Regulations Amending the DNA Identification Regulations :SOR/2018-42

Canada Gazette, Part II: Volume 152, Number 6

Registration

March 7, 2018

DNA IDENTIFICATION ACT

P.C. 2018-204 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 12^{footnote a} of the DNA Identification Act ^{footnote b}, makes the annexed Regulations Amending the DNA Identification Regulations.

Regulations Amending the DNA Identification Regulations

Amendments

1 The definition DNA Data Bank in section 1 of the DNA Identification Regulations ^{footnote 1} is replaced by the following:

DNA Data Bank means the national DNA data bank established by the Minister of Public Safety and Emergency Preparedness under section 5 of the Act. (banque de données génétiques)

2 Sections 2 and 2.1 of the Regulations are replaced by the following:

2 (1) A DNA profile derived from a bodily substance of a convicted offender is to be added to the convicted offenders index of the DNA Data Bank only if all of the following are received by the Commissioner:

• (a) a sample of the bodily substance that was collected with a DNA Data Bank sample kit approved by the Commissioner in accordance with subsection (2);
• (b) a copy of the authorization for the collection of the sample;
• (c) the name of the person who collected the sample; and
• (d) subject to subsection (3), the fingerprints of the convicted offender from whom the sample is collected and the name of the person who took them.

(2) The Commissioner must approve a DNA Data Bank sample kit that ensures the integrity of samples of bodily substances transmitted to the Commissioner. The kit must include

• (a) detailed instructions on the procedure for collecting and preserving a sample and how to prevent its contamination;
• (b) a sample collection medium that allows the sample to be safely handled and preserved without contamination; and
• (c) the items necessary to collect the sample.
  

(3) Fingerprints are not required for the purposes of subsection (1) if the Commissioner is satisfied, based on a written statement that includes the name of the person who provided the statement, that

• (a) fingerprints could not be taken or it would not have been reasonable in the circumstances to take them at the time the sample was taken; and
• (b) adequate means were used to confirm the identity of the convicted offender.
  

3 (1) The heading before section 2.2 of the Regulations is replaced by the following:

Criminal Code and National Defence Act — Information To Be Transmitted

(2) Subsection 2.2(1) of the Regulations is replaced by the following:

2.2 (1) A peace officer or a person acting under their direction who transmits a copy of an order or authorization under paragraph 487.071(2)(b) of the Criminal Code or paragraph 196.22(2)(b) of the National Defence Act to the Commissioner must transmit the following information:

• (a) written confirmation by the peace officer or person that they have searched the applicable records kept by the Canadian Police Information Centre and that the convicted offenders index of the DNA Data Bank contains the DNA profile of the convicted offender who is the subject of the order or authorization; and
• (b) the fingerprints of the convicted offender, and the name of the person who took the fingerprints, or a written statement that
  • (i) attests that fingerprints could not be taken or that it would not have been reasonable in the circumstances to take them,
  • (ii) describes the means that were used to confirm the identity of the convicted offender, and
  • (iii) sets out the name of the person making the statement.

(3) The portion of subsection 2.2(2) of the Regulations before paragraph (a) is replaced by the following:

(2) If the information transmitted to the Commissioner under paragraph 487.071(2)(b) of the Criminal Code or paragraph 196.22(2)(b) of the National Defence Act is inaccurate or incomplete, the Commissioner must advise the submitting agency of that fact and shall request that the agency

(4) Paragraph 2.2(2)(b) of the Regulations is replaced by the following:

• (b) execute, in accordance with subsection 487.071(3) of the Criminal Code or subsection 196.22(3) of the National Defence Act, the order or authorization referred to in paragraph (1)(a).
  

