Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 43 - Evidence - Afternoon sitting
OTTAWA, Wednesday, November 25, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-3, respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts, met this day at 3:35 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we begin our consideration of Bill C-3. The bill provides for the establishment of a national DNA data bank to be maintained by the Commissioner of the RCMP and used to assist law enforcement agencies in solving crimes. The bill was passed by the House of Commons on September 29 and received first reading in the Senate the following day. It received second reading on October 22 which means that the Senate has approved this bill in principle. It was then referred to this committee for detailed consideration, and that consideration begins today with the appearance of Mr. Jacques Saada, Parliamentary Secretary to the Solicitor General of Canada, the minister who is responsible for the bill.
There will be another meeting later today to hear witnesses from the RCMP who will provide us with technical information about DNA and the operation of the DNA data bank. Further witnesses will be heard over the next couple of weeks. Once the committee has heard from the witnesses, we will proceed to clause-by-clause consideration of the bill, at which time the committee will decide whether to pass the bill as is, recommend amendments, or recommend that the bill not proceed. The committee will then present its report to the Senate for consideration.
Mr. Saada, I thank you and your colleagues for attending today. Please proceed.
Senator Joyal: Madam Chairman, I should like to raise a point of order before we hear our witnesses. This bill is an important one, and my concern is that the minister is not here for the opening of our discussions. I say that with total respect for Mr. Saada who is the parliamentary secretary. I have known Mr. Saada for a long time and I have worked under him and with him. He is certainly a very able representative of the other place. However, it is the tradition of this committee to hear, as the first witness, the minister who is the sponsor of the bill.
I understand the particular circumstances, of course, in which Mr. Saada is invited to testify today. However, I wish it to be on the record that it is as a result of special circumstances that the minister is not appearing. The minister is new in his portfolio, having only been in the position for 48 hours.
However, we do not wish to delay discussion of the bill. Could you inform us if we will have an opportunity later during our sittings to hear from the minister? I think it is important to maintain the principle that, at this committee, the minister sponsoring a bill must appear and answer our questions, especially when we may wish to propose amendments to the bill or ask questions that involve the policy of the department. We should have an opportunity to hear the minister.
The Chairman: Senator Joyal, the steering committee had an informal meeting on this particular matter yesterday. We have agreed that the minister will appear before this committee, because we do not want to set a precedent whereby ministers do not appear before committees or pass the task to their parliamentary secretaries. I spoke with the minister today and he assured me that he will be here with the officials when we are ready to wrap up our deliberations on the bill.
Senator Joyal: Thank you.
Senator Nolin: This is not a precedent.
The Chairman: We are not setting a precedent.
[Translation]
The Honourable Jacques Saada, MP, Parliamentary Secretary to the Solicitor General of Canada: Madam Chairman, first of all, let me say how happy I am not to be setting a precedent.
[English]
It is a pleasure for me to address Bill C-3 respecting DNA identification which will create a national DNA data bank.
This ground-breaking legislation marks a major milestone in the government's safer communities agenda. To that end, it forms a very important part of the Solicitor General's commitment to public safety for all Canadians.
The DNA identification bill will put Canada into a select group of only a handful of countries to have a national system of this kind. The objective of this legislation is to create a practical law enforcement tool for police that will stand the test of time.
We have been mindful that this exercise involves a careful balancing of public safety measures on the one hand, and privacy rights that Canadians hold dearly on the other. I believe we have found the right balance.
[Translation]
Bill C-3 has been the subject of much debate since it was first introduced. The former solicitor general referred it immediately to the Standing Committee on Justice and Human Rights before second reading in the House of Commons, and encouraged amendments to improve it. I believe that we now have a much better bill.
We have seen this bill evolve into a much stronger package. Our government believes that it is fundamentally sound. I can say that with confidence because, again, I believe we have found the right balance.
This bill is the second phase of the governments DNA strategy. The first phase established procedural rules to govern the taking of DNA samples from suspects in the course of a criminal investigation. Three years ago, amendments to the Criminal Code were put in place to allow the police to obtain DNA samples from suspects by using a warrant.
Building on the success of that legislation, Bill C-3 includes similar safeguards and processes related to the collection of DNA samples from offenders following conviction.
With the warrant scheme having withstood all charter challenges, the DNA data bank legislation was built on a solid foundation.
Now we need to implement the next step of our DNA initiative -- creating a data bank for storing DNA samples, and to use stored DNA information in the investigation of serious criminal offences.
Let me briefly explain how the system would work. I will read the next few paragraphs to you, but I have taken the liberty of drawing up for your information a document and of providing copies to the clerk. This is also for my benefit as well, because it is easier to understand how this works if one can visualize.
Bodily samples, obtained either from a crime scene or from convicted offenders by judicial order, will be analysed to create a DNA profile. Depending on the source of the profile, it will be entered into a crime scene index or a convicted offenders index of the data bank.
With this structure, profiles from both indexes will be cross-referenced to search for a match in the system. The results will be relayed to the appropriate police investigator. Should there be a match, only the name attached to the profile -- not the profile itself -- will be given to the police. The police must then seek a DNA warrant to obtain another bodily sample from the suspect. Only DNA information from the warrant sample can be used as evidence in court.
The benefits of using such a system are clear. Stored DNA information will enable police to quickly identify suspects and repeat offenders across police jurisdictions. In addition, by targeting certain high-risk offenders already in custody, the data bank will offer the hope of solving long-outstanding crimes.
It will also make the most dangerous offenders think twice about committing a violent offence again because their genetic imprint will be in the data bank for future identification.
To ensure that DNA information is safely stored and used only for the purpose of forensic DNA analysis, the bill sets out very limited access to the data bank.
It prohibits improper use of information and limits access to only those directly involved in operating and maintaining the data bank -- that is RCMP forensic staff who will work in the data bank unit.
To protect the privacy of victims or those eliminated as suspects whose DNA profiles may be in the crime scene index, there is a provision to permanently remove access to that information.
As well, the samples will be destroyed. This is an important safeguard to ensure that the DNA profiles of innocent people do not find their way into the data bank.
We have proceeded cautiously with this legislation to ensure a full examination and public debate on privacy and charter issues.
We know that DNA has the potential to reveal much more about a person than a breath sample can, or a fingerprint or even a routine blood test. As a result, we have been careful to examine individual privacy rights of today, while also carefully looking at how this legislation might effect those rights in the future.
One example of this need for careful analysis has been on the issue of retaining samples. Strong arguments have been made by the scientific community that retention of biological samples is essential for the DNA data bank to adapt to technological changes yet to come. Significant developments in DNA technology have occurred in the past few years allowing smaller samples to be tested, including those found on degraded materials.
As the technology evolves, the DNA profiles of today could become obsolete later on. To deal with this, Bill C-3 proposes that Canada's national data bank retain samples so that it can communicate with other labs and data banks around the world, or take advantage of greater efficiencies and capabilities afforded by technological advancement.
I understand that the Senate is concerned about who will have access to DNA samples and the profiles that come from them. I can assure you that Bill C-3 contains strict rules governing the collection, use and retention of DNA profiles and biological samples to ensure that privacy interests are protected.
As I said earlier, the RCMP will be responsible for storing all biological samples safely and securely, and access to the information is limited to those directly involved in the operation and maintenance of the data bank.
Only the name attached to the profile -- not the profile itself -- will be communicated to the appropriate law enforcement authorities during criminal investigations. The bill also includes criminal penalties to enforce these limitations, which will be included in the Criminal Code and in the DNA Identification Act itself.
In addition to the safeguards and penalties included in the bill, there are other mechanisms currently in place to ensure that the data bank is used in a way that respects our balanced approach.
