Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 45 - Evidence - Afternoon sitting
OTTAWA, Wednesday, December 2, 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 3:48 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now in session. I welcome you all, including our television audience, to Room 257 of the East Block of Parliament.
This is the committee's fourth meeting on Bill C-3, an act respecting DNA identification and to make consequential amendments to the Criminal Code and other acts. 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, 1998 and received first reading in the Senate the next day. The bill received second reading on October 22, 1998, meaning that the Senate had approved the bill in principle. Bill C-3 was then referred to this committee for detailed consideration.
That consideration began last week with the appearance of Mr. Jack Saada, Parliamentary Secretary to the Solicitor General, the minister responsible for Bill C-3. The committee then heard two witnesses from the central forensic laboratory of the RCMP, followed by witnesses from the Canadian Police Association and the Canadian Association of Chiefs of Police.
Our witnesses this afternoon are from the Canadian Resources Centre for Victims of Crime, the Quebec Bar Association, and the Department of Justice. Further witnesses on Bill C-3 will be heard over the next few days.
Once the committee has heard the 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.
Mr. Sullivan, please proceed.
Mr. Steve Sullivan, Executive Director, Canadian Resources Centre for Victims of Crime: Thank you, senators, for allowing me to speak to you about this important bill. My organization is a national lobby or advocacy group for victims of crime. The names of two other activists in the areas of victims' rights appear on the bill -- Priscilla de Villiers of CAVEAT, and Gary Rosenfeldt of Victims of Violence. I asked them both to attend today, but they were unable to do so. They did ask me to extend to you their support of the position I will be bringing to you today.
My remarks will be relatively brief. I am not an expert in police work, DNA technology, or the Constitution. I bring a simple perspective to you today -- that of people whose lives have been touched by violence. I bring the perspective of parents of murdered children. Some of those murders could have been prevented, and some of them have not been solved.
I bring that perspective to you today and I thank you for allowing me to do that, because I think it is an important perspective.
It is always a pleasure to appear before this committee. The last time I appeared was with regard to Mr. Wappel's bill on criminals profiting from their crimes. I always come away from this committee with much more to think about than when I came, so I look forward to the discussion today.
I think we all agree that a DNA bank is a necessary tool. The question is with regard to how the tool should be devised. I know that you have duelling legal opinions on certain parts of the bill. That is normal; that is what lawyers do. They give opinions, and they differ.
With all due respect to the opinions you have before you, the reality is that there are only nine opinions in this country that matter when it comes to legal issues or constitutionality, and those are the opinions of the justices of the Supreme Court of Canada. They will decide whether this bill, if it is passed, is constitutional. That is why I think it would have been beneficial for the government to have referred this issue to the Supreme Court in advance of this stage so that we could have their opinion. Unfortunately, that was not done.
I have read the evidence of witnesses you heard from the Canadian Police Association and the Department of Justice, as well as others. I noted that many of your questions were with regard to the privacy rights of accused and convicted people. Those are important and valid concerns. I, too, have concerns about privacy, but my concerns are about the privacy of future victims who are not covered by this legislation. Detective Neil Tweedy spoke of that concern quite eloquently. He talked about the work he has done in trying to solve the murder of Christine Jessop, a murder that is still unsolved.
My first concern with the bill is with regard to when samples will be taken. There is a mistake in my brief. It indicates that we recommend that samples be taken at the time of arrest. That is not correct. It should read "time of charge". After reading the testimony of the Canadian Police Association, I understood the difference. Our intention is to recommend that samples be taken at the time of charge.
I also read the legal opinions of Mr. Danson, and the three legal opinions obtained by the Department of Justice. Again, I am a layman with, I like to think, some common sense. I do not think there is any question that the position put forward by Mr. Danson is the most beneficial one, if it is constitutional. It would prevent crime and save lives. However, the question is not whether it is the best position, but rather whether it is constitutional.
I assume that the Department of Justice will give you an opinion contrary to that of Mr. Danson. I believe that I speak for most people when I say that DNA evidence should be treated the same way that fingerprint evidence is treated. It is true that you can tell more from DNA evidence than you can from fingerprints, but we must look at the intent of the bill. The intent of the bill is not to discover the genetic make-up of criminals, but rather to identify them. The better we can do that, the more lives we will save, the more sexual assaults we will prevent, and the fewer victims we will have. That is the intent of this legislation.
The other big issue in this bill is retroactivity with regard to the offenders serving prison sentences from whom we can take samples. The bill currently limits that to offenders who have committed two or more sexual offences, dangerous offenders, and people who have killed more than one person at different times. I fail to understand why the bill limits retroactivity to those offenders. The point was made here that one rape is not enough. If you are convicted of a sexual assault after this bill comes into effect, your DNA will go into the data bank. If you were convicted of one sexual assault before it takes effect, your DNA will not go into the data bank.
Let us consider the example of a person who abducts two teenage girls, sexually assaults them, and shoots them both within seconds of each other. Is that committing murder at two different times, or is that mass murder? Will that offender be caught by this legislation?That is an issue that needs to be clarified. The notion that one murder is not enough to justify the banking of DNA is ridiculous and offensive.
The final major issue of concern is the provision that exempts certain people from providing samples. If you are convicted of first degree murder, under this bill you will be required to give a sample of your DNA for the data bank. However, for some reason the government saw fit to include an exemption. If it can be proven that it would impact on your privacy or security in a way that would be grossly disproportionate to the public interest, protection of society and the proper administration of justice, an exception can be made. This is to be found in section 487.051(1)(a).
