DNA Data Bank Legislation - Consultation Paper 2002
ISSUE 3: Whether there is a need to amend the Criminal Code to expand the scope of the "retroactive" aspect of the DNA data bank legislation
As described above, the Criminal Code provides in limited circumstances for DNA samples to be taken from persons convicted before the coming into force of the DNA data bank legislation in June 2000.
Any retroactive legislative scheme would confront one of the fundamental principles of our criminal justice system: that once a person is finally sentenced, the state cannot continue to impose further consequences based on that conviction. This type of scheme could be justified where there was a heightened risk that an individual would re-offend by committing a serious violent offence and, as a result, there existed an over-riding societal interest in the protection of the public from that individual.
The present legislation enables the courts to retroactively authorize the collection of DNA samples from those offenders who represent the greatest risk to society: "dangerous offenders," whose status has been determined by the court after a conviction; serial killers, who have high recidivism rates; and serial sex offenders--who, according to the Correctional Service of Canada, have the highest recidivism rates. The three categories of offenders currently included in the retroactive scheme present an elevated risk of recidivism justifying the need for special measures to protect the public.
Although a prosecutor makes application for such an authorization to a provincial court judge in the absence of the offender (ex parte), the order is not automatic. In deciding whether to issue the authorization, the court must consider the criminal record of the person, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person's privacy and security of the person. As of May 14, 2002, the DNA profiles of 1,540 such offenders have been included in the national DNA data bank.
The Criminal Code contains a list of "historical" sexual offences that can form the basis of an application under the retroactive scheme. These are offences that have been repealed by Parliament and replaced with new offences (for example rape or sexual intercourse with stepdaughter). Some historical sexual offences (e.g., the historical sexual offences of indecent assault-male - section 156 in the pre-1983 Code) are not included in the list of designated sexual offences in the retroactive scheme. Because of this exclusion, a conviction for such an offence would not be counted for the purposes of determining whether an offender is an eligible target for a retroactive DNA data bank order.
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