4 The Regulations are amended by adding the following after section 2.2:

Written Consent

2.3 For the purposes of section 5.4 of the Act, a person’s written consent is provided by signing a document that states that

• (a) the person’s DNA profile and related information will be added to the relatives of missing persons index, the voluntary donors index or the victims index, as the case may be;
• (b) the person’s DNA profile will be used for the purposes of criminal identification, finding missing persons or identifying human remains, as the case may be;
• (c) the person’s DNA profile will be compared, in accordance with section 5.5 of the Act, with DNA profiles that are already contained in the crime scene index, the convicted offenders index, the victims index, the missing person index, the voluntary donors index and the human remains index;
• (d) the person’s DNA profile and any information in relation to it may only be communicated and used in accordance with the Act;
• (e) access to information in relation to the person’s DNA profile will be removed from the relatives of missing persons index, the voluntary donors index or the victims index, as the case may be, in accordance with section 8.1 of the Act; and
• (f) forensic DNA analysis and comparison of the person’s DNA profile may result in incidental findings, such as a finding relating to genetic relationships.
  

5 (1) The heading before section 3 of the Regulations is replaced by the following:

Removal of Access to Information

(2) Subsection 3(1) of the Regulations is replaced by the following:

3 (1) For the purposes of subsection 8.1(3) of the Act, the prescribed period is five years beginning on the day on which the DNA profile was added to the victims index, the missing persons index, the relatives of missing persons index or the voluntary donors index, as the case may be.

(1.1) If access to information in relation to a DNA profile is not removed at the end of the five-year period because an investigating authority considered appropriate by the Commissioner advises the Commissioner of the matters set out in paragraphs 8.1(3)(a) and (b) of the Act, it must be removed after any subsequent period of five years during which no investigating authority considered appropriate by the Commissioner advises the Commissioner of those matters.

(1.2) For the purpose of subsection 8.1(5) of the Act, the removal of access to information in relation to a DNA profile under any of subsections 8.1(1) to (3) of the Act must be done by destroying the information in relation to the DNA profile and the DNA profile.

(3) The portion of subsection 3(2) of the Regulations before paragraph (a) is replaced by the following:

(2) For the purpose of subsection (1.2), destroy means

6 Section 4 of the Regulations and the heading before it are repealed.

7 Section 5 of the Regulations is replaced by the following:

5 For the purpose of subsection 6.4(4) of the Act, any agreement or arrangement — authorizing the communication solely for the purposes of, as the case may be, the investigation or prosecution of a criminal offence or the investigation of a missing person or human remains — that the Government of Canada or one of its institutions enters into with a government of a foreign state, an international organization or an institution must include safeguards to protect the privacy of the personal information that is used or disclosed under it.

Coming into Force

8 These Regulations come into force on the day on which Division 17 of Part 4 of the Economic Action Plan Act 2014, No. 2, chapter 39 of the Statutes of Canada, 2014, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Royal Canadian Mounted Police (RCMP) started conducting deoxyribonucleic acid (DNA) analysis in 1989, but at this early stage there was no national coordination to allow law enforcement agencies to take full advantage of the unfolding advances in DNA technology. On June 30, 2000, the DNA Identification Act (the Act) came into force and the use of DNA analysis became formalized at the national level with the creation of the RCMP’s National DNA Data Bank (NDDB).

The Economic Action Plan 2014 Act, No. 2, which received royal assent on December 16, 2014, amended the Act. These amendments will be brought into force through an Order in Council. The day on which this Order is made is the day on which the amendments to the Act will come into force. The DNA Identification Regulations (the Regulations) are amended to take into account the amendments to the Act. In addition to these amendments, the RCMP is also taking the opportunity to modernize existing processes that are inefficient but currently prescribed in regulations. The amendments to the Regulations address the following issues:

1. The 2014 amendments to the Act require that written consent be provided in accordance with regulations, but no such regulations existed.
2. The provisions in the previous Regulations related to the collection of biological samples to support the convicted offenders index were overly prescriptive and did not allow for efficiencies that are made possible through changing technology.
3. The provisions in the previous Regulations relating to the removal of access to DNA profiles were not consistent with the amended Act in force. In addition, the 2014 amendments to the Act require the periodic removal of DNA profiles from a number of the new indices after a prescribed period, but such periods were not prescribed in regulations.

