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MINUTES OF PROCEEDINGS

Meeting No. 37

Thursday, May 5, 2005

The Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness met at 11:04 a.m. this day, in Room 705 La Promenade Building, the Chair, Paul DeVillers, presiding.

Members of the Committee present: Garry Breitkreuz, Joe Comartin, Hon. Roy Cullen, Hon. Paul DeVillers, Hon. Paul Harold Macklin, John Maloney, Richard Marceau, Serge Ménard, Anita Neville, Vic Toews and Mark Warawa.

Acting Members present: Rob Moore for Myron Thompson.

In attendance: Library of Parliament: Philip Rosen, Principal ; Robin MacKay, Analyst.

Witnesses: Department of Justice: Michael Zigayer, Senior Counsel, Criminal Law Policy Section; Stanley Cohen, Senior General Counsel, Human Rights Law Section. Department of National Defence: Dominic McAlea, Deputy Judge Advocate, Military Justice and Administrative Law; André Dufour, Director, Legislative and Regulatory Services.

Pursuant to the Order of Reference of Tuesday, November 2, 2004, the Committee resumed consideration of Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

The Committee commenced its clause-by-clause study of the Bill.

The Chair called Clause 1.

The witnesses answered questions.

On Clause 1,

Richard Marceau moved, — That Bill C-13, in Clause 1, be amended by adding after line 9 on page 2 the following:

“(3.1) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (viii):

(viii.1) section 239 (attempt to commit murder),”

After debate, the question was put on the amendment of Richard Marceau and it was agreed to.

Richard Marceau moved, — That Bill C-13, in Clause 1, be amended by adding after line 30 on page 2 the following:

“(5.1) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (xx):

(xxi) section 467.11 (participation in activities of criminal organization),

(xxii) section 467.12 (commission of offence for criminal organization), and

(xxiii) section 467.13 (instructing commission of offence for criminal organization),

Debate arose thereon.

After debate, the question was put on the amendment of Richard Marceau and it was agreed to.

Richard Marceau moved, — That Bill C-13, in Clause 1, be amended by adding after line 3 on page 3 the following:

“(6.1) Paragraph (a) of the definition “secondary designated offence” in section 487.04 of the Act is amended by adding the following before subparagraph (vi):

(i) section 145 (escape and being at large without excuse),

(ii) section 146 (permitting or assisting escape),

(iii) section 147 (rescue or permitting escape),

(iv) section 148 (assisting prisoner of war to escape),”

After debate, the question was put on the amendment of Richard Marceau and it was agreed to, by a show of hands: YEAS: 6; NAYS: 4.

Paul Harold Macklin moved, — That Bill C-13, in Clause 1, be amended by

(a) replacing line 4 on page 3 to line 3 on page 4 with the following:

(7) The definitions“secondary designated offence” and “young person” in section 487.04 of the Act are replaced by the following:

“secondary designated offence” means an offence, other than a primary designated offence, that is

(a) an offence under this Act that is liable to a maximum sentence of five or more years imprisonment and may be prosecuted by indictment, and, for the application of section 487.051 or 487.052, is prosecuted by indictment,

(b) an offence under any of the following provisions of the Controlled Drugs and Substances Act that is liable to a maximum sentence of five or more years imprisonment and may be prosecuted by indictment, and, for the application of section 487.051 or 487.052, is prosecuted by indictment:

(i) section 5 (trafficking in substance and possession for purpose of trafficking),

(ii) section 6 (importing and exporting), and

(iii) section 7 (production of substance),

(i) subsection 160(3) (bestiality in the presence of or by child),

(ii) section 170 (parent or guardian procuring sexual activity),

(iii) section 173 (indecent acts),

(iv) section 252 (failure to stop at scene of accident),

(v) section 264 (criminal harassment),

(vi) section 264.1 (uttering threats),

(vii) section 266 (assault),

(viii) section 270 (assaulting a peace officer),

(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),

(x) section 349 (being unlawfully in dwelling-house), and

(xi) section 423 (intimidation),

(d) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990:

(i) section 433 (arson), and

(ii) section 434 (setting fire to other substance), and

(e) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit an offence referred to in any of paragraphs (a) to (d);

(b) replacing line 8 on page 4 with the following:

(8) Section 487.04 of the Act is amended

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 1, as amended, carried.

