Department of Justice

Highlights of Bill C-3
A National DNA Data Bank

Bill C-3 provides for the establishment of a national DNA data bank to be maintained by the RCMP. The new legislation will authorize the courts to order persons convicted of designated offences to provide samples of bodily substances for DNA analysis, with the resulting DNA data stored in a convicted offenders index within the data bank.

Taking samples after an offender has been convicted ensures that the Charter rights of all Canadians are protected. An accused has the right to be presumed innocent and protected from unreasonable search and seizure.

The data bank will include:

a crime scene index - to contain DNA information obtained from crime scenes; and

a convicted offenders index - to contain DNA profiles of adult and young offenders convicted of specific Criminal Code offences.

A two-tiered approach will be adopted for the convicted offenders index. Designated offences will be divided into aprimary list and a secondary list. The primary list includes the most serious violent offences and sexual offences, where DNA evidence is considered most likely to be of assistance in solving crimes. When an offender is convicted, the court will issue, except in the most exceptional circumstances, an order for bodily samples to be collected for the data bank.

The court, upon application by the Crown, could require those convicted of secondary list offences to provide a sample for the data bank.

How a national DNA data bank will assist the police and the courts

A national data bank will help focus police investigations and help ensure that those who commit serious crimes, such as repeat sex offenders and violent offenders, are identified and apprehended more quickly across all police jurisdictions in Canada.

Specifically, the data bank will:

assist the police to identify and arrest repeat offenders by comparing DNA information from the crime scene to the convicted offenders index;

assist in determining whether a series of offences was committed by a serial offender or whether more than one perpetrator was involved;

help focus investigations by eliminating suspects whose DNA profile is in the data bank in a case where no match with crime scene DNA is found; and

provide a measure of deterrence by increasing the certainty of detection.

International Cooperation in Criminal Investigations

Bill C-3 will allow Canada to share DNA profile information with a foreign state for the purpose of a criminal investigation or prosecution, providing that an agreement is in place. This will enable Canadian police to access information in a foreign DNA data bank to help solve a crime committed in Canada, and will assist foreign jurisdictions in a similar manner.

Retention of Samples

Samples of bodily substances used for forensic DNA analysis will be retained indefinitely. This will enable the data bank to keep pace with technological advances without having to re-collect samples should the original analysis become obsolete.

Bill C-3 also requires destruction of samples if a conviction is reversed, and after certain time periods have elapsed, destruction of samples related to absolute or conditional discharges and young offenders. Samples of individuals who later receive pardons are also subject to a special regime consistent with the Criminal Records Act.

Young Offenders

Young offenders will be treated in the same way as adults under the DNA data bank, with their profiles governed by the same rules of access. However, the periods of retention for their DNA profiles and biological samples will parallel provisions regarding retention of police records under the Young Offenders Act.

Retroactive Application for offenders currently serving sentences

Samples for the purpose of data banking may be collected retroactively from currently sentenced offenders under the following circumstances:

where an offender has been declared a "dangerous offender" under the Criminal Code;

where an offender has been convicted of more than one sexual offence, and is currently serving a term of incarceration of two years or more (this includes those offenders who are serving the remainder of their sentence in the community on parole); and

where an offender has been convicted of more than one murder committed at different times.

Retrospective Application for those charged prior to the legislation coming into force

Where deemed necessary in the interests of public safety, a judge may order that a sample be taken from persons charged with a designated offence prior to the legislation coming into force and convicted after.

Restrictions on access to DNA samples and data

Strict rules will govern the collection, use and retention of DNA profiles and biological samples. The legislation clearly stipulates that samples may only be used for forensic DNA analysis. Access to DNA profiles and to samples will be strictly limited to those directly involved in the operation of the data bank. Only the identifying information, e.g., the name, will be communicated to the appropriate law enforcement authorities for the purpose of investigating and prosecuting criminal offences.

To ensure the rights of innocent persons will be protected, information in the crime scene index shall be permanently removed if it relates to a victim or cleared suspects. Criminal penalties will guard against any misuse of DNA samples or data.

Review of Act

Bill C-3 provides for a Parliamentary review of the Act within five years after it comes into force. This will allow for an independent assessment of the provisions and operation of the Act so that it may be improved based on our experience with the Bill.

A list of the designated offences included in Bill C-3 is available.

Primary list of designated offences

(mandatory collection upon conviction, except in the most exceptional circumstances)

sexual interference (s. 151)

invitation to sexual touching (s. 152)

sexual exploitation (s. 153)

incest (s. 155)

offence in relation to juvenile prostitution (ss. 212(4))

infanticide (s. 233)*

murder (s. 235)

manslaughter (s. 236)

causing bodily harm with intent (s. 244)

assault with a weapon or causing bodily harm (s. 267)

aggravated assault (s. 268)

unlawfully causing bodily harm (s. 269)

sexual assault (s. 271)

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

aggravated sexual assault (s. 273)

kidnapping (s. 279)

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 the time before January 4, 1983, namely: rape (s. 144), sexual intercourse with female under fourteen and between fourteen and sixteen (s. 146), sexual intercourse with feeble-minded, etc., (s. 148); an offence under paragraph 153(1)(a) (sexual intercourse with step-daughter, etc.) of the Criminal Code, chapter C-34 of the Revised Statues of Canada, 1970, as it read from the time before January 1, 1988; and

conspiracy or attempt to commit an offence identified above.

Secondary list of designated offences

(upon application of the Crown)

Upon application by the Crown, samples may be required for data bank purposes following conviction of secondary offences where the judge is satisfied that such an order is in the interests of public safety.

Those offences for which samples may be collected upon court order include:

piratical acts (s. 75)

hijacking (s. 76)

endangering safety of aircraft or airport (s. 77)

seizing control of ship or fixed platform (s. 78.1)

using explosives (paragraph 81(1)(a) or (b)

bestiality in the presence of or by child (ss. 160(3))*

child pornography (s. 163.1)*

parent or guardian procuring sexual activity (s. 170)*

indecent acts (s. 173)*

causing death by criminal negligence (s. 220

causing bodily harm by criminal negligence (s. 221)

dangerous operation causing bodily harm or death (ss. 249(3) or (4))*

failure to stop at scene of accident (s. 252)

impaired driving causing bodily harm or death (ss. 255(2) or (3))*

assault (s. 266)

torture (s. 269.1)

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

hostage taking (s. 279.1)

robbery (s. 344)

breaking and entering with intent, committing offence or breaking out (ss. 348(1))

mischief that causes actual danger to life (ss. 430(2))

arson - disregard for human life (s. 433)

arson - own property (s. 434.1)

an offence under any of the following provisions of the Criminal Code as they read from the time before July 1, 1990, namely arson (s. 433), and setting fire to other substance (s. 434), and

attempt or conspiracy to commit any of the above offences.

* Denotes offences recently added to Bill C-3 by the Standing Committee on Justice and Human Rights.