Background

In Canada, the use of DNA for identification purposes is governed by the Act. Currently, the NDDB can only be used for criminal justice purposes. Until the 2014 amendments to the Act come into force, the NDDB is composed of two indices authorized under the Act:

• the crime scene index — composed of DNA profiles derived from biological material recovered from crime scenes; and
• the convicted offenders index — composed of DNA profiles lawfully collected from individuals convicted of designated offences.

Neither of these indices requires consent for the DNA profile to be added to the NDDB.

More than 70 000 Canadians are reported missing every year. While the majority are found within three months (85% are found within 7 days), more than 500 new cases remain unresolved each year. Further, approximately 100 unidentified human remains are found each year. The 2014 amendments to the Act broaden the national use of DNA analysis in Canada by creating a new humanitarian application for the NDDB and further strengthen the support it provides to criminal investigations. These two objectives are met by providing the statutory authority to create three new humanitarian indices and two new indices to support criminal investigations.

The new humanitarian indices are

• the missing persons index — containing DNA profiles from missing persons found on personal effects;
• the relatives of missing persons index — containing DNA profiles consensually provided by relatives of the missing person; and
• the human remains index — containing DNA profiles of unidentified human remains.

The two new indices that support criminal investigations are

• the victims index — containing DNA profiles of the victims of designated offences; and
• the voluntary donors index — containing DNA profiles consensually provided by a person relevant to either a humanitarian or criminal investigation.

With the exception of the relatives of missing persons index, the amendments to the Act will permit DNA profiles submitted by police, coroners and medical examiners to be compared within the new indices and to the Convicted Offenders and Crime Scene Indices to help identify remains and resolve missing persons investigations. The key exception to this is the Relatives of Missing Persons Index, which can only be compared to the Missing Persons Index and the Human Remains Index.

Amending the Act to permit the use of DNA to assist in the investigation of missing persons and unidentified remains and to expand the role of DNA to support criminal investigations raises a number of privacy considerations. While the amendments to the Act were carefully crafted to mitigate a number of privacy concerns, specifically by limiting the circumstances under which DNA can be used under the Act, specific requirements for regulation were also included in the legislation to further strengthen privacy protection.

Together, the Act and Regulations seek to ensure that the collection and authorized uses of DNA information are prescribed in sufficient detail to achieve a balance between the protection of personal information and the protection of public safety.

The legislation amendments do not provide police with any new authorities to compel the collection of DNA from individuals.

Objectives

The objective of these amendments to the Regulations is to strengthen privacy protection through consent and removal provisions as well as to improve the efficiency of the regulatory regime by allowing some measure of adaptability to integrate new or emerging technologies and processes. This is achieved through the following measures:

1. The Regulations have been amended to provide parameters for written consent. The intent of this measure is not to define the mechanism by which informed consent is obtained but, rather, to specify the elements that must be present within any document that seeks consent for the use of DNA profiles for identification purposes.
2. The Regulations governing the collection of convicted offender DNA samples have been modernized to allow for the potential future use of new analytical technologies and to create efficiencies through better integration with the RCMP’s electronic criminal records system. Replacing the prescriptive description with a list of necessary information that must be provided prior to uploading a DNA profile in the NDDB allows the RCMP to integrate the NDDB with the criminal records system to create new efficiencies and reduce redundancies, enhance data integrity by reducing manual interventions, and decrease the turnaround for review and reporting of results.
3. The Regulations have been amended to reflect the need to remove information from the indices consistent with the 2014 amendments to the Act, including specifying the periods for the removal of information as required.

Description

The Regulations are amended in three ways.

1. Creating mandatory requirements for written consent

DNA profiles can be voluntarily submitted to the relatives of missing persons index, victims index, and voluntary donors index. Before the DNA profiles can be accepted for inclusion in any of these indices, informed consent must be obtained from the person from whom the biological sample was taken. Donors can withdraw their consent at any time.

