HISTORY OF BILL C-104
FOR OBTAINING A WARRANT
OF A WARRANT
PROVISIONS FOR YOUNG OFFENDERS
AND DESTRUCTION OF SPECIMENS AND RESULTS
FORENSIC DNA TESTING: LEGAL
BACKGROUND TO BILL C-104
Forensic DNA typing, which
attempts to match biological samples of suspects with biological specimens
left at the scene of the crime, has recently become a powerful investigative
tool for police. Since 1988, trial judges in Canada have allowed the introduction
of forensic DNA evidence in criminal proceedings on the basis that such
evidence would be both relevant and helpful to the trier of fact, namely
the jury. In most cases, the main issue in dispute was not the validity
of this novel scientific technique, but rather was whether a bodily sample
taken by the police without the accused's consent amounted to an unreasonable
seizure within the meaning of section 8 of the Charter. Illegally obtained
evidence can be excluded on the basis of section 24(2) of the Charter,
if its admission would bring the administration of justice into disrepute.
Prior to the introduction of Bill C-104, there was no legislation in place
to authorize the police to take blood, hair or buccal samples, from either
an accused person or a convicted offender, for the purposes of DNA genotyping.
Despite this legislative
void, appellate courts in British Columbia and New Brunswick upheld trial
judges' rulings that the DNA evidence be admitted in cases where the sample
had been collected clearly in breach of the accused's Charter rights (R.
R. v. Légère,(2)
R. v. Paul(3)
and R. v. Stillman(4)).
In essence, the courts concluded that the admission of the evidence flowing
from the illegal seizures would not bring the administration of justice
into disrepute. In other words, the admission of the DNA evidence would
not result in an unfair trial for the accused. Crucial factors the courts
considered in making their assessment were the seriousness of the Charter
breach, the gravity of the criminal charge, the conduct of the police,
and the availability of other lawful investigative techniques. Without
explicit legislative authority, it was becoming increasingly apparent,
however, that the grounds upon which the police could justify demands
for DNA samples from an accused were quite precarious.
A ruling by the Supreme
Court of Canada in the fall of 1994 created the impetus for legislative
action to be taken. In R. v. Borden,(5)
the Supreme Court of Canada ruled that improperly obtained DNA evidence
should be excluded, since the blood sample had been obtained from the
accused without his valid and informed consent. Although the accused had
acquiesced in the police demand to provide a blood sample for DNA typing
in relation to a specific charge of sexual assault, the police had not
informed him that they intended to use the sample in the investigation
of another unsolved sexual assault. Even though the DNA analysis results
identified the accused as the assailant in that previous rape, the Supreme
Court agreed with the Nova Scotia Court of Appeal that the evidence was
inadmissible. The Supreme Court in the Borden case noted that there
was no legal obligation upon the accused to provide a blood sample, nor
was there any lawful means by which the police could obtain one without
his consent. In fact, the Court emphasized that there was no statutory
authority by which the police could obtain a warrant to seize a bodily
substance from an accused for the purposes of DNA testing. Defence counsel
could properly advise their clients not to submit to DNA testing voluntarily
and any police action to seize bodily samples without consent would be
considered illegal. Hence, police forces ran the risk that any evidence
collected would be subsequently discarded by a court in its analysis under
section 24(2) of the Charter.(6)
Bill C-104 addresses the
issue by providing a legislative scheme whereby the police may obtain
warrants to obtain bodily specimens for the purposes of DNA testing. Bill
C-104 appears to strike a fair balance between an individual's right to
privacy and the state's interest in identifying offenders. That does not
mean, however, that the debate is finally settled; the Supreme Court of
Canada in Borden did warn that such a legislative scheme might
raise Charter concerns.
HISTORY OF BILL C-104
With the unanimous consent
of all political parties, Bill C-104 was passed by the House of Commons
on 22 June 1995. Upon tabling the bill, the Minister of Justice indicated
it was the introductory component of a more comprehensive scheme; in the
fall of 1995 the Minister intends to introduce a second bill to govern
the banking of DNA profiles collected during the course of criminal investigations.
