Mr. Speaker, I am pleased to speak to the motion to send Bill C-13 to committee before second reading. Bill C-13 is nearly identical to Bill C-35 that was tabled in the House last May but died on the order paper. At that time all parties, while naturally reserving their position until they heard from the witnesses in committee, expressed general support for the use of DNA and favoured referring this bill to committee.
Bill C-13 contains proposed amendments to the Criminal Code, the DNA Identification Act and the National Defence Act, intended to clarify and strengthen the present regime concerning the taking a bodily substances for the purposes of the national DNA data bank.
I expect the committee will be paying close attention to the proposed changes to the list of designated offences. This is appropriate and is to be expected. Indeed, the expansion of the list to include such grave offences as sexual exploitation of a person with a disability, Internet luring of a child and extortion will, I am sure, be welcomed by all members of the House.
However, I intend to focus my remarks today on those legislative amendments in the bill that will address the procedural problems with the legislation. These changes are very important. They are not glamorous, and a lot of people watching this on CPAC may find them boring, but they are welcomed by police and the courts who have to make the legislation work on the ground each and every day.
The bill responds to a series of issues that had been raised primarily by the provinces. As members know provincial crown prosecutors and police deal with this legislation in the courts each and every day. Many of these proposed changes were recommended by the Uniform Law Conference of Canada which includes representatives of the defence bar and some judges, as well as provincial and federal justice officials.
They identified three problems that had to be fixed. First, there was no method to compel the offender to attend in court at a hearing to determine whether a DNA data bank order should be made. The existing legislation contemplates that a DNA order will be made at the same time as sentences is imposed. For various reasons, that is not always possible, but there is a danger that, if the judge imposes sentence but delays consideration of whether or not to make a DNA order, the judge may actually lose jurisdiction over the accused or the offender.
Bill C-13 specifically provides the following:
The court may set a date and time for a subsequent hearing to determine whether to make the order. The court retains jurisdiction over the matter and may compel the attendance at the hearing of any person who may be subject to the order.
Second, a process was sought that would permit a judge to make a second DNA data bank order where the national DNA data bank had declined to process the first one because of a police error in completing the forms that must accompany the bodily substances submitted for analysis.
The present legislation only allows the Crown to seek another order where a DNA sample cannot be derived from the sample of bodily fluids. However, there may have been problems in filling out the forms or in the identification of the accused. It could be that the bar codes were mixed up. It is vitally important that these offenders should have their DNA profiles in the DNA data bank despite these problems.
Bill C-13 will permit an application to be made for re-sampling. As the House can appreciate, these are highly technical, but important amendments.
Finally, a way was sought to require the offender to appear for the purpose of providing a DNA sample. The legislation currently requires that a sample be taken at the time the order is made but in many cases this is not possible. The police cannot have a trained officer attending all the court houses in the land at all times in case a DNA order is made. Accordingly, Bill C-13 allows for the judge to set a time and place for the sample to be taken and it provides for a warrant to arrest the offender if he does not show up.
These are not the only procedural changes made in this legislation. There are new provisions regarding the process when an offender is ordered to provide a DNA sample, but the offender's DNA profile is already in the data bank.
As well, the legislation was originally drafted on the basis that the convicted offenders' bodily substances would be analyzed in the regions and the profiles sent to the Royal Canadian Mounted Police data bank.
In fact, it was subsequently decided to have all analysis done here in Ottawa so that there are several provisions of the Criminal Code and DNA Identification Act that require amendment to clarify that the samples of bodily substances taken in execution of an order are transmitted along with a copy of that order, or authorization, and any other materials required under regulations to the RCMP for forensic DNA analysis, and that the results of this analysis are then to be entered into the convicted offenders' index of the national DNA data bank index.
There is as well an important new procedure which is necessary to address a problem that no one could have envisaged when this legislation was originally passed; namely, the making of DNA orders when there is no authority under law to do so.
Under the Criminal Code judges have only been authorized to make DNA data bank orders against offenders convicted of a designated Criminal Code offence. A DNA data bank order authorizes the police to take samples of bodily substances from a convicted offender for the purposes of the national DNA data bank. After the samples are collected, the police forward them, along with a copy of the judge's order, to the national DNA data bank in Ottawa.
Under procedures already established by the Commissioner of the Royal Canadian Mounted Police, who is responsible for the operation of this data bank, before the samples of bodily substances taken from a convicted offender are subjected to forensic DNA analysis, the DNA order, the original order issued by the judge, is examined to verify that it in fact relates to a designated offence.
Since the DNA data bank legislation came into force almost four years ago, approximately 500 DNA data bank act orders have been made against persons who, according to the information that appeared on the face of the order, do not appear to have been convicted of a designated offence. These are referred as facially defective DNA data bank act orders.
There is a need, and this is corrected in this legislation, to create a procedure to have these defective DNA bank act orders reviewed to determine whether the error, on the face of the document, is either a procedural error or a substantive error. If it is a procedural error, it can then be corrected and the bodily samples analyzed. If it is a substantive error, then the court lacks the authority to make the order and the Commissioner of the RCMP then goes on to destroy the bodily substances obtained under the faulty orders.
I want to say a few words about the procedures set out in the proposed legislation to ensure only those DNA samples that are taken in conformity with the will of Parliament are analyzed.
There would be a duty imposed on the commissioner by virtue of Bill C-13 to review the information transmitted to him, along with the DNA sample taken from a convicted offender, to ensure that the offence referred to in the DNA data bank order is a designated offence.
I understand that this bill has been discussed with the provinces and the provinces all agree. I believe it is incumbent now upon this House to refer the bill to the appropriate committee, the justice committee. At that point in time it will certainly be analyzed by all members of the committee. I urge the passing of this motion.