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.

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May 2004