I do not understand why we would allow such an exception. The purpose of the data bank is to solve crimes. The more DNA samples we have in the bank, the more crimes we will solve. The bank is useless without samples.
Those are the three major concerns we have with the bill. We have laid out some further minor concerns in our brief.
When I was here on Mr. Wappel's bill about criminals profiting from their crimes, we talked at length about the tragedy of Guy Paul Morin being unjustly convicted of the murder of a nine-year-old girl. There were many tragedies in that case, the murder being one of them. The fact that her killer is still free is another. It is incumbent upon us to do everything possible to solve that murder.
You have talked to the lead investigator of the task force that was formed to solve that murder. He told you that he cannot do that without a proper DNA data bank. It is his only hope. He thinks about it nightly. I have met Mr. Tweedy, and I have a tremendous respect for him. I know that he thinks about this on a regular basis, as I am sure Christine's family, the Jessops, do.I think all of us do. This data bank may be the only way to do that. It has to be properly structured to do that.
I assume that you will hear a lot about the Charter and the constitutionality of the data bank from the other witnesses after my presentation. I would leave you with the thought that the Charter does not just belong to those who are accused or convicted of crimes. It belongs to all of us. It belonged to Christine Jessop and it belongs to her family. It belonged to Darren Rosenfeldt, and belonged to Nina de Villiers. They are not here, however, so we are here to speak for them.
The Charter belongs to me, it belongs to you, and it belongs to our children. It is not just about how it will impact the lives of accused or convicted persons. It is about how it will impact on all of our lives.
The Charter is there to protect us. It is a balance. It weighs the interests and violations of individual rights against the greater public good. If this DNA data bank bill were amended with the provisions we have put forward, it would with stand that Charter challenge. Frankly, it is the proper thing to do for the administration of justice. I will stop there, and I look forward to your questions.
Senator Beaudoin: I understand that you rely on the testimony of Mr. Danson as far as the Canadian Charter of Rights and Freedoms is concerned.
Mr. Sullivan: Yes.
Senator Beaudoin: At first, Mr. Danson was talking about DNA tests at the time of the arrest. After a few moments of exchange on the Canadian Charter, he said it would be at the time of the charge. I understand that you agree with that as well.
Mr. Sullivan: That is right.
Senator Beaudoin: The Charter test is a bit difficult to apply, because we have no direct Supreme Court decision on that point. We have, however, an obiter dictum of Mr. Justice Cory to the effect that, prima facie, it may sound perfectly all right as far as the Charter is concerned. Speaking for myself, I do not have too great a problem with the timing of the test at the time of the charge.
You raise another point, and that is the destruction of samples. What do you want exactly? We have cases of the destruction of samples, profiles, or other things. I should like to hear clearly what you want on this question of destruction -- destruction in no case, or destruction in a few cases?
Mr. Sullivan: I assume you are referring to destruction if there is an acquittal, or if the charges are dropped?
Senator Beaudoin: I understand why you might want to retain the sample if the charge were dropped. If there is an acquittal, what do you think should be done?
Mr. Sullivan: I am assuming that the bill will be amended as we have recommended. If the sample is taken upon time of charge, goes through the data bank, no matches are found, and the person is acquitted, I would recommend that that sample be destroyed.
I am not an expert on how it would be destroyed within the confines of the data bank. I have heard testimony. It is confusing, but I understand that it cannot necessarily be taken out of the data bank. The identifying marks are such that it becomes useless, basically.
If there is a way to take it out of data bank and destroy it completely, then that is what should be done. Our position would be that the sample of someone who is acquitted should be destroyed.
Senator Beaudoin: I see. What is your position for the crimes with which we are concerned?
Mr. Sullivan: If the person is charged, and the sample is taken for the purposes of the data bank -- let us assume that while he is awaiting trial, the police run his sample through the data bank and there is a match. They would begin investigating him for that offence, and get a warrant from a judge to take his sample for that offence.
For the initial offence with which he was charged, you would obviously destroy the sample. If there were a match, however, certainly that individual would come under scrutiny again. The fact is that you have a match based on the charge even though the poor soul was acquitted, and the police should still be able to use that information.
Senator Beaudoin: Do you see a difference between a fingerprint and a DNA test?
Mr. Sullivan: Personally, no. I remember doing a television debate with someone from the Privacy Commissioner's office. I will be honest with you. I do not see any difference between a fingerprint and DNA sample.
Certainly, as you have heard, you can tell much more from a DNA sample than you can deduce from a fingerprint. That is not the purpose of the data bank, however. That is not why the police want the information. In fact, the bill says that if you misuse the information, or misuse the sample, it is a criminal offence.
Senator Beaudoin: Speaking generally, no one objects to a fingerprint test. People are not reticent. They say, "Okay, a fingerprint is all right". When it is a DNA sample, some people are more reluctant, because they say it may come under section 8. The sample goes further than the pure fingerprint.
Some people came before us and said that perhaps, even with a fingerprint sample, we may have some kind of a DNA included in the fingerprint sample. In that case, it would be much easier to solve the problem. I do not know. I am not an expert myself.
I guess you agree generally with what the lawyer, Mr. Danson, said on the Charter.
