Vol. 151, No. 41 — October 14, 2017
Regulations Amending the DNA Identification Regulations
DNA Identification Act
Royal Canadian Mounted Police
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
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 (Bill C-43), which received royal assent on December 16, 2014, amended the Act. These amendments will come into force on a day to be fixed by order of the Governor in Council. The DNA Identification Regulations (the Regulations) must be amended to take into account the amendments to the Act. The opportunity is also being taken to modernize processes that are inefficient but currently prescribed in regulations. The proposed amendments to the Regulations would address the following issues:
- The 2014 amendments to the Act require that written consent be provided in accordance with regulations, but no such regulations currently exist.
- The provisions in the current Regulations related to the collection of biological samples to support the convicted offenders index are overly prescriptive and do not allow for efficiencies that are made possible through changing technology.
- The provisions in the current Regulations related to the removal of access to DNA profiles will not be consistent with the amended Act once it is 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 are not currently prescribed in regulations.
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 seven days), more than 500 new cases remain unresolved each year. Further, approximately 100 unidentified human remains are found each year. The Government’s commitment to establishing new DNA-based indices reflects the importance of finding missing persons to Canadians.
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 were 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.
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.
The objective of the proposed amendments to the Regulations is to strengthen privacy protection through consent and removal provisions as well as improve the efficiency of the regulatory regime by allowing some measure of adaptability to integrate new or emerging technologies and processes. This would be achieved through the following measures:
- Amend the Regulations to provide parameters for written consent. The intent of this regulation 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.
- Modernize the provisions in the Regulations governing the collection of convicted offender DNA samples 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 would allow 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.
- Amend the Regulations to reflect the need to remove information from the indices consistent with the December 2014 amendments to the Act, including specifying the periods for the removal of information as required.
The Regulations would be amended in three ways.
1. Creating mandatory requirements for written consent
DNA profiles could be voluntarily submitted to the relatives of missing persons index, victims index, and voluntary donors index. Before the DNA profiles could be accepted for inclusion in any of these indices, informed consent would need to be obtained from the person from whom the biological sample was taken.
Section 5.4 of the Act, as amended, requires written consent provided “in accordance with any regulations.” A new provision must be 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 elements would be included:
- 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;
- that access to information in relation to the profiles will be removed in accordance with the Act; and
- that there may be incidental findings (e.g. issues of paternity).
2. Modernizing the collection of biological samples of convicted offenders
The Regulations would be amended to modify the current prescriptive approach to allow for greater flexibility as to how the required information is received by the Commissioner of the RCMP. Currently, before the DNA profile of a convicted offender can be included in the NDDB, the Regulations require the use of a “DNA Data Bank Sample Kit” with very specific requirements of what this Sample Kit must contain. The Regulations also require the following to be sent to the Commissioner of the RCMP using specific procedures:
- a copy of the judicial authorization for the collection of the biological sample from the convicted offender;
- a biological sample from the convicted offender that was collected using the Sample Kit in the manner specified in the Regulations;
- paper-based fingerprint identification of the convicted offender at the time the biological sample was collected (to confirm the identity of the individual); and
- the identity and signature of the individual who took the fingerprints.
The current Regulations require that the RCMP maintain a centrally delivered, paper-based system that cannot be integrated with modernized electronic criminal record repositories without cumbersome manual data entry leading to potential delays in the release of critical information for ongoing investigations.
Further, the evolution of DNA technologies could create the opportunity to more efficiently collect and process convicted offender samples in the future through a decentralized model, which incorporates direct data entry at the time of sample collection and serves to enhance the integrity of the data by reducing the amount of manual entry.
The current Regulations do not permit the innovation of current processes to realize greater operational efficiencies in the future. To allow for greater operational efficiencies and potential future innovation, greater flexibility must be incorporated into the Regulations.
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. Section 3 of the Regulations must be modified to align with the new provision of the Act. Specifically, there is one main element that will need to be addressed in the regulatory amendments:
- Subsection 8.1(3) of the Act, as amended, establishes a new, mandatory regulatory authority to establish defined time frames 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. It is proposed for all four indices that, after five years, access to information in relation to a DNA profile will be removed from an index unless the investigating authority communicates 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.
Section 8.1 of the Act, as amended, includes the new indices subject to removal requirements. Section 3 of the Regulations therefore must be amended to reflect these additional indices.
The proposed amendments to the Regulations apply to the collection and use of DNA profiles for humanitarian and criminal investigations and do not introduce any administrative burden 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 imposed on small business.
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. The NDDB Advisory Committee meets regularly each quarter and has been engaged on the scoping of the legislative changes that underlie the proposed regulatory amendments. In addition, the NDDB Advisory Committee has been extensively consulted and continues to be actively engaged with and very supportive of these regulatory amendments. 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. This committee has contributed significantly to the development of this regulatory proposal — notably on issues of consent and on the periods for removal.
In addition to the support expressed by the representative of the OPC as part of the Advisory Committee, consultations have taken 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 will inform 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 PIAs will be updated prior to the launch of collecting DNA samples on a voluntary basis.
In addition, consultations with the Federal Ombudsman for Victims of Crime resulted in support to the proposed periods for removal as well as the approach being taken with regards to the elements of consent that are being contemplated. The Ombudsman expressed support in moving forward.
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 and Lac-Mégantic). While not a panacea 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 proposed amendments to the Regulations associated with consent and periodic removal would serve to further strengthen the privacy protection provision enshrined in the 2014 amendments to the Act. The consent section of the Regulations would ensure 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 would be used and the potential implications of that use. Further, the periodic removal provisions would establish a definitive time period for which the DNA profile would be retained within the NDDB. This would ensure that an individual’s DNA profile would not be inadvertently kept in the NDDB because of administrative or communication errors and ensures that there is periodic attention brought to longer duration cases.
The modernization of the provisions in the Regulations related to the collection of biological samples from convicted offenders could have positive long-term implications for police and the efficiency of NDDB operations. In the short term, the proposed amendments to the Regulations would 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 would reduce the time required to update vital police information systems.
Implementation, enforcement and service standards
The coming into force for both statutory instruments will allow the RCMP to put the necessary infrastructure in place and ensure that the scientific knowledge and skills to effectively use the new investigative tools has been built within the RCMP.
The proposed 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.
Strategic Policy and Integration
Specialized Policing Services
Royal Canadian Mounted Police
Senior Strategic Policy Analyst
Strategic Policy and Integration
Specialized Policing Services
Royal Canadian Mounted Police
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council, pursuant to section 12 (see footnote a) of the DNA Identification Act (see footnote b), proposes to make the annexed Regulations Amending the DNA Identification Regulations.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Chris Lynam, Director, Strategic Policy and Integration, Specialized Policing Services, Royal Canadian Mounted Police, 73 Leikin Drive, Ottawa, Ontario K1A 0R2 (tel.: 613-843-5327; email: firstname.lastname@example.org).
Ottawa, October 5, 2017
Assistant Clerk of the Privy Council
Regulations Amending the DNA Identification Regulations
1 The definition DNA Data Bank in section 1 of the DNA Identification Regulations (see 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:
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.