Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 44 - Evidence
OTTAWA, Thursday, November 26, 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 10:46 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I should like to welcome all of you, including our television audience.
This is the committee's third meeting on Bill C-3. The bill provides for the establishment of a national DNA data bank, which will 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, 1998, and received first reading in the Senate the next day. The bill was given second reading on October 22 of this year, which means that the Senate approved the bill in principle. Bill C-3 was then referred to this committee for detailed consideration.
That consideration began yesterday with the appearance of Mr. Jacques Saada, Parliamentary Secretary to the Solicitor General, who is the minister responsible for Bill C-3. The committee then heard two witnesses from the central forensic laboratory of the RCMP.
Our witnesses this morning are from the Canadian Police Association and the Canadian Association of Chiefs of Police.
Further witnesses on Bill C-3 will be heard over the next couple of weeks. Once the committee has heard its witnesses, there will be clause-by-clause consideration of the bill, at which time the committee will decide whether to recommend passage of the bill as is, to recommend amendments, or to recommend that the bill not proceed. The committee will then report its decision to the Senate for consideration.
I now invite the witnesses from the Canadian Police Association to make their opening statement. Following the question and answer period, the witnesses from the Canadian Association of Chiefs of Police will be invited to the table.
Mr. Grant Obst, President, Canadian Police Association: Thank you very much. I am a police officer from the City of Saskatoon, and I hold the rank of constable. I have been policing in the Province of Saskatchewan for 16 years, and I am currently assigned to the uniform patrol division in Saskatoon.
For the last 16 years, my role has been to deal with citizens in the community of Saskatoon -- usually when they have been victimized by a criminal, or have run into a problem with the law. Today I will try to provide you with the perspective of the 35,000 front-line police officers represented by the Canadian Police Association.
The Canadian Police Association is comprised of the 10 provincial police associations across Canada, as well as two national police associations -- the RCMP Members Association, and the CNR Police Association. We represent approximately 35,000 front-line police officers, as well as the civilian members who are associated with police work and police associations.
CPA members work extensively with Canadian citizens on matters related to policing. We deal with victims of all of the many wrongs that can be perpetrated against citizens by the criminal element. We spend countless hours listening to these citizens.
I come before you this morning to tell you that time and again I hear the people we serve expressing their frustration. They are frustrated with the justice system. They are frustrated because it is their perception that the rights of criminals are often placed ahead of those of the good citizens of the community. That frustration is reflected in the way people deal with the police. Often they believe that it is futile to even call the police when they have been victimized. They think there is nothing we can do about their problems, or that, if we can do something, the perpetrator will not be dealt with in an appropriate fashion. Many of my colleagues believe that the confidence of Canadians in the justice system is shaken.
I have spent a great deal of time trying to choose the rights words to explain to you what is happening on the streets of Saskatoon. It is very difficult for people who do not work in this field to imagine what goes on there. I wish I could take all of you on patrol, and I extend that as an invitation to you. We have done that with members of Parliament and other elected officials in order to show them what happens off the main drag, what happens in the alleys of our communities. I hope we are able to illustrate that today.
The main thrust of our proposal here today is Bill C-3 and the DNA data bank. The Canadian Police Association has been lobbying for a DNA data bank for a number of years. The police officers and the civilian members that we represent across this country wholeheartedly support the creation of a DNA data bank. The bill in front of you contains both the principles and what we were looking for with regards to a DNA data bank, but we believe that it is still lacking.
We will outline several areas for you where we think that it is lacking. This Senate committee is our last-ditch effort at getting the people who have the power to make some amendments. My understanding is that you do not make amendments, but that you could send this bill back to the House of Commons with recommendations for amendment. We will show you some of the areas that we think must be changed in order to make this data bank something that police officers can utilize on the street to keep our community safer and to provide better security for our citizens.
This particular bill is probably the most significant crime prevention or apprehension tool that we have seen for some time, and it will probably remain so for many years to come. We will not see anything that could be as instrumental in a crime-fighting tool. It is a crime fighting or a crime prevention tool, and being able to take DNA samples from suspects or from criminals allows us to focus our investigations.
Today, human resources, time and money are a scarce commodity. We cannot be spending a long time on investigations if we are going down the wrong path. Taking a DNA sample and doing a comparison would show the investigators involved in a particular case <#0107> and Sergeant Tweedy will show you how the investigation process works -- which suspects could be eliminated. It would save us from going down the wrong path. In a number of cases, it has exonerated people that were wrongly convicted. That aspect of this legislation cannot be ignored. It is not only an investigative tool, but also an elimination tool that would keep us from spending time and money on investigations or suspects that are not related to our investigations.
With me today is Sergeant Netelenbos from the Calgary force. He has about 23 years of experience on the streets of Calgary, serving the citizens in that community in many areas of law enforcement. He will provide you with a general overview of how we see a DNA data bank functioning in police work in general terms.
Detective Sergeant Tweedy has about 18 years of homicide investigation experience with the Metro Toronto police service, one of the largest police services in Canada. He brings you a vast amount of expertise in investigations in areas where the DNA data bank will provide instrumental assistance.
Mr. Danson, our solicitor, will then provide you with the legal expertise that police officers do not possess. Mr. Danson can outline for you some of the constitutional issues that always arise when we talk about drafting new legislation.
We are focusing on three main areas of the current bill. I will briefly outline them for you, and then my colleagues will delve into them in much more detail. First, let us consider the timing of when a sample would be taken from an individual or from a criminal or a suspect. Currently, in the bill you have in front of you, it allows for the police to take a DNA sample from an individual convicted of a prescribed or a designated offence. We are suggesting that the bill should parallel the Identification of Criminals Act, and allow the police to take the sample at the time that they develop reasonable and probable grounds to believe that the individual has committed a prescribed offence. That is an integral part of our proposal to you. Mr. Danson will talk about that, and all three of my colleagues will impress upon you the difference that makes.
Second, there is a clause in the current bill that provides for an exception. It is clause 487.051(2), if you wish to refer to it. We are a little unclear as to why that particular clause is there. It allows for someone to make application to be exempt from giving a sample if he or she can demonstrate that it will grossly or disproportionately affect his or her privacy, and so on. That opens the floodgates for all kinds of appeals. I wonder what the legislators were considering when they put that in there, or why that was in there. I suggest that you take a close look at that. Mr. Danson may touch on that again for you if you have any questions regarding it.
Senator Nolin: What section is that?
Mr. Obst: It is proposed section 487.051(2), on page 14.
Mr. Obst: The third and final area that we want to draw your attention to concerns taking samples retroactively. The taking of samples from serving prisoners -- that is, prisoners currently in our correctional system, who have been convicted of designated offences or prescribed offences as they are stated in the schedule. There are some extreme shortfalls in that area, and Mr. Danson will delve into those as well.
After the presentation, you will have some questions, I invite you to pose them to us. If you have a question at any time during our presentation, please ask us. We are looking to the Senate, once again, as our last avenue to be heard. We hope that something will be done to make this data bank what it could be -- one of the most important tools for police officers to provide safety and security to the citizens of our communities. Again, those citizens are somewhat frustrated with the system. This action would help to re-instil confidence in the people that my colleagues and I serve.
Sergeant Jon Netelenbos, Alberta Vice-President, Canadian Police Association: I have been a police officer with the Calgary police service for 28 years. I have worked in general investigations, sex crimes and vice, and I have been a uniformed police supervisor. I am currently sergeant responsible for the major incidents command in a district that comprises 210,000 citizens.
