DNA Data Bank Legislation - Consultation Paper 2002

Introduction

Legislative history

In 1995 Parliament enacted amendments to the Criminal Code under which a provincial court judge could issue a warrant authorizing a police officer to obtain a biological sample (hair, blood or saliva) from a suspect for the purposes of forensic DNA analysis in the investigation of certain designated Criminal Code offences. This legislation came into force on July 15, 1995.1 The list of designated offences for which a DNA warrant may be issued at the investigative stage was intentionally limited to major crimes of violence or of a sexual nature where it was likely that bodily substances suitable for DNA analysis would be abandoned by the perpetrator on or in something related to the offence.2

In 1998 Parliament enacted the DNA Identification Act3. The Act created a new statute governing the establishment and administration of a national DNA data bank and amended the Criminal Code to permit a judge to make a post-conviction DNA data bank order authorizing the taking of bodily substances from a person found guilty of designated Criminal Code offences in order to include the offender's DNA profile in the national DNA data bank.

In 2000 Parliament enacted a third piece of legislation relating to the collection and use of DNA forensic evidence.4 In addition to amending the National Defence Act to authorize military judges to issue DNA warrants in the investigation of designated offences committed by a person who is subject to the Code of Service Discipline, the legislation enables military judges to make post-conviction DNA data bank orders. This legislation also made a small number of changes to the provisions of the DNA Identification Act, and the Criminal Code that were enacted in 1998.

The DNA Identification Act and the later legislation amending the National Defence Act, the DNA Identification Act, and the Criminal Code were proclaimed in force on June 30, 2000. The DNA Identification Act provides that within five years after the Act comes into force, a review of the provisions and operation of this Act shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.

The operation of Canada's national DNA data bank

The Solicitor General of Canada officially opened Canada's National DNA Data Bank, located in Ottawa, on July 5, 2000. The DNA data bank is maintained by the Royal Canadian Mounted Police and consists of two collections or indices of DNA profiles: a crime scene index, containing DNA profiles derived from bodily substances found at a crime scene; and a convicted offenders index, containing DNA profiles derived from bodily substances taken from offenders against whom post-conviction DNA data bank orders have been made.

The DNA profiles in the convicted offenders index are continually compared to those in the crime scene index and, if a match is obtained, the fact of this match may be used to found an application by police investigating an unsolved designated offence, for a DNA warrant to seek a new investigative sample of bodily substances from the individual. The DNA profile derived from the new sample would serve to exclude the individual as a suspect or become evidence in a prosecution for the crime.

Two years have now passed since the DNA Identification Act came into force. The national DNA data bank reports that as of May 14, 2002, 21,862 DNA profiles have been entered into the convicted offender index and 5,142 DNA profiles have been entered into the crime scene index. In addition, there have been 236 matches between crime scene DNA profiles and convicted offender DNA profiles and 16 "forensic matches" (crime scene to crime scene).

Consultation with Canadians

The Department of Justice, in conjunction with the Department of the Solicitor General, the RCMP and the Correctional Service of Canada, is seeking the views of Canadians regarding the provisions governing the DNA data bank at this time for several reasons. First, the legislation has been in operation for sufficient time to permit an early assessment of the benefits of the legislation as well as possible refinements that may be appropriate. Second, judicial consideration of the legislation by provincial courts of criminal jurisdiction and a number of provincial courts of appeal has, so far, confirmed the constitutional validity of the new legislation and raised issues of legislative interpretation that could be clarified in the law. Third, provincial Attorneys General have identified a number of issues relating to the scope and operation of the legislation that, from their perspective, may require remedial legislative action. Finally, a broad survey of the views of Canadians concerning this important matter of criminal law policy would be beneficial in anticipation of the Parliamentary review of the legislation that is to take place within the next three years.

You are invited to forward your comments by November 1, 2002, to the following address:

DNA Data Bank Legislation Discussion Paper

Department of Justice Canada
Criminal Law Policy Section
284 Wellington Street
Ottawa, Ontario K1A 0H8
fax: (613) 941-9310


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