Consideration of Bill C-104
in the Senate, although not as swift as in the House of Commons, was also
expedited. After its second reading in the Senate on 27 June, the bill
was referred to the Senate Standing Committee on Legal and Constitutional
Affairs, which held two public meetings on the matter. Most of the witnesses
who appeared before the Committee endorsed the bill in principle, as did
all those who submitted briefs. Nonetheless, some were critical of certain
components of the bill. The most frequent criticisms were:
that the list of offences
for which a DNA warrant could be sought was overly broad,
that the hearing for
the warrant would be conducted without the presence of the accused,
that there was no provision
for using, in most circumstances, the least intrusive method of obtaining
a DNA sample;
that there was no provision
for the long-term banking of DNA samples collected, and
that adults, unlike
young offenders, did not have the right to have counsel present when
the DNA sample was taken.
The Standing Committee referred
the bill back to the Senate without amendment on 11 July, but recommended
that the Minister of Justice consider extending to adult offenders the
right to have counsel present when the DNA sample is collected. Bill C-104
received Royal Assent and was proclaimed into force on 13 July 1995.
In early August, the media
reported that the RCMP detachment in Richmond, British Columbia, had been
the first police force in Canada to rely on Bill C-104 to obtain a blood
sample from an accused who had been previously charged with second-degree
murder. The lawyer for the accused has indicated that he will challenge
the new law on the grounds that the procedure violates his client's Charter
rights. Defence counsel will likely argue that the procedure amounts to
an unreasonable search and seizure in contravention of section 8 of the
Charter, or that the procedure violates the accused's right to security
of the person as guaranteed by section 7 of the Charter.
FOR OBTAINING A WARRANT
Under the new law, a provincial
court judge will be able to issue a warrant authorizing a peace officer
to seize a bodily substance from a person so that a forensic DNA analysis
can be made. Police will thus be authorized to pluck individual hairs,
take a mouth swab, or collect blood droplets from a suspect. The provincial
court judge will conduct this hearing ex parte; in other words,
only the party seeking the warrant (namely the police) will be present
to make submissions. Certain elements must be established before a warrant
can be issued. An application for a warrant must be accompanied by a sworn
statement showing that the police have reasonable grounds to believe:
that one of the offences
listed in the bill has been committed,
that a bodily substance
has been found at the scene of the crime, on the body or clothing
of the victim,
that the person against
whom the warrant is to be executed was a party to the offence, and
that a DNA sample from
that person is needed to determine whether or not it matches the bodily
substance found by the police.
Before issuing the warrant,
the judge must in addition be satisfied that it would be in the best interests
of the administration of justice to require the person to submit to a
DNA test. In making that assessment, the judge must consider the nature
of the offence committed and all surrounding circumstances, as well as
the availability of a peace officer or other person with the proper training
and experience to take the DNA sample. A judge who does decide to issue
a warrant may set any term or condition that he or she considers advisable
to ensure that the warrant is executed in a reasonable manner.
As mentioned earlier, a
warrant may be issued only in relation to certain designated Criminal
Code offences listed in the bill. Over 30 offences currently found
in the Criminal Code are featured, including:
- piratical acts
- hijacking (s. 76)
- endangering safety of aircraft or airport (s. 77)
- seizing control of ship or fixed platform (s. 78.1)
- using explosives
- discharging a firearm with the intent to cause bodily harm
- sexual interference
with a person under 14 years (s. 151)
- invitation to sexual touching involving a person under 14 years
- sexual exploitation of a young person (s. 153)
- incest (s. 155)
- offence in relation to juvenile prostitution (s. 212(4))
- sexual assault (s.271)
- sexual assault with a weapon, threats to a third party or causing
bodily harm (s. 272)
- aggravated sexual assault (s. 273)
- causing death by
criminal negligence (s. 220)
- causing bodily harm by criminal negligence (s. 221)
- murder (s. 231)
- manslaughter (s.236)
- failure to stop at the scene of an accident (s. 252)
- assault (s. 266)
- assault with a weapon or causing bodily harm (s. 267)
- aggravated assault (s. 268)
- unlawfully causing bodily harm (s. 269)
- torture (s. 269.1)
- assaulting a peace officer (s. 270(1)(a))
- kidnapping (s. 279)
- hostage taking (s. 279.1)
- robbery (s. 344)
- breaking and entering with the intent to commit an indictable offence
therein (s. 348(1))
- arson, with disregard for human life (s.433)
- arson of own property (s. 434.1)
- mischief (destroying or damaging property) causing actual danger
to life (s. 430(2))
Furthermore, Bill C-104
refers to several offences that existed in previous Criminal Code
consolidations. Over the years, certain provisions in the Criminal
Code have been modified to reflect changes in social policy; for example,
the crime of "rape" has been replaced with the more expansive
concept of "sexual assault." It is, however, a principle of
law that a person can be tried and convicted of a criminal offence only
under the law in force at the time the offence was committed. In other
words, if a person committed an offence in 1968, but is only brought to
trial in 1995, he or she can only be charged with the offence as it existed
in 1968. (It should be remembered that, in general, there are no limitation
periods to bar the prosecution of criminal offences in Canada.) In order
to ensure that persons accused of crimes committed many years ago may
still be subject to DNA testing today, Bill C-104 extends the application
of the warrant provisions to certain Criminal Code provisions that
have been repealed. The list comprises mostly sexual offences, including
sexual intercourse with a stepdaughter, rape, sexual intercourse with
a female minor, and sexual intercourse with the feeble-minded.
