new legislation in order to enforce Bill C-13? These rectifications are, as the parliamentary secretary has said, technical amendments and omissions and in fact simply delay the actual implementation of Bill C-13.

If the Minister of Justice wanted to add amendments, these could have been dealt with in the requisite review of the DNA Identification Act set to occur this year. However, that DNA review never took place.

Let me say in conclusion that the national DNA data bank is an important example of the increasing significance of science and technology in modern law enforcement. To stay ahead of the criminals, we must make better use of cutting edge science such as forensic DNA.

Data as of November 14, 2005, shows that over 4,000 cases have successfully linked crime scene DNA to offenders. It is imperative that the government create the legislative framework and provide the resources necessary to use this great crime-fighting tool.

To date the government has put forward legislation that takes steps in the right direction, but clearly, in view of the success enjoyed in other jurisdictions, these steps do not go far enough. The government's slow approach in implementing this needed legislation is disheartening.

I can assure members that a Conservative government will stand up for more effective DNA data bank legislation. A Conservative government will increase the number of cases where a mandatory sample upon conviction will be included for DNA sampling. Also, a Conservative government will stand up for the tools needed by our law enforcement officers to fight crime by providing them with the resources in order to make legislative tools effective.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, as members are aware, Bill C-13, an act to amend the Criminal Code, DNA Identification Act and the National Defence Act was passed, one might say, with some haste by the House and the Senate last May.

Major amendments were adopted by the House standing committee, including amendments to effect a compromise among the parties, that expanded the definition of “designated offence” and the scope of the retroactive DNA data bank order provisions which were aimed at collecting DNA from offenders convicted of serious crimes prior to June 30, 2000. The bill, as amended, received the support of all parties.

The bill provided for a limited number of amendments to come into force on royal assent and the rest to come into force on proclamation. The important amendments in force are those that expand the retroactive DNA collection scheme in the Criminal Code and those that simplify communication of DNA profiles between laboratories to determine whether a crime scene profile matches another profile in the national DNA data bank.

The major amendments in Bill C-13 that have not yet been brought into force include the changes to the definitions of designated offences which will allow for the making of many more DNA data bank orders and will allow the police to apply for a DNA warrant in many more cases and the provisions allowing a judge to fix a time and place for taking a DNA sample from a convicted offender and authorizing the issuing of a warrant for the arrest of that offender if he does not show up as required.

Officials from Justice Canada, Public Safety and Emergency Preparedness Canada, Correctional Service Canada, the RCMP, the national DNA data bank and the provinces have been preparing for the proclamation of the remaining provisions. They have identified certain technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase the efficiency and reduce costs.

Because it is urgent to adopt this bill before the budget may be defeated, the changes were drafted and passed, even though their thorough examination, the review of the necessary consequential amendments and the identification of all the consequences and of the changes required, which took place at report stage, at third reading or in the other place, were not available.

I will not list all the technical problems in Bill C-13 that the officials have requested to be fixed and which have led to the amendments that have been incorporated in Bill C-72. However Bill C-72 includes provisions to amend the legislation to address the following problems.

First, the amendments to the definitions of primary designated offence and secondary designated offence do not fit together.

Second, the forms were not changed to reflect the changes made in the procedures for obtaining an order in retroactive proceedings and in the definition of secondary designated offence.

Third, the French and English versions of the clause in the DNA Identification Act authorizing the commissioner to provide further information in a moderate match case are different.

Fourth, the French and English versions of the section authorizing the international sharing of DNA profiles set out different information the commissioner can provide. The English version forbids the sending of profiles internationally, which could hamper Canada assisting its international partners through Interpol.

Bill C-72 also proposes changes requested by the provinces to streamline procedures and reduce costs.

The decision to amend Bill C-13 so that those convicted of murder, sexual offence or manslaughter are targeted by the provisions on the taking of DNA samples resulted in an additional 4,000 individuals being targeted by these provisions.

The Criminal Code provides that, in these cases, hearings are held ex parte. However, the Ontario Court of Appeal ruled that an offender has the right to get a notice of the order for retroactive application and to appear during the hearing for that application, unless there is a risk that the individual might flee.

Because a decision of the Supreme Court of Canada is not expected for more than a year, the other provinces have decided, as a precaution against an adverse judgment, to serve notice on all persons against whom they are seeking an authorization to take a DNA sample, including incarcerated offenders. Many offenders are incarcerated in a province other than the one where they committed the offence. The police and the Crown in the jurisdiction where the offence took place are best placed to make the application for the order.