During my career, I have seen many changes occur within the criminal justice system -- admittedly, some were radical, and some were not. Some were quite functional, practical, and ideally good for Canadians; some were not. The latter is the case for Bill C-3.
I apologize for the somewhat oversimplified automobile metaphor, but the government has constructed a brand new car for Canadians. It is a late model car with state-of-the-art technological features. However, it does not have any wheels. To that extent, technologically speaking, it is impotent and its potential will remain untapped. Bill C-3 is like that.
Let me quickly tell you about the invasive and intrusive procedures that our justice department officials are so inexplicably concerned about. Police officers have been conducting Breathalyzer tests for decades. While the process of providing such a test and sample is not inordinately painful or uncomfortable, it is far more time-consuming and cumbersome than taking a Q-tip sample. The Breathalyzer process, at best, takes 40 minutes; a Q-tip swab takes six-tenths of a second.
I have seen people have difficulty blowing steadily and hard into the Breathalyzer. That process has been done to suspected impaired drivers in Canada for a long time. It occurs every day. The fingerprint process is neither painful nor intrusive but, again, it takes more time, and there is far more contact between the suspect and the police officer.
We all know about the constitutional aspect of these processes. Therefore, why do we want to take DNA samples of a person upon arrest? The answer is not detailed and complex; it is quite simple. We want to do it in order to enable a police officer to solve serious crimes such as sexual assault and murder.
In Calgary, for instance, we have trace evidence that was obtained from a double homicide a few years ago. That means we are looking for a match, just like a fingerprint. Bill C-3 would not allow us to solve that crime. It is possible that it could happen, but it is unlikely. The only time that we can get a sample is upon the arrest and conviction of the perpetrator, or perpetrators. A criminal justice tragedy will occur if this offender is picked up and arrested for other offences and then released, never to appear in court, never to obtain that possibility of getting a DNA tracer. Therefore, we have an unsolved homicide.
Our AFIS computer, which is a computer that deals with fingerprints, stores an immense amount of data. The one in Calgary stores 480,000 fingerprints and it probably covers all of Western Canada. Within Calgary, we have approximately 20,000 latent prints; those prints found at crime scenes waiting for their match. Every time someone is arrested he or she is fingerprinted for the indictable offences, and those fingerprints are matched with the 480,000. We get "hits" sometimes, as we call them in the police world, and we get excited. It does not mean we have found the perpetrator, but it does mean that it is an avenue to good investigation.
In our testimony to the House of Commons committee, we were asked what happens if we do find a match, and that then there is such a thing as due process. Of course there is due process. People are rarely convicted in Canada on the basis of only a fingerprint.
Consider this for a moment, particularly those of you who may be concerned about the constitutionality of this DNA sample upon arrest: fingerprinting is concerned with criminal record keeping. A fingerprint is linked to what we call an FPS number, along with its detailed criminal record. These are records. You have a fingerprint -- there are numbers, names, and very confidential information. A DNA marker contained in a data bank, as proposed, has no criminal record attached. It is highly technical, and I would venture to guess, only of interest to forensic scientists.
You will not have a bank where people give a sample, and right upon arrest names will be attached. It has nothing to do with that. To that extent, fingerprints and their accompanying data have far more potential for misuse. I would like to think they are not misused, but the potential does exist.
I feel that Bill C-3 is fundamentally flawed, like that state-of-the-art car I was talking about. It is not good enough to say that at least the government has seen fit to establish a DNA data bank. For the bill's proponents to say this law is better than no law at all goes beyond any sprinkling of reason, as far as I am concerned.
You, as senators and collectively as the Senate, truly have an opportunity here to make a measurable difference in instituting significant improvements to the criminal justice system. Even if I wanted to overdramatize this, I could not do so. If you send this bill back, you will save lives and eliminate the endless pain and suffering that so many families must endure. That is the bottom line.
Detective Sergeant Neale Tweedy, Toronto Police Service, Canadian Police Association: I have been a police officer for 27 years, 17 of those as a homicide investigator, trainer and supervisor. As such, I have extensive experience in all facets of death investigation, including crime scene management, crime scene interpretation, evidence collection, suspect elimination, interviewing, law and procedure, information management, victim management and evidence presentation, to name but a few of the elements of the process. I previously have been acknowledged as an expert witness in the Ontario Court General Division in the discipline of homicide investigation.
During my time as a homicide detective, I have been involved in the investigation of a number of murder cases where rape was inflicted on the victim and was a primary or secondary motive for the crime. Christine Prince, Ruth Stern, Rupy Sanghera, Tania Anikejew, Nicole Morin, Andrea Atkinson, Kala Clauduz, Kristen French and Leslie Mahaffey, are names of but a few of the women and children whose lives were taken. Like a slide show, I can see the crime scenes in my mind's eye.
In January of 1995, I was placed in charge of one of Canada's most well publicized murder cases; the 1984 abduction, rape and murder of 9-year-old Christine Jessop of Queensville, Ontario. For 11 years Guy Paul Morin had been wrongfully accused, and DNA cleared him.
You may have read Red Rum the Innocent, a national best seller. Within days of Mr. Morin's acquittal, the case was transferred from the Durham Regional Police to Toronto, which began my involvement as unit commander of the task force on the Jessop murder. This was a full-time, three-year assignment for my team and me. Since that time, I have thought about Christine every day and the horror that this child endured. Additionally, every day, I thought about my inability to identify her killer and bring him out of hiding. Christine's mother and father deserve to know the identity of her killer. The citizens of this country deserve to know.
Evidence revealed that on October 3, 1984, Christine Jessop was abducted from the small town of Queensville, driven 30 miles from her home, where, in the seclusion of a remote wooded area, she was brutally raped. During the attack on this child, who weighed a mere 40 pounds, she was prodded with the blade of a knife and superficially injured; her screams and her fears satisfying the demented sexual and emotional needs of her killer.
When he completed the rape on Christine, evidence suggests he raped her again. During the attack Christine was punched in the face with such ferocity that her nose was severely fractured. Neighbours in two distant farmhouses awoke in the dark and heard her screams, heard her cries for help, but dismissed it and talked themselves out of calling the police. When the killer was tired of Christine, evidence revealed he stabbed her about the front and the back of her tiny body. He then slashed her throat with such force that she was nearly decapitated.
Her body was left lying on her back, nude from the waste down, her legs splayed apart, alone in the woods. Her killer calmly drove off. Christine lay victim to the elements until her body was recovered three months later, on December 31, 1984. She was badly decomposed, and there was evidence of animal activity.
Honourable senators, this is the real world of homicide investigation. Much different, much more horrible, much more complex to solve and prosecute than described by authors and screenwriters. There is no more challenging vocation than this, and today I ask for your help.
A killer's semen was left at the crime scene. It was collected and preserved. In 1995, when the science of DNA had advanced sufficiently, scientists were able to extract the DNA from the semen and determine it was inconsistent with that of Mr. Morin.
Since that time, I have been attempting to identify Christine's killer, primarily through taking blood or saliva samples from possible suspects. My investigation required my team's evaluation of 27,000 persons. I have seen to it that approximately 325 men have had their DNA compared to the calling card that Christine's killer left. Many of these 325 are respectable citizens who were linked directly or indirectly to Christine as family, friends or neighbours.