Senator Rompkey: My question is very simple. I find that I have a lot of sympathy with the position taken by this witness, but I would like to know more about the Canadian Resources Centre for Victims of Crime. Could you tell me more about it? Perhaps others know about it already, but I would like to know more about it -- who constitutes it, how it is funded, and so on.
Mr. Sullivan: We are a national lobby or advocacy group for victims of crime. We work with pretty much every victim group across the country. We are a non-profit organization. Because we are a non-profit organization, not a charity, we are allowed to lobby directly.
We get funding from the Canadian Police Association, although we are independent of them. Our concerns are obviously different from theirs. Our core funding comes from them.
We appear on legislation that impacts on victims, whether it is directly or indirectly through crime prevention issues. We run what is called a National Justice Network, which is a loose coalition of victims groups across the country. We try to provide them with an information base in Ottawa, so they have information that they need to educate politicians.
Senator Rompkey: Is your funding totally from the Canadian Police Association?
Mr. Sullivan: It is from the Canadian Police Association, and from another organization called Canadian Badges in Uniform, which is an organization that is closely linked to the Canadian Police Association. They produce the CPA magazine and do telemarketing for the association.
The CPA obviously represents police officers, and they are often the first contact that victims have with the justice system. As an association, they did not feel that they could lobby for victims, but they wanted to do something. They set up this independent advocacy or lobby group for victims. The other organization was in agreement with the principles, and they decided to fund it as well.
Senator Grafstein: I noticed you wanted an expansion of the bill. Other witnesses told us that there is an urgency to proceed, and that an expansion of the bill would require it to be referred back to the House of Commons, causing another delay before it comes back. What is your view on that? What is your advice to this committee? If we have concerns -- including some of the ones you have raised -- how should we deal with them?
Mr. Sullivan: To be blunt, if this bill were passed as is, the situation would be better than it is now. We would have a data bank up and running. There is a clause in this bill indicating that it should be reviewed after five years. It reminded me of the Corrections and Conditional Release Act, which had a similar clause. It was passed six years ago, and the Justice Committee of the Commons will review it next year. Legislation will not come until the year after that. Hence, five years will become eight to ten years in Parliament.
I believe now is the time to act. With all due respect, if you have concerns about this bill, it is your responsibility and your duty to Canadians to recommend that it be amended, or to send it back to the House for further study. To pass a bill that you and your colleagues agree is flawed is not what Canadians ask of you.
Senator Grafstein: We cannot control the agenda of the other place. You are prepared to risk further delays. Do I take it you prefer a bill where all concerns are laid to rest, as opposed to one that might have some concerns in it in terms of its limited scope?
Mr. Sullivan: Even though I know it might delay the passage of the bill, I would rather see it done right.
Senator Grafstein: That is the same position as the one held by the Canadian Police Association.
Let us speak about the Constitutional issues. You do not see any difference between fingerprints and DNA as it applies to the people charged with crimes. Do you not have any concerns about the scope of this test, which is broader and more pervasive than fingerprints? It gets into a broader profile of an individual. Does it not bother you and lead you to call for more careful protection or limitations on the use of this test as opposed to fingerprints?
Mr. Sullivan: Those concerns certainly require more careful use of the samples. That is why the government has established that their misuse would amount to a criminal offence. This test can tell us more about a person than a fingerprint. That is not what this bill is about, however.
The bill does not allow for those types of tests. I will not pretend to understand the technical aspects of how it is done. However, I understand that the sample is taken and coded into a number system, which may not be a bar code, and entered into a computer. There is nothing in the bill stating that these samples can be tested to find out the genetic makeup of any offender or any accused person. That is an important distinction to make. Safeguards are already built into the bill. Therefore, I believe those safeguards address the concerns that you and others have raised.
Senator Grafstein:I wish to press the point about protecting the innocence of those charged.We have learned that fingerprints are still retained after a person has been acquitted, or the charges have been dropped. Do you have any views about that? Again, it represents an important segment of our society.
Mr. Sullivan: My understanding, in reading the testimony of the police officers who attended -- and who did not have any knowledge of it -- is that the samples can be removed from files when requested. Of course, if someone is acquitted, then their fingerprints or DNA samples should be removed from the CPIC or data bank. It seems logical to me that if someone has been found not guilty of a crime, there is no justification to hold their sample.
Senator Kinsella: What is your view regarding how big this bank should be? For example, will the crime scene index be a much larger part of the bank than the index of convicted offenders?
Mr. Sullivan: I will try to answer the question, but I do not have the knowledge to do so. I believe that the size would depend on how broad the testing is. For example, if you expand the retroactivity sections to include people who have killed more than one person, then the convicted offenders' index will rise. It would also depend on how many unsolved crimes we have across the country. I refer to when Inspector Gary Bass of the RCMP testified before the House of Commons Justice Committee. He talked about 600 unsolved murders in British Columbia alone. Which side will be bigger? I do not have the answer to that question.
Senator Kinsella: My assumption would be that the crime scene index has the potential of being much larger than the convicted offenders index.
Mr. Sullivan: With the bank up and running, hopefully the unsolved crime scene index would drop.
Senator Kinsella: There is the issue of the time at which samples are taken. Within a time line, a number of issues must be weighed in terms of measuring whether or not a given time is the appropriate time. What do you think of the idea to have, as a condition for registering a birth, a DNA profile taken and put into a national bank?