There is concern that many of these offenders will seek to be represented. Transporting these incarcerated offenders around the country for hearings would be very expensive for Correctional Services Canada and could present serious risk of flight by offenders who are serving lengthy sentences with little prospect of being released. The officials have therefore proposed that the DNA legislation permit retroactive hearings by video link, and this change is proposed in Bill C-72.

Another procedural change that will simplify procedures and reduce costs is the amendment proposed by Bill C-72 with respect to the procedure respecting those cases where the national DNA data bank has received, for inclusion in the convicted offenders' index, a sample taken pursuant to an order that on its face does not refer to a conviction for a designated offence. As members know, the Criminal Code only authorizes the making of a DNA data bank order where the person has been convicted of a designated offence. Nevertheless, the data bank has now received more than 700 such orders and accompanying seized samples of body substances.

Section 5.1 of the DNA Identification Act, as enacted by the former bill, Bill C-13, provides that the commissioner of the RCMP is to return such orders to the attorney general for the province where the conviction was obtained or to the director of military prosecutions. They are to investigate the matter and if they conclude that the making of an order was, indeed, not authorized by the Criminal Code or the National Defence Act because the person had not been convicted of a designated offence, they are to seek from a judge of the appellate court an order quashing the authorization.

Last August, Ontario proposed a resolution in the criminal law section of the Uniform Law Conference that this procedure be changed so that:

where the Attorney General agrees that the order was taken for a non-designated offence, the Attorney General confirms this in writing to the Commissioner of the National Databank who would then be authorized to destroy the sample.

This resolution was adopted and, having reviewed this matter in light of the discussions at the Uniform Law Conference, the government has concluded that it is not necessary to revoke the DNA data bank orders as they have been carried out precisely as the court had ordered.

The commissioner of the RCMP is not, however, blindly to process the bodily sample and enter the profile in accordance with the order that is received. He has an independent duty to decide whether the order meets the requirements of the DNA Identification Act.

The proposed amendment in Bill C-72 would simplify the procedure for the attorney general or the director of military prosecutions, setting out what they are to follow where the order should not have been made. Instead of having to make an application with its attendant costs and delays, the attorney general can confirm that the person was not convicted of a designated offence.

I believe members will agree that this procedure is appropriate as the question involves no legal issues to be decided by the appeal court but simply the question of fact of whether the offender was convicted of the designated offence, which can be answered simply by reviewing the file.

I believe Bill C-72 is an important bill which, if adopted, will greatly facilitate the implementation of Bill C-13. Accordingly, I would urge all parties of this House to adopt the bill as quickly as possible.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I appreciate the comments of the justice minister. I believe he honestly means well, but I do not believe his paradigm is in line with what Canadians want. They want justice. They want appropriate sentencing where there is a consequence for the crime. They do not believe in dangerous offenders serving their sentences at home.

Twice, at the beginning of my speech and also at the end, I talked about Bill C-2 and Bill C-13 and why they were sitting on the Prime Minister's desk without being enacted. When we come up with legislation, why does it sit on the Prime Minister's desk? Unfortunately, the minister did not answer those questions.

I think Canadians want conditional sentencing. We support Bill C-49 going ahead, but I am hoping we will get mandatory minimums added at committee stage.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, my hon. colleague from Wild Rose says it from the heart. Canadians are frustrated with the sentencing that dangerous offenders are receiving in Canada.

The member sits on the justice committee, as do I. Canadians are asking for appropriate sentencing. Canadians are asking for sentencing to change. They are asking that we have consequences for dangerous and repeat offenders. Canadians want there to be consequences for those actions.

In my riding of Langley, a young man sexually assaulted two young girls. What sentence did he receive? He received conditional sentencing. It was house arrest. He served out his sentence at home. His victims lived on each side of him.

There has been an actual abuse of discretion. Canadians are calling out for change on how we sentence criminals. Canadians are calling for mandatory minimums because they do not have confidence in this government. Canadians do not have confidence in the weak legislation. They do not have confidence in the phony announcements.

Earlier I brought up the fact that we have Bill C-2, Bill C-13 and now Bill C-49 dealing respectively with child pornography, DNA and trafficking in people. What happens to those bills when there is unanimous consent within this House to have them move forward? Why do these bills sit on the Prime Minister's desk? Why are they not signed and enacted? We have heard about how important these bills are. Why are they not enacted?

What will happen with Bill C-49? Will this bill pass through this process? Will it receive immediate attention and then sit on the Prime Minister's desk? Canadians are asking for a change. The change starts with mandatory minimum sentences for dangerous and repeat offenders.