May 12, 2004

?

The Acting Speaker (Mr. Bélair)

All those in favour of the motion will please say yea.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

Some hon. members

Yea.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

The Acting Speaker (Mr. Bélair)

All those opposed will please say nay.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

Some hon. members

Nay.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

The Acting Speaker (Mr. Bélair)

In my opinion the nays have it.

And more than five members having risen:

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

The Acting Speaker (Mr. Bélair)

Call in the members.

And the bells having rung:

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
LIB

Diane St-Jacques

Liberal

Ms. Diane St-Jacques

Mr. Speaker, I am requesting that the division be deferred until this evening, after government orders.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

The Acting Speaker (Mr. Bélair)

At the request of the assistant whip of the government, the vote has been deferred until after government orders tonight.

Bill C-35. On the Order: Government Orders

May 7, 2004--The Minister of Justice--Second reading and reference to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness of Bill C-35, an Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
LIB

Ralph Goodale

Liberal

Hon. Ralph Goodale (for the Minister of Justice)

moved that Bill C-35, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
LIB

Sue Barnes

Liberal

Hon. Sue Barnes (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Mr. Speaker, in proposing a series of changes that come within the existing structure of the DNA data bank legislation, the government is building upon legislation that has been upheld by the courts every time it has been challenged.

I am not an expert but I understand that a particular pattern of DNA will only appear in one out of billions of samples taken. There are few things harder to explain than the presence of an accused's DNA in or on the body of a victim of a sexual assault. The courts are well aware that DNA evidence provides a virtual guarantee against convicting the innocent, and the miscarriages of justice that have been brought to light by the testing of old exhibits for DNA. Convictions that preceded the development of DNA evidence have been overturned and the real perpetrators identified.

The national DNA data bank contributes to the administration of justice and the safety of Canadians by ensuring that those who commit serious crimes are identified more quickly across all police jurisdictions in Canada, while innocent people are eliminated from suspicion. It assists law enforcement agencies in solving crimes by linking crimes together where there are no suspects, helping to identify suspects, eliminating suspects where there is no match between crime scene DNA and a DNA profile on the national DNA data bank, and determining whether a serial offender is involved.

The Criminal Code establishes the process that can lead to a judicial order authorizing the taking of samples of bodily substances from certain convicted offenders for analysis and inclusion in the DNA data bank. Where a person has been convicted or discharged of a primary designated offence committed after the DNA Identification Act came into force, the judge is required to make a data bank order except in the most exceptional circumstances. The judge must be satisfied that the impact on the offender's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. The court is also required to give reasons for its decision to make or to deny making a DNA data bank order.

Where a person has been convicted or discharged of a secondary designated offence, the order may be granted if the judge, on application by the Crown, is satisfied that it is in the best interests of justice to do so. In granting or refusing an order with respect to a secondary designated offence, a judge must consider the criminal record of the individual, the nature of the offence, and the circumstances surrounding its commission and the impact such an order would have on the person's privacy and security of the person. Again the court is required to give reasons for its decision to make or to deny making a DNA data bank order.

The legislation contains important protection against the misuse of DNA profiles. It is an offence to use them for any other purpose than the investigation of crimes.

I understand that the Royal Canadian Mounted Police, which operates the national DNA data bank, has developed a system of separating the DNA profile from the identifying information. The bodily sample that is to be analyzed and the identifying information on the offender, which is based on finger prints, are identified by the identical bar code. The DNA data bank keeps the sample and sends the identifying information to the criminal identification branch. The analysis is tracked by the bar code, and the DNA data bank does not know who the offender is.

When there is a match, it advises the criminal identification branch of the bar code, and the criminal identification branch identifies the convicted offender. Moreover, the DNA data bank only analyzes so-called junk DNA, that is, strands of DNA that do not provide any information regarding the personal characteristics of the offender, such as hair or eye colour. The committee, I am sure, will want to hear from the management of the DNA data bank regarding these privacy protections.

With such strong protections for the offender's privacy and the great value of DNA evidence, the courts have welcomed the legislation. I am advised that there has not been a single trial or appellate court judge who has found a violation of the charter in the existing legislation. In this charter sensitive era, when many claim that judges are activists and are eager to strike down legislation, this unanimous support for the legislation is little short of amazing.

In Briggs, a decision of the Ontario Court of Appeal handed down in August 2001, the DNA legislation was unanimously endorsed. Its reasoning has since been endorsed by several other provincial courts of appeal. The court dealt with many of the issues that may arise in considering the legislation and held that:

One, whether or not there is evidence at the scene of the crime of which the offender was convicted that would likely yield a DNA profile of the perpetrator is not necessarily a relevant consideration.