OF A WARRANT
Prior to taking any action,
the police must advise the person against whom the warrant is to be executed
of the following:
the contents of the
the type of sample to
be seized (buccal, blood or hair)
the purpose of the DNA
the possibility that
the results of the DNA test may be used in evidence, and
the authority of the
police to use as much force as is necessary to execute the warrant.
Bill C-104 therefore permits
the taking of a bodily substance without the consent of the suspect.
During the execution of the warrant, the suspect may be detained or asked
to accompany the police, who must make reasonable efforts must be made
by the police to ensure that the privacy of the person is respected.
The fact that a bodily substance
can be obtained without the person's consent is not itself problematic.
The Supreme Court of Canada has affirmed on several occasions that the
taking of an intimately personal substance, such as blood, from an accused
without lawful authority and without the person's consent will
constitute an unreasonable seizure within the meaning of section 8 of
the Charter (R. v. Dyment(7)
and Pohoretsky v. The Queen(8)).
Taking a bodily sample in such circumstances is seen as a serious affront
to a person's dignity and very integrity. A search of this nature will
be permitted, however, if it is authorized by law, if the law itself is
reasonable, and if the search is not conducted in an abusive way (Collins
v. The Queen(9)
and R. v. Debot(10)).
If properly executed, a warrant issued under Bill C-104 would likely comply
with all three requirements. First, a warrant issued under the guidance
of Bill C-104 would clearly be authorized by law. Second, Bill C-104 sets
out a reasonable standard that must be followed before a warrant can be
issued. (In sum, there must be sufficient evidence to convince a judge
that it would be in the best interests of the administration of justice
to require the person to submit to a DNA test for certain designated offences.
A judge may require police to abide by additional terms or conditions
in order to ensure that the warrant is executed in a reasonable manner.)
Third, if the police collect the bodily sample in a manner that respects
both the dignity and privacy of the person, as the legislation requires,
the seizure will be considered reasonable.
PROVISIONS FOR YOUNG OFFENDERS
Bill C-104 explicitly provides
that young offenders against whom a warrant is to be executed must be
given a reasonable opportunity to consult with legal counsel or a parent.
In addition, young offenders are entitled to have legal counsel or a parent
present while the warrant is being executed. Young offenders may waive
this right, but their waiver must be in writing or recorded on audio/video
tape. Officials who appeared on behalf of the Minister of Justice stated
that, upon detention, adults against whom a warrant is to be executed
also have the right to retain and instruct counsel, as guaranteed by section
10(b) of the Charter. This does not mean, however, that adults are entitled
to have a warrant executed in the presence of legal counsel; rather,
adults are simply entitled to confer with counsel to determine what their
legal options might be.
AND DESTRUCTION OF SPECIMENS AND RESULTS
A clause in Bill C-104 explicitly
states that the bodily substance obtained in the execution of a warrant
can be used only for the purposes of forensic DNA analysis in the course
of a criminal investigation. Subclause 487.08(2) imposes a similar limitation
on the use of the results of the forensic DNA analysis. A few critics
found the wording of the subclause to be unclear. In its brief to the
Senate Standing Committee, the Canadian Bar Association noted that this
subclause would appear to allow the results of a forensic DNA analysis
obtained by a warrant in the investigation of one designated offence to
be used in the investigation of any other designated offence where a bodily
substance had been found, even in the absence of a warrant. The Canadian
Bar Association suggested that the passage of this subclause be delayed
until the introduction of legislation pertaining to the banking of DNA
evidence. Officials from the Department of Justice discounted this point;
they were of the opinion that the police would need to obtain a second
warrant in order to compare samples in relation to distinct, separate
Anyone who used a bodily
substance or DNA analysis for purposes other than those set out in the
bill would be guilty of a summary conviction offence. The maximum penalty
for committing such an offence is not great: six months in jail and a
$2,000 fine. In its written submission, le Barreau du Québec argued that
the unlawful use of genetic information should be more severely punished,
with the offence reclassified as indictable and subject to a maximum penalty
of 10 years in prison.
