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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 45 - Evidence - Evening 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 5:35 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chair: Honourable senators, I want to welcome everyone, including our television audience, to Room 257 in the East Block. This is the fifth meeting of the Standing Senate Committee on Legal and Constitutional Affairs 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 first passed by the House of Commons on September 29 of this year and received first reading in the Senate the next day. The bill received second reading on October 22, 1998, meaning that the Senate has 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. Jacques Saada, Parliamentary Secretary to the Solicitor General, the minister responsible for this bill.

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.

We heard earlier today from Canadian Resources Centre for Victims of Crime and the Barreau du Québec. We will now hear from Mr. Michael Zigayer and Mr. Stanley Cohen of the Department of Justice.

Before proceeding with our witnesses this evening, I would like to read into the record a letter I received yesterday from the Honourable Lawrence MacAulay, Solicitor General of Canada. He states:

Thank you for inviting me to appear before the Senate Committee on Legal and Constitutional Affairs on December 7, 1998, to address Bill C-3 (DNA Identification Act). Prior to my appearance, I would like to respond to two issues that were raised by Committee members on November 25, 1998 when Mr. Jacques Saada appeared before the Committee.

The first issue relates to the absence of authority in the Bill to collect DNA samples from offenders convicted of designated offences in the military justice system. Although Bill C-3 focuses on offenders convicted in the civilian criminal justice system, I share the Committee's concerns that military offenders convicted of designated offences should be included in the national DNA data bank. To resolve this issue, I intend to proceed very quickly with a new bill so that military courts will have authority to impose data bank orders by the time the DNA data bank becomes operational. As you are aware, the earliest date Bill C-3 can be proclaimed into force is 18 months after it receives Royal Assent. The 18-month time frame is required to enable the RCMP to establish and test the technological infrastructure required to support the data bank.

The second issue that has been raised by the Committee relates to the absence of authority in the Bill for an independent Senate Committee to conduct the five-year review. I support the Committee's view that a Senate Committee should have the same authority as a House Committee in conducting this important review. Therefore to address this matter before the five-year review, I intend to bring forward an appropriate amendment in the separate bill I have mentioned.

There is a strong expectation on the part of all provinces and territories, and indeed, on the part of all Canadians, that the national DNA data bank needs to be implemented quickly to improve public safety and help prevent violent crime in all jurisdictions across the country. A separate bill will allow us to meet this objective while at the same time, enabling us to resolve the important issues that have been raised by the Committee at an early date.

Thank you again for the invitation to appear before the Committee next week, and I look forward to discussing Bill C-3 with Committee members at that time.

Sincerely,

Lawrence MacAulay, P.C., M.P

Two of the gentlemen who work with Mr. MacAulay are before us now, Mr. Michael Zigayer and Mr. Stanley Cohen.

Please proceed, Mr. Zigayer.

Mr. Michael Zigayer, Senior Counsel, Criminal Law Policy, Department of Justice: Honourable senators, before we begin, I would like to introduce my colleague Stanley Cohen, a senior counsel in the human rights section of the Department of Justice.

He is also a former professor of law at McGill University and researcher director with the Law Reform Commission of Canada. He has lectured widely and is the author of numerous articles on the Charter and the criminal justice system. He is also the author of two texts, one dealing with due process of law and the other with the invasion of privacy.

I am a senior counsel in the Criminal Law Policy Section of the Department of Justice. I joined the department in January of 1981 in Yellowknife. I spent five years travelling the North as a prosecutor conducting criminal appeals for both the Yukon and the NWT.

Since November of 1985, I have principally been concerned with the development of criminal law policy and legislative initiatives. I have been involved in matters dealing with the jury, terrorism, gun control and a few other interesting topics. I began working on this legislative initiative in 1994. My intention tonight is to give you a short introductory presentation, after which I know you will have many questions.

Mr. Cohen and I welcome this opportunity to appear before you and hope that we may assist you in your study of Bill C-3.

On May 15, 1998, the Standing Committee on Justice and Human Rights of the House of Commons tabled its ninth report in the House of Commons. This report called upon the Department of Justice and the Department of the Solicitor General to assess the implementation of the DNA warrant scheme, Bill C-104, which was enacted in 1995, and to provide Parliament with an evaluation of its provisions. On October 5 of this year, the government tabled its response to the ninth report.

This response began with a brief history of the use of DNA typing in Canada; how the technology evolved, and how our laws also evolved since DNA was first used in Canada. It presented a survey of significant judgments dealing with DNA evidence and reported on the use of the DNA warrant scheme since 1995.

This response reported that, since 1995, over 500 DNA warrants have been issued across the country. Nationally, it appears that the largest number of warrants were issued with respect to investigations of offences contrary to section 271 of the Criminal Code which deals with sexual assault. The next most frequently reported offence for which warrants were issued related to section 231 of the Criminal Code, which deals with murder.

This is probably attributable to two factors. First, these are among the most serious criminal offences and, thus, are a priority for law enforcement. Second, these offences are often the most likely to result in the depositing of the offender's DNA at the crime scene and thus the opportunity to use the DNA technology that exists.

The DNA warrant legislation has proven to be a powerful investigative tool which can assist the police to exclude suspects at a relatively early stage in the investigation. It also allows the police to identify and charge the perpetrators of serious crimes, thereby improving the effectiveness of police investigations and the protection of the public.