As citizens of the country, and wishing to assist my investigation, they provided consensual samples of their DNA. It was really just a prick on the tip of their fingers. This allowed my investigation to move past the possibility that the killer was known to Christine or her family. The rest, and vast majority of the 325, were men with a history of sexual assault, pedophilia and murder.
Unfortunately, to date, I have been unable to identify this child's killer. In a world that is highly computerized, with databases everywhere, I was reduced to writing letters to 1,000 police agencies and forensic laboratories across North America in my search for the match to the DNA marker that was left at the murder scene. The possibility of Christine's killers slipping through the cracks of this investigative technique are very large indeed, and despite my best efforts, I cannot be satisfied that this has not occurred.
In my 27 years of policing, I can think of no piece of legislation that will have a more significant and direct impact on crime prevention than Bill C-3. The benefits will be seen immediately, and will directly equate into solving a greater number of these crimes. They will also have a meaningful deterrent factor resulting in less violence against victims, especially women and children.
It is most important, however, that the legislation be crafted properly. In its present form, it is not. Just like the shortcomings evidenced by my correspondence with police and laboratories, the frailties of this legislation are even more problematic. I am outraged that we are so close to having such important legislation passed, but may have to settle for such a watered down version of what could be.
The purpose of the bill, as described, is to help law enforcement agencies identify persons alleged to have committed designated offences. The holes in this net are too large to be truly helpful to the homicide or sexual assault investigator. I can tell you that definitively and with confidence.
The principles of the bill, as described, is that the protection of society and the administration of justice are well served by the early detection, arrest, and conviction of offenders. The early detection is severely compromised by only allowing samples to be taken after conviction.
It must be clearly understood by the honourable senators that, in reality, more than 90 per cent of arrested persons are bailed directly at the police station or within a few days by a justice of the peace. Many are never seen again. Many are found, but never returned to the jurisdiction of the offence for monetary reasons. This is the reality in Canada, where distances are immense and law enforcement and prosecution budgets are small.
On a yearly basis alone in Toronto, more than 50,000 people are charged criminally. Many have multiple charges laid against them at the time of arrest. Most are bailed. At any one time, there are more than 19,000 warrants and bench warrants outstanding in Toronto, notwithstanding the fact that about 5,000 persons are arrested yearly on the warrants and charged with failing to appear. The number of 19,000 unexecuted warrants remains constant, and even grows. The ability of a sexual predator or killer to avoid detection while passing through this system is obvious.
Only a very few offenders arrested outside the jurisdiction will be returned. The head prosecutor in Toronto reports that 250 times a year, queries are made to his office to ask if persons arrested outside the jurisdiction, sometimes known as the return radius, will be returned to Toronto for trial. Only a very small percentage of them are returned. He has asked only about the borderline cases, because the police already know the protocols that result every year in thousands of apprehended persons not being returned to their jurisdictions to face the music. They are merely let go.
Most predators are familiar with our laws, our courts, and our policing protocols. They know how to exploit the weaknesses in the system. In the public inquiry Associate Chief Justice Archie Campbell conducted into the rapes and murders committed by Paul Bernardo and Karla Homolka, he said that the serial killer exploits the gaps in law enforcement as he moves through jurisdictions, thereby avoiding detection and arrest. Serial killers are also familiar with other shortcomings of the system.
It is typical for the lag time between an arrest and a conviction to be a year. If an apprehended criminal is linked back to an outstanding unsolved crime after conviction, much of the evidence will be gone. Do not be fooled into believing that a criminal prosecution is merely the acceptance of the linked DNA evidence. All relevant evidence must be identified, collected, and placed before the courts.
The longer the lag time, the less likely the police will locate other evidence -- physical evidence, eyewitness evidence, evidence of motive, evidence of means, evidence of opportunity, or even evidence of alibi. These are severely compromised by the passage of time. If a DNA link is made to an unsolved crime, the sooner it is made, the greater the ability to recover all the evidence, and the greater the opportunity for a successful prosecution.
Approximately two years ago, the Government of England, Scotland and Wales passed DNA legislation that is truly helpful to police in society. The philosophy was to take DNA samples at the time of arrest, and from as broad a group of offenders as possible. It was recognized as reality that persons predisposed to crime often commit a variety of types of crimes. In fact, Clifford Olson had a host of convictions for acts of dishonesty before he committed his rapes and murders. Since the legislation was enacted in Britain, even shoplifters have been linked back to much more serious crimes, simply because it is often the nature of the beast. They will steal sex like they will steal your stereo.
Senators, such a wonderful opportunity to solve violent crime and to deter those predisposed to commit it has never before presented itself. As a person who has worked on the front line for many years, I can assure you that the effectiveness of this legislation is just a shadow of what it could be. I can assure you that, if not amended from its present form, future young women and children, just like nine-year-old Christine Jessop, will be raped and sometimes, God forbid, killed. If this bill becomes law in its present form, you will, in the future, need to revisit it. Unfortunately, the cost will be horrific.
You can contribute to preventing this from happening now. As the Chief Coroner for the Province of Ontario said, "What do you say to the relatives of future victims? That the death of a loved one could have been prevented if government did just a bit more to improve the bill?" What if this were your child or grandchild? What will you say? I do not know what I will say.
Mr. Timothy Danson, Legal Counsel, Canadian Police Association: I wish to address two aspects of the DNA Identification Act this morning. The first is the fact that proposed subsections 487.055(1)(b) and (c) require the commission of two or more murders or rapes before DNA testing can be done on those already in our prison system. The second is the issue of waiting until conviction -- rather than upon charge or arrest -- before DNA testing can begin.
Dealing with the first point, proposed section 485.055 states:
(1) A provincial court judge may, on ex parte application ... authorize ...the taking, from a person who ...
(b) before the coming into force of this subsection, had been convicted of more than one murder committed at different times, or
(c) ... convicted of more than one sexual offence ...
for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances ...
as contemplated by subsection 487.06(1).
The Canadian Police Association, and I would suggest an overwhelming majority of Canadians, find this subsection fundamentally objectionable and absolutely offensive. It is objectionable and fundamentally offensive to suggest that the murder of one child and the brutal and savage rape of one child is not enough for the purposes of authorizing DNA testing.
The difference between a single rape and a single murder is like the difference between killing a person by firing one bullet into their head, or by firing six bullets into their head. You are still dead after the first bullet. It is like trying to make a distinction between an evil person and an extremely evil person. There is simply a point where the distinction is irrelevant, and it is insulting.
This subsection, I suggest to you, offends every principle of logic and common sense. Often the difference between one rape and one murder and two rapes and two murders is merely a question of timing, and that is when the accused was caught, and not the degree of dangerousness. If someone like Paul Bernardo or Clifford Olson were caught after the first murder, as opposed to after the subsequent murders, no one can seriously suggest that they would not be as dangerous just because of when they were caught.
The inmate convicted of one rape or one murder may be guilty of others, but he just was not caught and we do not yet know. Indeed, the proposals put forward by the Canadian Police Association may very well make that match.
I have not seen a legal opinion from the Department of Justice, or from the three judges from whom they asked an opinion -- the Honourable Charles Dubin Q.C., the Honourable Claude Bisson, Q.C., and the Honourable Martin R. Taylor, Q.C. I have not seen any other legal opinion, either, that states that there is a constitutional requirement for a criminal to murder and rape more than once before DNA can be taken from him or her.