Once the data bank is operational, the Privacy Commissioner may conduct an audit at any time. This is already authorized in the Privacy Act. Both the Privacy Act and Bill C-3 will also ensure that information in the data bank may only be shared with another country if an official agreement is in place.
The Privacy Act further states that information may only be shared with a foreign government for the purpose of administering or enforcing a law or conducting an investigation -- and for no other reason.
As well, Canada's forensic labs are establishing accreditation standards. These will provide for an independent body to conduct audits and ensure that forensic labs meet internationally recognized quality assurance levels.
In addition, the RCMP works closely with several groups and international committees like the FBI-sponsored Technical Working Group on DNA Analysis Methods. It facilitates the sharing of information on the latest technology and provides a forum to ensure that Canada's standards are at par with those around the world.
Since the RCMP will be operating the DNA data bank, all functions must meet the RCMP's own internal standards, which are among the most stringent in the world.
[English]
In conducting your review of Bill C-3 it will be important to satisfy yourselves that its provisions and built-in safeguards will work in practice. Every effort has been made in designing the proposed scheme both legally and operationally to protect privacy and charter rights while at the same time promoting effective law enforcement. To further ensure the provisions and principles of this bill are met in practice, Bill C-3 provides authority for regulations. The regulations will flesh out the operational requirements needed to effectively implement the provisions of the bill. A committee of experts will make recommendations concerning regulations and policies. This committee will include people from RCMP forensic labs, as well as the Ontario and Quebec labs. These people have many years of practical experience in dealing with DNA analysis.
To achieve a clear understanding of the operation of the bill, I would encourage you to hear from the RCMP forensic experts who will implement and manage the data bank.
Although this committee is just beginning its review of Bill C-3, I note that senators have made constructive suggestions, in particular, regarding the absence of authority in the bill to collect DNA samples from designated offenders convicted in the military justice system. These are valid concerns. There is definite agreement from the House of Commons, and from the minister, on the objective of your amendment. It is important that the data bank capture all designated offenders. Bill C-3 focuses on offenders convicted in the civilian criminal justice system.
I share the committee's view that the data bank should include military offenders convicted of designated offences. It is important to understand the context. We are talking about less than 1 per cent of all designated offenders in Canada's criminal justice system. Nevertheless, their inclusion in the data bank would contribute to public safety.
We share a common goal. We want to take the best approach for Canadians in adopting this legislation. Bill C-3 will create a powerful investigative tool for law enforcement in Canada. This will result in safer communities, while ensuring that we continue to take a balanced approach to fighting crime.
[Translation]
That means making sure that the values we hold dearly as Canadians are respected, and it means giving the police tools they need to do their job. I encourage you to support Bill C-3 so that we can begin implementation of this much-needed public safety tool.
[English]
The Chairman: Thank you, Mr. Saada. We are not often told by the department that they would like an amendment.
Senator Lynch-Staunton: Thank you for your presentation which summarizes the intent and content of the bill.
In reading Bill C-3, I did not find an accountability feature related to those responsible for the bank, particularly in the setting up of the bank in its formative years.
The title "Solicitor General" appears only once in the bill. In clause 5 the Solicitor General is charged with setting up the national DNA data bank. The bank will be maintained by the Commissioner of the RCMP. The commissioner's duties will be performed on behalf of the commissioner by any person authorized by the commissioner to perform those duties. Therefore, the commissioner is given the unilateral responsibility to decide whether he or his associates or the RCMP will carry out the responsibilities under this bill or assign them to a province or to a private laboratory which could be in Canada or elsewhere. That is my interpretation of this clause. That may not be the intent. However, it is somewhat disturbing to find that authority being given to the commissioner without he, in turn, being required to seek permission or authorization to go beyond the RCMP in fulfilling his obligations under Bill C-3.
There are precautions regarding the compilation of the data and the conditions under which certain data can be removed. However, there is no provision in the bill authorizing a third party to see that those obligations as specified are being carried out as they should be.
This data bank is to be a crime-fighting tool. To date, worldwide, the police have used it with overall success.
However, I am disturbed that the commissioner is not required to report annually to Parliament, particularly in the first years of operation of this data bank, and that someone has not been appointed oversee what is being done.
Clause 13 states that Parliament may designate, within five years after the proposed legislation coming into force, a committee of the house or a joint committee to review the provisions and operation of the act. That is a right given to the House of Commons, although it need not exercise that right. If it does, however, once that review is completed within the first five years, Parliament no longer has that authority. Subclause 13(2) states:
This section is deemed to be repealed on the completion of the review referred to in subsection (1).
The review is a rather cursory, voluntary one, which cannot be repeated. During the entire course of the five years, which will be the crucial period for the establishing of the bank, no outside authority, not even the minister, is permitted to intercede and ask the appropriate question of the commissioner who is to be given absolute authority in the setting up and the administration of the bank.
Why was that supervisory responsibility not included in the bill?
Mr. Saada: You have posed a number of important questions. Let me address the last part of your statement and then I will turn to Mr. DuBrule and Ms Aloisi for the balance of the answer.
[Translation]
Clause 13 clearly states that the provisions of the act must be reviewed by a committee within five years of the act coming into force. As for the first few questions you raised, I will let Mr. DuBrule answer them.
Senator Lynch-Staunton: Thank you for clarifying that. Clearly, the provisions must the reviewed by a committee. However, is this a one-time requirement?
Mr. Saada: Yes.
[English]
Mr. Paul DuBrule, Director, Legal Services, Department of the Solicitor General of Canada: On the point relating to an outside audit, the decision was that, given the fact that the privacy commissioner under the privacy act has a standing authority to audit personal information holdings within government, there was no specific need to provide, in this bill, extra authority to allow the privacy commissioner to assess and audit.
The privacy commissioner, who has been directly involved in all the work which has led to the bill coming to this point, has indicated his great interest in following through and seeing how the bill will function in practice, and he will be assessing and auditing not only what comes into the data bank, but also how that information is held in the data bank and to whom and under what conditions it is provided to the police services. It was on the basis that there was standing authority to that end, that it was determined that it was not required to be included in this bill.
Senator Lynch-Staunton: Is it a discretionary authority?
Mr. DuBrule: Yes.
Senator Lynch-Staunton: I would have thought that, if the government approved, there would be some more specific, statutory supervision such as an annual report being made to Parliament. Of course, there would be no need to reveal any confidential information. There are clauses in the bill which, if not followed to the letter, could have the bank disclosing information which should not be included in any report.
In a situation where someone was initially found guilty of a crime but had that verdict overturned and was found to be innocent, and the information relating to that person continues to be in the bank when it should be removed, who other than the commissioner can tell us whether the information has been removed? The obligation is there, but no one is to be appointed to ask the commissioner to attest to the fact that he has removed that information.
It is that independent obligation of supervision over the commissioner which I find sorely lacking and weakens the proposed legislation by giving, perhaps, too much power to the RCMP.
The Chairman: At this point I should perhaps mention to the members of the committee that the privacy commissioner is scheduled to appear before this committee on Monday, December 7. We will be able to put those questions directly to the privacy commissioner.
Senator Lynch-Staunton: Has the Commissioner of the RCMP been invited to appear as a witness; and will he be appearing?
The Chairman: He will be appearing on December 7.
[Translation]
Senator Beaudoin: My question concerns the relevant case law. You stated that several courts had already ruled on forensic DNA analysis. Insofar as the Supreme Court is concerned, all I have seen is a fairly recent ruling, rather a obiter dictum, as we say in law. According to Mr. Justice Cory, although the question did not come up, recent Criminal Code provisions authorizing forensic DNA analysis could withstand a constitutional challenge. Therefore, prima facie, the Supreme Court has at least issued an obiter dictum.
Will appeal courts and superior courts also be the source of case law? Obviously, because of the importance of this issue, courts will be called upon to rule on this issue, and that means the Supreme Court of Canada. I am curious to know how the courts have ruled thus far on the question of forensic DNA analysis.
