Bill C-3: The DNA Identification Act (C3e)

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	25 September 1997	First Reading:	30 September 1998
Pre-Second Reading Study:	27 March 1998	Second Reading:	22 October 1998
Report Stage:	12 May 1998	Committee Report:	8 December 1998
Second Reading:	12 May 1998	Report Stage:
Third Reading:	29 September 1998	Third Reading:	9 December 1998

Royal Assent: 10 December 1998 Statutes of Canada 1998, c.37 N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

Introduced by the Solicitor General and given first reading on 25 September 1997, Bill C-3 would provide a legal framework to regulate the storage and, in some cases, the collection of DNA data and the biological samples from which they have been derived. In addition to creating an entirely new Act that provides for the structure and administration of a national DNA data bank, Bill C-3 would amend the Criminal Code to expand the courts’ authority to order the collection of biological samples for testing. The resulting database would be maintained by the Royal Canadian Mounted Police and used to assist Canadian law enforcement agencies in the investigation of serious crimes. At first reading, Bill C-3 was substantively almost identical to the former Bill C-94, which died on the Order Paper when Parliament was dissolved in April 1997.⁽¹⁾ The proposed legislation would authorize the collection and storage, for DNA analysis, of biological samples from anyone convicted of a "designated" offence. Biological samples for testing and storage could also be obtained from a limited group of previously convicted offenders.

Deoxyribonucleic Acid (DNA) is found within the chromosomes of living organisms. Except for identical twins, it is believed that no two people have the same DNA. Based on that premise, DNA from bodily substances found at a crime scene may be compared with DNA obtained from a suspect, in order to determine whether both samples came from the same person. In this way, DNA analysis can be an invaluable tool for either eliminating a suspect or providing persuasive evidence of guilt. The value of DNA evidence in overturning wrongful convictions has also been demonstrated recently in Canada in at least two highly publicized cases.

Before 1995 amendments to the Criminal Code set out the criteria and procedure for collecting the necessary material for DNA analysis, Canada had no legislation authorizing the seizure of bodily tissue samples for that purpose, with or without the consent of an accused. Notwithstanding that legislative void, DNA evidence has been used in criminal prosecutions in Canada since 1988. Developing case law had threatened the admissibility of such evidence at trial, however, especially in those cases where biological samples had been obtained without the consent of the accused.⁽²⁾

After Bill C-104⁽³⁾ provided legislative authority to collect bodily substances for DNA analysis, the Solicitor General sought public comment on the creation of a national DNA data bank that would facilitate the investigation of crimes without suspects and/or unsolved offences where DNA evidence from the perpetrator was still available. Through a consultation document entitled Establishing a DNA Data Bank, interested parties were asked to comment on a number of issues, including the question of who should be subject to the collection of biological samples for testing and when that testing should be carried out. As might be expected, law enforcement agencies and privacy advocates disagreed on the answers to some of those questions. Additional controversy was generated over whether the legislation should allow for the storage of biological samples or simply for the storage of the data obtained from them. In February 1997, the Solicitor General published a Summary of Consultations, which reviewed the opinions of respondents to the consultation document.

Clause 2 would incorporate, by reference, the definitions of "primary" and "secondary" designated offences described at section 487.04 of the Criminal Code. Clause 3 makes clear that the new legislation would apply to offences already committed before the Act came into force. Clause 4 acknowledges the societal benefits of "early detection, arrest and conviction of offenders," as well as the importance of safeguards in protecting the privacy of individuals whose DNA profiles and bodily substances would be held in the bank.

Clause 5(1) would authorize, and oblige the Solicitor General to set up a national DNA data bank, consisting of two indices or data bases. According to clause 5(3), the "crime scene index" would contain DNA profiles from bodily substances found at the scene of a "designated offence," or on or within the body of a victim or any other person or thing associated with the commission of a designated offence. The "convicted offenders index" would contain DNA profiles taken from offenders either on their consent or following an order by the courts.

Under clause 6(1), the Commissioner of the R.C.M.P. would be responsible for receiving DNA profiles for entry into the data bank. Once received, the new profiles would be compared with those already held in the data bank and any matches could then be communicated to the appropriate lab or law enforcement agency, along with information concerning the crime(s) and/or offender(s) to which the new profile had been linked. Under clause 6(2), that information would be available to agencies that at present have access to the existing criminal records data base maintained by the R.C.M.P. Clause 6(3), (4) and (5) would also allow data comparisons and information-sharing with foreign law enforcement agencies, provided there was an agreement that the information could be used only "for the purposes of the investigation or prosecution of a criminal offence."

Clause 6(6) and (7) would prohibit the communication or use of DNA profiles "other than for the purposes of the administration" of the Act. Clause 7, however, would allow the Commissioner to grant additional access, for operation and maintenance purposes and in order to train lab personnel, while clause 8 would prohibit the communication or use of the information for any purpose other than that authorized under the Act.