Mr. Sullivan: That is certainly a much broader issue than what we are talking about today. It is one that I have heard during the debate, and it is an issue for Canadians in general. They must decide whether they feel their DNA, even though they have not been charged with anything or convicted, should be in a bank that the government has access to. The people we are talking about today are those who have either been convicted, or against whom reasonable grounds exist to lay charges. I am not prepared to advocate a data bank that would require newborns to go into the registry. I do not think it is advisable.
Senator Kinsella: Fingerprints are not only made available within a crime investigation situation, but are also taken for child-find and security clearance purposes. Furthermore, fingerprints are used for a large variety of purposes. If one is comparing the two, a DNA profile might be very helpful in avoiding problems such as the mix-up of babies in hospitals. Recently, there have been stories about those kinds of events.
Mr. Sullivan: In order to assist in finding children and completing security clearances, fingerprints are given voluntarily, either upon consent from the parents of the children involved, or by people applying for jobs. To make it a requirement that every newborn baby be put into a national DNA data bank is different telling parents that they may file their children's fingerprints or DNA, if they wish to do so. That is a different matter than having the government make it a requirement for everyone to do so upon birth.
Senator Kinsella: Certainly. Your objective is to solve crimes more efficiently and more effectively, however, as well as having the exculpatory feature to make sure the wrong person is not imprisoned or sanctioned. Would crimes not be solved quite rapidly if you were to have the crime scene index profile, as well as the DNA profile of everyone in the country?
Mr. Sullivan: That may well be the case. I am not saying that there are not positive aspects to the notion of having everyone in the data bank.
It is a much broader issue. We have talked about limits. The department has set limits on conviction, and we have set limits on the time of charge. To expand that to people who have never been convicted or suspected of anything is something that might merit more debate.
Senator Kinsella: Would you agree that the time that this bill has identified and the time that you are proposing are a judgment call?
Mr. Sullivan: Any legislation is a judgment call, and the Supreme Court would make the call. For example, dangerous offender legislation is a judgment call.
Senator Joyal: I should like to come back to the general issue of the rights of victims. You represent the Canadian Resources Centre for Victims of Crime. As you know, when we must deal with issues like the one, we are always confronted with the rights and freedoms that Canadians are entitled to under the Charter.
In the past, has your organization studied the issue of the rights of victims versus the rights of the accused under the provisions of the Canadian Charter of Rights and Freedoms? As you know, under section 1 of the Charter there are limits to the rights of Canadians that are acceptable within a free and democratic society. In a bill such as the one we have before us, we must determine where we feel the rights of individuals should yield to victims' rights to be protected.
If your organization has studied the issue of the balance that must be struck between the rights of the accused and the rights of the victims under the provisions of the Canadian Charter of Rights and Freedoms, would you share with us your conclusions?
Mr. Sullivan: A formal study has not been done. One of the things we do on a regular basis is to examine the balance in the justice system between the rights of the accused and the convicted offenders, and those of victims. The are no special provisions for victims in the Charter. The concerns of victims of crime would be the same or similar to the concerns of a majority of Canadians. Thus, the balance you are talking about is not between accused people and victims. It is between those who are accused and the public. When we talk about victims, we should also talk about potential victims.
We have done a report on the state of victims' rights in Canada. In that report, we talk about the balance between the varying roles and the varying rights. I can make that report available to the committee. However, it does not deal with the issue of DNA data banks. It is more of a general issue on the role of victims in the justice system, and how that balances and weighs against the rights of the accused.
Senator Joyal: Have you elicited written opinions on that matter from lawyers, authors or university law professors which you could provide to us so as to enlarge our knowledge on those issues?
Mr. Sullivan: Our report was mainly on the concerns of victims of crime -- their experience within the system, and how we saw the balance. We did not consult lawyers or professors. As you may know, the House of Commons Justice Committee recently released a report on victims' rights.
Senator Joyal: I am asking the question to see how we may profit from your day-to-day experience in dealing with victims, and how they feel that their rights or status in our system are protected versus the rights of the accused.
In some circles there is the perception that the accused receive more protection than the victims do. That is why we are trying the kind of enlightenment from you that we might share on the basis of this bill. We were given to understand from previous testimony from those who are concerned with the enforcement of our laws that this bill will be a major tool in achieving the goal of establishing justice in our system.
Mr. Sullivan: We will make the report available to the committee.
There is no such thing as victims' rights in this country. There are things that we allow victims to do within the system, but to call them "rights" is a misnomer. For example, victims have the right to present a victim impact statement at the time of sentencing. If that is not done -- if for whatever reason the Crown did not ask the victim, or the judge decided that it was not applicable -- nothing happens. If the rights of the accused are violated, then he or she can have the charges dropped or receive a new trial, and rightfully so.
The notions of victims' rights and the rights of the accused are not on an even keel. Victims' rights are really treated as privileges, or things we allow victims to do when it suits the system's needs.
Senator Fraser: You have said that you would like us to amend this bill because you would rather get it right, even if that means some delay. How would you feel if the choice was between having it passed as it now stands, and having it passed amended, which, according to the legal advice we have been given, means it would face the strong chance of being struck down by the Supreme Court?
Mr. Sullivan: There is no doubt that however this bill passes it will be challenged in the Supreme Court; most legislation is.
Senator Fraser: I am talking about loading the dice. How big a risk would you be willing to take?
