Hon. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)
Mr. Speaker, as members are aware, Bill C-13, an act to amend the Criminal Code, DNA Identification Act and the National Defence Act was passed, one might say, with some haste by the House and the Senate last May.
Major amendments were adopted by the House standing committee, including amendments to effect a compromise among the parties, that expanded the definition of “designated offence” and the scope of the retroactive DNA data bank order provisions which were aimed at collecting DNA from offenders convicted of serious crimes prior to June 30, 2000. The bill, as amended, received the support of all parties.
The bill provided for a limited number of amendments to come into force on royal assent and the rest to come into force on proclamation. The important amendments in force are those that expand the retroactive DNA collection scheme in the Criminal Code and those that simplify communication of DNA profiles between laboratories to determine whether a crime scene profile matches another profile in the national DNA data bank.
The major amendments in Bill C-13 that have not yet been brought into force include the changes to the definitions of designated offences which will allow for the making of many more DNA data bank orders and will allow the police to apply for a DNA warrant in many more cases and the provisions allowing a judge to fix a time and place for taking a DNA sample from a convicted offender and authorizing the issuing of a warrant for the arrest of that offender if he does not show up as required.
Officials from Justice Canada, Public Safety and Emergency Preparedness Canada, Correctional Service Canada, the RCMP, the national DNA data bank and the provinces have been preparing for the proclamation of the remaining provisions. They have identified certain technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase the efficiency and reduce costs.
Because it is urgent to adopt this bill before the budget may be defeated, the changes were drafted and passed, even though their thorough examination, the review of the necessary consequential amendments and the identification of all the consequences and of the changes required, which took place at report stage, at third reading or in the other place, were not available.
I will not list all the technical problems in Bill C-13 that the officials have requested to be fixed and which have led to the amendments that have been incorporated in Bill C-72. However Bill C-72 includes provisions to amend the legislation to address the following problems.
First, the amendments to the definitions of primary designated offence and secondary designated offence do not fit together.
Second, the forms were not changed to reflect the changes made in the procedures for obtaining an order in retroactive proceedings and in the definition of secondary designated offence.
Third, the French and English versions of the clause in the DNA Identification Act authorizing the commissioner to provide further information in a moderate match case are different.
Fourth, the French and English versions of the section authorizing the international sharing of DNA profiles set out different information the commissioner can provide. The English version forbids the sending of profiles internationally, which could hamper Canada assisting its international partners through Interpol.
Bill C-72 also proposes changes requested by the provinces to streamline procedures and reduce costs.
The decision to amend Bill C-13 so that those convicted of murder, sexual offence or manslaughter are targeted by the provisions on the taking of DNA samples resulted in an additional 4,000 individuals being targeted by these provisions.
The Criminal Code provides that, in these cases, hearings are held ex parte. However, the Ontario Court of Appeal ruled that an offender has the right to get a notice of the order for retroactive application and to appear during the hearing for that application, unless there is a risk that the individual might flee.
Because a decision of the Supreme Court of Canada is not expected for more than a year, the other provinces have decided, as a precaution against an adverse judgment, to serve notice on all persons against whom they are seeking an authorization to take a DNA sample, including incarcerated offenders. Many offenders are incarcerated in a province other than the one where they committed the offence. The police and the Crown in the jurisdiction where the offence took place are best placed to make the application for the order.
There is concern that many of these offenders will seek to be represented. Transporting these incarcerated offenders around the country for hearings would be very expensive for Correctional Services Canada and could present serious risk of flight by offenders who are serving lengthy sentences with little prospect of being released. The officials have therefore proposed that the DNA legislation permit retroactive hearings by video link, and this change is proposed in Bill C-72.
Another procedural change that will simplify procedures and reduce costs is the amendment proposed by Bill C-72 with respect to the procedure respecting those cases where the national DNA data bank has received, for inclusion in the convicted offenders' index, a sample taken pursuant to an order that on its face does not refer to a conviction for a designated offence. As members know, the Criminal Code only authorizes the making of a DNA data bank order where the person has been convicted of a designated offence. Nevertheless, the data bank has now received more than 700 such orders and accompanying seized samples of body substances.
Section 5.1 of the DNA Identification Act, as enacted by the former bill, Bill C-13, provides that the commissioner of the RCMP is to return such orders to the attorney general for the province where the conviction was obtained or to the director of military prosecutions. They are to investigate the matter and if they conclude that the making of an order was, indeed, not authorized by the Criminal Code or the National Defence Act because the person had not been convicted of a designated offence, they are to seek from a judge of the appellate court an order quashing the authorization.
Last August, Ontario proposed a resolution in the criminal law section of the Uniform Law Conference that this procedure be changed so that:
where the Attorney General agrees that the order was taken for a non-designated offence, the Attorney General confirms this in writing to the Commissioner of the National Databank who would then be authorized to destroy the sample.
This resolution was adopted and, having reviewed this matter in light of the discussions at the Uniform Law Conference, the government has concluded that it is not necessary to revoke the DNA data bank orders as they have been carried out precisely as the court had ordered.
The commissioner of the RCMP is not, however, blindly to process the bodily sample and enter the profile in accordance with the order that is received. He has an independent duty to decide whether the order meets the requirements of the DNA Identification Act.
The proposed amendment in Bill C-72 would simplify the procedure for the attorney general or the director of military prosecutions, setting out what they are to follow where the order should not have been made. Instead of having to make an application with its attendant costs and delays, the attorney general can confirm that the person was not convicted of a designated offence.
I believe members will agree that this procedure is appropriate as the question involves no legal issues to be decided by the appeal court but simply the question of fact of whether the offender was convicted of the designated offence, which can be answered simply by reviewing the file.
I believe Bill C-72 is an important bill which, if adopted, will greatly facilitate the implementation of Bill C-13. Accordingly, I would urge all parties of this House to adopt the bill as quickly as possible.
Topic: Government Orders
Subtopic: Criminal Code