Section 5.4 of the Act, as amended, requires written consent provided, “in accordance with any regulations.” A new provision is included in the Regulations to specify the information that must be presented to any individual wishing to voluntarily consent to provide her or his DNA for the purpose of supporting either a criminal or humanitarian investigation, to ensure that she or he fully understands the implications of donating a DNA profile. The following information must be provided to any individual who voluntarily consents to provide their DNA:

• the purpose for which DNA profiles are collected (i.e. they will be added to the NDDB);
• the potential uses of the DNA profile;
• what the DNA profile will be compared against in the NDDB;
• the potential implications of consenting to submit a DNA profile (e.g. that DNA samples submitted for inclusion in the victims index or voluntary donors index could be matched to DNA that was found at a crime scene);
• that access to information in relation to DNA profiles will be removed in accordance with the Act (e.g. DNA profiles are removed and destroyed after a period of five years [as described in the Act], when they are no longer necessary [if the investigation is resolved, for instance], or when consent has been withdrawn); and
• that there may be incidental findings (e.g. issues of paternity).

2. Modernizing the collection of biological samples of convicted offenders

While not related to the 2014 amendments to the Act, amendments to the Regulations have been made to modernize the RCMP’s process for the collection of DNA from convicted offenders (primarily to account for technological advancements).

The previous process for collecting DNA samples from convicted offenders was overly prescriptive, and did not allow for efficiencies that are made possible through advances in technology (e.g. simultaneous data entry at time of sample collection, as opposed to sample collection and subsequent data entry into the NDDB manually at a later date).

Prior to these amendments, the Regulations required the use of a prescribed “DNA Data Bank Sample Kit,” and defined specifically what the kit must contain (e.g. a sample collection form that provides space for the identification/signature of the person who took the samples from the convicted offender; and two finger prints of the convicted offender; as well as a fingerprint form that provides space for the fingerprints of the convicted offender).

Before the DNA profile of a convicted offender can be included in the NDDB, the Regulations required that the sample kit be securely packed, sealed and transmitted to the Commissioner with the following information:

• a copy of the judicial authorization for the collection of the biological sample from the convicted offender;
• a biological sample from the convicted offender collected in such a way that preserves the sample safely and free from contamination;
• fingerprint identification of the convicted offender at the time the biological sample was collected (to confirm the identity of the individual); and
• the identity of the individual that collected the fingerprint and biological sample.

As a result, the RCMP was required to maintain a centrally delivered, paper-based system that cannot be integrated with modernized electronic criminal records repositories; and, must continue to manually enter data, which can lead to potential delays in the release of critical information for ongoing investigations.

The Regulations have been amended to remove the prescriptive list of what must be included in a DNA sample kit, and require instead that the samples be collected through a procedure and kit considered acceptable to the Commissioner. The aforementioned list of information that must accompany the DNA profile when it is transmitted to the Commissioner must still be provided, but this provision allows the Commissioner to determine what is included in this list.

A kit is deemed acceptable by the Commissioner once it has been evaluated for use in the NDDB program and found to be reliable for the purposes of collecting and developing a valid DNA profile free of contamination or degradation. The reason for modifying this language (from a prescriptive-based approach to an outcome-based approach) is to allow the Commissioner to determine which kits law enforcement will be using. It provides the Commissioner with flexibility to modify the kit to meet the needs of the program, within the limits prescribed by the Regulations. Previously, the Regulations did not provide room for any modifications to what is in the sample kit.

3. Modernizing removal and destruction provisions to account for legislative change

The 2014 amendments to the Act include new provisions related to the retention, destruction and transmission of DNA information within the NDDB. The Regulations are modified to align with the new retention provision of the Act.

The Act, as amended, establishes a new regulatory authority that provides for defined time frames to be established for the periodic removal of access to information in relation to DNA profiles from the victims index, voluntary donors index, missing persons index, and the relatives of missing persons index.

The amendments to the Regulations require that, after five years, access to information in relation to a DNA profile will be automatically removed from the four aforementioned indices unless the investigating authority (e.g. police) communicates to the Commissioner before the end of the period that the DNA profile continues to assist in the investigation for which it was obtained and that the person the DNA profile was derived from has not requested it be removed. If an individual has requested that their DNA profile be removed from the NDDB, then it will be removed despite the ongoing investigation.