Clause 9 would ordinarily require information in the convicted offenders index to be kept indefinitely, subject to the Criminal Records Act.⁽⁴⁾ Access to that information would, however, be "permanently removed" if a convicted offender was ultimately acquitted. Similar accommodation would be made for persons discharged under the Criminal Code; access to such data would have to be removed one year following an absolute discharge, or three years following a conditional discharge, unless the individual were convicted of another offence in the meantime. Thus, DNA profiles relating to adult convictions would ordinarily remain accessible unless a pardon was obtained.

Access to DNA information concerning individuals proceeded against under the Young Offenders Act would be permanently removed ten years after all dispositions (sentences) had been completed, for many serious crimes, including most sexual offences, assaults, robbery etc. Access to DNA data concerning those convicted of most other designated offences under that Act would have to be removed five years after all sentences had been served. Access to data concerning summary convictions under the Young Offenders Act would be removed three years after all dispositions had been completed.

As a result of the exceptions in clause 9(2)(d), DNA data relating to Young Offenders Act convictions for murder, attempted murder, manslaughter or aggravated sexual assault would ordinarily remain available. This is consistent with section 45.02(2) of the Young Offenders Act, which allows fingerprints and other records respecting those offences to be kept indefinitely in a special records repository established by the R.C.M.P. for that purpose.

Clause 10(1) to (6) would require the Commissioner to store, "safely and securely," those samples of bodily substances received pursuant to the Criminal Code and thought necessary for DNA analysis; any remaining samples would have to be destroyed "without delay." The Commissioner would also have the authority to order additional DNA testing of stored samples where this was justified by "significant technological advances." Under clause 10(3) and (5), any resulting DNA profiles would have to be provided to the Commissioner for entry into the convicted offenders index, while stored biological samples could not be used or transmitted except for the purposes of forensic DNA analysis. Under clause 10(4) and (6), the Commissioner could grant access to bodily substances, in order to preserve them, and destroy stored samples no longer required for analysis.

According to clause 10(7), the Commissioner would be obliged to destroy stored bodily substances in the same circumstances as those whereby access to related DNA profile would be removed under clause 9. This requirement for destruction of samples is a new provision, not contained in the former Bill C-94. In addition, clause 10(8) makes clear that samples obtained from persons who had been pardoned would have to be kept "separate and apart from other stored bodily substances" and not subjected to additional DNA analysis.

Clause 11 sets out the proposed penalties for the use of biological samples or the communication of DNA analysis results, other than in accordance with requirements of the Act. When prosecuted by indictment, the maximum available penalty for contravening any of those prohibitions would be two years’ imprisonment. On summary conviction, the maximum would be a fine of up to $2,000 or imprisonment for up to six months, or both.

Clause 12 would give the Governor in Council authority to make regulations under the Act, while clause 13 would require a review of the provisions and operation of the new legislative scheme within five years after Bill C-3 came into force. In order to ensure the confidentiality of DNA profiles and related information contained in the data bank, clause 14 would amend Schedule II of the Access to Information Act to mandate the refusal of requests for disclosure of any such records.

The second part of the Act includes a series of amendments that would streamline the existing DNA warrant scheme. For example, clause16 would amend existing section 487.05 of the Criminal Code to make clear that a warrant for taking biological substances from a suspect would allow "any number of samples" to be taken by means of more than one investigative procedure. In addition, clause 23 would create a new section 487.091 to allow a provincial court judge to authorize the taking of "any number of additional samples" for DNA analysis if a profile could not be obtained from samples taken under an earlier authorization or order. Clause 24 would also add to the Criminal Code a series of forms to be used to obtain or grant warrants or orders and to report back to the court or justice on their execution.

Additional Criminal Code amendments would broaden the scope of the courts’ powers by allowing DNA testing of certain offenders, post-conviction. Thus, involuntary DNA testing would no longer be limited to those circumstances where a warrant was sought and issued for the purposes of linking a suspect to a particular offence.

Section 487.05 of the Criminal Code now allows a court to authorize the taking of bodily substances from suspects for DNA analysis, for the purpose of investigating any "designated" offence listed in section 487.04. Clause 15(1) would amend the definition of "designated offence" by creating two lists or categories distinguishing between "primary" designated offences and "secondary" designated offences, in order to provide different consequences following conviction. The list of primary designated offences under clause 15(2) would include predominately violent and sexual offences, many of which might involve the loss or exchange of bodily substances that could be used to identify the perpetrator through DNA analysis. Although some of those classified as secondary designated offences could have equally serious consequences, many are less likely to result in the loss or exchange of bodily substances. In those cases, it may be argued that DNA profiles of offenders are unlikely to provide useful evidence. In response to recommendations from various sources, the Standing Committee on Justice and Human Rights approved the addition of infanticide to the list of "primary" designated offences. A number of sexual offences relating to children, as well as dangerous operation of a motor vehicle and impaired driving where these cause bodily harm or death were also added to the list of "secondary" designated offences.