Two, the phrase “best interests of the administration of justice” does not import as a prerequisite to making the order that there be reasonable and probable grounds to believe a further offence will be committed.

Three, the state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by the offender. Rather, the provisions have much broader purposes including: deterring potential repeat offenders; promoting the safety of the community; detection when a serial offender is at work; assisting in the solving of cold crimes; streamlining investigations; and most important, assisting the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.

Four, provisions in the Criminal Code and the DNA Identification Act restricting the use that could be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender's privacy.

Five, the procedures for obtaining bodily substances authorized by the provisions are of short duration and involve none or minimal discomfort. There is a minimal intrusion with no unacceptable affront to human dignity.

Six, a person convicted of a crime has a lesser expectation of privacy.

Seven, the trial judge is entitled to look at the offender's entire record, not just the crimes that may be designated offences.

In Hendry, another decision of the Ontario Court of Appeal that has been widely quoted in decisions in other provinces upholding the legislation, the court held that:

In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender, the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender, there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order.

With no judge dissenting, it seems that this legislation may never make it to the Supreme Court. However, members should be aware that in R. v. S.A.B. decided on October 31, 2003, the Supreme Court of Canada unanimously upheld the constitutional validity of the DNA warrant scheme. It found that:

Generally, the DNA provisions appropriately balance the public interest in law enforcement and the rights of individuals to dignity, physical integrity, and to control the release of personal information about themselves.

As the DNA data bank scheme is based on the same designated offences as the DNA warrant scheme and has many of the same safeguards, R. v. S.A.B. provides strong support for the constitutionality of the data bank legislation.

I believe we need have no concern about the constitutionality of Bill C-35, although the committee will undoubtedly want to hear from experts on that particular point.

Across Canada judges are deciding every day whether to make an order against an individual offender. Bill C-35, by expanding the number of offences and by clarifying procedures, will make the law even more effective. It will continue to be based on the same protections that have already led to its endorsement by the courts.

I urge all members of the House to support the motion to refer the bill to committee.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
CA

Vic Toews

Canadian Alliance

Mr. Vic Toews (Provencher, CPC)

Mr. Speaker, I too would like to add a few comments on the motion. I am a little concerned about why the government has at this late date brought this bill forward.

As the member who just spoke knows, the justice committee has been mandated to review this legislation in 2005. This appears to be no more than an election ploy designed to garner a few votes indicating that maybe the government is, after all, serious about fighting crime at this late date in its tenure.

Having read the bill I am concerned that what will happen, if the bill is brought forward in the next Parliament, is that it will tie the hands of the committee rather than allowing the committee to take a good strong look at the legislation and determine what needs to be done.

This is a direct contradiction of what the government has stated, that the committee is to be the master of its own process. This seems to be a direction by the government saying “this is as far as you go and no further”.

I noted with interest some of the comments by the member suggesting that the legislation was great legislation as it was because the courts had upheld the legislation. Frankly, I do not think that is a test of good legislation at all. The test of good legislation is not whether the court agrees with the legislation but whether it is effective in carrying out its purpose. Its purpose, of course, is to reduce crime by apprehending offenders.

Instead, we have a bill that simply has the lowest common denominator. Therefore it is no surprise that courts uphold the legislation. The reason there is no interference with constitutional rights is because there is no effective legislation in terms of apprehending individuals.

The government has chosen to depart from a constitutionally sound process. Let us look at the fingerprint situation. For a long period of time we have accepted that if people are charged with an indictable offence they are fingerprinted. There should be no difference with the DNA if it is done in an unobtrusive way. Similarly, there is no problem with the Constitution.

However, what the government is doing is limiting the powers of the police, not in a way that is in any way mindful of constitutional liberties but in a way that simply ties the hands of the police officers.

I have yet to hear a valid argument presented by the government on why we do not take the same approach with DNA as we do with fingerprinting. If someone has been charged with an indictable offence, DNA testing should take place in the same way as we do it with fingerprinting.

However it would not be automatic that the DNA is taken even where there are convictions. What the Liberal bill would do is divide the offences into different types of offences. There are three different types of DNA data bank orders: retrospective, prospective and retroactive.

In respect of the retrospective, the designated offence must have been committed before June 30, 2000 and the offender was convicted after that date. Prospective means that the designated offence was committed after June 30, 2000 and retroactive. In the retroactive situation, there needs to be an order of a judge in respect of the individual who was convicted before June 30, 2000 and is still under sentence.

One of the problems with the legislation is resourcing. If a crown attorney is required to go to the courts for these kinds of orders, given the burden on these crown attorneys and other justice officials to actually proceed to court, the chances that these orders will actually be taken are virtually nil.