Clause 2 carried.

On Clause 3,

The Chair ruled there was a line conflict between two (2) amendments to Clause 3.

Paul Harold Macklin moved, — That Bill C-13, in Clause 3, be amended by

(a) replacing line 36 on page 4 with the following:

3. Subsections 487.051(1) to (3) of the Act are

(b) replacing line 8 on page 5 with the following:

case of a primary designated offence other than a primary designated offence described in paragraph (b), make

(b) may, in the case of a primary designated offence in respect of which a verdict of not criminally responsible on account of mental disorder has been rendered or in the case of a secondary desig-

(d) replacing lines 22 and 23 on page 5 with the following:

(2) The court is not required to make an order under paragraph (1)(a) if it is satisfied that the person or young person has established that, were the order made, the impact on the person's or young person's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.

By unanimous consent, the amendment was allowed to stand.

Vic Toews moved, — That Bill C-13, in Clause 3, be amended by replacing lines 7 to 21 on page 5 with the following:

“ (a) shall, in the case of a primary designated offence, make an order in Form 5.03 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1); or

(b) shall, subject to subsection (2), in the case of a secondary designated offence, make an order in Form 5.04 authorizing the taking of such samples.”

By unanimous consent, the amendment was allowed to stand.

Vic Toews moved, — That Bill C-13, in Clause 3, be amended by adding after line 21 on page 5 the following:

“ (1.1) Subsection 487.051(2) of the Act is replaced by the following:

(2) The court is not required to make an order under paragraph (1)(b) if it is satisfied that the person or young person has established that, were the order made, the impact on the person's or young person's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.”

By unanimous consent, the amendment was allowed to stand.

Vic Toews moved, — That Bill C-13, in Clause 3, be amended by replacing lines 24 to 34 on page 5 with the following:

“ (3) The court may make an order in Form”

By unanimous consent, the amendment was allowed to stand.

At 12:30 p.m., the sitting was suspended.

At 12:39, the sitting resumed.

By unanimous consent, Clause 3 was allowed to stand.

Clause 4 carried.

On Clause 5,

Paul Harold Macklin moved, — That Bill C-13, in Clause 5, be amended by replacing lines 23 to 33 on page 7 with the following:

(d) had been convicted of a sexual offence within the meaning of subsection (3) and, on the date of the application, is serving a sentence of imprisonment of at least two years for that offence; or

(e) had been convicted of manslaughter and, on the date of the application, is serving a sentence of imprisonment of at least two years for that offence.

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 5, as amended, carried.

On Clause 6,

Paul Harold Macklin moved, — That Bill C-13, in Clause 6, be amended by replacing lines 8 to 15 on page 8 with the following:

487.056 (1) Samples of bodily substances shall be taken from a person, even if an appeal is taken,

(a) on the day when a court makes an order under subsection 487.051(1) or 487.052(1);

(b) if the court is of the opinion that it is not possible for samples to be taken then, at a place, day and time set out in an order made under subsection 487.051(4) or 487.052(3); or

(c) if the person whose presence is required by an order described in paragraph (b) fails to appear, when the person is arrested pursuant to a warrant issued under section 487.0561, or as soon as possible afterwards.

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 6, as amended, carried.

Clauses 7 to 11 inclusive carried severally.

By unanimous consent, Clause 12 was allowed to stand.

Clauses 13 to 15 inclusive carried severally.

On Clause 16,

Paul Harold Macklin moved, — That Bill C-13, in Clause 16, be amended by replacing line 5 on page 21 with the following:

offence and enter the resulting DNA profile in the convicted offenders index.

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 16, as amended, carried.

