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Bill C-3

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RECOMMENDATION

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ``An Act respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts''.

SUMMARY

This enactment provides for the establishment of a national DNA data bank to be maintained by the Commissioner of the Royal Canadian Mounted Police and used to assist law enforcement agencies in solving crimes.

The data bank will consist of a crime scene index containing DNA profiles derived from bodily substances found in places associated with the commission of certain types of serious offences, and a convicted offenders index containing DNA profiles obtained from persons convicted or discharged of those types of offences.

The enactment amends the Criminal Code to provide for orders authorizing the collection of bodily substances from which DNA profiles can be derived for inclusion in the DNA data bank. It also amends the Criminal Code to authorize the collection of bodily substances from offenders who meet clearly defined criteria and who are currently serving sentences.

The enactment contains specific provisions regulating the use of the bodily substances collected and the DNA profiles derived from them and the use and communication of, and access to, information contained in the data bank.

EXPLANATORY NOTES

Criminal Code

Clause 15: (1) The definitions ``designated offence'' and ``forensic DNA analysis'' in section 487.04 read as follows:

``designated offence'' means

      (a) an offence under any of the following provisions of this Act, namely,

        (i) section 75 (piratical acts),

        (ii) section 76 (hijacking),

        (iii) section 77 (endangering safety of aircraft or airport),

        (iv) section 78.1 (seizing control of ship or fixed platform),

        (v) paragraph 81(2)(a) (using explosives),

        (vi) section 151 (sexual interference),

        (vii) section 152 (invitation to sexual touching),

        (viii) section 153 (sexual exploitation),

        (ix) section 155 (incest),

        (x) subsection 212(4) (offence in relation to juvenile prostitu tion),

        (xi) section 220 (causing death by criminal negligence),

        (xii) section 221 (causing bodily harm by criminal negli gence),

        (xiii) section 231 (murder),

        (xiv) section 236 (manslaughter),

        (xv) section 244 (causing bodily harm with intent),

        (xvi) section 252 (failure to stop at scene of accident),

        (xvii) section 266 (assault),

        (xviii) section 267 (assault with a weapon or causing bodily harm),

        (xix) section 268 (aggravated assault),

        (xx) section 269 (unlawfully causing bodily harm),

        (xxi) section 269.1 (torture),

        (xxii) paragraph 270(1)(a) (assaulting a peace officer),

        (xxiii) section 271 (sexual assault),

        (xxiv) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),

        (xxv) section 273 (aggravated sexual assault),

        (xxvi) section 279 (kidnapping),

        (xxvii) section 279.1 (hostage taking),

        (xxviii) section 344 (robbery),

        (xxix) subsection 348(1) (breaking and entering with intent, committing offence or breaking out),

        (xxx) subsection 430(2) (mischief that causes actual danger to life),

        (xxxi) section 433 (arson - disregard for human life), and

        (xxxii) section 434.1 (arson - own property),

      (b) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990, namely,

        (i) section 433 (arson), and

        (ii) section 434 (setting fire to other substance),

      (c) an offence under the following provision of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988, namely, paragraph 153(1)(a) (sexual intercourse with step-daughter, etc.),

      (d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,

        (i) section 144 (rape),

        (ii) section 146 (sexual intercourse with female under fourteen and between fourteen and sixteen), and

        (iii) section 148 (sexual intercourse with feeble-minded, etc.), and

      (e) an attempt to commit an offence referred to in any of paragraphs (a) to (d);

``forensic DNA analysis'', in relation to a bodily substance that is ob tained in execution of a warrant, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 487.05(1)(b) and includes any incidental tests associated with that analysis;

(2) New.

Clause 16: (1) Subsection 487.05(1) reads as follows:

487.05 (1) A provincial court judge who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe

    (a) that a designated offence has been committed,

    (b) that a bodily substance has been found

      (i) at the place where the offence was committed,

      (ii) on or within the body of the victim of the offence,

      (iii) on anything worn or carried by the victim at the time when the offence was committed, or

      (iv) on or within the body of any person or thing or at any place associated with the commission of the offence,

    (c) that a person was a party to the offence, and

    (d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person

and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in writing authorizing a peace of ficer to obtain, or cause to be obtained under the direction of the peace officer, a bodily substance from that person, by means of an investiga tive procedure described in subsection 487.06(1), for the purpose of fo rensic DNA analysis.

(2) The relevant portion of subsection 487.05(2) reads as follows:

(2) In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including

    ...

    (b) whether there is

      (i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, by means of an investigative procedure described in subsection 487.06(1), or

      (ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person, by means of such an investigative procedure.

Clause 17: New.

Clause 18: (1) and (2) The relevant portion of subsection 487.06(1) reads as follows:

487.06 (1) The warrant authorizes a peace officer or another person under the direction of a peace officer to obtain and seize a bodily substance from the person by means of

    ...

    (c) the taking of blood by pricking the skin surface with a sterile lancet.

(3) Subsection 487.06(2) reads as follows:

(2) The warrant shall include any terms and conditions that the provincial court judge considers advisable to ensure that the seizure of a bodily substance authorized by the warrant is reasonable in the circumstances.

Clause 19: Subsections 487.07(1) to (3) read as follows:

487.07 (1) Before executing a warrant, a peace officer shall inform the person against whom it is to be executed of

    (a) the contents of the warrant;

    (b) the nature of the investigative procedure by means of which a bodily substance is to be obtained from that person;

    (c) the purpose of obtaining a bodily substance from that person;

    (d) the possibility that the results of forensic DNA analysis may be used in evidence;

    (e) the authority of the peace officer and any other person under the direction of the peace officer to use as much force as is necessary for the purpose of executing the warrant; and

    (f) in the case of a young person, the rights of the young person under subsection (4).

(2) A person against whom a warrant is executed

    (a) may be detained for the purpose of executing the warrant for a period that is reasonable in the circumstances for the purpose of obtaining a bodily substance from the person; and

    (b) may be required by the peace officer who executes the warrant to accompany the peace officer.

(3) A peace officer who executes a warrant against a person or a person who obtains a bodily substance from the person under the direction of the peace officer shall ensure that the privacy of that person is respected in a manner that is reasonable in the circumstances.

Clause 20: New.

Clause 21: (1) Subsections 487.08(1.1) and (2.1) are new. Subsections 487.08(1) and (2) read as follows:

487.08 (1) No person shall use a bodily substance that is obtained in execution of a warrant except in the course of an investigation of the designated offence for the purpose of forensic DNA analysis.

(2) No person shall use the results of forensic DNA analysis of a bodily substance that is obtained in execution of a warrant except in the course of an investigation of the designated offence or any other designated offence in respect of which a warrant was issued or a bodily substance found in the circumstances described in paragraph 487.05(1)(b) or in any proceeding for such an offence.

(2) New.

Clause 22: (1) The relevant portion of subsection 487.09(1) reads as follows:

487.09 (1) A bodily substance that is obtained from a person in execution of a warrant and the results of forensic DNA analysis shall be destroyed forthwith after

(2) Subsection 487.09(2) reads as follows:

(2) Notwithstanding subsection (1), a provincial court judge may order that a bodily substance that is obtained from a person and the results of forensic DNA analysis not be destroyed during any period that the provincial court judge considers appropriate if the provincial court judge is satisfied that the bodily substance or results might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.

Clause 23: New.

Clause 24: New.

Criminal Records Act

Clause 25: New.

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