This is very reminiscent of the Liberal sex offender registry. The Liberals said, after years of pressure from the Conservative opposition, that they would bring forward a sex offender registry but that the sex offender registry would not include anyone who had been convicted prior to the date of the registry coming into force. In fact, we would have had a registry with absolutely no names on it. It is quite disgusting that after a dangerous sex offender goes through a trial and is convicted by a judge or a jury that somehow there would be a violation of the offender's rights. That is just so much nonsense.

It is time the government balanced, not only the rights of a convicted accused, but the rights of the victim. It seems that the victims are consistently forgotten in the legislation and, indeed, the ability of police officers to effectively protect potential victims, never mind those who have already been violated by offenders.

The legislation brings forward all kinds of procedural matters that would hinder the ability of police officers and other justice officials to do their job.

I will not oppose the referral of the legislation to a committee but I am concerned with it. I am concerned that the government is trying to bind the hands of the committee and that the committee will not look at effective options for dealing with these problems because it will consider itself bound by the direction of the government as set out in the bill.

I would like to hear from the Prime Minister and the Minister of Justice that in no way will the legislation bind the legislatively mandated review that will take place of the DNA registry in 2005.

With those comments I am prepared to allow this to proceed forward to committee. I trust that the Minister of Justice will be giving the House and all Canadians some assurance that the committee will be entitled to look at the broader scope of the issues involved here.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
BQ

Claude Bachand

Bloc Québécois

Mr. Claude Bachand (Saint-Jean, BQ)

Mr. Speaker, the Bloc Quebecois has examined the bill and we are generally in agreement with referring the whole debate to committee because the committee stage is always an important one. Often, in fact, we reserve judgment until afterward.

In fact, at second reading stage people often appear to appreciate the amendments proposed; then they can be gone into in greater depth in committee. If something is discovered, then we can ask for amendments to a bill or for certain points to be taken out of it or added, and so on. So the whole aspect of the committee stage is of some consequence.

Many people no longer have any doubt about the usefulness of genetic fingerprints.

I will say a few words about how investigative methods have evolved over the years. I recall, when we were younger, all the police novels we read and all the police movies we watched, and how amazed we were when someone ended up being convicted on the strength of a single hair or some other court evidence.

The way science has evolved since then has made it possible for investigative methods to be fine-tuned, so it is important to bring the Criminal Code up to date to reflect that. Today we are dealing with bodily substances. In the old days, it was hard to connect a hair or a nail with the person who had committed the crime.

Now if a hair is found, thanks to the genetic profile we have of people in our DNA banks, the person can be identified perfectly. We cannot, therefore, be opposed to the idea that all investigative tools must be brought up to date.

This is most certainly a very technical bill, and can be gone into in somewhat more detail in committee. I might point out, incidentally, to those listening, that we are perhaps wasting our saliva and its DNA today, because of the impending election. If an election is called, this bill will merely get deferred until some distant date, likely next fall. Considering where it is in the process at this time, barring unanimous consent to speed it through, it is very obvious that it cannot get passed in this session.

The bill centers to a large extent on designated offences. For the benefit of those watching, there are two types of designated offences; these are either primary or secondary. The primary designated offences are more serious offences, normally requiring the court to issue an order authorizing the taking of samples of bodily substances.

The bill adds offences to the list of primary designated offences. I have no objection to a number of them.

The first one concerns sexual exploitation of a person with a disability. Obviously, as someone who worked with persons with disabilities for 20 years, I understand that many might abuse their intellectual superiority over a person with a disability. I therefore agree with the inclusion of this primary designated offence.

The second one concerns the causing of bodily harm with intent, using an air gun or a pistol. Clearly, as my target training days with Canadian Forces have taught me, a rifle can cause a lot of damage. Air rifles can also cause a lot of damage.

If it is demonstrated that a person intentionally shot an air rifle, that ought to be considered a primary designated offence.

Third is administering a noxious thing—I checked in the dictionary, and noxious means harmful to the health—with the intention to endanger life or cause bodily harm. It seems obvious to me that this ought to be a primary offence.

Fourth is overcoming resistance to the commission of an offence, for instance, by suffocating one's victim. Obviously, I have no objection to now consider this as a primary offence.

The same goes for robbery and extortion. These two offences, however, have just graduated from the secondary to the primary offence category. Under the Criminal Code, robbery and extortion are now primary designated offences.

I would also like to say that even the court is obliged to order sampling for a primary offence, making it important to identify exactly which kinds of offences should be on the list of primary offences.

For secondary offences, it has usually been the court that considered the relevance of taking samples, in order to improve the administration of justice, and based solely on that criterion. Now, the court must ask the plaintiff's opinion. A victim may object and may also require the court to order a genetic sample.

