BACKGROUNDER
Measures to Clarify and Strengthen DNA Data Bank Legislation
THE NATIONAL DNA DATA BANK
The DNA Identification Act came into force on June 30, 2000. The Act
established the National DNA Data Bank, which is operated by the Royal Canadian
Mounted Police.
Under the Criminal Code, judges are authorized to order the taking of
samples of bodily substances for the National DNA Data Bank from offenders convicted
of designated Criminal Code offences.
A DNA profile can be derived from blood, hair or saliva. The resulting DNA
profile is put into a convicted offenders index in the National DNA Data
Bank.
The Data Bank also includes a crime scene index that contains DNA profiles
from crime scenes. DNA profiles in the crime scene index can be compared in
order to determine whether the same perpetrator has committed multiple offences,
and whether the crimes took place locally or across the country.
By comparing the DNA profiles in the crime scene index and convicted offenders
index, it is possible to link a convicted offender to an unsolved crime - or
to rule these persons out as suspects.
Since its creation, the National DNA Data Bank continues to play a pivotal
role in supporting the police by:
- Identifying suspects in unsolved crime cases by linking the DNA profile of a convicted offender
contained in the DNA Data Bank with a DNA profile taken from biological substances found at the crime scene;
- Eliminating suspects where there is no match in the system; and
- Determining whether a serial or repeat offender is involved.
Currently, the National DNA Data Bank employs 25 full-time staff and has a total operating budget of almost $3.2 million.
DIFFERENT TYPES OF DATA BANK ORDERS AND DESIGNATED OFFENCES
There are three different types of DNA data bank orders: retrospective, prospective
and retroactive.
Retrospective: Where the designated offence was committed before
June 30, 2000 (when the legislation came into force), and the offender was convicted
after that date.
Prospective: Where the designated offence was committed after
June 30, 2000.
Retroactive: A provincial court judge can make a retroactive DNA Data
Bank authorization against an offender who was convicted before June 30, 2000
and is still under sentence, who was:
- Declared a dangerous offender; or
- Convicted of more than one sexual offence, committed at different times and
is currently serving a sentence of two years or more for such an offence (including
those on conditional release); or
- Convicted of more than one murder committed at different times.
There are also two types of designated offences: primary and secondary. Primary
designated offences are the most serious offences and include murder, sexual
assault and kidnapping.
If an offender is convicted of a primary designated offence, the legislation
presumes that a DNA data bank order will be made, though it does provide the
offender with an opportunity to convince the court that no order is required.
If an offender is convicted of a secondary designated offence, such
as assault or arson, a DNA data bank order will be made only if the Crown applies
for it and can convince the court that it is required in the interest of justice.
THE AMENDMENTS
The proposed legislation includes amendments that will:
- Add certain Criminal Code offences, including criminal harassment,
to the list of designated offences for which a DNA data bank order can be made;
- Move "robbery" and "break and enter into a dwelling house" from a secondary
to a primary designated offence;
- Permit data bank orders to be made against a person who has committed a
designated offence but was also found not criminally responsible on account
of mental disorder;
- Expand the list of sexual offences included under the retroactive scheme (for
persons convicted prior to June 30, 2000) by adding historical sexual offences
like indecent assault and the offence of break and enter and commit a sexual
offence. A new class of offender would also be added to the list of offenders
who may be candidates for the retroactive scheme: those who committed one
murder and one sexual assault at different times;
- Create the means to compel an offender to appear at a certain time and place
to provide a DNA sample;
- Allow for a DNA data bank order to be made after sentencing;
- Create a procedure for the review and destruction of samples taken from
offenders under a DNA data bank order but who were not convicted of a designated
offence; and
- Make changes to the National Defence Act to ensure that the military
justice system remains consistent with the civilian justice system.
The National DNA Data Bank has already proven to be a success in terms of improving
public safety and is a powerful investigative tool for the police. These amendments
will make the Data Bank an even more effective investigative tool. In addition,
the amendments deal with issues that have emerged since the Data Bank first
opened.
These amendments are consistent with the original intent of the DNA Identification
Act while respecting constitutional requirements. They respect the interests
of society in effective law enforcement and the privacy rights of individuals.
- 30 -
May 2004
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