Mr. Saada: With your permission, I will turn to more qualified persons for an answer to your question. It is my pleasure to introduce to you Michael Zigayer, Senior Counsel with the Criminal Law Policy Branch of the Department Of Justice.
[English]
Mr. Michael Zigayer, Senior Counsel, Criminal Law Policy, Department of Justice: It is a very good question. You are absolutely right. The Supreme Court has only spoken in oblique terms with respect to the DNA warrant scheme which was enacted three years ago in the Stillman case and, at the same time, a number of courts across the country have had before them constitutional challenges with respect to that same DNA warrant legislation. These have been reviewed fairly recently. The decisions in those cases were published by the government in a response to the ninth report of the Standing Committee on Justice and Human Rights. This document was tabled in the House of Commons on October 5. I believe copies of it were made available.
Senator Beaudoin: I would like to have a copy.
Mr. Zigayer: I can give it you in French right away and the English version will follow because I will use that during the course of my comments.
I will cover a few of the key decisions in the last two or three years. It has been in force only that long. A number of legal issues have arisen, and not all are Charter issues. One of the first matters that arose related to the question of retroactivity.
[Translation]
Could this warrant be used to obtain DNA? Could it apply to crimes previously committed? Courts in Quebec and in British Columbia have already ruled on this question. There is no doubt today that DNA analysis could be used to solve crimes committed prior to the coming into force of this bill.
Regarding broader constitutional issues, we know what Mr. Justice Cory found in R. v. Stillman. Several courts have cited this ruling, for example, the Court of Queen's Bench of Alberta in its ruling in R. v. Brighteyes. The courts found that the DNA warrant legislation did not violate any charter provisions. It had been alleged that certain provisions in this legislation violated sections 7 and 8 of the Canadian Charter of Rights and Freedoms.
[English]
Mr. Justice Murray of the Alberta Court of Queen's Bench found that, while the DNA warrant scheme violated the security of the person contrary to the principles of fundamental justice by permitting the state to conscript the subject to provide self-incriminating evidence, this violation constituted a reasonable limit prescribed by law under section 1 of the Charter. He also held that the DNA warrant scheme did not constitute an unreasonable search and seizure, contrary to section 8 of the Charter. In deciding this case the judge considered several factors, including the purpose and effect of the legislation, the adequacy of the standard of reasonable grounds to believe the number of facts required to found an application for a DNA warrant, and the need for the accreditation of forensic laboratories that conducted the DNA analysis, as well as the objectives of the legislation.
The constitutionality of the ex parte procedure to obtain the DNA warrant was raised in the case of F(S) v. Canada (Attorney General). This is a reported decision. At this point, rather than continuing, I will leave the report that was filed with the committee. Since we did not include the footnotes, I will refer to another document that was provided to this committee. It is a paper that I wrote and presented earlier this year. I have the footnotes and the citations here, so it will be easier for me.
Senator Beaudoin: Did you say that the courts referred to the obiter dictum of the Supreme Court?
Mr. Zigayer: Yes; that is correct.
In the case of F(S), for example, the constitutionality of the ex parte process was challenged. It was argued that, since DNA cannot be destroyed, that is, it cannot be transformed, the Crown could have given notice to the individual, have him come to court, and applied for a warrant before a judge.
While it is true that you cannot hide or destroy DNA, it is also true that an individual can disappear and you could be forced to conclude your investigation. Therefore, when the application is made, it is made ex parte, as it is in most warrant applications. No notice is given to the suspect or the person who controls the place to be searched.
The court upheld this. Mr. Justice Hill of the Ontario Court (General Division), in upholding the ex parte scheme, said:
While the subject matter of the seizure cannot be altered or destroyed, the person to be searched can, nevertheless, evade execution of the process if charged with pre-notification of the potential for seizure... On balance, the interests in preserving the element of surprise in the execution of the warrant surmount the gains to be derived from an adversarial hearing as to whether the warrant should issue.
[Translation]
Regarding accused persons, Mr. Justice qualified his statement by saying that a person serving a prison term was not someone who was about to escape. That person's whereabouts were no secret. The judge has the discretionary authority to require the Crown to notify this person in order to discuss whether or not a warrant can be issued.
[English]
The same issue was raised in a Manitoba case, R. v. J.R.T and K.J.E.E. This was an interesting case because, according to the statistics we collected this summer, normally DNA warrants have been used in the investigation of homicides and sexual assaults. This case, however, involved a robbery and it involved matching bodily substances left on the inside of a mask with the bodily substances of the suspect. The skin cells found on the inside of the mask led to the identification of the suspect. It was an interesting case from that perspective.
The judge, who was asked to look at the ex parte procedure, concluded:
In my view, the legislative scheme impugned here does not offend the fundamental justice requirement in section 7. Further, notwithstanding the ex parte application requirement, it is not unreasonable that the Charter protections against unreasonable search and seizure are violated....
The provision of an ex parte procedure for DNA warrant application is a clear policy choice on the part of Parliament. It is not for the Court to second guess that decision. The ex parte application procedure for a DNA warrant impugned here when considered overall does not offend sections 7 and 8 of the Canadian Charter of Rights and Freedoms.
Wider constitutional issues were raised in F(S). Here, there was a contrast or disagreement in analysis between F(S) and what I said earlier about Brighteyes. I will go no further than that.
Senator Beaudoin: It is not necessary.
Mr. Zigayer: One thing that surprised us was that Mr. Justice Hill found that the taking of hair for a DNA sample was unconstitutional because of the possibility that a DNA profile could not be obtained. You cannot obtain a DNA profile from between 5 per cent and 10 per cent of the population. When we were developing the legislation, we provided three types of investigative techniques. Some of us anticipated that the taking of blood would be seen as more intrusive, but for Mr. Justice Hill, it was the taking of the hair.
Senator Grafstein: Obviously we are here to balance the protection of public safety by the use of DNA with fairness and privacy. That is the heart of this legislation. You were fair enough to point out that DNA has the potential to reveal much more about a person than a breath sample, a fingerprint or even a routine blood test. DNA can be a source of great exploitation of the privacy of the individual. Most of us here are concerned that information gathered as a result of DNA testing is used only for the purposes set out in this bill.
I have many questions regarding this bill, but I will start with two. When a suspect is apprehended and a DNA sample is taken under the authority of a warrant issued by the courts, and if it is determined as a result of the analysis of that sample that the suspect is not culpable, what happens to the DNA sample? In effect, is it immediately removed from the index?
Mr. Saada: If a suspect is innocent of an offence, there is no reason in the world to retain the sample. The sample is destroyed. What will stay in the bank is exclusively the part of the DNA which was used for the analysis. All the links and all the possibilities for identification of the person to whom this sample belongs are eliminated. There is no way an innocent person can be identified through any channel in the bank.
[Translation]
Senator Nolin: If I understand correctly, in the case cited as an example by my colleague Senator Grafstein, the sample would be destroyed, but the profile would be retained.
Mr. Saada: Not exactly. I will let my colleague take that question. When a DNA analysis is done, it may only be used provided it does not result in the identification of the person. Perhaps you will have questions this evening for RCMP experts on this subject. Briefly, in order to find out to whom the DNA belongs, that is in order to identify a person, a link must be established. Whether it be a case of someone who is found innocent or someone who voluntarily supplies a DNA sample to establish his innocence, from the moment that person is discharged of the offence, the DNA samples in the data bank that could possibly establish the identity of that person are destroyed.
Senator Nolin: In other words, you destroy the sample and anything that links the person with the sample or the profile, although you do retain the profile. Why is that?
Mr. Saada: There is a technical reason for that, something to do with the gene in which DNA is preserved. The RCMP experts will be able to answer that question better than I can. I can assure you, however, that retaining the profile in the data bank does not in any way mean that the person in question can possibly be identified.
