Mr. Speaker, I am pleased to speak to the motion to send Bill C-35 to committee before second reading.
Bill C-35 contains a number of technical and remedial amendments to the Criminal Code, the DNA Identification Act and the National Defence Act intended to clarify and strengthen the present law which governs the taking of bodily substances for purposes of the national DNA data bank.
I intend to focus my remarks today on those amendments that will address a particular problem that has been identified by the commissioner of the Royal Canadian Mounted Police who manages the DNA data bank on behalf of Canadians.
Great care was taken in the initial design of the DNA data bank legislation to carefully balance the protection of society achieved through the early detection, arrest, prosecution of offenders using DNA technology and the privacy rights of individuals on the other hand. Up until now, under the Criminal Code, judges have only been authorized to make DNA data bank orders against offenders convicted of a specific designated Criminal Code offence.
A DNA data bank order made by a judge under the Criminal Code authorizes the police to take samples of bodily substances from a convicted offender for the purposes of the 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 established by the commissioner of the RCMP, before the samples of bodily substances from a convicted offender are subjected to a forensic DNA analysis, the DNA order is examined again to verify whether it in fact relates to a designated offence. However, since the DNA data bank legislation came into force, almost four years ago, over 400 DNA data bank orders have been made against persons who on the face of those orders appear not to have been convicted of a designated offence.
These are referred to as facially defective DNA orders. In essence, there is a mistake on the face of the document which shows the order of the court. The biological samples that accompany these defective DNA data bank orders have not been analyzed by the data bank. To have processed the samples could have violated the privacy of those persons and undermined the integrity of the data bank.
The commissioner of the RCMP should be congratulated in this case for having respected the intent of Parliament by carefully examining and screening the data bank orders submitted to him.
There is now a need to create a procedure to determine whether the errors on the face of these orders are merely a clerical error which can be corrected or whether they are clearly cases where the court lacked authority to make the order. In the latter case, there is a need for the DNA Identification Act to provide clear authority to the commissioner to destroy the bodily substance obtained under these orders.
I want to say a few words about the procedure set out in the proposed legislation which will ensure that only those DNA samples that have been taken in conformity with the law are analyzed.
First, one observes that there is now a duty imposed on the commissioner 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 order is a designated offence.
Second, if the commissioner is of the opinion that the offence referred to in the DNA order is not a designated offence, he is required to retain the DNA sample and to communicate with the attorney general of the province, where the order was made, to initiate a review of that order. The attorney general of the province is responsible for the prosecution of Criminal Code offences in that jurisdiction and will review the order and the court record to determine whether the offence referred to in the DNA order is in fact a designated offence. A defective order will have to be revoked by the court of appeal for that province and in that procedure.
If the attorney general is advised that the DNA order has been revoked, the commissioner will have a duty to destroy the DNA samples that accompanied the original order. In a case where there was just a clerical error in the drafting of the order and the commissioner receives a corrected DNA order in which the offence referred to is a designated offence, he can proceed to analyze the DNA sample and to include the offender's DNA profile in the convicted offenders index in the national DNA data bank.
Under the DNA Identification Act, DNA profiles of convicted offenders that have been placed in the convicted offenders index are compared with the DNA profiles derived from biological substances found on or in something related to the commission of an unsolved designated offence. Where there is a match the local police are advised of the identity of a suspect.
In closing, I also wish to indicate my support to adopt the bill here prior to second reading and send it to committee. I note there is substantial support around the House for this. In the context of the time we have now, I suppose I could say we had better hurry, but I am sure when the House has an opportunity to deal with this bill again, it will receive prompt disposition and passage.