In fact, conveniently, these three former justices were not even asked for an opinion by the Justice Department on this critical question. I suggest to you that the reason these judges were not asked for a constitutional opinion is that they knew they would not get an opinion that supported the department's position. I suggest to you that that is appalling.
The Department of Justice would have you believe that those persons convicted of only one murder and only one rape ought to be spared the indignity and the violation of their rights to privacy, and be excused from DNA testing. Apart from the indignity of their acts on their victims, and the wholesale destruction and brutalization of their victim's privacy rights, I would like to give you my response to those in the Justice Department who feel that it is required to have two or more murders or two or more rapes. I will start where Neale Tweedy left off with respect to Christine Jessop.
I submit to you that what is really unduly intrusive is that a sexual predator abducted my client, 9-year old Christine Jessop, from her home. He then took her to a wooded area 50 kilometres away, brutally and savagely raped her, stabbed her repeatedly, front and back, until she was dead, almost severing her head with his knife.
The fact is that, with proper DNA testing, her murderer might be found, rather than being at large. Her murderer may be in the prison system right now. However, if he were to have only been convicted of one murder or one rape, this legislation says we cannot take his DNA.
What I find unduly intrusive is a sexual predator like Joseph Fredericks abducting my client, 11-year old Christopher Stephenson. He took him from a crowded Brampton mall, savagely and brutally torturing him, raping him and slitting his throat until he bled to death, so that his father could identify his only son in the city morgue on Father's Day.
What I find unduly intrusive is a sexual predator like Paul Bernardo abducting my clients Kristen French and Leslie Mahaffy and torturing, brutalizing, raping and murdering them.
What I find really intrusive is a cold-blooded murderer like Clinton Gayle, who executed my client, Police Constable Todd Bayliss with his revolver still strapped in his holster; or Clinton Suzack, who executed my client, Police Constable Joseph Macdonald.
Joe Macdonald's daughter Julia, who was only one-year old when her father was gunned down in the line of duty, and his daughter Melissa, who was only three years of age when her father was murdered, wonder where daddy is, and why he died. When they come home -- and this is factual -- and they talk to their father by looking at the picture of him on their coffee table, how do we tell them seriously that the Parliament of Canada says one murder, one rape is not enough? To this day, they make arts and crafts for their father, and bring them home and tell him what they have made, looking at his picture.
I hope that it is offensive to you. When the Justice people come before you, we hope that you will ask them why. We have been asking why. Is it not logical that the Canadian Police Association would ask the Department of Justice why? You will not get a constitutional response. I guarantee you that no one will come before you and say, "It is a constitutional requirement that we have to have two murders and rapes before we can take prisoners' DNA." It just will not happen.
As you know, on the murder provisions, it has to be more than one murder on two different occasions. That means a person can come with a machine gun and murder 10 cops all at once, but you cannot get his or her DNA. You can, however, get the DNA of a person who murders two police officers on two separate occasions.
It is intellectually offensive and insulting. I urge you to send this measure back or, at the minimum, ask why we stop at one murder and one rape.
The other aspect of this particular subsection is as follows. Under this legislation, you can get the DNA of perpetrators of designated offences upon conviction. However, when you go to those people already convicted of offences, and who are already in the prison system, the provision applies only to dangerous offenders, perpetrators of murder or rape. Why is there a different list? If this legislation says that we can take the DNA of people convicted of these designated offences, why can we not take DNA from people already incarcerated for these same offences? Why should there be a different list? Perhaps you know the answer. We do not. When we have asked for answers, we do not get them. You have more clout than we do.
I have the greatest of respect for the members of the House of Commons, but I wonder how many of those who voted for this bill even know about the problem that I have just identified.
Let us turn to the issue of the timing of DNA testing. First and foremost, it must be appreciated that the position of the Canadian Police Association concerning DNA testing at the time of arrest or charge is both neutral and objective, in that the results of the testing will confirm innocence as much as they will confirm guilt. This factual underpinning was either totally ignored by the legal analysis provided to you by parties opposed to it, or it is a factual underpinning that has been given entirely inappropriate weight.
As you know, it is a hallmark of constitutional analysis that legislation be considered purposively and contextually, and that a failure to do so is fatal. Consider what would happen if another Guy Paul Morin case were to occur today, and legislation were in place that allowed you to take a person's DNA upon arrest or charge. Now, consider what would happen today.
If that legislation were to have been in place for a case like the Morin case, an innocent man would not have been tried and eventually convicted of a brutal and savage murder that he did not commit. Second, a very hot evidentiary trail would not have become stone cold so that the murderer could go free. Third, people like my clients, the Jessops, would have been spared the enormous grief and anguish which goes along with thinking they have the right man. Fourth, millions of taxpayers' dollars would not have been wasted. Fifth, the integrity and the credibility of the justice system and law enforcement -- and all the cynicism that flows from that, as we saw at the Morin inquiry -- would have been avoided. Sixth, Christine Jessop's murderer may well have been caught, and public fears abated.
That is the other side of the equation. That is the extremely positive effect in terms of the innocent. Obviously, there is a positive effect that comes from making a match to someone who is guilty. What price tag do we put on these factors?
We must never lose sight of the fact that the benefit of the proposals put forward by the Canadian Police Association is equally consistent with ensuring that innocent people going free as it is with ensuring that guilty people being held accountable for their actions.
To be absolutely clear, it is the position of the Canadian Police Association that any DNA sample taken from an accused, charged, or arrested person must be destroyed if that individual is found not guilty. Further, it is the position of the Canadian Police Association that anyone who fails to fulfill his or her responsibility to destroy a DNA sample in the event of acquittal is him or herself guilty of committing a very serious criminal act, which will carry very serious penal sanctions.
These alternative countervailing measures, certainly in the context of the constitutional equation, appear nowhere in the analysis of those people who have taken a contrary position. It is easy to raise a concern, as you see in some of the letters from justices. Some of those concerns are legitimate, but there are answers to them. You bring in a proposal such as this one, which says that the DNA sample would be destroyed if the accused is found not guilty.
I would like to emphasize the Supreme Court of Canada Beare decision, in which the Supreme Court of Canada upheld the constitutional validity of the fingerprinting process upon arrest. The court also held that a person arrested on reasonable and probable grounds of committing a serious crime, "must expect a significant loss of personal privacy." Those are not my words. Those are not my opinions. Those are not the opinions of the Canadian Police Association. That is the dicta of the Supreme Court of Canada.
The court held that, while some may find fingerprinting distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. The question for the Supreme Court of Canada was not whether fingerprinting was invasive of the rights of the accused, for surely it is, but rather the legal question was whether it is unduly invasive.
We must understand where the bar is on constitutionally. When you look at the opinions opposite ours, they talk about the invasion of privacy. However, you cannot talk about an invasion of privacy of an average citizen in Canada where the bar is going to be much higher.
The Supreme Court of Canada has said that once the police have reasonable and probable grounds to suspect that you have committed a serious criminal offence, you have this significant loss in personal privacy, so your personal your point of departure is much lower. That is your point of departure. You will notice when you read the judges' decision that their point of departure is the public at large.