Senator Beaudoin: Why do you retain the profile?
Mr. Saada: For purely technical reasons relating to the handling of DNA.
Senator Pépin: I do not understand the bill very well. Clause 10 (7) stipulates that samples must be destroyed without delay if the person has been discharged under the relevant Criminal Code provisions. The English version of the bill states the following:
...one year after the person is discharged absolutely...
When a person is discharged, the samples that were taken are retained for one year. That is what is written on page 7 of the bill. Why do we keep DNA samples if all charges against that person have been dropped? The bill says that samples will be destroyed after one year.
Mr. Saada: To which clause are you referring?
Senator Pépin: To clause 10(7) on page 7.
[English]
Mr. DuBrule: The structure here is based on the Criminal Records Act and the provisions of that act which relate to these matters. The same thrust applies here as it relates to the timing of the discharges. After a certain time has expired, the substances will be destroyed without delay.
This refers to bodily substances. Those substances are destroyed, unlike the links between the profiles in the computerized system. Those links will simply be rendered useless because the links will be eliminated once the bodily substance is destroyed.
Senator Joyal: Madam Chairman, it is important to pursue Senator Grafstein's question. He was talking about a person who is under arrest and, pursuant to a warrant, a sample is taken which proves that his DNA was not found at the crime scene. What happens to that DNA sample?
Mr. DuBrule: Those samples never get into the bank. If it is found that there is no identification linking the sample at the crime scene with that taken from the individual, that individual's sample is destroyed, not saved, and it never enters the data bank because there is no reason to keep it. The person is immediately exculpated.
Senator Joyal: Senator Grafstein's question at the outset related to someone who had not been found guilty and sentenced.
Mr. DuBrule: I apologize for the confusion. We are dealing with the initial warrant scheme, and the data bank flows from that. If a warrant has been issued to take a DNA sample from someone, following which it is compared with a crime scene sample but it is found that it is not the individual who was implicated in the crime, the individual's DNA sample does not get into the data bank.
Ms Yvette Aloisi, Director General, Police and Law Enforcement Directorate, Department of the Solicitor General of Canada: I understand, according from my colleague from the Department of Justice, that there is a requirement in the Criminal Code to destroy the sample once the person is excluded.
Senator Joyal: Perhaps, later, we could be advised of the section of the code to which you refer so that we may satisfy ourselves of that.
Senator Grafstein: Perhaps you can clarify this in writing for us. I am not too clear on your answer. A suspect's fingerprints are taken at the scene of a crime. The criminal investigation proceeds, and they determine that those fingerprints do not match the fingerprints found at the scene of a crime. My understanding is that those fingerprints stay in the system, in the criminal records, notwithstanding that those fingerprints did not match those found at that particular crime scene.
I was not clear on your answer. We will return to whether or not a DNA sample that does not match is automatically, as you say, destroyed. If you can provide some precision on that, it would be helpful. It has always been my view that the inertia to remove innocent victims' indicia from criminal records has been unfair in the criminal justice system. However, we will have an opportunity to analyse this area more precisely.
On another topic, this committee in its recent experience has been staunch in insisting that there be independent investigations or reviews. Today the Senate passed a bill amending the National Defence Act with respect to a new criminal justice system, and we insisted that there be an independent review every five years.
We did that for a precise purpose. We were concerned that the system be fair and equitable. Protection of privacy will be locked into the system, within the system itself, within the policing system, if you will, the investigatory system, and the prosecutorial system. The regulations regarding the evidence of witnesses will be fleshed out in a committee of experts formed to make recommendations concerning regulations and policies. The system will be geared by regulations, and practices within the system will be governed by those regulations.
While the Senate has an opportunity in a joint committee to review or scrutinize those regulations to insist that they conform, according to the Constitution, I have never been satisfied that the process of regulation is an independent process. In this instance in particular, I would question whether, when you are preparing those regulations, there will be independent input. I say that because there is much power placed in the hands of the policing establishment by the utilization of this extraordinary tool which will be available if we pass this bill. I am sure other senators are concerned that the system be as airtight and as privacy-driven as possible.
I am not satisfied, based on what I have learned thus far -- and we will hear more evidence -- that the internal system within the policing bureaucracy will ensure that there is no abuse of this material.
There is reference to a committee of experts which will include people with practical experience from forensic labs in Ontario and Quebec. May I assume from that evidence that these will be experts within the system, experts who have no conflict with the system?
Mr. Saada: Before we go further, I have the answer to Senator Joyal's question. The reference in the Criminal Code is to section 487.09. If you wish, I can read it to you. It is very simple.
[Translation]
Destruction of bodily substances: a bodily substance that is obtained from a person in execution of a warrant and the results of forensic DNA analysis shall be destroyed forthwith after
(a) the results of that analysis establish that the bodily substance referred to... was not from that person;
(b) the person is finally acquitted of the designated offence and any other offence in respect of the same transaction otherwise than by reason of a verdict of "not criminally responsible", etc.
This provision is very clear on the subject.
[English]
As to the second question, which is fascinating, I will defer to Ms Aloisi.
Ms Aloisi: The panel of experts mentioned in this legislation will not be comprised of people solely from inside the police establishment. It will include people like myself and Mr. Zigayer, and others who will be working with the RCMP in the labs on the development of regulations. As with any regulations, Parliament will have an opportunity to look at those regulations and to comment on them.
Senator Nolin: This section of the code is new. It was introduced two years ago when we amended the code to permit DNA evidence. Is that right?
Ms Aloisi: Yes.
Senator Fraser: It seems to me we are dealing here with three elements. There are the actual bodily substances or samples; there are the DNA profiles derived from those samples; and then there is the access to those profiles.
Often the substances are destroyed under circumstances which we will not go into again. Access to those profiles is permanently removed under specific conditions: If you have been discharged; if you were a victim; or if you have been eliminated. In other words, access to the profiles is removed unless you are convicted and the conviction sticks. The profiles are retained in the data bank. Why?
Mr. Saada: Senator Fraser, the basis for your question is perfectly correct. The answer I have been given is a technical answer pertaining to the technology of DNA and DNA processing. I am sure that you will have a very satisfactory answer. I would hate to second-guess something that was explained to me, and I am not an expert in the field, but I know the answer is purely technical. The people from the RCMP will be in a very good position to give you the answer when they appear.
Senator Fraser: In the view of the ministry, if it were technically possible to remove the profiles, would there be any reason for keeping them?
Mr. Saada: No, none at all.
Mr. DuBrule: If I may go further, we started with the premise that, if someone is acquitted, then all of the evidence will be removed.
Senator Fraser: I am sure that also applied to victims.
Mr. DuBrule: We were advised that, as a result of technical difficulties in relation to the particular way in which the work is done in identifying DNA and using the profiles, it was impossible to delete that information from the system. Therefore, what had to be done was to cut all the links so that no information could be linked to identify a profile.
Like Mr. Saada, I am not in a position to give a technical explanation; however, I know that the RCMP experts will be appearing before your committee.
Senator Joyal: My first question is a follow-up to Senator Fraser's question. I am interested in the fact that, in many instances, we will need a year to delete all the elements. Those instances are as follows:
[Translation]
... a discharge, stay of execution, dismissal or withdrawal of the charge.
[English]
Those are totally different circumstances. I need to be convinced that, in each circumstance, it should take a year for this information to be removed from the system. After a person has dealt with the system, it is over.
My second concern relates to access by foreign countries. When we are on our own territory, that is, here in Canada, we have human rights protection. However, if data banks are opened all over the world, criminal profiles may be retained for any length of time. This is a major concern. We may be submitting Canadians, who are protected under our legislation, to a totally different regime when they cross certain borders. The bill provides for certain agreements but, once you are out of the country, you are on your own. That is a concern.
