Order Fixing the Day on which this Order is made as the Day on which Division 17 of Part 4 of the Act Comes into Force: SI/2018-26

Canada Gazette, Part II: Volume 152, Number 6

Registration

March 21, 2018

ECONOMIC ACTION PLAN 2014 ACT, NO. 2

Order Fixing the Day on which this Order is made as the Day on which Division 17 of Part 4 of the Act Comes into Force

P.C. 2018-206 March 6, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to section 249 of the Economic Action Plan Act 2014, No. 2, chapter 39 of the Statutes of Canada, 2014, fixes the day on which this Order is made as the day on which Division 17 of Part 4 of that Act comes into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to section 249 of the Economic Action Plan 2014 Act, No. 2, this Order brings sections 2 to 12 of the DNA Identification Act (the Act) into force on the day on which the Order is made.

Objective

Economic Action Plan 2014 Act, No. 2, which received royal assent on December 16, 2014, amended the Act to better enable investigators to use DNA in missing persons, human remains and criminal investigations and put safeguards in place to protect Canadians’ privacy rights. The objective of this Order is to bring these amendments into force.

Background

In Canada, the use of DNA for identification purposes is governed by the provisions of the Act. Prior to the 2014 amendments to the Act, DNA could only be used for criminal justice purposes, as the Act limited the use of DNA to criminal investigations through the collection and matching of DNA profiles of convicted offenders to those found at crime scenes. Despite amendments to expand the number of eligible criminal offences, no substantial amendments to the Act had been made since it first came into force in 2000. Since that time, it became evident that the comparison of DNA from missing persons and from the victims of crime could provide significant benefits to the investigation of serial and violent offences.

Prior to 2014, there were repeated calls for the creation of DNA-based indices to support the investigations of missing persons, including from the Federal Ombudsman for Victims of Crime (January 2013) and the Special Committee on Violence Against Indigenous Women (2014). Additionally, the House of Commons Standing Committee on Public Safety and National Security (June 2009) and the Senate Committee on Legal and Constitutional Affairs (June 2010 review) recommended the creation of a victims of crime index to further support criminal investigations.

In 2014, the Act was amended as follows:

1. A new humanitarian function for the National DNA Database (NDDB) was created by introducing three new humanitarian indices:

• Missing Persons Index — containing DNA profiles derived from the personal effects of missing persons (e.g. bodily substances, toothbrush or clothing);
• Relatives of Missing Persons Index — containing the DNA profiles of close blood relatives of missing persons to identify missing persons using family reference samples; and
• Human Remains Index — containing DNA profiles derived from found human remains.

These humanitarian indices will be maintained separately from the indices which support the criminal application of the NDDB. Through the addition of these humanitarian indices, DNA from missing persons (derived from personal effects, such as a toothbrush) will be compared to DNA profiles of found human remains, DNA found at crime scenes, and the DNA of convicted offenders. Such comparisons can help to identify found remains or provide investigative leads to help locate missing persons where other efforts have failed.

2. The current criminal application of the NDDB was strengthened by creating two new criminal indices in the NDDB:

• Victims Index — derived from voluntarily submitted biological samples from victims of crime; and
• Voluntary Donors Index — derived from samples voluntarily submitted by individuals other than victims, in order to assist in excluding persons unrelated to a case, for example.

Through these new criminal indices, DNA from victims of crime and from voluntary donors will be used to assist law enforcement in investigating crime. Comparing these indices with the existing criminal indices can be particularly useful, for instance, in cases where a serial offender may leave a victim’s DNA at another crime scene.

3. The amendments to the Act provide authority to create new regulatory requirements to help ensure the privacy of Canadians is protected, as follows:

• the requirement for written and fully informed consent from anyone voluntarily submitting a DNA profile to ensure they are aware of the potential use and implications associated with their profile, including that they may withdraw consent at any time and have their profile removed from the index;
• the mandatory removal of DNA profiles (and related information) after five years unless it is useful to an investigation; and
• the creation of the following thresholds to ensure that only DNA relevant to a missing persons investigation would be allowed in the NDDB:
  • reasonable grounds to suspect that DNA would aid an investigation, and
  • other techniques and measures to assist in the investigation have been tried and have failed.

These provisions ensure that DNA collected to support missing persons investigations would only be used for that purpose. Police would not be able to use these new indices for “fishing expeditions” to identify criminals.

The amendments to the Act did not come into force upon royal assent in 2014. This is because time was needed to amend the DNA Identification Regulations and to procure the tools and resources necessary within the Royal Canadian Mounted Police (RCMP) to develop the new indices of the NDDB. The amendments to the DNA Identification Regulations have been completed and will come into force at the same time as the amendments to the Act.

Implications

The RCMP is responsible for maintaining the new indices, comparing and reporting matches between DNA profiles in the NDDB, and providing a national coordinating role by supporting provincial and territorial investigators through the National Centre for Missing Persons and Unidentified Remains (NCMPUR). Provinces and territories, through the applicable police, medical examiners or coroner agencies, would be operationally and financially responsible for collecting samples and having DNA profiles derived for the new criminal indices.

The RCMP will cover the cost associated with processing samples for the humanitarian indices. Budget 2014 provided $8.1M over 5 years, starting in 2016–2017, with $1.3M per year ongoing, to create a DNA-based Missing Persons Index and other related indices in the NDDB, and to supplement the work of the RCMP’s NCMPUR.

Families of missing persons and victim advocacy groups have been significant proponents for the development of a Missing Persons Index. The 2014 amendments to the Act, which will be brought into force through this Order, will make another tool available to assist in the investigations of missing persons and found human remains. This could help provide some much needed answers to families of the missing.

Finally, privacy protections are strengthened though the consent and removal provisions that have been added to the DNA Identification Regulations, which help to mitigate privacy risks associated with DNA collection under the new humanitarian indices implemented through the 2014 amendments to the Act.

Consultations

In developing and drafting the 2014 amendments to the Act, the RCMP and Public Safety Canada undertook a series of consultations. A broad range of stakeholders from diverse fields of expertise were consulted, including

• coroners and medical examiners at the National Centre for Missing Persons and Unidentified Remains Forum;
• the Native Women’s Association of Canada;
• the Office of the Ombudsman for Victims of Crime;
• the Office of the Privacy Commissioner;
• the National Coordinating Committee on Organized Crime;
• the Federal-Provincial-Territorial DNA Working Group;
• the National DNA Data Bank Advisory Committee;
• the governments of Ontario and Quebec; and
• private laboratories.

Stakeholder input informed the development of the 2014 amendments to the Act. Following tabling of the amendments in Parliament, all stakeholders expressed general support for the amendments.

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