“One-for-One” Rule

The amendments to the Regulations apply to the collection and use of DNA profiles for humanitarian and criminal investigations and do not apply to businesses. Therefore, the “One-for-One” Rule does not apply to this proposal.

Small business lens

The small business lens does not apply to this proposal, as there are no costs being imposed on small business.

Consultation

The NDDB Advisory Committee is established under the authority of the DNA Data Bank Advisory Committee Regulations and is responsible for advising the Commissioner of the RCMP on matters related to the NDDB. Members of the committee are drawn from individuals representing medical genetics; molecular biology/population biology; biomedical ethics; the Office of the Privacy Commissioner (OPC); the law; and the RCMP. The NDDB Advisory Committee meets regularly each quarter and was engaged on the scoping of the legislative changes that underlie the regulatory amendments. The NDDB Advisory Committee was extensively consulted, was actively engaged (particularly on the issues of consent and on the periods for removal), and expressed support for the draft regulatory amendments.

In addition, consultations took place directly with the OPC to obtain their views on potential privacy implications (e.g. consent, disclosure of personal information outside Canada). The information provided has informed the amendment/updating of the Privacy Impact Assessments (PIAs) that have been elaborated for the implicated RCMP programs. Following the coming into force of the Regulations, the updated PIAs will be shared with the OPC for further input.

Finally, the RCMP undertook consultations with the Federal Ombudsman for Victims of Crime (FOVC) on the draft regulatory amendments. The FOVC expressed support for the proposed periods for removal as well as the approach being taken with regards to the elements of consent that were being contemplated.

Canada Gazette, Part I

The amendments to the Regulations were published in the Canada Gazette, Part I on October 14, 2017, for a 30-day comment period; 4 comments were received from 3 stakeholder groups. The RCMP engaged each stakeholder to respond to their comments directly. No changes were made to the Regulations following the prepublication comment period.

The following is a summary of the comments received:

• One comment was received from a national victims’ advocacy and research group that indicated strong support for the amendments. In particular, the group was supportive of strengthening privacy protections and improving the efficiency of NDDB processes by allowing some adaptability in the Regulations for the integration of new or emerging technologies in forensic science.
• Two comments were received from a provincial laboratory. The first comment suggested that reference to the Lac Mégantic example provided in the Regulatory Impact Analysis Statement should be removed, as it is an example of a Quebec criminal investigation and was therefore not entirely in scope for these regulatory amendments. Second, it was suggested that the phrase “as the case may be” be added to paragraph 2.3(c) of the Regulations, to be in line with paragraphs 2.3(a) and (b) which both contain the phrase. The term “as the case may be” was included in certain provisions where it would be impractical to write out all the permutations (i.e. avoiding the creation of a section of the Regulations that outlines all the elements of informed consent for each of the indices (e.g. all elements for the Victims Index, then elements for the Relatives of Missing Persons Index [RMI], then the Voluntary Donors Index, etc.). However, paragraph 2.3(c), states “in accordance with section 5.5 of the Act” which addresses the permutations, as section 5.5 of the Act outlines all of the indices that can be compared with each other, except for the RMI which can only be compared to the Missing Persons Index and Human Remains Index.
• In response to these comments, reference to the Lac Mégantic event has been removed from the Regulatory Impact Analysis Statement for final publication of the amendments to the Regulations. After consideration of the suggested edit to the Regulations, the RCMP has decided that amending paragraph 2.3(c) with “as the case may be” is not appropriate in this context because profiles will not be compared “as the case may be.” There are specific comparisons permitted which are outlined in the Act; therefore, adding in the phrase “as the case may be” would be inaccurate.
• Comments were received from a provincial victims’ advocacy group, which highlighted additional elements that it suggested be added once consent forms are developed, after the Regulations come into force. In particular, it was recommended that the information to be provided to donors when seeking written consent be clear, detailed, and in plain language, particularly concerning (i) how DNA profiles submitted by relatives of the missing will be used to conduct kinship analysis; and (ii) incidental findings of DNA comparisons (e.g. paternity) and how that information will be communicated to the donor by law enforcement.
• In response, the RCMP committed to take these recommendations into consideration as it develops the structure and specific content of the consent forms and guidance documents. The consent forms and guidance documents are currently being drafted and will be finalized in January 2018, ahead of the coming into force of the Regulations and Act.
• These comments also included a suggestion that the RCMP consider establishing an independent or arm’s length office that can provide information to families and answer any questions that they may have, because having access to information about the new indices and procedures may encourage even reluctant families to come forward and submit a biological sample thereby ensuring a robust data bank for comparison to the approximately 700 sets of unidentified remains in Canada.
• The RCMP responded to this comment by explaining the work of the RCMP’s National Centre for Missing Persons and Unidentified Remains (NCMPUR) as part of the National Missing Persons DNA Program, to assist investigators when receiving and sending samples into the NDDB for processing. Rather than have an arm’s length agency do this work, the NCMPUR is responsible for providing information to investigators, which will then be relayed to families and voluntary donors about the new indices and procedures once the Regulations and Act come into force. The response also highlighted that a family reference guide, which is currently being developed, will support potential donors in their decision to provide samples. The comments and suggestions from this stakeholder were shared with the NCMPUR.
• Following prepublication, no further comments were raised by the OPC or the FOVC.