My other point deals with clause 13 of the bill, which outlines a review of the act by a parliamentary committee. This relates to what Senator Lynch-Staunton said.
I have a statement to make, Madam Chairman. I resent receiving legislation from the other place and being excluded from a review or any kind of parliamentary initiative outlined in clause 13. The Senate is supposed to be as mature, able and responsible a place to discuss a report as is the other place. I see no reason to be excluded.
We must make it clear that when we are excluded, a significant reason for that exclusion should be given. To be excluded in principle is an offence, especially when the bill comes from the Department of Justice or is related to justice in Canada, taking into account the importance this committee places on discussing the legislative process. It does not offend me personally, but we must exercise a guarantee for Canadians.
I should like to give you notice, Madam Chairman, that I will submit an amendment to this bill to re-establish our privileges on the same grounds as the other place.
That being said, there is one major problem I should like the witnesses to clear up. This bill refers to a designated offence. I believe that what is a designated offence and what is not a designated offence should be well defined. I should like to know why some offences are designated and others are not. I certainly cannot understand why certain offences are designated, considering the nature of DNA. My approach is rather conservative. In other words, I must be convinced that an offence needs to be designated.
Could you outline the principles you applied in drafting this list of designated offences? I understand the other place added to the list, as if we would then be better protected. However, I believe you have gone beyond the scope of the legislation in designating some of those offences.
[Translation]
Mr. Saada: I know that what I am about to say will not necessarily be the high point of my political career. I am having some difficulty understanding why the Senate cannot enjoy the same prerogatives as the House of Commons in matters such as this. I would like to draw your attention to a potential problem the merits of which you can judge for yourself.
Any prospective amendment to the bill, while not impossible, would result in certain delays in the enforcement of the legislation. This takes nothing away whatsoever from the rationale of your argument. I simply want to draw your attention to the consequences of proposing an amendment. I am not speaking as parliamentary secretary, but as a parliamentarian. That is quite legitimate.
The Senate may exercise its right to review this process at its leisure, without setting any kind of deadline. That is distinct possibility.
Regarding the crime scene index, please correct me if I am wrong, but as I understand it, the index does not contain any identification as such. Is that correct? A person can only be identified through a matching process, not through the index as such.
As for the final question concerning designated offences, I will let Mr. Zigayer take that one.
Mr. Zigayer: When Parliament passed Bill C-104 three years ago, we came up with a list of designated offences. As a general rule, these offences all had something in common. Most consisted of violent acts, assaults, sexual assaults, homicides and terrorist crimes. The list was quite lengthy. Not all were considered designated offences under the Criminal Code. We also took a conservative approach.
[English]
We restrained ourselves. We held to the notion that these had to be serious crimes, mostly involving violence, including sexual assault.
Another important factor related to crimes where there was a potential for bodily substances to be left, either by the victim or the perpetrator of the offence. For the most part, those crimes are included in the list of designated offences. There were a few offences included in the list which cannot really be described as violent, such as break and enter. That was included because there is a potential for the person who breaks into your house to cut himself on the way in or on the way out, or to leave a calling card, if I might use that term, that may be useful in identifying him or her where there is no other evidence.
Another crime which was listed is the equivalent of leaving the scene of an accident. We included that because we foresaw someone driving while impaired, being involved in an accident, and running away. If people in the other car were killed or seriously injured, potentially, criminal charges could be laid. The only forensic evidence with which to identify the impaired driver may be some blood on the steering wheel.
Those were the exceptions to the rule. The remainder were crimes of violence.
We then got into the DNA data bank proposal. We took the 1995 list of offences and broke it down into a primary designated offence list and a secondary designated offence list. They are the same offences but broken down for post-conviction procedures; whether the information would go into the data bank or whether the burden would be on the Crown to make the application. Essentially, it was the same list cut in two.
Amendments and additions were made to the list in the House of Commons. Therefore, we come to you with a list that is somewhat different from what it was when we left here in 1995.
Senator Joyal: We will have an opportunity to review the list later. I would like to return to the issue of access to the Canadian data bank by foreign countries. This is a very important element which must be investigated further than just saying that we will open the bank to those with whom we want to sign an agreement. I believe it should go beyond that because people must be protected, especially since the data is to remain intact for a year after the final resolution. This means that people travelling in another country can be investigated for one year after the matter has been settled.
Can you be more precise about which countries we will be entering into agreements with regarding access to the Canadian data bank? This will have many implications for Canadians travelling abroad and we know that the systems of justice is many countries is not as protective of individual rights as is ours.
Mr. DuBrule: Under the Privacy Act, which contains provisions for agreements for disclosure of personal information, the test is the assurance that the personal information in the receiving state's hands will be used only for the purposes for which it would be used here. If, for whatever reason, the agency involved, in this case the RCMP, believes that the foreign agency or state cannot meet that obligation, the information is not disclosed.
I would again emphasize what is disclosed. Clause 6(4) of the bill states that the commissioner may communicate a DNA profile. The technical people involved in this explained it to me by comparing it to bar codes on grocery items. That series of bars is the type of information that would be sent elsewhere to be matched. If their information contained the same profile, all the bars would line up.
When we provide a DNA profile, we are not providing a sample or personal information. We will not provide the name, rank and serial number of the individual.
Senator Joyal: You said that the RCMP commissioner will be responsible for deciding whether the country requesting the information is qualified.
Mr. DuBrule: It is ultimately subject to the view of the Solicitor General, as the minister responsible for the RCMP. However, in practical terms, yes, the commissioner will be the one to assess whether it is appropriate to deal with a particular country, given previous disclosures to that country. In the modern world of international crime, it is a fact of life that personal information must be disclosed across borders, and it must be done under safeguards. The police are well aware of the need for such safeguards.
[Translation]
Senator Pépin: I simply want to know if I understood correctly your comment concerning access to data. If someone requests information, all he will get is a number, not a name. The data is compared to other data to determine if there is a match. Can someone in the system find out if this data belongs to a particular person?
Consider, for example, the profile of a person who has committed some petty offences, rather than a serious crime like a homicide. When this person requests a pardon, we delete any information on file about that person. However, in a neighbouring country, despite the fact that a pardon was granted, all records of the offence are not deleted. We must be certain that the persons name is not permanently linked to the data on file.
My second question concerns a comment you made on page 5 of your submission to the effect that mechanisms will be put in place to guarantee that the data bank is used in a way that ensures the two objectives sought, namely protection of privacy and protection of public interests, are balanced. Exactly what kind of mechanisms are you referring to?
You are trying to convince us that because of a technical problem, the profiles cannot be deleted. It is a little hard to believe, what with all of the new technologies available, that it is impossible to delete a person's name from a profile.
Mr. Saada: I will let Mr. Zigayer field that question, but before I do that, I would like to make a comment. Other countries in the world, notably Great Britain and the Netherlands, operate data banks similar to the one that we would like to set up. They have access to cutting-edge technology in this field. They have no choice but to adopt measures similar to ours. Nevertheless, I can understand that circumstances may change. The legislation will be reviewed accordingly.
For more specific answers to your question concerning the mechanisms that will be put in place, I will turn the floor over to Mr. Zigayer.
[English]
Mr. Zigayer: We try to achieve a balance between the right to privacy and the protection of the public.
[Translation]
The most important tool is the fact that the judge decides if the DNA profile of the convicted offender is to be entered into the data bank, that is in the convicted offenders' index.
That is the strength of our DNA warrant scheme. The police had recommended an automatic system where genetic imprints would be taken, much like fingerprints. However, we in Canada rejected that option because we felt a third person, an independent person, would be better equipped to decide if there were reasonable grounds to issue a warrant. Basically, the same thing happens once a conviction has been handed down and a judge has found a person guilty of a designated offence.