Mr. Sullivan: It is difficult for me to answer that question. I believe the bill, if amended as we have recommended, would withstand a Charter challenge. The question is interesting, because it would have helped if we knew already at this stage what the Supreme Court would say.
If you are asking me if I am willing to take the gamble that certain provisions will be struck down -- I have faith in the bill, if amended as we recommend, and we would take that chance.
The Chairman: Thank you for your appearance before us today, Mr. Sullivan.
Our next witness this afternoon is Ms Brosseau from the Barreau du Québec.
[Translation]
Ms Carole Brosseau, Lawyer, Research and Legislative Service, Barreau du Québec: First of all, I would like to thank you, on behalf of the President of the Quebec Bar, Mr. Fournier, for inviting us to present our brief to the committee. I am a lawyer with the Research and Legislative Service of the Quebec Bar. Issues such as the one covered in this brief are examined by our various working committees comprised of experts in the field of criminal, ethics and health law.
As I said, committee members do not represent only one viewpoint since representatives of both the Crown and the defence as well as university professors sit on our committees. We strive to carry out the fundamental mission of the Quebec Bar, namely protecting the interests of the public.
That being said, the brief now before you is somewhat outdated because the bill passed by the House of Commons last September was amended, which put a slightly different slant on things.
Senator Kinsella: You mentioned a brief. What brief is that?
Ms Brosseau: The one drafted by the Quebec Bar. Did you not receive a copy of it? I had asked that copies be distributed to you.
[English]
The Chairman: I thought the members of the committee had that. I am sorry if you did not get a copy, Senator Kinsella. This was a brief in December 1997, about a year ago.
Ms Brosseau: That is correct.
[Translation]
Ms Brosseau: I can summarize for you the main points raised in the brief. Two important provisions in the bill caught our attention.
Firstly, we found the provisions respecting the crime scene index and data on victims as well as the preservation for an indefinite period of time of the genetic data collected to be somewhat excessive. These were two objections that we raised when we appeared before the House of Commons Standing Committee on Justice.
Since we were the last organization to testify before the standing committee and that the question of victims had not been raised by other groups, we were very pleased to note that the new bill does impose certain restrictions or limitations on the use or accessibility of data on victims where such genetic data is contained in the crime scene index. We trust the same limitations apply in the case of other crime scene indexes.
However, pursuant to the new clause 8.1 in Bill C-3 passed on September 29, access to the information in the crime scene index shall be permanently removed, in accordance with any regulations that may be made under this act, if the information relates to a DNA profile derived from a bodily substance.
Mention is also made of the victim who is afforded some protection, but in our view, the safeguards respecting access to this information are inadequate. The information in the crime scene index should be destroyed and, should it prove impossible to destroy that information, steps should be taken to ensure that this genetic data is not accessible.
When we made this recommendation, we were told that existing technology was such that it was impossible to guarantee that the data would be destroyed.
While we are willing to recognize the shortcomings of technology, we believe that after a certain period of time, the recognized principle should be that this data is destroyed and thereby rendered inaccessible.
Clause 10 of Bill C-3 as adopted on September 29 also stipulates that new data analyses may be performed if new technological advances are made. I do not see why the same principle could not be applied to the destruction of genetic data.
Our second area of concern was the time factor. The bill provides for the indefinite preservation of genetic data. In a consultation paper presented in 1994, we proposed that data the preserved for a specific period of time, that is for ten years after this data had been used, after the expiration of appeal delays, and so forth. This would be consistent with the principle whereby all genetic data is automatically destroyed. If the Attorney General deems that this data is still needed, then the onus is on him to prove that this data should be preserved.
Basically, these are the issues that we want to address today in relation to amendments to Bill C-3.
Moreover, it is our impression that this bill is fundamentally well-structured. I am not here to defend the legislation, but we do find that it is well-conceived. Provision has been made for taking samples and for DNA warrant schemes. The bill also contains a kind of sunset clause, which is in fact a legislative provision which calls for the legislation to be reviewed after five years.
In light of technological advances, this review clause is a good idea. Perhaps then the whole question of destroying data could be revisited if technological advances come into play. We hold firmly to our position that the data and information should be destroyed.
Our primary concern is that the data collected could be used improperly. That is the problem that could result from this type of legislation. That concludes our remarks at this time.
The Chair: Thank you, Ms Brosseau.
Senator Beaudoin: Thank you for summarizing your brief. On the question of the destruction and permanent removal of data, what good is a test, profile or sample if it cannot be accessed? Why bother to keep it at all then?
Ms Brosseau: That is why we are recommending a ten-year time limit on the retention of samples.
Senator Beaudoin: A ten-year time limit?
Ms Brosseau: Yes, we are recommending that samples be retained for no longer than ten years.
Senator Beaudoin: Consider, for example, a major criminal. Is it necessarily a bad thing to want to keep his fingerprints on file for 10 or 15 years?
Ms Brosseau: We are saying that on principle, this data should be destroyed after ten years.
The Attorney General may, however, present evidence that the data on a particular individual should be preserved. This remains a possibility. It would simply be a matter of burden of proof reversal.
Senator Beaudoin: The burden of proof is reversed in this case. This is acceptable under the Charter in some instances, according to case law. After a certain period of time, say 10 years, the data would be destroyed, unless the Attorney General can prove that it is in the state's interest to keep a record of these fingerprints for a longer period of time. The burden of proof is reversed, but this nonetheless remains a possibility.
Ms Brosseau: Precisely.
