DNA Data Bank Legislation - Consultation Paper 2002
ISSUE 1: Whether there is a need to amend the current lists of designated offences in s. 487.04 of the Criminal Code
Any legislative changes to the lists of designated offences would have an impact on both the Criminal Code DNA warrant scheme and the Criminal Code DNA data bank scheme. When examining whether it is appropriate to add a particular offence to either the primary or secondary list of designated offences (or to remove an offence), it is important to consider whether its addition is justified (in other words, to consider the nature of the crime, the seriousness of the crime and the likelihood of bodily substances being left behind by the perpetrator of the offence at the crime scene or on something related to the commission of the crime).
(a) Historical sexual offences
The present list of "primary designated offences" found in section 487.04 of the Criminal Code includes a number of "historical" sexual offences, offences that have, over the years, been repealed by Parliament and replaced with modern crimes. For example, the offences of rape, attempted rape, and indecent assault were repealed in 1983 and replaced with the tripartite classification of sexual assault that closely mirrors the three-tiered structure of assault offences in the Criminal Code.13 Several of the historical sexual offences have been included in the list of designated offences.14 Similarly, paragraphs 487.055(3)(b) and (c) define "sexual offence" for the purposes of the retroactive scheme.
The argument in support of the inclusion of the historical offences of "indecent assault female," "indecent assault male" and "gross indecency" as designated offences rests on two assumptions: first, that offenders are still being convicted today for such offences which may have been committed more than twenty years ago (without resort to the DNA warrant scheme) and, secondly, more repeat sexual offenders would be captured under the retroactive scheme.15
(b) Reclassifying existing designated offences and adding new offences
Changes to the lists of designated offences are possible. Parliament recently made several changes to the definition of "designated offence" in the Criminal Code with the enactment of Bill C-36, the Anti-Terrorism Act.16 The amendment expands the list of Criminal Code offences listed as "primary designated offences" to include certain offences that had previously been listed as "secondary designated offences": section 75 (piratical acts); section 76 (hijacking); section 77 (endangering safety of aircraft or airport); section 78.1 (seizing control of ship or fixed platform); subsection 81(1) (using explosives); and section 279.1 (hostage-taking).
The amendment also affects certain new Criminal Code offences created under the Anti-Terrorism Act: section 83.18 (participation in activity of terrorist group); section 83.19 (facilitating terrorist activity); section 83.2 (commission of offence for terrorist group); section 83.21 (instructing commission of offence for terrorist group); section 83.22 (instructing to carry out terrorist activity); section 83.23 (harbouring); section 431(attack on premises, residence or transportation of internationally protected person); section 431.1 (attack on premises, accommodation or transportation of United Nations or associated personnel); and subsection 431.2(2) (using explosive of other lethal device). It also deals with three offences under the Security of Information Act: section 19 (threats or violence); section 20 (approaching, entering etc., a prohibited place); and section 21 (harbouring and concealing).
Having regard to the purposes of the legislation and the criteria for inclusion of offences:
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