The point you must appreciate is that your point of departure is a significant loss of personal privacy. The counter-argument is that we ought to resist establishing too close a parallel between the way fingerprints were treated in the Beare case and the taking of DNA samples. The Charter came into force April 17, 1982, Beare was decided in 1988, and in the subsequent 10 years, if the Supreme Court of Canada were considering the same issue, it would probably decide Beare differently.
As a lawyer, I give opinions to my client based on the current law, and I do not make the assumption that the Supreme Court of Canada erred in its own decision. They are the only ones who can reserve themselves. That is why the CPA has made it clear that we should have a reference to the Supreme Court of Canada and clarify the issue. The bottom line is that, when you look at the dicta of the Supreme Court of Canada in Beare, there is no distinction in principle between taking a fingerprint and taking a DNA sample.
I have provided a one-page sheet to the committee where I set out the reasons the Supreme Court of Canada provides for fingerprinting. Those are the same reasons that Mr. Justice Hill provides for why we need DNA. When you do an analysis of that, they are indistinguishable. The bottom line is that they have the same purpose. Once you come to the conclusion that they have the same purpose in mind, Beare is the governing decision. In my submission it would be absolutely upheld as being constitutionally valid.
Nobody believes for a moment that this is issue is simply black and white. However, the courts pay enormous deference to legislative choices. If Parliament in its wisdom saw fit to pass legislation on DNA that was similar to the fingerprint legislation, I suggest that great deference would be paid to those kinds of legislative choices. That is provided, of course, that the safeguards we have in mind are introduced into the legislation.
Some judges try to make a distinction between a fingerprint, which is external, and DNA, which is internal or comes from within the body. If that were a distinction that had any merit, the Supreme Court of Canada would have struck down the Breathalyzer sections, which are also internal.
We do not need a warrant to get your breath, because the alcohol will dissipate. It is a question of timing. They say DNA will not disappear, and you can get your warrant because they will be in custody or out on the street. You can then get your warrant and take the DNA. If that were a justification in constitutional terms, the identical argument would apply to fingerprinting. I do not pretend to be a doctor, but I do not think your finger is going anywhere, either.
Just as you can take your fingerprint at any time you can take your DNA at any time and that, with respect, is an argument that is vacuous and misleading.
Senator Bryden: If fingerprints are taken at the time of arrest, are they destroyed if the person who is fingerprinted is found not guilty later?
Mr. Danson: Only on request.
Senator Bryden: They are not normally destroyed?
Mr. Danson: They will not be destroyed unless a request to destroy them is received.
Senator Bryden: Are they destroyed if the person is arrested and not charged?
Mr. Danson: Again, it is only on request, but my colleagues may be able to assist me on this question.
Mr. Tweedy: Unless they are charged, they would not be fingerprinted.
Senator Bryden: The point I am trying to get at is that there is no distinction between the taking of a fingerprints and the taking of DNA. That is a quote from you.
Mr. Danson: There is no distinction in terms of constitutional effect.
Senator Bryden: It is your position that if an accused who has DNA taken is acquitted, the DNA would be destroyed.
Mr. Danson: It would be destroyed as a matter of law, and if it were not destroyed, the people responsible would face serious penal consequences. Incidentally, that is in the bill in other contexts.
Senator Bryden: Should that not apply to fingerprints as well?
Mr. Danson: The answer to that highlights the point we are trying to make. The Supreme Court of Canada did not consider that that needed to pass constitutional muster. That does not prevent Parliament from making a legislative choice in that regard.
The fact that the Supreme Court of Canada did not require that as a matter of constitutional principle informs our submission as to why our proposal is even more safeguarded than the fingerprinting example.
Senator Bryden: It comes back to being even-handed. If your proposal is that DNA would be destroyed, I would expect you to treat fingerprints in the same way. Is that correct?
Mr. Danson: There is obviously logic in the symmetry of that. However, in response to the submissions from the representatives of the Department of Justice about the danger of DNA, they make a distinction there. We do not buy into that argument, but we do have a response for those who do. We would bring in a legislative response to that concern.
Senator Bryden: I have been an advocate as well. I am trying to get a direct answer. If DNA samples are to be destroyed on acquittal, would you support having the same apply, by law, to fingerprints?
Mr. Danson: As an advocate, you would know that I am here as counsel for the CPA. I have never asked that question, and I am not in a position to answer it. If you want my personal opinion, I will be happy to give it to you. My personal opinion is that, since the Supreme Court of Canada in Beare says it is not required, it is not required.
Senator Bryden: Could I ask that same question of the president?
Mr. Obst: I can tell you that that particular issue has ever never been debated. I do not know what the CPA's position is on it.
I want to clarify, however, that the police do not take fingerprints from anyone until they are charged. You may have been arrested, but if you were not charged, your fingerprints would not be taken. The charge must be laid before the prints would be taken.
Senator Beaudoin: My main concern is the Canadian Charter of Rights and Freedoms. Everyone is referring to Justice Cory's opinion, where it was said that although the issue was not raised, it would seem that the recent provisions of the code permitting DNA testing might well meet all constitutional requirements. The fact is it is only an obiter dictum. That does not mean that the court will not ratify that completely, but it is not a full decision.
Second, the act that was examined in this case requires a judicial warrant to take bodily samples. This being said, I am not preoccupied with DNA as a general rule. We should take advantage of the science. My problem is with the timing. Why would the sample be taken at the time of the arrest? Many of those arrested may never be charged or convicted.
The timing is important from a legal point of view. Of course it restricts the section on search and seizure. As you said, however, it may be justified under section 1 of the Charter in a free and democratic society. We are very divided, however. Mr. Justice La Forest was much more severe than the other judges were on this. He was interpreting section 8 of the Charter -- which deals with search and seizures -- very liberally, because it was a threat to the privacy of every Canadian citizen.
Why do you want the sample taken at the time of arrest? Would that always be done without judicial authorization?
Mr. Danson: For the sake of argument, let us say it would be at the time of charge.
Senator Beaudoin: That is a serious difference.
Mr. Danson: I would respond by saying the identical question, which could be raised in the context of fingerprinting, is "Why not at the time of being charged?" Should we take a fingerprint sample in all cases where a person is charged? The Supreme Court of Canada found that to be a valid exercise of state authority, and held that it was not a violation of section 7 or 8 of the Charter, which are the search and seizure provisions.
In Stillman, which is the case to which you are referring from Mr. Justice Cory, there is a very significant distinction, because there was no statutory authority for the police to do what they were doing in Stillman. That is very important. You see it throughout my letter, and you see it throughout Stillman.
The Supreme Court of Canada repeatedly says that, in the absence of statutory authority, you are now under the common law power of the police as exercising power incidental to arrest. There is a prodigious difference factually between that situation and an act of Parliament that addresses the issue with the proper safeguards. I am making the assumption that the writers drafted properly, and that that significant distinction is reflected.
There are two other fundamental factors in Stillman. The finding against the police conduct was extreme. They were harshly critical of the police actions in those situations. This is something that would not occur in the context of a Bill C-3 situation.
The second factor relates to the teeth impression, which took an hour and one-half to complete, as opposed to a split second. Let me give you another, perhaps more practical, example.
Let us assume that Christine Jessop's murderer is picked up on a break and enter. He knows that if he is convicted on that break and enter -- obviously minor compared to the murder -- that his DNA will be tested upon conviction under Bill C-3.The suspected murderer would know that, upon conviction, they will place him as the prime suspect in the murder of Christine Jessop.