[English]
Senator Grafstein: Sunset means the sun sets. Renewal means that the sun rises.
Senator Beaudoin: That is right.
[Translation]
Senator Beaudoin: The sun sets everyday! There is always a sunset, although that is not how you see it.
Ms Brosseau: The bill calls for a review of the provisions and operation of the act.
Senator Beaudoin: in the past three or four weeks, we have been seeing this type of clause which provides for a review every five years. Have you no objections to this?
Ms Brosseau: No, on the contrary. The legislation should be reviewed given the nature of technology. With respect to genetic data, the legislation calls for the taking of DNA profiles, because the consensus is that the best approach is to take the most reliable sample, in this case blood and saliva. Since the consultation process on the proposed legislation was first initiated, methods and techniques have evolved considerably. I think it is important to provide for a review of the operation of this act. We are talking about a fairly new technique, even though fingerprinting has been around for some time now.
Senator Beaudoin: Getting back to the retention of data for an indefinite period of time, the Attorney General of the province in question could always argue after ten years that he wants to retain the data for a particular reason. However, for how long would he want to preserve this data? Indefinitely?
Ms Brosseau: It would be a matter of judicial discretion. We always tend to favour traditional judicial discretion. It could be a case where the judge, depending on the evidence presented, decides to the retain the data for a certain period of time. At present, the legislation makes no provision for this. When the legislation is silent on a particular issue, we always favour judicial discretion.
Senator Beaudoin: My final question concerns the concept of improper use of information. What exactly do you mean by "improper use"? After all, the data is entered into the computer and is contained in records.
Ms Brosseau: Let me give you an example. The data will be used to prove that an offence has been committed. Given the current state of technology, genetic data analysis can reveal a great deal. A person may suffer from a particular affliction and profiles can help to identify a person's lifestyle and so forth. Therein lies the danger. This data can be used for a range of purposes.
Senator Beaudoin: You raise of valid point because from a scientific standpoint, tests reveal much more than what is required to ensure public safety and the potential for abuse does exist. For example, it may not be necessary for the sake of state security to know a person's entire medical history.
Ms Brosseau: Let me give you another example. Suppose a person suffers from an attention deficit disorder, a problem that afflicts nearly 20 per cent of the population. Is it important to know this? Would it help matters any? I doubt it.
Senator Beaudoin: Attention deficit disorder is a very common problem.
Ms Brosseau: It is estimated that 20 per cent of population suffers from this disorder. Technology makes it possible to know some things about people that are not relevant to a police investigation.
Senator Beaudoin: Are you proposing an amendment?
Ms Brosseau: In light of what we know, we are not. Nor do we propose one in our brief. We recognize that the danger for abuse does exist. However, this legislative provision could be reviewed after a few years. Moreover, we always have the Charter to fall back on and in some instances, the legislation could be challenged. If data is used improperly, perhaps clause 8 could be invoked.
Senator Kinsella: Clause 10.(2) on page 6 grants the RCMP Commissioner some discretionary power. Perhaps you would like to comment on this provision. I would have two questions for you. If we consider the new technology available, the analysis of the sample taken could reveal some amazing information. Is that what you are contending this evening?
Ms Brosseau: As I understand it, this clause grants the Commissioner some discretion in deciding which portions of the samples that have been collected and transmitted to him are considered appropriate and which remaining portions should be destroyed without delay. I think it is simply a matter of selecting which samples should be stored and which should be destroyed. We are talking about bodily substances here, not about genetic data. In cases where hair, blood and saliva samples have been collected, the Commissioner will likely decide to keep the most reliable sample. The remaining samples will automatically be destroyed. This further guarantees that samples that could be used improperly will not the retained.
Senator Kinsella: Then you have no problem leaving this to the commissioner's discretion?
Ms Brosseau: No, because this is more of an administrative matter. The fundamental issue here is not how the samples are to be used, but rather which samples will be stored, and which ones destroyed.
[English]
Senator Grafstein: I have a few general questions about the bar in Quebec. Has the bar made any long-term or recent studies with respect to the role of privacy and the Charter? Are there any up-to-date studies on that question, the limits of privacy as they apply to the Charter? Not of specific interest to this bill, but just generally, has the bar studied the rights of privacy and the limits of privacy?
[Translation]
Ms Brosseau: Of course, when we examined this from an ethical standpoint, we did consider privacy issues. The interesting thing about this bill, and an important consideration as well, is that it does recognize a number of principles. Therefore, should the courts be called upon to settle a dispute, since privacy is a principle recognized in the bill, the judge will certainly have to take this into consideration in his interpretation of the legislation. As the Law Reform Commission pointed out, a balance must be struck between privacy concerns and the search for evidence. This is not necessarily a bad thing. How can we forget two recent cases involving DNA identification, namely that of Guy Paul Morin and that of David Milgard.
These are two cases that come to mind where DNA evidence resulted in the release of persons who were wrongly convicted.
In both cases, the persons voluntarily provided DNA samples. As far as privacy is concerned, your question is quite valid. Had the principle not been recognized in the bill as it is presently worded, we might have been concerned about possible abuse. However, in my opinion, privacy is safeguarded.
[English]
Senator Grafstein: We were told by the witnesses for the government, and others, that their scientific evidence is that the samples that would be utilized in criminal proceedings would be limited to the identifying marks which would be limited to identification as opposed to medical profile or other things.