That is an important aspect, since the victim now has a say. The administration of justice is important, but it is also important to give the victim the opportunity to decide where he or she wants to go with the case, as the victim.

I have always sided with those who say that the accused do have rights but that victims must have more rights than the accused. In this bill, that is a rather interesting addition, that the plaintiff can require the court to take or not take a genetic sample. The court must take the plaintiff's decision into consideration.

New secondary designated offences have been added, which we could say are less serious than primary designated offences. They include criminal harassment, uttering threats and breaking and entering a place other than a dwelling-house. This bill makes the distinction. Under the Criminal Code and the bill, breaking and entering a dwelling-house is more serious than breaking and entering a business at a late hour, for instance. The residents' safety is not necessarily in danger in that case. This needs to be looked at in committee, but I have the impression that is why it was considered a secondary designated offence.

The secondary designated offence category also includes intimidation. There has long been intimidation, but there has never been any legal action or provisions in the Criminal Code to pursue the guilty parties. Now, with the bill before us, intimidation is rightly becoming a secondary designated offence.

Arson causing damage to property and arson for fraudulent purpose are also secondary designated offences and are on the list. We are not surprised to see participation in activities of a criminal organization on the list. Committing an offence for a criminal organization is important to have on the list as well. Instructing the commission of an offence for a criminal organization is also on the list.

By and large, the Bloc Quebecois is in favour of the principle of the bill. As I was saying earlier, when we are in committee, if we get to that stage, although we have our doubts, we will take the time to look at each one of these offences to see whether they target and will achieve the objective of providing the public with a fairer and safer society.

We agree with the principle of the bill. Let us examine it more closely in committee and come back to third reading for a final decision. We are in favour of the bill as it is currently worded provided that it is sent to committee for future study.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

The Acting Speaker (Mr. Bélair)

Before we hear from the next speaker, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Peterborough, Gasoline Prices; the hon. member for Ottawa West—Nepean, Maher Arar Inquiry.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
NDP

Lorne Nystrom

New Democratic Party

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. Speaker, we in the NDP support Bill C-35 being sent to committee. I assume, like everyone else, that the Prime Minister will probably drop the writ for an election campaign very shortly and this debate will not continue until the fall sitting of the next Parliament.

However, I do want to make a few comments on the substance of the bill even though the motion before us today is to refer it to the standing committee for greater study. That is important because it will give the committee a chance to call in some expert witnesses. It will also give the committee a chance to see whether or not it is a useful bill for the prevention of crime and for the common good of the people of this country.

The bill itself would add certain criminal offences relating to criminal harassment to the list of designated offences to which a DNA data bank order can be made. In other words, the police can make a DNA data bank order for offences that are not now available for DNA orders. In principle, that is a good thing to do.

Bill C-35 would permit a data bank order to be made against a person who has committed an offence but found not criminally responsible on account of a mental disorder. If someone with a mental disorder is found not criminally responsible, the police can apply for a data bank order to be made against that individual.

Bill C-35 would expand the list of sexual offences under the retroactive scheme for persons prior to June 30, 2000 by adding historical sexual offences like indecent assault and committing a sexual offence, and the offence of break and enter.

A new class of offender would be added to the list of offenders who may be candidates for the retroactive scheme, for example, those who have committed one murder and one sexual assault at separate times.

The legislation would create the means to compel an offender to appear at a certain time and place to provide a sample of DNA evidence. Bill C-35 would create a procedure for a review of DNA data bank orders that appear to have been made for a non-designated offence and the destruction of samples taken from those offences.

Those are five examples of different things Bill C-35 would do to change the law. The NDP certainly supports the bill being referred to committee. In principle, it looks like we are going in the right direction. On behalf of the New Democratic Party of Canada, I want to reserve our final position on this legislation until we have had a chance to examine witnesses, study it further, and look at possible amendments.

Our party does have some concerns about any changes made to criminal law, particularly when it comes to something like DNA and fingerprinting. We are concerned about an individual's right to privacy. We want to ensure that an individual's privacy is not going to be violated by the suggested changes. We are also concerned about the individual's security. We want to ensure that there will be no violation of fundamental rights that are guaranteed under the Charter of Rights and Freedoms.

In principle, many positive things appear to be happening with the bill in terms of increasing the effectiveness of DNA samples as an investigative tool to be used by the police. Providing it is not a violation of people's security or an infringement on their civil liberties, it is certainly a step in the right direction.

The potential of DNA evidence is enormous. It has great power toward solving crimes, and ensuring that the guilty are convicted and the innocent are exonerated. It is one of the miracles of modern justice. We must ensure however that DNA evidence is accurate and is gathered without infringement on the rights of all Canadians to be free of unreasonable search and seizure. Bill C-35 should be sent to committee for further study.