On Clause 17,

Paul Harold Macklin moved, — That Bill C-13, in Clause 17, be amended by

(a) replacing lines 10 to 23 on page 22 with the following:

17. (1) Subsection 6(1) of the Act is replaced by the following:

6. (1) The Commissioner shall compare any DNA profile that is entered in the convicted offenders index or the crime scene index with those DNA profiles that are already contained in the data bank and may then, for the purpose of the investigation of a designated offence, communicate the following information to any Canadian law enforcement agency or laboratory that the Commissioner considers appropriate:

(a) if the DNA profile is not already contained in the data bank, the fact that it is not;

(b) if the DNA profile is already contained in the data bank, any information contained in the data bank in relation to that DNA profile;

(c) if the DNA profile is, in the opinion of the Commissioner, similar to one that is already contained in the data bank, the similar DNA profile; and

(d) if a DNA profile that is communicated under paragraph (c) cannot be excluded as a possible match on further analysis, any information contained in the data bank in relation to that DNA profile.

(2) Subsection 6(3) of the Act is replaced by the following:

(3) On receipt of a DNA profile from the government of a foreign state, an international organization established by the governments of states or an institution of any such government or international organization, the Commissioner may compare the DNA profile with those in the DNA data bank to determine whether it is already contained in the data bank and may then communicate to that government, international organization or institution

(a) whether the DNA profile is already contained in the data bank; and

(b) any information, other than the DNA profile itself, that is contained in the data bank in relation to that DNA profile.

(3) Subsections 6(6) and (7) of the Act are replaced

(b) adding after line 28 on page 22 the following:

(6.1) Information that is communicated under subsection (1) may be communicated subsequently to a person to whom the communication is necessary for the purpose of the investigation or prosecution of a designated offence.

(7) Subject to this section, no person shall communicate any information that is contained in the DNA data bank or allow the information to be communicated.

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Paul Harold Macklin moved, — That Bill C-13 be amended by adding after line 28 on page 22 the following:

17.1 Section 8 of the Act is replaced by the following:

8. No person to whom information is communicated under subsection 6(1) or (6.1) or who has access to information under paragraph 7(a) or (b) shall use that information other than for the purposes referred to in that subsection or paragraph.

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 17, as amended, carried.

Clauses 18 to 22 inclusive carried severally.

On Clause 23,

Paul Harold Macklin moved, — That Bill C-13, in Clause 23, be amended by

(a) replacing line 8 on page 25 with the following:

23. (1) The definition “primary designated

(b) adding after line 23 on page 25 the following:

(2) Paragraph (a) of the definition “secondary designated offence” in section 196.11 of the Act is replaced by the following:

(a) a secondary designated offence within the meaning of paragraphs (a) to (d) of the definition "secondary designated offence" in section 487.04 of the Criminal Code that is punishable under section 130;

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 23, as amended, carried.

By unanimous consent, Clause 24 was allowed to stand.

Clause 25 carried.

On Clause 26,

Paul Harold Macklin moved, — That Bill C-13, in Clause 26, be amended by replacing line 37 on page 27 to line 3 on page 28 with the following:

196.17 (1) Samples of bodily substances shall be taken, even if an appeal is taken,

(a) on the day when a court martial makes an order under subsection 196.14(1) or 196.15(1),

(b) if the court martial is of the opinion that it is not possible for samples to be taken then, at a place, day and time set out in an order made under subsection 196.14(4) or 196.15(3), or

(c) if the person whose presence is required by an order described in paragraph (b) fails to appear, when the person is arrested pursuant to a warrant issued under subsection 196.17(3), or as soon as possible afterwards.

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 26, as amended, carried.

Clauses 27 to 30 inclusive carried severally.

On Clause 30.1,

Paul Harold Macklin moved, — That Bill C-13 be amended by adding after line 16 on page 30 the following:

COORDINATING AMENDMENT

30.1 If Bill C-2, introduced in the 1st session of the 38th Parliament and entitled An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (the “other Act”), receives royal assent, then, on the later of the coming into force of section 1 of the other Act and section 12 of this Act, the last paragraph of Form 5.031 in Part XXVIII of the Criminal Code is replaced by the following:

Subsection 127(1) of the Criminal Code states as follows:

127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

After debate, the question was put on the amendment of Paul Harold Macklin and it was agreed to.

Clause 30.1, as amended, carried.

It was agreed, — That the Committee resume the clause-by-clause study of Bill C-13 on Tuesday, May 10, 2005 at 11:00 a.m.

At 12:55 p.m., the Committee adjourned to the call of the Chair.

Diane Diotte
Clerk of the Committee

2005/05/09 2:58 p.m.