Bill C-104 provides for
the immediate destruction of the bodily substance seized as well
as the results of the forensic DNA analysis where there is no match or
where the person is acquitted of the designated offence. This does not
apply, however, to cases where the person is found not guilty by reason
of mental incapacity.
In addition, the DNA sample
and results must be destroyed one year after:
the person is discharged
after a preliminary inquiry,
the charges against
the accused are dismissed or withdrawn, or
the charges against
the accused are stayed.
In some circumstances, the
evidence need not be destroyed within the prescribed time. A provincial
court judge may order that neither the sample nor the results be destroyed
within the legislated timeframe if they might reasonably be required in
an investigation or prosecution of the person for another designated offence.
Le Barreau du Québec and the Canadian Bar Association both argued that,
given the threat to an individual's privacy, officials should not be allowed
to retain the sample or the results for an indefinite period.
As mentioned earlier, Bill
C-104 deals only with the collection of bodily samples for forensic DNA
genotyping. Many other issues are still unresolved, such as:
DNA Evidence Bank
- the Minister of Justice indicated that he would be introducing legislation
in the fall of 1995 to regulate the storage of DNA profiles. It remains
to be seen whether the actual sample, or just the results of the DNA
analysis, will be stored. As well, it is still unclear what procedural
safeguards will be put in place to ensure that the DNA sample or results
collected and stored are used only for criminal investigations.
Testing of Convicted
Offenders - Bill C-104 allows for the DNA testing of a person
believed to have been a party to certain designated offences. It would
appear that the bill is meant to target "suspects or accused"
rather than "convicted offenders" but the wording is somewhat
vague. An extensive program to establish the DNA profiles of offenders
currently incarcerated would undoubtedly face many Charter challenges,
including the right against unreasonable seizure protected by section
8 and the right to security of the person as guaranteed by section
7. The government would have to establish that the violation of the
privacy interests of the offenders was somehow justified in order
to protect societal interests. Since the purpose of forensic DNA genotyping
is to identify the assailant, an effort to test only inmates convicted
of offences known to have a high recidivism rate might be considered
a reasonable compromise.
- it is not clear whether the federal government will introduce legislation
to govern laboratory practices and procedures for forensic DNA testing.
In its consultation paper Obtaining and Banking DNA Forensic Evidence,
the Department of Justice raised the issue of whether Parliament should
legislate accreditation or licensing requirements for laboratories
involved in forensic DNA typing.
The passage of Bill C-104
was applauded by most commentators and contested by few. Even its most
ardent critics would probably agree that the bill strikes an appropriate
balance between an individual's right to privacy and the state's duty
to detect and prosecute those who commit serious crimes. Legislation to
regulate the banking of DNA evidence, to be introduced in the fall of
1995, is likely to spark much more heated debate.
(1994), 88 C.C.C. (3d) 211 (B.C.C.A.).
(1994) 35 C.R. (4th) 1 (N.B.C.A.).
Unreported, file no. 205/90/CA, 12 December 1994 (N.B.C.A.).
Unreported, file no. 117/93/CA, 27 February 1995 (N.B.C.A.).
 3 S.C.R. 145.
Although courts are required to apply the same criteria in determining
whether evidence should be excluded under section 24(2) of the Charter,
they do not all arrive at the same conclusion. It should be noted that
all the decisions penned by the New Brunswick Court of Appeal upholding
the admissibility of the illegally obtained DNA evidence were released
after the Supreme Court of Canada ruled in Borden on 30
September 1994; the Légère case was released on 16 December 1994,
the Paul decision was issued on 12 December 1994, R. v.
Stillman was released on 27 February 1995. It is clear, therefore,
that a court would need to assess the particular facts of a case in order
to determine whether the illegally obtained evidence should be excluded:
such an assessment requires the balancing of the rights of the accused
against societal interests.
 2 S.C.R. 417.
 1 S.C.R. 945.
 1 S.C.R. 265.
 2 S.C.R. 1140.