Rationale

These regulatory changes ensure that the 2014 amendments to the Act can be implemented. The combined effect of the regulatory changes and the coming into force of the legislative amendments is to introduce a humanitarian application for DNA identification (supporting the investigations of missing persons and unidentified human remains) as well as strengthen the support the NDDB provides to criminal investigations by adding additional tools to aid these investigations.

This broadening of the national use of DNA identification for humanitarian purposes will facilitate not only police investigations but also the identification of victims of mass disasters (e.g. SwissAir Flight 111). While not a solution for solving all outstanding missing persons investigations, the introduction of the new indices will help to ease the suffering of those Canadians missing loved ones by assuring them that all investigative avenues available to police are being pursued.

The amendments to the Regulations associated with consent and periodic removal serve to further strengthen the privacy protection provision enshrined in the 2014 amendments to the Act. The consent section of the Regulations ensures that any Canadian who chooses to contribute a DNA profile for either humanitarian or criminal investigations is provided with information detailing how the DNA profile will be used and the potential implications of that use. Further, the periodic removal provisions establishes a definitive time period for which the DNA profile will be retained within the NDDB. This ensures that an individual’s DNA profile will not be inadvertently kept in the NDDB because of administrative or communication errors and ensures that there is periodic attention brought to cases that endure over many years.

The modernization of the provisions in the Regulations related to the collection of biological samples from convicted offenders will likely have positive long-term implications for policing and the efficiency of NDDB operations. In the short term, the amendments to the Regulations allow the RCMP to integrate the current paper-based and manual information management process associated with collecting biological samples to support the inclusion of a DNA profile in the convicted offender index, with the new electronic criminal records and fingerprint capture systems being deployed to all policing partners across Canada. This will reduce the time required to update vital police information systems.

The costs associated with the implementation of the amendments to the Regulations are minimal, and have already been accounted for as part of the broader implementation plan for the legislative amendments (Budget 2014 committed $8.1M to this initiative).

Implementation, enforcement and service standards

The legislative amendments will come into force concurrently with these regulatory amendments, on the day on which the Order, bringing the legislative amendments into force is made. The coming into force of the amendments to the Regulations and the Act will allow the RCMP to use the IM/IT infrastructure that has been put in place to develop the new indices and to put into operation the new investigative tools that have been built within the RCMP.

The amendments to the Regulations require compliance by the RCMP to ensure that informed consent is obtained and that the periodic removal of DNA profiles occurs as necessary. Policy and the underlying IT systems are being amended to put processes in place as well as automate the periodic removal requirements.

Contacts