I want to make one comment on the miracle of DNA evidence. It was brought home very clearly to a lot of us in my Province of Saskatchewan a few years ago. I am referring to the case of David Milgaard.

David Milgaard was convicted for a 1969 murder of a young Saskatoon nurse named Gail Miller. My recollection is that he spent 22 to 23 years in prison for a crime which was later proven he did not commit. David Milgaard might be still in prison had it not been for DNA evidence and DNA technology 10 or so years ago that proved that he was not the person who committed this gruesome and unfortunate act of murder. Someone else is now serving time, having been convicted for the murder of Gail Miller.

This is something that is a miracle of modern technology in terms of convicting those who should be convicted and ensuring that those who are innocent are not wrongfully convicted.

Over the sweep of history in our country, and indeed around the world, there have been many people who have been wrongfully convicted. There have been many cases in this country. I think of the Marshall case and many other cases that I do not want to get into at this particular time.

However, David Milgaard stands as a very good example of this. I commend the courage of his mother, Joyce Milgaard, for the fight to free her son. They came from rural Saskatchewan and one time lived in the Town of Langenburg which was part of my former riding of Yorkton--Melville. David Milgaard then moved around after that to Regina and other parts of Saskatchewan. This is a good example where DNA evidence has freed an innocent man and helped convict a guilty man of a murder.

We certainly support the reference of the bill to committee. The committee will have hearings and cross examine witnesses. I assume we will be making some amendments, after we hear the expert witnesses, and come out of this with something that is positive for the protection of Canadian society in order to bring individuals to justice, convict those who have done wrong, and ensure those who are innocent are not falsely convicted.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
LIB

Yvon Charbonneau

Liberal

Hon. Yvon Charbonneau (Parliamentary Secretary to the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness (Emergency Preparedness), Lib.)

Mr. Speaker, I am very pleased to rise to recommend that Bill C-35 be referred to a committee, as suggested by my colleagues. I think that all the parties in the House support the national DNA data bank and want to make it a tool that is as effective as possible to implement the act.

As hon. members know, DNA evidence has had what some are calling a revolutionary impact on the legal system. Canada can be proud of its DNA data bank. Indeed, our country is a world leader in this area and it has developed methods to protect privacy which, apparently, are being copied all over the world. However, while the DNA data bank is a success, it must be recognized that some difficulties have been encountered when using it, and the implementation of the act has also run into problems in court.

As hon. members know, the legislation that initially established the DNA data bank provided for a parliamentary review within five years of the coming into effect of this measure, that is by June 30, 2005. This is why I think the government acted responsibly by introducing Bill C-35 at this point in time. Indeed, we do not know when the review will actually begin and, more importantly, when it will be completed.

The problems that we are trying to solve with this legislation were raised by the Uniform Law Conference of Canada, by the provincial governments, which deal with the overwhelming majority of cases involving a DNA data bank order, and by the RCMP, which is responsible for the bank.

Every year, the criminal justice section of the Uniform Law Conference of Canada brings together federal and provincial government officials and also defence counsel to discuss various resolutions on changes to the Criminal Code and other acts relating to criminal law.

In August 2001, the criminal law section of the Uniform Law Conference of Canada adopted a number of resolutions that called on the Department of Justice to consider, in consultation with the provinces, the territories and other interested stakeholders, amendments relating to the scope and application of the DNA data bank legislation in the Criminal Code. In particular, it recommended that seven issues be addressed on a priority basis. Subsequently, these proposed amendments were studied thoroughly by the Department of Justice, particularly during its legislative consultations in the fall of 2002. The amendments were discussed with the provinces and they urged the federal government to make the changes.I am pleased to advise the House that all seven of the priority items have been addressed in Bill C-35.

The bill will make significant amendments to the DNA Identification Act which governs the operation of the DNA data bank. While these changes are important, I will restrict my remarks to the main proposals for change in the Criminal Code, which, in my view, are the most significant: the inclusion of the offences of indecent assault female, indecent assault male and gross indecency in the list of designated offences and the list of sexual offences.

Moreover, there are persons who should be in the DNA data bank as a result of having committed a series of these offences prior to the legislation coming into force. The Criminal Code does allow for persons convicted of two or more sexual offences to be sampled so this change to the definition of sexual offence will allow the Crown to apply to a judge to have them included.

The Uniform Law Conference and the provinces also proposed the inclusion of those individuals found not criminally responsible by reason of mental disorder within the DNA data bank scheme. We currently have in the House Bill C-29 which proposes important changes to the provisions of the Criminal Code dealing with the mentally disordered offender.