If an offence falls into the category of a primary designated offence, the judge must order that a DNA profile of the convicted offender be entered into the data bank. However, the convicted offender does have an opportunity to convince the judge not to enter the profile into the data bank.
In the case of secondary designated offences, the onus is on the Crown to decide whether or not it will ask the judge to grant this order. For example, break and enters are considered secondary designated offences because quite often, these crimes are committed by young persons. They are not violent crimes. Would people convicted of these offences be required to provide a DNA sample? Perhaps not. It would be up to the Crown prosecutor to decide whether or not to request a sample. Subsequently, it would be up to the judge to decide if that person's DNA sample should be entered into the data bank.
[English]
It can also be compared to the United Kingdom where, when you are arrested and charged with a reportable offence, they take your DNA and your fingerprints. The DNA goes into the national DNA data bank. At that stage a judge has not been involved. The DNA is entered into the data bank. Should you be acquitted or the charges dropped, the information is not removed from the data bank. That is not our system.
Senator Joyal: They do not have a charter.
Senator Beaudoin: They have the European charter.
Mr. Zigayer: Another mechanism we use to balance privacy rights and protection of the public is to allow for the removal of these profiles following an acquittal. DNA samples do not go into the data bank if there is an exclusion at the investigative stage. If, after conviction, the profile is in the data bank, and then the conviction is overturned, the sample will be removed from the data bank.
Senator Pépin: That will take a year.
Mr. Zigayer: It will not take a year if the conviction is overturned. The period of one year may apply if there is a discharge, with one of the conditions being that you must keep the peace for a year. This provision is found in other parts of the Criminal Code.
Senator Pépin: I am referring to an absolute discharge.
Mr. Zigayer: Access to such data would be removed one year following an absolute discharge, or three years following a conditional discharge.
Senator Moore: What would happen if there were a withdrawal of the charges?
Mr. Zigayer: If the charges were withdrawn, the information would not be in the data bank. That would be at the investigative stage.
We are being very careful not to do what the British are doing. You may hear witnesses tomorrow who would have preferred a different system. These people would like to see Bill C-104 repealed and, instead, have a system similar to that of the U.K.
We want to protect the rights of the individual.
The Chairman: I must interject here to remind everyone around the table that we are hoping to conclude this meeting by 5:30 this afternoon, so I would suggest that we shorten some of the questions and answers.
I would now ask Senator Joyal to complete this point and I will come back to Senator Pépin.
Senator Kinsella: Given this time constraint, I would again raise the point of order which was dealt with Senator Joyal at the outset of our meeting. Athough we are happy to have the Parliamentary Secretary with us this afternoon, this meeting is typically with the minister. That is done so that we may ask questions concerning government policy. Of course, these technical questions are very important, and we do need to pursue them but, if we spend all of our time on technical questions, we will not have an opportunity to ask questions on government policy, and there are a number. I think the point Senator Joyal raised at the beginning speaks to that. I have some policy questions which can only be answered by the minister.
The Chairman: Perhaps other senators will bear that in mind as we proceed.
Senator Joyal: If a person has been charged with an offence and the matter comes before the court and then, for whatever reasons, the charges are dropped, does that person's DNA data stays in the bank for minimum of one year?
Mr. Zigayer: His information is not in the bank. He has not been convicted.
Mr. DuBrule: An individual's information found at the crime scene may be in the index without personal identifiers, because we do not know it is the individual who has now had charges withdrawn against him on another matter. If you are not found guilty, your information is not entered into the data bank.
Senator Joyal: I would like to come back to that later.
[Translation]
Senator Nolin: Judging from your preliminary remarks, Mr. Saada, you have taken into consideration the comments made to the Minister of National Defence when he testified before this committee regarding the proposed legislation to reorganize the military justice system. At the time, we asked him if, in his opinion, the data bank proposed in Bill C-3 should include military offenders convicted in the military justice system. The minister did not answer our question at the time.
I do not believe that he had an answer for us.
Now then, judging from your preliminary remarks, it would appear that the government is prepared to consider an amendment. The choice is yours. There are three bills before us at this time. We have not yet concluded our study of Bill C-25 regarding changes to the military justice system. I do not believe that members of the military want us to use Bill C-25 to achieve our objective.
This leaves us with Bill C-3 as well as Bill C-51, an omnibus bill to amend certain Criminal Code provisions. Take your pick.
Mr. Saada: I simply want some assurances that the minister will be made aware of any choice that is made.
Senator Nolin: I am offering you a choice, mindful that the Minister will be back and that subsequently, we will do a clause-by-clause study of the bill. I trust that you will kindly inform him that we are offering him a choice between Bill C-3 and Bill C-51, in terms of bringing in this amendment.
Mr. Saada: What I am saying is that the outgoing Solicitor General had already made it clear that he intended to speak with the Minister of National Defence and, of course, with the Minister of Justice to determine how best to address this issue. Obviously, under the circumstances, I cannot guarantee that there was time to look into this. However, there is no question in anyone's mind that your comments are very useful and relevant and warrant further consideration.
Senator Nolin: Several of the questions I had have already been dealt with. Am I correct in assuming that the policy of the government, in drafting Bill C-3, is to maintain a balance between two principles, namely the quest for an effective criminal justice system and protection of privacy? When we questioned you earlier -- and several times you referred to the role of the Privacy Commissioner -- you referred to the enabling legislation and to the fact that the commissioner has the power to investigate, conduct reviews and make recommendations.
I know that we will have an opportunity to put some questions to him, but it is my understanding that the commissioner is not fully satisfied with the authority conferred on him under the enabling act to maintain the balance that you are seeking with the implementation of Bill C-3. You say that you are seeking a balance and recognition of the role the commissioner plays in protecting privacy concerns. If we were to conclude, after questioning the commissioner, that he requires additional powers to provide this balance, would the government have any objections to our amending Bill C-3 accordingly?
Mr. Saada: I believe Senator Kinsella made an excellent comment several minutes ago. Without taking a stand one way or another, I would simply like to remind you that any initiative that would postpone the coming into force of the bill should, in my opinion, be carefully considered. Are you talking about an amendment? Are you talking about a policy change that could be achieved by some means other than an amendment? Perhaps these are questions that could be put directly to the commissioner as well as to the minister.
For the time being, I just want you to know that I am very concerned. It should be remembered that setting up this data bank will take approximately 18 months, and I am only talking about the practical measures that will need to be taken in order for the data bank to be up and running. Any amendments would mean further delays. While I respect the fact that the Senate may propose some amendments, I simply wanted you to be aware of the consequences.
Senator Nolin: I will not comment on that. It will be up to us to decide whether or not we want to entertain some amendments. We realize full well that amendments could result in delays and that is something that we will have to take into consideration.
Several of my colleagues have mentioned the importance of controlling access to personal information. Bill C-3, specifically clause 11, provides for certain penalties. Persons found guilty of an indictable offence are liable to imprisonment for a term not exceeding two years. However, persons found guilty of an offence punishable on summary conviction are liable to a fine not exceeding $2,000 or to imprisonment for a term not exceeding six months. What political rationale is there for these kind of modest penalties?
[English]
Mr. Zigayer: The question really should be addressed to the minister.
Senator Nolin: I will do that. My point is that there is no deterrent here.
Is this offence comparable to theft?
Mr. Zigayer: There is another factor for consideration. Those who are convicted under this provision are violating a trust. The courts are likely to give them a sentence towards the middle or upper end of the penalty range though it is a first offence. These are people who have occupied positions within the Royal Canadian Mounted Police. They will lose their jobs. This is not a minor infraction.
There are other factors to be considered here beyond what we read in the provision.