Has the bar looked at that question? Can the public be satisfied that this line will not be breached between use of the test purely for physical identification, as opposed to the broader essences of the test?
[Translation]
Ms Brosseau: You are correct. There has to be something more reliable, beyond just fingerprints, to identify the person. That is how we see the bill. It is not a question of identification based on information that could flow from genetic data. Again, I can understand your legitimate concerns about possible violations of privacy. This ties in somewhat with the question you asked earlier. The use of this data must indeed be restricted.
If ever this data came to be used for a wider range of purposes, as Senator Beaudoin pointed out, the Charter could be invoked to restrict or halt this improper use.
[English]
Senator Grafstein: Let me try and understand your position on this. It is still not clear in my own mind, therefore, I am asking this question for clarification.
If someone's privacy is abused while under the operation of a criminal justice investigation, or while someone is charged and the test is used for more than identification, they can only get redress in the courts as a breach of the Charter. Is that your position?
[Translation]
Ms Brosseau: I would qualify my position somewhat. The sole purpose of this bill must be to seek out the truth or obtain information. It should not go beyond that. Of course, if there are instances of abuse, then what action should be taken? I am a member of the Quebec Bar. Our members are well-trained and must comply with an ethics code. We have faith in our judicial system which must have the right to review any legislation that is eventually enacted.
It will be up to the courts to verify if indeed the spirit of the legislation is being upheld. Beyond that, I do not know.
[English]
Senator Grafstein: I have one short question on the other side of the equation. The bill is restricted to designated offences. We have been told that in England the bill is much broader and can cover offences such as burglaries or theft. In other words, it covers anything from misdemeanours to summary offences. Have you any views about the scope of the use of the DNA? Are you satisfied that the proper balance has been struck in this bill?
[Translation]
Ms Brosseau: Yes and no. The fact that some offences are designated will prove useful not only when it comes to enforcing the law here at home, but also, as we have seen, when it comes to exchanging or sharing information with other countries. This will prove extremely useful.
The problem we have is that in the case of certain designated offences such as assault, the penalty is a term of imprisonment of up to five years. We find this somewhat excessive. By assault I mean an offence where someone strikes someone else in the face. This is somewhat excessive, in our opinion. This may be new technology, but it still needs to be put to the test. Perhaps some of the designated offences for which the penalty is a maximum of five years in prison should be reviewed. I have identified several such offences. Perhaps the penalty should be reduced somewhat in those cases. The procedure involved is somewhat special.
Senator Joyal: Ms Brosseau, I would like to come back to a comment you made during your presentation. A total of 17 people are listed as having helped to prepare this brief. Eleven people were involved in the drafting of it. How many of these individuals are defence attorneys and how many are prosecutors?
Ms Brosseau: I would say that it is about half and half.
Senator Joyal: I simply wanted to get an idea. Essentially, one of your concerns is the indefinite length of time samples are retained in the data bank. Is that a correct assertion?
Ms Brosseau: Yes.
Senator Joyal: In expressing this concern, did you take into account the opinion voiced last May by the Minister of Justice and the Solicitor General, an opinion also expressed by Justices Dubin, Bisson and Taylor, respectively of the courts of appeal of Ontario, Quebec and British Columbia, particularly the opinion of Mr. Justice Dubin which in some ways challenged the constitutionality of the data bank, specifically because the samples would be retained indefinitely?
Ms Brosseau: This does pose a certain risk. Technically, if I were the plaintiff, this is something that I would focus on. As I mentioned earlier, the reason given was existing conservation technology and I do not believe that this reason is justified.
Senator Joyal: If I understood you correctly, in response to questions from Senator Beaudoin regarding the so-called sunset clause, which is in fact a clause providing for a legislative review --
Ms Brosseau: The clause calls for a review, not of the subject matter of the legislation, but rather of the provisions and operation of the act.
Senator Joyal: Clause 13 specifically states that the provisions and operation of this act shall, within five years after this act comes into force, be reviewed by any committee of the House of Commons, or of both Houses of Parliament, that may be designated for that purpose. The French version reads as follows:
[English]
13. (1) The provisions and operation of this Act shall, within five years after this Act comes into force, be reviewed by any committee of the House of Commons, or of both Houses of Parliament, that may be designated or established by Parliament for that purpose.
[Translation]
Therefore, this provision calls for a review of the operation of the act.
Ms Brosseau: Fundamentally, though, the subject matter of the legislation will not be reviewed. That is why we decided to testify before your committee today. We wanted to stress the fact that as we have repeatedly stated, the time factor is an important consideration.
Senator Joyal: Did I understand you to say that the inclusion of this clause in the bill satisfies at this time your concern about the length of time samples are retained in the data bank?
Ms Brosseau: No. It satisfies our concerns relating to the destruction of these samples, but not those relating to the length of time that samples are preserved. That is what I was explaining earlier. Clause 8.1 does not refer to the destruction of these samples, but rather to their permanent removal from the crime scene index.
Of course, the samples could always be destroyed at a later time. I would imagine that within the next five years, computer systems will have evolved to the point where we will be able to indicate, in reference to a particular case, that we do not want all of the data to be destroyed, but rather only one particular item. This clause would suffice as far as the destruction of the data goes, but as for the time factor, we still have a problem with this.
I am here this afternoon precisely because this clause does not address our concerns. We can understand that technology may not have evolved to the point where data can be destroyed, but we are not prepared to accept either that data could be retained indefinitely.