While those accused are not convicted of the crime, the court has found beyond a reasonable doubt that they have in fact done the act that constitutes the physical element of the offence. While they should not be sentenced to jail, it is clear they may be very dangerous. They are therefore put under the jurisdiction of a provincial review board. By making it possible for a judge to order that they DNA profiles be included in the DNA data bank, we may be solving crimes that they committed in the past. More importantly, if they should be released and commit a crime where they leave their DNA, we may solve that crime.

Members should remember, however, that having their DNA in the data bank could be a benefit to a mentally disordered offender who has been released into the community. These offenders are likely to be suspects, but if their DNA does not match the DNA from the crime scene, the police will know they are innocent.

The bill also contains a process, which the Criminal Law Section and the provinces wanted, for compelling the offender to attend in court at a hearing to determine whether a DNA data bank order should be made. Usually, this hearing takes place as part of sentencing, but there are occasions where the parties are not ready and the matter should be set over to another date. The bill contains a provision which ensures that the judge retains jurisdiction to order the person to show up for the hearing and, if the person does not show up, for a warrant for the person's arrest to be issued.

The Criminal Law Section and the provinces also recommended creating a process that would permit a judge to make, upon request, a second DNA data bank order, where the national DNA data bank has declined to process the first one because of police error in completing the forms that must accompany the bodily substances submitted for analysis.

The Criminal Code contains a provision permitting such a second sample if, for some reason, a DNA profile cannot be derived from the bodily substance. It is entirely appropriate if there has been a clerical error, for example in mixing up bar codes making identification of the offender impossible, that it should be possible to seek another order. Again, this bill will make this possible.

The provinces also wanted a mechanism to require the offender to appear for the purpose of providing a DNA sample. The law, as it currently stands, only makes provision for the DNA sample to be taken when the order is made. This has proven to be impractical. The police simply cannot have trained personnel in every criminal courtroom in the land. It is far more practical for the court to order the person to go to the police station at a fixed time. The bill provides for such an order and enables the judge to issue an arrest warrant, where necessary.

The bill also proposes changes in the list of designated offences covered by the DNA data scheme. Probably the most important additions to the list will be uttering threats and criminal harassment. As these will be secondary offences, the crown will have to apply for the order. People who engage in these activities present an elevated risk of subsequent violence, particularly to the victim of the offence. Having their DNA in the data bank may assist in deterring them.

The bill also proposes to move robbery and break and enter into a dwelling house from the list of secondary designated offences to the list of primary designated offences. This should increase the likelihood that a court would make a DNA data bank order in the case of these very serious offences.

I believe this review of the highlights of Bill C-35 shows clearly how important it will be in promoting the safety of the public and how it responds to the suggestions made by the provinces.

Of course, identical changes are being made in the National Defence Act to ensure that the military justice system remains consistent with the Criminal Code.

The sooner that review begins, the better. Therefore, I urge members to send Bill C-35 to committee.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
BQ

Réal Ménard

Bloc Québécois

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

Mr. Speaker, I believe it is now known that the Bloc Quebecois is in favour of the principle of this bill. We obviously recognize that any provision in the Criminal Code that facilitates the administration of justice is a positive thing.

This bill will contribute to the administration of justice, because it will provide additional guarantees with respect to sentencing.

Mr. Speaker, I believe you were a member of this House a few years ago when a heinous crime was committed against a young girl named Manning. There were a few difficulties at the trial because the way in which the bodily substances had been collected for establishing guilt was called into question.

If memory serves me correctly, we passed at first, second and third readings, in 48 hours, a bill on the creation of a national DNA databank and the administration of evidence in the case of DNA samples. It was done quite quickly. Public indignation was extremely high. At around the same time, in 1995, 1996, or 1997, we discovered with horror the influential power of organized crime.

I will turn 42 tomorrow. Imagine that. I must stop saying I am 41, with a birthday coming tomorrow.

I did not grow up hearing as much about organized crime as the member for Mercier, who has clearer memories than I of the commission of inquiry into organized crime. People came to know more about it, or at least people a little older than me, because of the CIOC. Things calmed down for a while, and then by the mid-90s our communities began to realize how much power organized crime again had.

We know that three conditions are required for organized crime to flourish: a relatively rich society, a society with well-developed means of communication, and a society where there are guarantees of rights. As far as communications are concerned, we know that ports, highways, and airports are unfortunately often the focus of those engaged in smuggling.

So where is the link between that and Bill C-35? It used to be possible for a judge to issue a warrant for collecting bodily substances from an inmate or accused. This would provide DNA profiles to be kept in a national data bank under RCMP responsibility.

The way DNA profiles were assessed, and the way they were taken, was governed by the category of offence. There were two categories of offence. The first was primary designated offences, where it was virtually automatic for a judge to order a DNA profile. This category of offence includes generally extremely serious offences under criminal law.