Clause 17 would add section 487.051 to the Criminal Code to allow the courts to order samples to be taken for DNA analysis from specific offenders following conviction. Where an offender had been convicted of a primary designated offence, the court would be obliged to make such an order, unless satisfied by the offender that the impact on his or her privacy and security of the person would be "grossly disproportionate" to the public interest to be achieved. In the case of a secondary designated offence, the court could make such an order if satisfied "that it is in the best interests of the administration of justice to do so." In making that determination, the court would have to consider the nature and circumstances of the offence, as well as the record of the offender and the impact of such an order on his or her privacy and security of the person. The court would also be obliged to give reasons for its decision. Proposed section 487.054 would give both the offender and the prosecutor the right to appeal from the court’s decision.

Proposed section 487.052 makes clear that the courts could order DNA "fingerprinting" of persons found guilty of a designated offence committed before the coming into force of Bill C-3. An application would have to be made by the prosecutor and the court would make its determination based on the same criteria as would be considered for those convicted of a secondary designated offence. Once again, proposed section 487.054 would give both parties the right to appeal the decision to the Court of Appeal.

Proposed section 487.053 would disallow court-ordered sampling for DNA analysis upon conviction where the prosecutor advised that a DNA profile was "not required" for the purposes of the DNA Identification Act. Similarly, an order could not be made if the convicted offender consented to the entry into the convicted offenders index of a DNA profile obtained from bodily substances previously provided voluntarily or taken in execution of a warrant.

Proposed section 487.055 would allow a court order for the taking of bodily samples for DNA analysis from certain offenders convicted prior to the coming into force of Bill C-3. On ex parte application, such an order could be made with respect to anyone who had been declared a dangerous offender, or anyone convicted of more than one of a number of listed sexual offences who was serving a sentence of at least two years. The definition of "sexual offence" would include sexual assaults as well as most sexual offences involving children. As a result of amendments approved by the Standing Committee, offenders who had been convicted of more than one murder, committed at different times, could also be ordered to submit to DNA analysis. Offenders on conditional release would be summonsed to report for the taking of bodily substances; failure to appear could result in the issue of an arrest warrant for the purposes of enforcing compliance.

Proposed section 487.056 stipulates that conviction appeals would not delay the execution of court orders for the taking of bodily substances. Likewise, bodily substances would have to be taken from previously convicted offenders, "as soon as is feasible" after an authorization was granted. Samples for DNA analysis would have to be taken by a peace officer, or someone acting under the direction of a peace officer, with the necessary training and experience. Proposed section 487.057 would oblige the peace officer to file a written report with the authorizing court, as soon as feasible after the samples had been taken. The report would have to include a statement of the time and date that the authorization had been carried out, as well as a description of the bodily samples taken. Proposed section 487.058 would protect peace officers and those acting under their direction from any criminal or civil liability in the execution of such a warrant, order or authorization, so long as they acted "with reasonable care and skill."

Clauses 18 and 19 would clarify some of the Criminal Code provisions implemented in Bill C-104, and make consequential amendments referring to the additional circumstance in which the courts would be able to authorize the taking of biological samples, after the coming into force of Bill C-3. As a result of amendments approved by the Standing Committee, the police would also have to inquire after and take into account the preference of anyone subject to such an order, with respect to the type of bodily substance to be sampled. Clause 20 would enact section 487.071, requiring offender DNA analysis results to be sent to the Commissioner of the R.C.M.P. for entry into the convicted offenders index. Leftover samples of bodily substances would also have to be sent to the Commissioner, to be dealt with as required under the DNA Identification Act.

Clause 21 would expand section 487.08 of the Criminal Code to limit the use of bodily substances and the DNA analysis derived from them. Both could be used in the course of an investigation into any designated offence where a warrant had been issued or a bodily substance found and/or they could be transmitted to the Commissioner of the R.C.M.P. Persons using the bodily substances or analysis results for any unauthorized purpose would be liable for up to two years’ imprisonment, if prosecuted by indictment, or up to six months’ imprisonment and a $2000 fine for a summary conviction.

Clause 22 would amend section 487.09 to allow access to forensic DNA analysis results that were "in electronic form" to be "permanently removed" if they established no connection with the crime, the person was finally acquitted, or a year had expired following discharge, stay, dismissal or withdrawal of charges. The existing version of this section requires records to be "destroyed forthwith," should any of the foregoing conditions be met.

As previously mentioned, the proposed DNA Identification Act has been the subject of some controversy. For example, privacy advocates had argued for the retention of DNA data only, because of concerns that stored biological samples would be more susceptible to improper use. However, the government appears to have accepted the argument that biological samples must be stored, since rapidly developing technologies could require future re-testing to ensure the availability of compatible data. Perhaps the most vehement criticism of the proposed legislation has come from law enforcement groups who believe that samples for DNA testing should be taken at the time of charge, much as fingerprints and photographs are taken now. Otherwise police fear that persons responsible for serious unsolved crimes would simply fail to appear on new charges if they knew that conviction could lead to DNA screening which could implicate them in an additional offence.

(1) In addition to adding provision for the destruction of biological samples in specific circumstances, Bill C-3 would also provide the necessary forms for use by law enforcement agencies and the courts.