What are the chances of that person getting bail on his break and enter? You heard earlier that 90 per cent of people charged with criminal offences are out on bail. If that person were to get bail for the break and enter, it is highly unlikely that he would show up for his trial, knowing that he will be marked for the murder of Christine Jessop upon his conviction.
That is a practical example of how the DNA taken at the time of arrest and the consequences which can be very valuable for the police.
Senator Beaudoin: You disagree with the opinion that the taking of bodily samples from a person under arrest without prior judicial authorization is not allowed under the Charter as a reasonable exercise of the power of Parliament?
Mr. Danson: I disagree with that. Next week I can give you a written response, because my opinion was not written in that context.
Senator Beaudoin: Please do, because obviously all lawyers do not agree on everything.
You seem to see that the DNA test is analogous to the fingerprint test, but there is a big difference. Do not you think that the DNA test, prima facie at least, is more invasive than a fingerprint test?
Mr. Danson: It is an important question. The technology to take DNA from a fingerprint is close to being perfected.
Senator Beaudoin: This will solve your problem.
Mr. Danson: It is important, though, because that identifies where the problem is. Mr. Justice Hill's decision, which is referred to in all the opinions, is the first judgement that really goes through the invasiveness of DNA testing comprehensively. He finds that the difference, in terms of intrusiveness, between a fingerprint and putting a Q-tip inside your cheek, is marginal.
Senator Beaudoin: But a fingerprint is only a fingerprint; the DNA test is an encyclopaedia -- everything is there.
Mr. Danson: That is absolutely correct, but it is misleading when that point is brought into this legislation. The opinion of the learned justices is that a fingerprint is just a fingerprint, but DNA can tell you more about your genetic background, diseases and everything else.
The DNA data bank does not do all of that. When the DNA test is done, it is a series of numbers. Let us say it is A4617. That number goes into the computer. That is what it is searching. It does not contain all this other information.
You saw it in the opinions of the justices. That is what they were talking about.
Senator Grafstein:We explored that point last night at great length and in great detail. The committee is very much aware of the distinction between fingerprinting, and what remains in the DNA bank. We spent several hours on that precise point last night, and we are up to speed on that.
Mr. Danson: With the greatest respect, the learned justices are wrong on that point.
Senator Grafstein: I am not sure about your conclusion, but we are sure about your facts.
Senator Nolin: If you have something in writing, please submit it.
Senator Grafstein: Anything you can do to help us would be great.
The Chairman: We will hear from another group later, so perhaps we can shorten the answers so that the senators on my list can ask you some questions.
Mr. Obst: I wish to make one comment in response to the previous question. With regards to the CPA's brief and our second recommendation, the CPA would wholeheartedly embrace a suggestion for an amendment from the Senate that related to the taking of the sample when the charge is laid, as opposed to upon arrest. I want you to be clear on that point.
Senator Beaudoin: You are amending your submission?
Mr. Obst: Yes. I thought it said "charge" here, but I just noticed that it said "arrest." This is our second recommendation, on page 7 of the CPA brief. All our arguments regarding that particular point are based around the sample being taken at the time of the charge, not at the time of the arrest.
The Chairman: As you presently do with fingerprints?
Mr. Obst: That is correct.
The Chairman: Mr. Danson was saying that soon they will be able to get DNA from fingerprints, because you get skin cells from fingerprints.
Senator Joyal: Mr. Danson, you said that you would like to see a reference to the Supreme Court dealing with the questionable constitutionality of the elements of the bill. There is the constitutionality of the interpretation of section 8 of the Charter in relation to the search and warrant, and the maintenance of a permanent data bank on DNA samples. Justice Dubin raised a reasonable doubt that this bill is constitutional. On the other hand, we have been pressed by some witnesses to act swiftly. This morning, your plea generally is in agreement with the request that we recommend the adoption of the bill quickly.
Would you support a conclusion in our report to the Senate and to the government that we refer a series of questions to the Supreme Court of Canada, and delay the passage of this bill?
Mr. Danson: Absolutely. It is better to do it right in the first place and save a lot of time later.
Senator Joyal: You also stated that the legislation in the U.K. allows samples to be taken upon arrest. Yesterday, we heard that the U.K. legislation is broad in its scope. You advocate some kind of similar privileges.
Do you have any statistics on the number of acquittals? It has been presented to us that this measure is as effective in finding people guilty as it is in discharging people. If we must weigh the decision that we must take, we must balance the inconveniences and the advantages of the system. It would help us if we were to get some statistics on that. The statement has been made, but we do not have anything on which to base that statement.
Mr. Danson: We cannot do that today, but we will get it to you.
Senator Joyal: I understand that it is a recurring argument, and I would like to put it in perspective.
You also mentioned the exception contained in proposed section 487.051, which involves applications for exemptions from giving samples. You fear a flood of appeals that would undermine the efficiency of your work. What do you base that fear or expectation on?
Mr. Obst: We wondered what sort of circumstances the authors of the legislation were anticipating when they included that clause in the bill. I am trying to think of a situation where an individual charged with an offence, as contained in the prescribed list there, would be able to demonstrate that his or her privacy would be so disproportionately invaded by the giving of a sample that he or she should be exempt. I cannot think of anything like that. However, having it there provides a loophole for another tie-up in the system in an attempt to prove that there is some sort of disproportionate invasion of privacy.
Senator Joyal: In other words, a delay in the decision is preferable to a decision that would refuse to grant you authorization to take a sample?
Mr. Obst: That is correct.
The Chairman: You will get back to us, then, with an answer for Senator Joyal's second question?
Mr. Danson: Yes.
Senator Grafstein: I am delighted to welcome Mr. Danson here. He comes from a distinguished family with a record of great public service, and I thought that should be noted on our record.
I also want to welcome Detective Sergeant Tweedy. I come from Metropolitan Toronto, and his reputation there is grand and great. When I first came to Toronto and was practising criminal law, which I gave up too prematurely, I recall a great friend of the family and a great counsel to me who held your title. He was one of the great police icons in Toronto when I first came there in 1955. His posture, his reputation, and his capture of the Boyd gang were great. He was a great detective sergeant, and he was a personal friend. I wanted to put that on the record.
I should like some statistical assistance on this matter, if you can give it to us. First, the U.K. has a wider array of designated offences, beginning with breaking and entering. I am not too familiar with that legislation. Can you give us some information as to whether or not that legislation includes obtaining DNA on arrest? What is the statistical data based on that differential, and what happens?
I understand DNA is now legislated in each of the American states. Could you tell about the statistical data, and the impact of the DNA on both arrests and charges?
Finally, the question in your text concerns samples. This is a privacy issue, and it is of concern to us. I noted that you recommend the inclusion of a mandatory duty for the destruction of the samples. You made a great point, counsel, that people should be charged if they fail to do that.
Last night, we were told that this was cost-prohibitive. As we understand it, a number of DNA gels are tested in the same process. We were told that 26 or 29 were tested, and the cost-effectiveness of removing the samples from the database would be too costly and too ineffective. Can you give us any information to the contrary with respect to that matter? That would be useful.
To help us with that information, perhaps you could read the testimony from last night. You will see that we went at this at some length. We are concerned about that as a question of privacy, as Senator Joyal mentioned. It would be of great assistance if we could have your view on that, particularly because you are so staunch about that particular proposal as a question of fairness.
Mr. Obst: Can we get a copy of the transcripts from last night?