Now section 487.04 of the Criminal Code lists the offences, including those for which a DNA profile may be ordered.

The new bill adds to these sexual exploitation of person with disability, and causing bodilyharm with intent—air gun or pistol.

Also added are: administeringnoxious thing with intention to endangerlife or cause bodily harm; overcoming resistanceto commission of offence; robbery; extortion; breakingand entering a dwelling-house; and finally, intimidation of ajustice system participant or journalist.

Hon. members might recall that we had three bills to fight against organized crime. Bill C-95 was very important. I was the first member of Parliament to introduce an anti-gang bill. On August 9, 1995, in my riding of Hochelaga—Maisonneuve, a car bomb went off on Adam Street, right across from the Très-Saint-Nom-de-Jésus church. A young man, Daniel Desrochers, who happened to be in the wrong place at the wrong time, was killed. That is why we started looking for the best means to dismantle organized crime.

The first piece of legislation we had against organized crime offences was Bill C-95, which was introduced by the then justice minister, Allan Rock. I think I am allowed to name him, since he is no longer a member of Parliament. The main offence that was mentioned in Bill C-95 was the criminal organization offence. If five or more persons were part of a group, or if these five persons had committed five indictable offences in the last five years for which the maximum punishment was imprisonment for five years or more—the three fives rule—we had a criminal organization offence.

Do you know what happened? Major gangs such as the Hells Angels, the Bandidos and the Rock Machines started spinning off satellite criminal groups. They recruited people who did not have a criminal record but who joined gangs in order to get their badge. It became extremely difficult for the Crown to lay charges under Bill C-95.

Bill C-95 was all the more difficult to administer because, a few years previously, the Supreme Court handed down a ruling, the Stinchcombe decision. This extremely important criminal law ruling imposes obligations on the Crown.

As we know, criminal investigations may last three, four, up to seven years. The process is an extremely long one. Under the Stinchcombe ruling, the Crown must disclose all of the evidence it has against the accused. That meant that a police officer involved in shadowing during an investigation, in a bar for example, had to table the notes that allowed the investigation to progress.

The Stinchcombe ruling was extremely controversial. Of course, coming from the Supreme Court, it created new law. The attorney general could not appeal the ruling. It made it very difficult to bring investigations to an end, and it thus became necessary to further refine the administration of evidence and hence the gathering of DNA samples.

So, we got Bill C-95. Then came Bill C-24 and Bill C-36. There was a lot of legislative activity in criminal law. Today the three fives rule has been simplified. An organized crime activity is described as three persons engaged in certain offences.

The new bill refers to journalism. Quebeckers or even people in the gallery might remember the attack on the journalist Michel Auger in the parking lot of the Journal de Montréal .

Mr. Michel Auger, a crime reporter, was victim not only of intimidation but of an attack on his life. As a matter of fact, it is the former member for Berthier—Montcalm, Mr. Michel Bellehumeur, now a Quebec court judge, who had suggested that bill include a reference to the intimidation of not only members of Parliament, police officers, judges and commissioners, but also journalists.

We want to see Bill C-35 go to committee as soon as possible.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
LIB

Derek Lee

Liberal

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

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.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
LIB

Larry Bagnell

Liberal

Hon. Larry Bagnell (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development, Lib.)

Mr. Speaker, I have the distinct pleasure today of sharing a great Canadian success story. It is a story that combines justice, innovation and worldclass technology.

It is a story that highlights unique Canadian know-how and strong Canadian leadership. It is a story that affects all Canadians and reaches well beyond our borders.

This is a story about the administration of justice and the most powerful investigative tool ever discovered. It has solved hundreds of serious crimes in just the last few years and kick-started some of the most difficult criminal cases facing Canadian police. It helps protect Canadians from violent criminals and sex offenders.

This is the story of forensic DNA evidence and the ways in which it has revolutionized criminal investigation and prosecution.

More powerful than fingerprints, DNA serves as a silent but credible witness, convicting the guilty while protecting the innocent. When properly handled and properly profiled, it offers foolproof evidence.

This is a story that illustrates the power of science. It is a story of Canadian innovation that is putting science to its best use through the national DNA data bank.

DNA is the fundamental building block of our entire genetic makeup. With the exception of identical twins, every person's DNA is unique.

Using modern technology, DNA can be extracted from a small biological sample, such as a few drops of blood, the root of one hair or by swabbing the inside of the mouth. The sample is analyzed, creating a DNA profile that can be used to identify a person. That profile, in turn, can be compared to an unknown DNA profile drawn from a different biological sample. If the profiles match, the two samples come from the same person or from identical twins.

