Department of Justice

THE RETROACTIVE SCHEME

Bill C-3 provides that the DNA profiles of offenders who are convicted of designated offences are put into a national data bank after the legislation comes into force. The proposed legislation also contains a retroactive scheme, which allows DNA samples to be collected from certain offenders who were convicted before the data bank legislation comes into force

The retroactive scheme sets out specific offences for which DNA samples can be collected retroactively. It captures high-risk offenders under penitentiary sentence who have demonstrated a pattern of violent re-offending. The Bill authorizes DNA samples to be taken retroactively from offenders who have been designated "dangerous offenders", and those convicted of more than one sexual offence, or convicted of more than one murder committed at different times.

The retroactive scheme focuses on designated "dangerous offenders", repeat sex offenders, and repeat murderers because they pose a high risk of future violent re-offending. This is borne out by the research evidence: offenders with violent histories are significantly more likely than non-violent offenders to return to federal custody with a new violent offence. Therefore, as an added protection to the public, it is important to have the DNA profiles of these offenders in the data bank.

The Canadian Police Association has recommended that DNA samples should be taken retroactively from all inmates in federal and provincial custody for all offences designated in Bill C-3. This proposal is based on the premise that many people currently in custody may have committed unsolved designated offences in the past.

Broadening the retroactive scheme to include all offenders convicted of a designated offence would not be constitutionally sound. Such a broad scope would capture less serious, one-time offenders who may not pose a high risk of violent re-offending. This would raise a very serious Charter risk, and would be more likely than not to be struck down under section 8 of the Charter which protects Canadians' rights against unreasonable search or seizure.

Taking DNA samples from every offender in custody, regardless of their level of public safety risk, could also undermine the practical effectiveness of the data bank by directing limited forensic lab resources away from the most serious cases where DNA evidence is most likely to be useful.

The Government recently brought a motion to the Standing Committee on Justice and Human Rights for the purpose of adding repeat murderers to the retroactive scheme. This amendment directly responded to concerns raised by several witnesses who appeared before the Committee, including the Canadian Association of Chiefs of Police, the Canadian Police Association, and victims groups, that DNA samples should be taken retroactively from repeat murderers such as Clifford Olson. .

The collection of DNA samples from every offender in custody would not necessarily solve an

outstanding serious crime. DNA evidence is one tool among many others that is available to help police solve crimes. It is not a panacea for solving every outstanding crime, and it is often not even available at every crime scene where a violent offence has occurred.

The restrictive scope of the retroactive scheme does not prevent the police from obtaining DNA samples from individuals in custody who are suspected of having committed other designated offences. Where the police have reasonable grounds to believe that an offender in custody has committed a designated offence, they may seek a warrant under the Criminal Code to take a DNA sample from that person.