Senator Joyal: If I understand you correctly, you are satisfied that the inclusion of clause 13 would, after five years, allow for the possibility of destroying data if computer systems had evolved to a point where this was possible. Is that correct?
Ms Brosseau: Not only would it allow us to review the provisions respecting the destruction of data, but also to review the analyses conducted and the methods employed. These procedures must be reviewed on a regular basis.
Senator Joyal: There is no question that there will be some technological advances over the next five years. What you are asking today is that we establish a principle whereby a ten-year time limit is set on the retention of data, and that if there are sufficient grounds to warrant retaining the data for any longer than that, the Attorney General may make a request following the standard procedure. Is that correct?
Ms Brosseau: That would be adequate, because if the person in question were to commit another offence, there would be nothing to prevent authorities from taking another sample if the data had been destroyed. Who could possibly prevent authorities from seeking another warrant to take a sample? No one. I think that ten years is more than long enough.
Senator Joyal: Understood.
[English]
Senator Moore: Ms Brosseau, in your remarks you referred to clause 8.1, which reads, in part:
8.1 Access to the information in the crime scene index shall be permanently removed, in accordance with any regulations that may be made under this Act...
We heard information from a police witness that fingerprint samples that are no longer required are retained, unless someone applies in writing to have them destroyed. What are your thoughts with respect to this permanent removal? When and how should it be done? Should it be by written request? Should it be automatic? If it is to be automatic, how do we ensure that?
[Translation]
Ms Brosseau: I was not aware of that. We did not consider that aspect of the issue. Although I may have a personal opinion on the subject, I will refrain from sharing it with you for the following reason: I represent the Quebec Bar and as a rule, when I must present the organization's official position, I must defer to my organization. We did not have that particular information.
Even if one of our members belonged to a police force, it is likely that enforcement is not the same across Canada. Unfortunately, I cannot give you an answer, since we were unaware of this.
[English]
Senator Moore: As a learned member of the bar, what is your personal thought about permanent removal and how it should be achieved? I do not know if these regulations are drafted. It says they may be made, but perhaps we can provide some guidance here.
[Translation]
Ms Brosseau: I would not feel right about giving you my personal opinion on the subject at this time. I would be happy to do so later.
Senator Beaudoin: You seem to have a very interesting committee. I see the name of Anne-Marie Boisvert listed. Is she a professor at the University of Montreal?
Ms Brosseau: Yes, she is. She is the current chair of our committee. She was scheduled to be here with me, but because of a recent trip to China, she could not accompany me.
Senator Beaudoin: But she did sit on the committee?
Ms Brosseau: Yes, and she still does.
Senator Beaudoin: The committee is comprised of both defence attorneys and Crown prosecutors. Is that correct?
Ms Brosseau: That is right.
Senator Beaudoin: Would it be asking you too much to tell me if committee members were unanimous on this, or if a certain consensus was achieved?
Ms Brosseau: In the case of some bills, I must admit that when we do not have consensus, we let the matter drop. It is that simple. However, we almost always achieve a consensus because for the past several years now, as Senator Beaudoin can attest to more than I can, we are truly working together to achieve our goal of protecting the public. We try to put ourselves in people's shoes. We also bear in mind the provisions of the Charter and our rules of law.
I will not deny that in some cases, our discussions get quite heated and a consensus is hard to come by. Overall, though, when a consensus is reached on certain points, proposals are made to the administration committee which then, depending on the circumstances, accepts or rejects them. We do defend our position.
Senator Beaudoin: If I follow you then, the committee does work by consensus.
Ms Brosseau: Yes, it does.
Senator Beaudoin: Are there many experts on the committee?
Ms Brosseau: All committee members are experts in their own right.
Senator Beaudoin: And no one suggested any amendments?
Ms Brosseau: We did propose some amendments which are covered by clause 8.1 We did suggest various changes, but I wanted to focus on this important one, namely the setting of a time limit on the retention of data.
We are also proposing that certain designated offences, particularly secondary offences, that is those punishable by a term of imprisonment of five years or less, be withdrawn from the list of designated offences.
Specifically, we are recommending that the procedure respecting DNA warrants be comparable to the provisions of section 185 respecting warrants for electronic surveillance. We have a variety of suggestions. The two main ones which I came here to talk about concern provisions having to do with victims You will find these proposals in our brief. They are covered in clause 8.1 and were brought in following our appearance before the Standing Committee on Justice. They deal with the destruction of information, not only with the permanent removal of information from the data bank. These are the changes we are seeking and I have come here today to reiterate our position. Yes, we have requested amendments.
Senator Beaudoin: You have made a strong argument against the retention of data for an indefinite period of time. I must admit that it is rare for a court to accept provisions in criminal law which call for something indefinite.
You are recommending that information be kept for ten years. The onus would be on the Attorney General to prove that any information had to be kept for any longer than that. The general rule of thumb would be ten years.
Ms Brosseau: That is correct.
Senator Beaudoin: What do you suggest to prevent the information that has been collected from being used improperly?
Ms Brosseau: Given the very real possibility of using the personal information obtained from genetic data for an ever wider range of purposes, care must be taken to ensure that this information is used for police investigations only, and nothing else.
Senator Beaudoin: You have indeed made a very strong case.
[English]
The Chairman: Thank you, Ms Brosseau, for appearing before us today.
The committee adjourned.