Senator Grafstein: That will be made available to you.
Senator Bryden: Madam Chair, can we ask for the same information from the Department of Justice?
The Chairman: Certainly. A representative of the Department of Justice is sitting at the back of the room, and I am sure the department will be delighted to provide it.
Senator Buchanan: You mentioned the bill requires a person to have committed more than one murder or rape before a DNA sample can be taken. Was the House of Commons committee aware of that?
Mr. Danson: The legislation as drafted requires more than one murder or rape. If the Parliament of Canada wants to make that legislative choice, it is free to do so, and it can explain its reasons to the people of Canada. However, the answer I was given is that there is a constitutional requirement for the legislation to be worded that way. We asked what that requirement is. They have still not told us, however, which is why I conclude that there is no reason.
Senator Buchanan: Was this brought to the attention of the House of Commons committee?
Mr. Danson: I believe that it was brought to their attention. Although I could be entirely wrong, my instinct is that most members of the House of Commons who voted on this bill are unaware of this aspect.
The Chairman: Thank you very much for appearing before us. You have given us food for thought and more questions in the future.
Our next witnesses are from the Canadian Association of Chiefs of Police.
Mr. Brian Ford, Chair, Law Amendments Committee, Chief, Ottawa-Carleton Police Service: I am the Chief of the Ottawa-Carleton Regional Police Service, and Chair of the Law Amendments Committee of the Canadian Association of Chiefs of Police. I am here today with Mr. Bryan McConnell, Executive Director of the Canadian Association of Chiefs of Police, who is also a member of the Law Amendments Committee.
Since becoming Chair of the Law Amendments Committee, I have had the pleasure of appearing before this committee on several occasions to discuss many pieces of legislation. On each occasion, the association and myself have been extremely well received, and we believe that this committee continues to be concerned about the problems and challenges facing police officers across Canada. We are very grateful for that support and that concern.
We are here today to convey to you a simple but important message concerning Bill C-3, which deals with the DNA data bank. We ask that you pass this bill in order to allow police officers to move forward in the investigation and prosecution of serious offenders. In asking you to pass this bill, I want you to know that we are aware of its shortcomings. We talked about those shortcomings before your colleagues in the House of Commons when we appeared before the Standing Committee on Justice and Human Rights in February of 1998.
In particular, we expressed concern about the timing of the taking of samples. This bill provides for the taking of samples only after a conviction has been registered. As others did, we called for this process to occur when a charge is laid. This is a significant issue in terms of the size and, therefore, the effectiveness of the data to be collected.
Obviously, it also impacts upon the application of the entire bill. I am unable to stand before you today and say that we have entirely abandoned this position. We have not. However, I firmly believe that a journey of a thousand miles begins with one step. We understand that the taking of samples upon charge will not currently survive a challenge under the Canadian Charter of Rights and Freedoms, based on the opinions of the three learned justices who supplied those opinions. We read and understand them.
However, the key to today's position is the government commitment to review this legislation following the first three years of its implementation. This is central to our support. I am not shy about saying that it is our hope that, following the successful implementation of Bill C-3, the value of this legislation will be proven. As well, we are confident in the ability of the police community to collect and store this information in a way that will protect the privacy of the information and the integrity of the system.
We are certain that, in three years, the police will be able to demonstrate that this bill has saved lives, prevented crime, and provided a meaningful but lawful investigative tool. In three years, this bill will have a demonstrated track record of serving victims and the police. It will be shown, as we argued strongly before the House of Commons committee, that this bill will be preventive. However, those arguments can only be made effectively after there has been a period of success. At that time, you can be assured that we will again raise the issue of the timing of the taking of samples.
Madam Chair, the CACP is anxious to have this bill in place and available to Canadian police officers. In our view, the kind of crimes that this bill will address and the kind of victims that this bill will aid dictate that it be implemented immediately. This is very important legislation for the law enforcement community.
In conclusion, we appear here to deliver our message that the bill is important. I cannot emphasize that enough. You will note that we are unaccompanied today by our legal advisers, so we may not be able to address technical questions. We are just simple police officers, although Mr. McConnell is a former RCMP Assistant Commissioner. We are here just to say that we believe the bill is extremely important. It does have shortcomings, but nothing in life is perfect. We need a data bank. As I said, one step is a beginning. We will have an opportunity in three years to review the process, at which time I think we will have a much stronger argument.
Senator Grafstein: We have conflicting testimony about this bill. The ministry says that this is urgent, and that it has to be done as quickly as possible. The representatives from the police officers association testified that they would prefer a bill that was broader in its scope, and sustainable against Charter challenges. Now we have heard from you that the bill is imperfect, but you want to get on with the job. What are we to do?
Mr. Ford: Our association would like to see the bill passed. It is an important tool in the fight against very serious crime.
We do not have a data bank now, but we need one desperately. Yes, positions were voiced to you earlier, and I listened to some of them. There are valid concerns, and we had them as well. However, we feel strongly that the bill should be passed at this time.
We have the opportunity to come back and continue our efforts for amendments and changes to that bill by working in concert with the members of the Justice Department. We could also lobby the appropriate people within the House of Commons.
Senator Grafstein: The Senate has taken on a different role since the 1982 Constitution. One of its primary responsibilities is to be satisfied that a bill presented to us is constitutionally waterproof.
It is our duty as legislators to pass on the responsibility, and then hope that we embark upon a new and important technology. There is no quarrel with the fact that this is an important technology. We should get it up and running as quickly as possible, but with the appropriate constitutional safeguards. That remains a conundrum for the committee.
There is no doubt about our desire to move ahead, but we want to move with constitutional prudence. If we pass this bill, and important criminal investigations were then delayed because of constitutional challenge, it would be costly and difficult. That is the problem confronting us.
Mr. Ford: When this bill was first brought forward, just before the last election, we had considered that position. We were strongly of the view that the constitutional dilemma over the taking of samples at the time of charge was a preferable way to go in terms of law enforcement and preventing victimization.
However, the constitutional issue was looked at at great length by the Law Amendments Committee, and by the CACP, and we felt that the bill, when it was brought back with the new government, provided us the greatest opportunity to avoid a successful Constitutional challenge, which would really have put us into a mess. We support this with the clear understanding that there is a sunset clause.
We do not have a data bank now. We need it in order to prevent victimization, and to successfully pursue cases. With the sunset clause, we, as a society, have a chance to review how it is working and to say collectively, that yes, there are shortcomings, and shortcomings that can be shored up. Some shortcomings in legislation cannot be shored up because of the Constitution. Our view of a shortcoming might not meet a constitutional challenge. We do not have anything now, however, and we need it.
Senator Joyal: You insist on the requirement for the data bank, but there are constitutional questions around our ability to introduce a data bank within the provisos of the Charter. If a defence lawyer were to raise the constitutionality of a data bank, in your opinion, how much of the efficiency of the legislation would be impaired?
Mr. Bryan McConnell, Executive Director, Canadian Association of Chiefs of Police: If it were an unsuccessful challenge, senator, none.
Senator Joyal: A lawyer can go into court and seek an interim injunction to suspend the application of the legislation. The court would then have to balance whether or not to grant the injunction.
It would be inconvenient for us to adopt the legislation, and then, soon after implementation, to have the constitutionality of the data bank argued in court. What would happen with the rest of the legislation? We need to see what we are doing in practical life if we accept your view on that.