You have raised questions which you might want to discuss with the minister. Certainly, it would warrant a period of less than five years, perhaps five years less a day. If it were five years, it would afford the accused the absolute right to a jury trial.
There is a general review of the sentence range in the Criminal Code. Generally the sentences are reduced. It would be appropriate to consider this in terms of broader government policy.
[Translation]
Senator Nolin: We will discuss that with the minister, but I trust we agree that we hope we never get to the point where we have to enforce clause 11.
Mr. Zigayer: Absolutely.
Senator Nolin: Considering all of the safeguards that have been put in place with respect to income tax -- the Privacy Commissioner has listed some 20 offences -- we hope that it will never come to this. What should we include in Bill C-3 to ensure that this does not happen? Clause 11 respecting sanctions is clearly one deterrent. Personally, I would like to see the role of the Privacy Commissioner referred to throughout this bill, not merely in connection with the data bank.
I can appreciate that the RCMP Commissioner has been granted full authority as well as full budgetary authority to oversee the setting up of the bank. However, I would like the Privacy Commissioner to have a right of review at all times.
Earlier, we talked about foreign states. I would like the Privacy Commissioner to be in a position to ensure that Canadians in countries with whom we have signed agreements are treated fairly, not only at the precise moment when these agreements are signed, but also subsequently.
I want our criminal justice system to be effective. We all want that. However, we also want the other important principle, mainly protection of privacy concerns, to be upheld. That is why I questioned the penalty provisions which seems somewhat weak, but we will have an opportunity to discuss this important policy issue with the minister.
Once the bank is up and running, do you intend to draw a statistical link between specific types of offences and types of profiles? So as not to overly complicate matters, let us use one of the examples in the primary list, namely sexual interference under section 151. Does the government intend to draw a kind of parallel between the offender and the designated offence under section 151 of the Criminal Code?
Mr. Saada: That is a very relevant question and the answer is no. However, it might be possible to drop parallels between unfortunate incidents that occurred in the past.
Senator Nolin: That is precisely my point. We would not want this to happen in Canada. We will do everything to ensure that our laws contain measures so that we do not have to think about this later. Wishing is not enough.
Ms. Aloisi: Later, when you question members of the RCMP, perhaps you could ask them what exactly is contained in the DNA profile. As I understand it, the profile will contain only identifying elements, nothing more.
Senator Nolin: Will there be any reference to the offence committed by the person in question?
Ms. Aloisi: No.
Senator Nolin: That would mean a third list.
Ms. Aloisi: The DNA profile will not contain information regarding your genetic background. The only information it will contained is that which identifies you as senator Nolin. Of course, that is merely an example. As I understand it, the RCMP intends to use 13 parts of this genetic profile for identification purposes, nothing more. Perhaps you could request further details at a later date.
[English]
Senator Moore: I would refer to clause 10(7), on page 7, where it states:
The Commissioner shall nevertheless destroy the stored bodily substances of a person without delay.
What does "without delay" mean? Whose opinion is brought to bear, and why is a specific time period not being set? This is such a defined science that I must ask why no specific time period has been set down so that people will know, with certainty, that a certain thing must happen upon other things being in place, and that all within a set period of time.
Mr. Zigayer: "Without delay" has been interpreted to mean immediately. It does not say unreasonable delay; it says without delay. It is an obligation to act.
Senator Moore: Is it an obligation to act on that day?
Mr. Zigayer: The difference between the French and English versions is a matter of drafting. In the French it states a date, in other words, immediately upon something happening.
Senator Joyal: I do not want to argue with the witness, Madam Chairman, but "without delay" in English has an equivalent in French.
The Chairman: Perhaps we can get into the drafting of this later on.
Senator Moore: Clause 10(7) states that the substance will be destroyed without delay:
(a) if the person has been convicted of a designated offence, after the conviction is quashed and a final acquittal entered;
Yet, clause 10(8), on the next page, states:
...stored bodily substances of a person in respect of whom a pardon...is in effect shall be kept separate and apart from other stored bodily substances.
What is the difference? It says a person who has received a pardon under section 2 of the Criminal Records Act, and I have that here, which defines "pardon" as meaning a pardon granted or issued by the National Parole Board under section 4.1, and that is a person convicted of an indictable offence.
If a person is convicted, why are the samples kept separate upon receiving a pardon? Is that not the same as having a conviction quashed or an acquittal? There was a guilty verdict and then afterward, an application was made and for whatever reasons the Parole Board decided to grant or issue a pardon. Why would those samples be kept separate?
Mr. DuBrule: That provision is based on the provisions in the Criminal Records Act in relation to all other information about an offender; and where an offender has been pardoned, those records are kept separate and apart and can only be accessed with approval of the Solicitor General. Under this provision this information will be treated in the same manner.
Senator Moore: In order to be consistent.
Mr. DuBrule: Yes, and to ensure that the information pertaining to someone who has been granted a pardon is kept separate and apart. Under the Criminal Records Act, that information can be accessed under extraordinary authority.
Senator Moore: What happens to the samples upon the death of a convicted offender? I do not see anything here about that. Did I miss that?
Mr. DuBrule: That is dealt with in clause 9(6) on page 7 where it states that the commissioner may destroy bodily samples where the commissioner considers that they are no longer required for the purposes of forensic DNA analysis. If a person died 19 years ago, we may find that there is good reason to destroy them and not keep them on file.
Senator Moore: I thought that might be something that would be listed in clause 10(7) and they would be disposed of "without delay." What is the point of keeping them?
Mr. DuBrule: They may be needed to identify previous crime scenes, even if the individual is deceased. You can still solve other crimes that the individual may have committed. You may not solve them but you can identify the perpetrator.
Senator Bryden: I want to make a comment and then ask two quick questions relating to policy matters. I support Senator Kinsella in his concerns about this. The committee needs to be aware that we are dealing with systems which are considerably different from those which we dealt with in Bill C-25.
We are dealing with a situation where the checks and balances of the criminal justice systems are available to people who might feel offended or short changed by this. The system quite clearly tells us what is "undue delay." In case after case these words have been interpreted. If your charges are dropped, your DNA sample is destroyed. One might ask who will verify that that happens? In our system, the courts will verify that.
If I have any question as to whether my sample is destroyed, like habeas corpus, I would make the demand: Deliver me the sample, or show me it is destroyed.
We cannot always ask for a third party to step in to redo what our system has been developed to handle.
Why did the government decide to do the indexing upon conviction and not upon arrest?
Mr. Saada: I will give you the beginning of the answer and then one of my colleagues will add to it. Consultations were held with eminent justices of three provinces -- B.C., Ontario and Quebec -- as to the validity of the bill in view of the Charter. The three parties concurred. If we were to proceed with this sampling at the time of arrest, most probably this section of the act would not be able to sustain challenges before the court under the Charter. Perhaps my colleagues would elaborate on that but, essentially, it was a matter of as we say in French:
[Translation]
Perhaps the best is the enemy of the good.
[English]
Mr. DuBrule: The Department of Justice gave this issue lengthy deliberation to assess the possibility of changing the time of taking the sample from conviction to arrest. The assessment was that taking the sample at the time of arrest would render the bill very problematic and likely subject to successful challenge.
Given these strong concerns expressed by the Canadian Police Association amongst others, the decision was made to ask justices for their opinions, all of which concurred on the point. It is one area where the decision was not taken lightly.
Senator Bryden: I believe representatives of the Canadian Police Association will appear before us.
After convicted criminals, who have been convicted of first-category crimes, have served their time, have undergone a release program, and have paid their debt to society, their profile remains in the bank indefinitely. Why did you decide to do that?
Mr. DuBrule: Again, it parallels the Criminal Records Act. All information in relation to the offender is kept. If the offender is granted a pardon, all information, including that found in the data bank, would be kept separate and apart. Those individuals, having committed a crime, remain subject to the regime as set out in the Criminal Records Act and in this bill, and their information is retained.
