May 12, 2004 (37th Parliament, 3rd Session)

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
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