Mr. McConnell: If we put the data bank in place, and then deal with the hypothetical but likely possibility that it would be challenged, we would still have it in place. We would have those samples, and the bank would still be there. We would not be losing time.
If a single murderer is released between now and the time this bill finally becomes law, we will never be able to get that sample. The clock is ticking.
Senator Joyal: Are you referring to clause 13 of the bill when you refer to a sunset clause? It refers to a five-year period, and I heard you mention a three-year period.
Mr. McConnell: The bill clearly says it is a five-year period.
Senator Andreychuk: The whole system of justice is under great scrutiny by the public. They have great expectations of this system, and we do not always meet those expectations. If we put a piece of legislation into place, people are going to feel safe and secure, and that more is being done to protect them. If it is then constitutionally challenged to be of no effect, would that not go against supporting the justice system, and the confidence that people have?
Those people will feel that they have been let down; they will not understand all of the constitutional implications. All that they will see is that one guarantee that they thought they had is no longer there. Would we not be better to make sure that, when we say that it is there, it really is there?
Mr. Ford: The public really believes that we have this technological ability. We do have ability; we just do not have the capacity.
There is a perception that we have that capacity to have a data bank, and it is based on a lot of the issues that are brought forward in the media. It has been pointed out that these capacities exist in other places.
They will blame the lawyers, thank goodness, for the problems with it. We cannot stop doing something because of the fear of a Charter challenge. The House of Commons committee asked me if the bill was Charter proof. My response was that it is as Charter proof as any bill that the government passes.
Feeney changed a great deal vis-à-vis the issue of search warrants, and it invented new law. That would have been totally unpredictable at the time the law was drafted. It is not that long ago that they drafted the law regarding obtaining search warrants and entry into a person's house for reasonable cause.
Every bill that the government passes, including this bill, is subject to a possible Charter challenge. We fully recognize that. From a layman's point of view, it would appear that this bill is as Charter proof as any bill that I have ever seen. We have been advised that this bill is good as it stands. There was an issue that if we took the DNA sample at the time of charge, it would be weak in terms of a Charter challenge. The bill is now much stronger, in terms of a Charter challenge. We feel it is important to have that tool in our tool kit.
Senator Andreychuk: You made a comment that the lawyers would be blamed, and that that is a serious issue. When the judges are blamed, it does not help the justice system, when the lawyers are not, and when the police are not. We must be sure that we continually put forward the justice system.
My other comment is that if you are supporting that samples could be taken at the charge, are you also therefore supporting a destruction mechanism?
Mr. Ford: Yes.
Senator Andreychuk: Is the RCMP chief part of your association?
Mr. McConnell: The past president of the Canadian Association of Chiefs of Police was assistant commissioner with the RCMP.
Senator Andreychuk: The data bank would be under the authority of the RCMP, and they are saying that is not physically possible for them to destroy the samples. Have you discussed that with them?
Mr. McConnell: We are speaking about a hypothetical situation, or the situation where you would return this bill. As the bill currently reads this is a non-issue, because it does not permit for taking a sample at the time of charge, but rather at conviction. It is a moot point with the bill as it is currently constituted.
Senator Andreychuk: I appreciate that. My question was, if it were to be amended to say that samples could be taken at the point of charge, are you then in favour of that?
Mr. Ford: I really do not know, because I am not privy to any information vis-à-vis that issue. As an association, we still take the position that we would like to see the bill passed in its present form.
Senator Bryden: I appreciate your comments about being prepared to proceed, in a sense, incrementally. There is no guarantee that someone will not challenge this under the Constitution. The section that I am thinking of is the one where you take a sample from a convicted criminal who then does his time, and you still maintain the sample.
Someone will find a place. There must be a place to start. I believe the position which has been suggested, that there be a reference to the court to determine that the bill is absolutely sanitary from the point of view of the Constitution, will significantly delay the passage of the bill. Judges, as I have known them, do not like to deal with broad references. They like to have facts and a concrete case. That is a comment more than anything else.
Once this is in place, do you have any idea how helpful it will be? I can understand that it is very helpful if you have the DNA samples on charge, and you have a whole library of profiles. How helpful will this be?
Mr. McConnell: Senator, it must be helpful in two ways. One way is the convicted offender. In subsequent cases, when you see that DNA profile showing up, you have a pretty strong hunch who committed the crime.
Any offender with an IQ above room temperature had better be thinking that, if he or she commits another offence, his or her DNA profile is known, and is tied to them. It is a preventative tool.
Senator Bryden: You seem to look at the five-year review clause as a bit of a shield, and say that we can come back and see. I look at it in the context that if it is relatively successful, we may be in a better position to go a little further, and constitutionally it will make sense.
It will not only be the operation of the system that will be watched. The actual operation of the police forces will also be watched and, in my opinion, carefully monitored. I do not know of any basis for abuse of the system as it currently stands. I would think, however, that the police forces have a huge responsibility to act very strictly in compliance with the provisions of this bill, especially if, five years from now, you will ask for more authority to take samples when a suspect is charged.
Would you agree with that?
Mr. Ford: Yes, very strongly.
The Chairman: You have stated very clearly that you prefer that the bill be passed now, as it stands. You do have a list of druthers, however, and one of them would be that the DNA samples be taken at the time of charge.
What about another point that the police association brought up when they questioned the constitutional requirement? This is on page 16 and 17 of the bill. Before a DNA sample can be taken from a convicted criminal, that individual must have been convicted of more than one murder, committed at different times, or of more than one sexual offence.
Do you also support the stand of the police association on that? Would you also rather that that be changed or corrected as well?
Mr. McConnell: I heard the very good presentation given by the members of the Canadian Police Association, and by Mr. Danson. Clearly, it is difficult to envision how it came about that you would have to have been convicted twice. I do not understand that. I am not a lawyer. I do not understand where that would be constitutionally required. However, when people look at the revision, there will be a chance to come forward and say how that particular part of this bill is ineffective.
I honestly do not understand that, just as the CPA did not understand it. It is clearly an area that would be targeted on revision.
Senator Bryden: I believe that what happened with this provision grew out of the hearings at the House of Commons, and that these amendment developed after the bill was initially drafted.
One of the concerns initially was that the bill, as earlier drafted, did not in every instance pick up serial offenders who were already incarcerated -- that is to say, who had committed their offences before the legislation would come into effect.
The dilemma was how to do that without running the risk of being in obvious violation of the charter. If these people are tried, convicted, serve their sentence, and are released, how can we go back now and take their DNA sample?
One of the safeguards put in to guard against a Charter challenge was that we would not take just one incident. There would need to be more than once incident, and that would make it so that you could violate the search, seizure and the freedom. That is my reading of how it got in there. I do not agree with it, but I believe that is how it ended up getting in there.
Mr. McConnell: As I read it, it does not refer to a multiple murder, such as in Vernon, where several people were killed at the same time. My understanding is that this requires different timing.
Senator Joyal: Senator Bryden's interpretation is important, because it raises the possibility of getting a sample from someone who has already been released. We should check that. There may be another way to address the issue that would close a loophole, but that would not leave the issue as wide-open as the testimony we have heard seems to indicate it is.
Perhaps the department officials who are in the room today can look into that, and enlighten us as to the reasons for the provisions.
The Chairman: I am sure that they will do so.
Thank you for appearing, gentlemen.
The committee adjourned.