Evidence of meeting #52 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
Senior Legal Counsel, Royal Canadian Mounted Police
Yes, it did. It changed it for the domestic legislation, but then it tightened it up for the international. So it prohibited international sharing of that insofar as it specifically limited what could be sent to being strictly confirmation of whether we had a match, rather than the profile itself.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Okay, but Bill C-13could have been proceeded with for domestic purposes?
Senior Legal Counsel, Royal Canadian Mounted Police
That's right. And, in fact, it was.
Senior Legal Counsel, Royal Canadian Mounted Police
--to allow the international--
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
But that doesn't correct anything in Bill C C-13. It simply expands the use of it.
Senior Legal Counsel, Royal Canadian Mounted Police
The problem with Bill C-13was that when we looked at it, we didn't have the drafting authority to go that much further before it got to you. The end result was that it mirrored the old regime for international but not for the current recognized need to do moderate matching internationally as well. Without that, we will not effectively be able to share information abroad. That's one of the reasons Bill C-18 was put in place.
A number of issues were found with respect to the changes to the retroactive scheme and the forum surrounding DNA orders because of the new changes to “not criminally responsible” and associated reasons for making such orders. You'll see that there are a number of changes to the forum. These are small technical changes that we saw as being required. Then there are a number of other.... As we look at this, as Mr. Thompson pointed out, it's not a simple series of understandings that you have to go through to interrelate the requirements of the Criminal Code, as to what's a designated offence, with all the qualifying offences that are now in place. A number of changes are being put in place to make it clear what a mandatory order is, what a discretionary order by the judge is, and which has to be done by the prosecutor.
We try to make it clear and make the forums clear so that we have a coordinated approach between the amendments proposed by the committee that expanded the scope of the DNA qualifying offences by virtue of the amendments the committee recommended. That happened at that time before the committee, so we had to go back and make consequential changes to make this flow clearer and take care of technical problems with respect to definitions.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Okay. But the additional offences that we're moving into primary and the new ones that we're moving into secondary don't do anything to correct the problems we had with Bill C-13. This is an increase in the mandate.
Let me make this statement to you so you can see the context I'm coming from. I see part of Bill C-18 as simply being mandate creep, that we're expanding the use of the DNA in certain offences.... I understand that's what we're doing. I don't see that this does anything to correct any of the problems we had in Bill C-13.
Senior Legal Counsel, Royal Canadian Mounted Police
I'm not sure that I can respond to that without knowing simply which of the--
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
How many have we moved into the primary, and how many new ones have we moved into secondary?
Senior Legal Counsel, Royal Canadian Mounted Police
My understanding is that we should be reflecting the intent of the original Bill C-13. It's simply a matter of reformatting it to ensure that we've got the intent properly.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Let me use conspiracy. We've added conspiracy as a new one. What does that do to correct any problems we had with Bill C-13?
Senior Legal Counsel, Royal Canadian Mounted Police
In essence, my understanding of the conspiracy issue that Mr. Comartin raised is that there was an anomaly between what we could get a warrant for and what we could get a DNA data bank.... We had an exception. We couldn't have conspiracies. Conspiracies may be seen as a lesser offence than a--
Joe Comartin NDP Windsor—Tecumseh, ON
Mr. Bird, again, address my question. Where does that prevent Bill C-13 from being used?
Senior Legal Counsel, Royal Canadian Mounted Police
It doesn't. The problem is that Bill C-13 has not been proclaimed with respect to the definitions of designated offences, which means that it can't be used until that is proclaimed. I understand the technical problems in the wording caused....
My justice department drafting colleagues have made attempts to make it clear so that we have a coordinated definition before we proclaim it in force, so the judges would not be confused as to what they had to proclaim and what they didn't proclaim, and so that there was a consistency between the intent of the motions made by committee to expand the definition, really to clarify, for the purposes of this Criminal Code, what in fact is a designated offence--given some technical problems in the motions to expand the definitions that came at committee.
Some of this is to make minor changes. I say “minor”; that's in my view. You may see conspiracy as a major change to the definition. But from my understanding of the police community and the international community, many minor offences are precursors to serious offences, and the experience in other countries, particularly Britain, is that offences like break and enter, robbery, and motor vehicle offences have all led to or been associated with more serious offences down the road. Conspiracy to participate in some offences--
Conservative
The Chair Conservative Art Hanger
Mr. Comartin, you're well past your time. I'm sorry to cut you off there.
