Backgrounder

Reforming our Laws to Improve Public Safety

The Government of Canada has introduced legislation that responds to priority issues raised by the provinces and territories and builds on its public consultation in relation to laws governing a powerful crime-solving tool - the National DNA Data Bank.

The amendments would:

• Add 28 Criminal Code offences, including Internet luring and criminal harassment, to the list of designated offences for which a National DNA Data Bank order can be made;
• Move certain offences, such as child pornography and robbery from the list of secondary designated offences to the list of primary designated offences;
• Permit DNA sample collection orders to be made against a person who has committed a designated offence but was found not criminally responsible on account of mental disorder;
• Expand retroactive provisions to make DNA sample collection orders available for those convicted of one murder and one sexual offence committed at different times before the DNA data bank legislation came into force on June 30, 2000;
• Include "historical" sexual offences, such as indecent assault and gross indecency, under the retroactive provisions;
• Create the means to compel an offender convicted of a designated offence or subject to a judicial order to appear at a certain time and place to provide a DNA sample;
• Allow for a DNA sample collection order to be made after sentencing;
• Permit the destruction of DNA samples taken from offenders 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 Government of Canada is proceeding with these legislative reforms now rather than waiting for the results of a Parliamentary review, anticipated to take place in 2005, because it agrees with the provincial Attorneys General that these reforms are a priority and immediate public safety benefits would be realized.

The legislation does not replace the Parliamentary review, which will provide ample opportunity to assess and revise the DNA data bank legislation as required.

Protecting Privacy Rights

Canada's approach to the collection and use of DNA information, as contained in the current law or the proposed reforms, ensures that constitutionally protected rights and privacy interests are respected.

Understanding How the DNA Data Bank Works

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 collection of bodily samples from offenders convicted of designated Criminal Code offences for inclusion in the National DNA Data Bank. Designated offences are serious offences such as murder, manslaughter, assault, sexual assault and robbery.

A DNA profile can be derived from the blood, hair or saliva of a convicted offender. The resulting DNA profile is placed into a convicted offenders index in the National DNA Data Bank.

The National DNA Data Bank also includes a crime scene index that contains profiles of DNA samples collected from crime scenes. DNA profiles in the crime scene index can be compared with each other 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 identify or exclude a convicted offender as a suspect in an unsolved crime.

Understanding Primary and Secondary Designated Offences

Primary designated offences are those considered to be the most serious criminal offences - for example, sexual offences, murder and manslaughter. Secondary designated offences are relatively less serious in nature but still significant in their own right. Examples include assault and arson.

A judge who convicts a person of a primary designated offence is required to make an order for the collection of a DNA sample from the offender, unless the offender can convince the court that the impact on his or her personal privacy and security outweighs the public interest in the protection of society and the proper administration of justice.

In the case of a secondary designated offence, a DNA sample collection order may be granted if the court, following an application by the Crown, is satisfied that it is in the best interests of justice to do so.

If a person has been convicted or discharged of any designated offence after June 30, 2000, but the act was committed before that date, then the same criteria for granting an order under a secondary designated offence apply.

Proposed Additions to the List of Primary Designated Offences

New Offence

• Internet luring of a child

Offences Previously listed as Secondary Designated Offences

• child pornography (making, accessing, distributing, and possessing)
• robbery
• breaking and entering into a dwelling house

Other

• sexual exploitation of a person with a disability
• procuring
• living on the avails of prostitution of a person under 18
• aggravated living on the avails of prostitution of a person under 18
• discharge of compressed air gun with intent to endanger life, etc.
• administering a noxious thing with intent to endanger life or to cause bodily harm
• overcoming resistance to the commission of an offence
• extortion
• intimidation of justice system participant
• "historical" sexual offences (i.e., offences that have been replaced with modern crimes), including indecent assault female, indecent assault male and gross indecency

Proposed Additions to the List of Secondary Designated Offences

• criminal harassment
• uttering death threats
• intimidation
• unlawfully in a dwelling house
• arson causing damage to property
• arson for fraudulent purposes
• participation in criminal organization
• commission of offence for criminal organization
• instructing commission of offence for criminal organization

A Parliamentary review of the National DNA Data Bank legislation, which came into force in June 2000, is anticipated in 2005.