Senator Bryden: Did anyone ever consider the question of whether there is a human rights or a Charter challenge possible in that regard?
Mr. Zigayer: The answer is no. The objective was to create a data bank as exists now with the fingerprint data bank maintained by the RCMP in the Canadian police information computer -- CPIC.
We did not do an analysis of this particular point standing against a Charter challenge. The issue was more whether you could obtain it in the first place, whether you could record it, and for which offences. Safeguards for the protection of privacy and other factors were also an issue.
The objective was to create a data bank similar to the fingerprint data bank so that you could use that information as an investigative tool to solve crimes committed previously or in the future. I would hazard a guess that the courts would find this to be reasonable legislation in a free and democratic society.
Senator Bryden: If there is a crime committed in an area, the first people to be investigated are those who have previous convictions. I just wonder if this is an appropriate tool.
I am not saying it is not, but consideration should be given to it because it is just another weapon in the hands of the police for that purpose.
Mr. Zigayer: In this case, it is actually to the benefit of the previously convicted "usual suspect," because, with the DNA profile from the crime scene compared against the data bank, you will exclude all these usual suspects. The police will not investigate them. They will focus their energies and resources in the investigation of someone else.
Senator Kinsella: Mr. Saada, could you explain the government policy around this issue? From my reading of Bill C-3 I understand that the Department of the Solicitor General will establish the bank, and then the Commissioner of the RCMP will be given the awesome responsibility of administering it.
Therefore, the need for the commissioner of the RCMP to be that much more independent is self-evident. The government has introduced Bill C-44, pursuant to which the commissioner of the RCMP, who currently serves on good behaviour, will serve at pleasure. A public official appointed on good behaviour has a much stronger defence against interference than one serving at pleasure.
Why that change, in light of a bill that requires tremendous independence on the part of the commissioner of the RCMP?
Mr. Saada: You are referring to Bill C-44. That question would be better put to the sponsor of the bill, who happens to be the President of the Treasury Board. However, I do not think it has anything to do with a lack of confidence in the people whose job it is to apply the law. I do not think there is a correlation between your concern about Bill C-44 and the confidence the Solicitor General has in the commissioner to do his job within the framework of the law.
Senator Kinsella: Madam Chairman, with respect, the government has brought forward two legislative proposals. It seems to me that it is incumbent upon honourable senators to understand what the government`s policy is. That is why it is important to have ministers who speak for the government explain it. We need to know the government's policy on this because it is a major change in my view.
How committed is the government to funding the DNA data bank proposed in this bill and how much has the government budgeted for its establishment? How much will this cost?
Mr. Saada: I am sure that with all your experience, senator, you do not expect me to divulge budgetary figures. The budget will appear in February.
Obviously, there has been due consideration given to the funding of this bank. As to the details, you will understand that we must wait until the budget comes out.
Senator Kinsella: When the firearms registration legislation was brought forward, we were given an estimate, and we all understand that budgets are estimates. The cost has now reached $141 million, which is far beyond that estimate.
Perhaps, Madam Chairman, we could be given the estimated cost of this bank.
The Chairman: Perhaps this question could better be directed to the Leader of the Government in the Senate. We are here to study the subject matter of the bill rather than the budgetary considerations behind it.
Senator Kinsella: Clause 10(2) of the bill states:
Forensic DNA analysis of stored bodily substances may be performed if the Commissioner is of the opinion that the analysis is justified because significant technological advances have been made since the time when a DNA profile of the person who provided the bodily substances, or from whom they were taken, was last derived.
It seems to me that that is referring to technological developments that might occur in the future. That appears to be asking for a blank cheque, and stating that it is not up to regulation, but to a public official, to assess the scientific technological advances. Why is there this provision rather than a regulation?
Mr. Saada: I would like to go back to the issue of funding. Unless I misunderstood, the senator's first question had to do with budget. The second was with regard to an estimate of the implementation costs for such a bank. I believe those are two different things, and while I cannot answer on the budget, I can tell you that the estimated implementation cost of such a bank would be approximately $5 million.
Senator Kinsella: Will that cover capital expenditures only or does it include first year operating costs?
Ms Aloisi: Start-up costs for this initiative will be approximately $3 million, and our estimate for the operation of the data bank is around $5 million annually.
Senator Kinsella: Will current RCMP resources be drawn upon to operate this data bank, or will new ones be made available?
Ms Aloisi: This is being considered. As Mr. Saada mentioned, this is a budget issue.
Senator Kinsella: Is there a possibility that the current operating budget of the RCMP will be used for the establishment of this bank, which would mean that those resources would not be available to apply to existing activities?
Mr. Saada: Senator, with all due respect, I think that you are using two or three different ways of putting the same question on budget, and there is no way I can give you an answer.
[Translation]
Senator Joyal: I would like to return to clause 22 of the bill. How can you reconcile clause 22, which amends section 487.09 of the Criminal Code, with clause 10(7), in light of the question I raised earlier? Section 487.09 (c) reads as follows:
[English]
(c) The expiration of one year after --
(ii) the dismissal, for any reason other than acquittal, or the withdrawal of any information charging the persons with the designated offence$
[Translation]
Getting back to the issue of withdrawing the charges, something we spoke about earlier, I cannot seem to reconcile the provisions of section 487.09 which is amended by clause 22, and subclause 17 of the bill regarding the year during which the samples will be destroyed in cases where the charges have been withdrawn.
Mr. Saada: Perhaps Mr. Zigayer would care to answer that question.
[English]
It is getting late, and these witnesses will probably be before us again. Since this is a rather complex matter requiring some reading and cross-referencing, perhaps they could look into it and answer our question when they return.
The Chairman: That is a very good point, and I am sure the officials will have an answer when they appear before us again.
Senator Grafstein: I will also give the witnesses my questions and leave it to them to return with the answers at a more convenient time. It is rather complex, but I will try to simplify it.
I am concerned about the principle of establishing a privately guarded, privately secured system where there will not be any leakages that might invade an individual's privacy. I find the structure of the bill curious, and put it under the rubric of "not following the money but following the sample." The sample goes to a Canadian law enforcement agency. The bill states that a laboratory is one that is deemed appropriate by the commissioner. There is no definition of "designated laboratory", so it leaves the umbrella of the federal government`s criminal agency, or the policing mechanism if it is federal and provincial, and goes to a laboratory the commissioner deems appropriate. However, that laboratory does not necessarily have all the same accountability safeguards as under the policing umbrella. I put that as a proposition.
It also allows the laboratory personnel to use the sample for training purposes. However, in clause 6, the bill states that no person who receives the DNA profile is allowed to use it other than for purposes of the administration of the act. Earlier on, rather than using those general words, it states:
...solely for the purposes of the investigation or prosecution of a criminal offence.
There seems to be a difference in the drafting, but there may be a rationale for that.
Finally, clause 8 states:
No person to whom information is communicated under subsection 6(1)...
That is, the law enforcement agency or the laboratory.
...shall use that information other than for the purposes referred to in that subsection or those paragraphs.
What is missing is the person or persons who, by agreement, may have access to that information. There seems to be a lacuna in the regulatory mechanism.
Going back to Senator Joyal's earlier point, the only way that we can satisfy ourselves that there will not be an improper use of that DNA outside our jurisdiction is by the agreement under subclauses (3), (4), and (5). There does not appear to be any other way that we can hold liable persons who abuse the DNA outside our borders.
It is a rather complicated question, and I will leave the witnesses on notice, because there is more to come. This will give them an insight into our thoughts. How do we establish a fail-proof accountability system to ensure that privacy is not abused?
The Chairman: I thank you for appearing before us. We have had a long and complex session, and you have been warned that there is still more to come.
The committee adjourned.