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Bill C-3

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1st Session, 36th Parliament,
46-47 Elizabeth II, 1997-98

The House of Commons of Canada

BILL C-3

An Act respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the DNA Identification Act.

INTERPRETATION

Definitions

2. The definitions in this section apply in this Act.

``Commission er''
« commis-
saire »

``Commissioner'' means the Commissioner of the Royal Canadian Mounted Police.

``designated offence''
« infraction désignée »

``designated offence'' means a primary designated offence or a secondary designated offence, within the meaning of section 487.04 of the Criminal Code.

``DNA''
« ADN »

``DNA'' means deoxyribonucleic acid.

``DNA profile''
« profil d'identifica-
tion génétique »

``DNA profile'' means the results of forensic DNA analysis of a bodily substance.

``forensic DNA analysis''
« analyse génétique »

``forensic DNA analysis'', in relation to a bodily substance, means forensic DNA analysis of the bodily substance.

``young person''
« adoles-
cent »

``young person'' has the same meaning as in subsection 2(1) of the Young Offenders Act.

PURPOSE

Purpose

3. The purpose of this Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.

PRINCIPLES

Principles

4. It is recognized and declared that

    (a) the protection of society and the administration of justice are well served by the early detection, arrest and conviction of offenders, which can be facilitated by the use of DNA profiles; and

    (b) to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on

      (i) the use and communication of, and access to, DNA profiles and other information contained in the national DNA data bank, and

      (ii) the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act.

NATIONAL DNA DATA BANK

Establish-
ment

5. (1) The Solicitor General of Canada shall, for criminal identification purposes, establish a national DNA data bank, consisting of a crime scene index and a convicted offenders index, to be maintained by the Commissioner.

Commissio-
ner's duties

(2) The Commissioner's duties under this Act may be performed on behalf of the Commissioner by any person authorized by the Commissioner to perform those duties.

Crime scene index

(3) The crime scene index shall contain DNA profiles derived from bodily substances that are found

    (a) at any place where a designated offence was committed;

    (b) on or within the body of the victim of a designated offence;

    (c) on anything worn or carried by the victim at the time when a designated offence was committed; or

    (d) on or within the body of any person or thing or at any place associated with the commission of a designated offence.

Convicted offenders index

(4) The convicted offenders index shall contain DNA profiles derived from bodily substances described in subsection 487.071(1) of the Criminal Code.

Other information

(5) In addition to the DNA profiles referred to in subsections (3) and (4), the DNA data bank shall contain, in relation to each of the profiles, information from which can be established

    (a) in the case of a profile in the crime scene index, the case number of the investigation associated with the bodily substance from which the profile was derived; and

    (b) in the case of a profile in the convicted offenders index, the identity of the person from whose bodily substance the profile was derived.

Communica-
tion of information

6. (1) On receipt of a DNA profile that is transmitted under subsection 487.071(1) of the Criminal Code or under subsection 10(3) for entry in the DNA data bank, the Commissioner shall compare it with the DNA profiles in the data bank in order to determine whether it is already contained in the data bank and may then communicate, for the purposes of the investigation or prosecution of a criminal offence, the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:

    (a) whether the DNA profile is already contained in the data bank; and

    (b) any information, other than the DNA profile itself, that is contained in the data bank in relation to that DNA profile.

Authorized users

(2) Information as to whether a person's DNA profile is contained in the convicted offenders index may be communicated to an authorized user of the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police.

Foreign law enforcement agencies

(3) On receipt of a DNA profile from the government of a foreign state, an international organization established by the governments of states or an institution of any such government or international organization, the Commissioner may compare the DNA profile with those in the DNA data bank in order to determine whether it is already contained in the data bank and may then communicate information referred to in subsection (1) to that government, international organization or institution.

Communica-
tion of DNA profile

(4) The Commissioner may, on the request of a law enforcement agency in the course of the investigation of a designated offence, communicate a DNA profile contained in the crime scene index to the government of a foreign state, an international organization established by the governments of states or an institution of any such government or international organization.

Agreement or arrangement

(5) Subsections (3) and (4) apply only if the Government of Canada or one of its institutions has entered into an agreement or arrangement, in accordance with paragraph 8(2)(f) of the Privacy Act, with that government, international organization or institution, as the case may be, authorizing the communication solely for the purposes of the investigation or prosecution of a criminal offence.

Unauthorized use

(6) No person who receives a DNA profile for entry in the DNA data bank shall use it or allow it to be used other than for the purposes of the administration of this Act.

Unauthorized communi-
cation

(7) No person shall, except in accordance with this section, communicate or allow to be communicated a DNA profile that is contained in the DNA data bank or information that is referred to in subsection (1).

Access to information

7. Access to information contained in the DNA data bank may be granted to

    (a) any person or class of persons that the Commissioner considers appropriate for the purposes of the proper operation and maintenance of the DNA data bank; and

    (b) the personnel of any laboratories that the Commissioner considers appropriate for training purposes.

Unauthorized use of information

8. No person to whom information is communicated under subsection 6(1) or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes referred to in that subsection or those paragraphs.

Crime scene index

8.1 Access to the information in the crime scene index shall be permanently removed, in accordance with any regulations that may be made under this Act, if the information relates to a DNA profile derived from a bodily substance of

    (a) a victim of a designated offence that was the object of the relevant investigation; or

    (b) a person who has been eliminated as a suspect in the relevant investigation.