Mr. Moore.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you to all the witnesses for being here. I had the opportunity to attend the DNA data bank in the last Parliament, and it was very informative.
There are a couple of things, before we get into questions specifically on the bill, just to refresh our memories. There are two things I recall from that visit. The DNA sample was described to be like a library, and what we're actually looking at, in doing the comparative analysis, is like taking one book out of that library. I think that's the way it was explained to me. I would like it if someone could comment a bit on that.
Also, I know the public might have a perception on this from watching TV or just with their thoughts on the whole science around DNA, but we've gone to great lengths to respect people's privacy when a sample is in the DNA data bank and , in fact, to separate the DNA sample from the personal information that would be attached to that sample.
I wonder if you could speak briefly on those two things.
Director General, Forensic Science and Identification Services, Royal Canadian Mounted Police
I'll take your second question first.
The data bank was set up to separate any personal information from the genetic information. In fact, the information resides in two separate indices. The genetic information resides within the National DNA Data Bank. A genetic profile is just a series of numbers, and attached to that is a bar code, and the people who work with that information have no other information on the individual from whom the DNA profile came. The fingerprints, address, and personal description are all contained within our criminal records area in another building within the RCMP complex. In fact, the staff from each area do not comingle. We have taken measures to ensure that the data bank, the unit that I described earlier, is actually removed in its governance structure from the governance structures of either of those other two entities, whether it be Forensic Laboratory Services or the criminal records area. Also, there is legislation that guides us in the retention of personal information and genetic information.
Your first question had to do with comparing DNA samples. Again, I'd like to draw the distinction between the DNA data bank and Forensic Laboratory Services. Forensic Laboratory Services are the people, if I can say, who are at the pointy end of the law enforcement stick. They work with the investigators to try to make matches at a crime scene, whether it be to match a crime scene to a crime scene or to match a crime scene to a suspect. Some of those samples end up in the National DNA Data Bank. For instance, if an offender is convicted, that sample could go into the National DNA Data Bank for designated offences. The non-suspect DNA from crime scenes would go into the crime scene index.
If there is going to be a match...I'll give you a scenario. There's an investigation. There's been bloodletting, and the investigators collect blood from a crime scene and bring it in to be analyzed by one of our forensic labs in the field, right across Canada, whether it be a provincial lab or the federal labs. That genetic profile is then searched against the convicted offender profiles within the data bank and also against the other non-suspect crime scene samples within the data bank to see if there's a hit with either one. That's a scenario that could be used to link the labs across Canada with the DNA data bank.
Conservative
Rob Moore Conservative Fundy Royal, NB
There's been some talk about the conspiracy to attempt murder, and I understand that this bill adds that to the list of offences that could trigger a retroactive order. I have no trouble seeing why conspiracy to attempt murder should be treated in that manner.
Also, to make sure nothing slips through the cracks, for the subcategory of 16 of the most serious offences--some of them are murder, manslaughter, sexual assault with a weapon, and kidnapping--there would be an automatic DNA order when we had one of those most serious offences.
Could someone speak generally about that subcategory, now that it is created in the bill, of the 16 most serious primary offences and how making that an automatic DNA order would, in my view, prevent some sample from slipping through the cracks when it might otherwise help solve another crime or ensure a conviction?
Senior Legal Counsel, Royal Canadian Mounted Police
It seems to me--and this is my understanding--that these categories were really created by the committee itself when Bill C-13 was being debated.
The concern of the committee was that the data bank, the convicted offender index, was not receiving the volume of designated offences that we expected for primary designated offences. The committee, in its wisdom, chose to suggest that it would be useful to tell the courts that in certain cases they had no discretion.
Conservative
Rob Moore Conservative Fundy Royal, NB
Can I interrupt you there? How does that happen, then? We know we have this tool—and I appreciate the comparison to fingerprinting—and that it has made a profound change in the way we investigate crimes.
Take, for example, a situation where someone has committed murder and been convicted of the offence, and yet no DNA sample is sent to the data bank. That was happening, and that is why the committee recommended that we ensure that those most serious ones do not fall through the cracks.
Can you take me through how it would happen that a sample doesn't end up in the data bank when clearly it should?