At the forefront of forensic DNA science is the nation DNA data bank, formed as a result of legislation passed by the House six years ago. The data bank is recognized worldwide for the quality of its work and the professionalism of the scientists who work there.

Since it opened in June 2000, the data bank has helped solve almost 120 murders and over 300 sexual assault cases in communities from coast to coast to coast. It has played a pivotal role in helping police solve 250 armed robberies and almost 900 break and enters. The national DNA data bank has provided critical evidence leading to convictions in more than 1,700 serious crimes.

The power of DNA evidence is so well entrenched that we now almost take it for granted. It is remarkable to realize it was only 15 years ago that DNA typing methods were introduced into criminal investigations and trials in Canada.

The first conviction directly tied to DNA evidence came in 1989 in the case of a vicious sexual assault. The so-called McNally case transformed the administration of justice in Canada and paved the way for the introduction of the data bank just over a decade later. The evidence developed by the RCMP in a lab in the McNally case, was so compelling that it convinced the accused to change his plea to guilty.

Although the RCMP started using DNA analysis successfully in 1989, there was no coordination at the national level to help police take full advantage of steady advances in the technology.

In 1996, the Department of the Solicitor General and the Department of Justice embarked on nationwide consultations with a wide range of stakeholders, including the provinces and territories, police associations, privacy advocates, legal experts and victims groups.

Confirming the Government of Canada's commitment to combat crime, and particularly violent crime, Bill C-3, the DNA Identification Act, received royal assent in December 1998, and was proclaimed in June 2000. With royal assent, the RCMP committed to build a national DNA data bank and to make it operational within 18 months. The project was completed on time and under budget.

The nationwide consultations that contributed to the creation of the data bank also stressed the need to balance a suspect's right to privacy with the need for police officers to collect evidence.

The legislation imposes strict procedures to govern the handling of DNA profiles and biological samples to ensure the privacy interests are protected. Information collected by the national DNA data bank is used for law enforcement purposes only. The bill continues all of those protections.

Some members of the House will also know that the national DNA data bank advisory committee oversees the operation and offers advice to the commissioner of the RCMP.

The data bank is one component of the national police services administered by the RCMP for the benefit of the entire Canadian law enforcement community. The data bank currently employs 26 people and operates with an annual budget of $3.1 million.

The value of DNA to police investigations is remarkable. Biological samples collected from a crime scene can link a suspect to that scene or rule out the suspect entirely. Evidence from different crime scenes can be compared to link the same perpetrator to multiple offences, whether the crimes took place locally, across the country or halfway around the world.

Canada's national DNA data bank has been recognized as one of the most advanced facilities of its kind in the world. The national DNA data bank relies heavily on robotic technology. Combined with a worldclass inventory and sample tracking system, personnel can process more samples in less time and at a significantly lower cost than other similar operations.

Moreover, the facilities in other countries require enormous cold storage containers to maintain the quality of DNA samples awaiting processing. The Canadian system uses specialized blotting paper that stabilizes the DNA and allows it to be stored at room temperature in secure cabinets.

Although there are fewer numbers of samples in the Canadian national DNA data bank compared to its counterparts internationally, our data bank has realized success much earlier than many. Compared to DNA banks, such as the Florida state wide data bank, the Canadian bank has seen more matches per sample.

The national DNA data bank consists of two primary databases. The first is a convicted offender index and includes profiles from individuals convicted of certain serious Criminal Code offences. The second is the crime scene index which houses DNA profiles generated from crime scenes.

There are currently more than 57,000 profiles entered onto the convicted offender index and more than 14,000 on the crime scene index.

An offender “hit” occurs when a biological sample from a crime scene is sent to the data bank and the resulting DNA profile matches one in the convicted offender index.

A forensic “hit” occurs when a crime scene DNA profile is sent to the crime scene index and matches a profile from at least one other crime scene.

The data bank's success is based on a simple formula. The more profiles entered into the two indices, the more hits generated to help police investigators solve serious crimes.

One such “hit” solved the vicious 1992 murder of a convenience store attendant in Sydney, Nova Scotia.

I would like to conclude my remarks by reminding the hon. members across the way, who are so enthusiastic about the bill, that the national DNA data bank serves as one of the most powerful law enforcement tools available to Canadian police and courts.

Members will recall that more than 1,700 serious crimes have been solved over the last four years as a direct result of evidence generated by data bank scientists.

Even more encouraging is the fact that, as the national DNA data bank approaches full capacity, its impact will increase even further as greater numbers of samples are processed.

Enhanced automation and robotics will help scientists process even more DNA samples in a shorter period of time. New technology will help position the data bank to better respond to various types of forensic investigation, including mass disasters.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

The Speaker

Is the House ready for the question?

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

Some hon. members

Question

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink

May 12, 2004