Information to be kept indefinitely

9. (1) Subject to subsection (2) and the Criminal Records Act, information in the convicted offenders index shall be kept indefinitely.

Access to information to be permanently removed

(2) Access to the following information in the convicted offenders index shall be permanently removed without delay after

    (a) in the case of information in relation to a person who has been convicted of a designated offence, the conviction is quashed and a final acquittal entered;

    (b) in the case of information in relation to a person who has been discharged under section 730 of the Criminal Code of a designated offence,

      (i) the expiry of one year after the person is discharged absolutely, unless the person is convicted during that year of another offence, or

      (ii) the expiry of three years after the person is discharged conditionally, unless the person is convicted during those three years of another offence;

    (c) in the case of information in relation to a young person who has been found guilty under the Young Offenders Act of any of the following offences, the expiry of ten years after all dispositions made in respect of the offence have been completed, namely,

      (i) an offence referred to in any of subparagraphs (a)(i) to (v), (ix) to (xiii) and (xv) and (b)(i) of the definition ``primary designated offence'' in section 487.04 of the Criminal Code,

      (ii) an offence referred to in any of subparagraphs (a)(v), (xiii), (xvi) and (xvii) and (b)(i) and (ii) of the definition ``secondary designated offence'' in section 487.04 of the Criminal Code, and

      (iii) an offence under section 145 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983;

    (d) in the case of information in relation to a young person who has been found guilty under the Young Offenders Act of a designated offence, other than an offence referred to in any of subparagraphs (c)(i) to (iii) and sections 235 (first degree murder or second degree murder), 236 (manslaughter), 239 (attempt to commit murder) and 273 (aggravated sexual assault) of the Criminal Code, the expiry of five years after all dispositions made in respect of the offence have been completed; and

    (e) in the case of information in relation to a young person who has been found guilty under the Young Offenders Act of a designated offence that is a summary conviction offence, the expiry of three years after all dispositions made in respect of the offence have been completed.

Storage of bodily substances

10. (1) When bodily substances are transmitted to the Commissioner under subsection 487.071(2) of the Criminal Code, the Commissioner shall, subject to this section, safely and securely store, for the purpose of forensic DNA analysis, the portions of the samples of the bodily substances that the Commissioner considers appropriate and without delay destroy any remaining portions.

Change in technology

(2) Forensic DNA analysis of stored bodily substances may be performed if the Commissioner is of the opinion that the analysis is justified because significant technological advances have been made since the time when a DNA profile of the person who provided the bodily substances, or from whom they were taken, was last derived.

Transmission of DNA profile

(3) Any DNA profile that is derived from stored bodily substances shall be transmitted to the Commissioner for entry in the convicted offenders index and no person shall use such a DNA profile except to transmit it under this subsection.

Access

(4) Access to stored bodily substances may be granted to any person or class of persons that the Commissioner considers appropriate for the purpose of preserving the bodily substances.

Use of bodily substances

(5) No person shall transmit stored bodily substances to any person or use stored bodily substances except for the purpose of forensic DNA analysis.

Later destruction

(6) The Commissioner may at any time destroy any or all of the stored bodily substances if the Commissioner considers that they are no longer required for the purpose of forensic DNA analysis.

Mandatory destruction in certain cases

(7) The Commissioner shall nevertheless destroy the stored bodily substances of a person without delay

    (a) if the person has been convicted of a designated offence, after the conviction is quashed and a final acquittal entered;

    (b) if the person has been discharged under section 730 of the Criminal Code of a designated offence,

      (i) after the expiry of one year after the person is discharged absolutely, unless the person is convicted during that year of another offence, or

      (ii) after the expiry of three years after the person is discharged conditionally, unless the person is convicted during those three years of another offence;

    (c) if the person is a young person who has been found guilty under the Young Offenders Act of any of the following offences, after the expiry of ten years after all dispositions made in respect of the offence have been completed, namely,

      (i) an offence referred to in any of subparagraphs (a)(i) to (v), (ix) to (xiii) and (xv) and (b)(i) of the definition ``primary designated offence'' in section 487.04 of the Criminal Code,

      (ii) an offence referred to in any of subparagraphs (a)(v), (xiii), (xvi) and (xvii) and (b)(i) and (ii) of the definition ``secondary designated offence'' in section 487.04 of the Criminal Code, and

      (iii) an offence under section 145 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983;

    (d) if the person is a young person who has been found guilty under the Young Offenders Act of a designated offence, other than an offence referred to in any of subparagraphs (c)(i) to (iii) and sections 235 (first degree murder or second degree murder), 236 (manslaughter), 239 (attempt to commit murder) and 273 (aggravated sexual assault) of the Criminal Code, after the expiry of five years after all dispositions made in respect of the offence have been completed; and

    (e) if the person is a young person who has been found guilty under the Young Offenders Act of a designated offence that is a summary conviction offence, after the expiry of three years after all dispositions made in respect of the offence have been completed.

Where pardon granted

(8) Despite anything in this section, stored bodily substances of a person in respect of whom a pardon, within the meaning of section 2 of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.

Offence

11. Every person who contravenes subsection 6(6) or (7), section 8 or subsection 10(3) or (5)

    (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

    (b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $2,000 or to imprisonment for a term not exceeding six months, or to both.

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