Bill C-104 has undoubtedly been an important factor leading to guilty pleas in cases of violent crime, and this has resulted in cost savings at the prosecution stage.

Bill C-104 was carefully designed to recognize the importance attached by the courts to the protection of an individual's privacy and to respecting constitutional requirements pertaining to police searches and seizures identified in cases such as Hunter v. Southam, Poharetsky, Dyment, Borden, and others. It contained the requirement for prior judicial authorization. It set up a scheme under which police officers investigating a designated Criminal Code offence could apply to a provincial court judge for a warrant authorizing them to take bodily substances from a suspect if certain conditions were met. The DNA profile derived from that substance would be used to determine whether there was a link between the suspect and the offence.

The legislation dealt with collection procedures and the types of bodily substances that could be collected under a DNA warrant as well as which persons could collect them. It also provided a number of special provisions directed at maintaining the privacy interests of the suspect and others, specifically to deal with young offender suspects.

Bill C-3, which proposes the creation of a national DNA data bank, was designed to fit together with the DNA warrant scheme and to complement it. Its structure is relatively simple. The same collection procedures as exist under the existing DNA warrant scheme are proposed. Judicial discretion is required with regard to primary and secondary offences in every context; the prospective application of this legislation, the retrospective application of this legislation, and the retroactive application of this legislation.

The designated offences are identical in the warrant scheme and in the data bank scheme. We anticipate that the data bank will enhance public safety and eliminate as well as identify suspects. It will be extremely useful in solving "who done it" crimes; crimes such as the one that led to the Borden and Stillman decisions in the Supreme Court of Canada.

The important thing to note is that Bill C-3, as did Bill C-104 before it, contains important procedural safeguards over the collection of bodily substances. It balances factors such as the respect for bodily integrity and the control of one's own bodily substances with the privacy interests of the accused and the intrusiveness of the collection procedures.

Honourable senators, you have been urged to amend this bill to authorize the automatic taking by the police of bodily substances at the time of charge for forensic DNA analysis and inclusion in the national DNA data bank. The proponents of this notion liken the taking of DNA samples to the taking of fingerprints. The fundamental flaw in this approach is the failure to recognize that the courts have recognized a significant difference between the two. Fingerprinting does not constitute a search; the taking of bodily substances does.

The government's position on this matter was clearly expressed on March 11 of this year when Department of Justice officials appeared before the Standing Committee on Justice and Human Rights which was studying this legislation. The taking of DNA samples at the time of charge automatically and without prior judicial authorization would carry a high risk of being found to offend sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

On this issue the government had the express concurrence of the Ministry of the Attorney General of Ontario and the New Brunswick Department of Justice, both of which appeared before the committee. Subsequently, the government's position has been supported by the opinions of three former appellate justices: the former Chief Justice of the Quebec Court of Appeal, the Honourable Claude Bisson; the former Chief Justice of Ontario, the Honourable Charles Dubin; and a former justice of the Court of Appeal of British Columbia, the Honourable Martin Taylor. In unequivocal terms, these three learned jurists have concluded that the taking of bodily samples without consent is clearly a search or seizure. Moreover, as Mr. Dubin wrote, police have never had an automatic right to search and seize. Search without warrant is presumptively unreasonable.

Another question that has been raised before you is whether, at some point in the near future, it would be possible for the police to obtain DNA from fingerprints taken at the time of charge. Presumably, if the taking of fingerprints were found not to be intrusive, the assessment of the constitutional risk could be varied.

I have provided the clerk a copy of a letter addressed to me, from Dr. Ron Fourney of the RCMP, who appeared before this committee only a week ago. It demonstrates that such a technological development is in no way imminent.

This letter refers to the case of Feeney, a retrial for murder, which is presently before the Supreme Court of British Columbia. I believe we were before you one year ago, Madam Chairman, dealing with Bill C-16 which resulted from the Supreme Court's ruling in Feeney. It ordered a new trial, excluding certain evidence that had been taken in violation of Mr. Feeney's rights. This reference is to the retrial. Mr. Feeney is challenging both the DNA warrant scheme, Bill C-104, and the Identification of Criminals Act which allows the taking of fingerprints.

I will close by addressing the issue of retention, which I know was raised a few moments ago by a colleague from the Barreau du Québec. It is certainly a matter of interest to this committee.

As is proposed in the legislation, the data bank will retain both DNA profiles as well as bodily substances from convicted offenders. It may be a matter of law recently decided by the Supreme Court of Canada that there is nothing inherently unfair or illegal about the police retaining evidence and using it in subsequent investigations, if the evidence was lawfully obtained in the first place.

It is based on the notion that the person ceases to have any expectation of privacy in whatever the evidence was, if either it was given with consent or, I would suggest, obtained under a lawful warrant. This decision is dated November 26, 1998 and is cited as R. v. Arp.

Madam Chairman, that concludes our opening remarks. I welcome any questions on these or other matters.

Senator Beaudoin: First, I should like to know to what extent the case you are talking about contradicts the testimony of the lawyer who appeared before us about one hour ago. Up to now, we only had an obiter dictum of Mr. Justice Cory in the Stillman case. I now understand that we have a judgment on the DNA itself. In your opinion, is that the case?

Mr. Stanley Cohen, Senior Counsel, Human Rights Law Section, Department of Justice: Senator, to be fair, the case does not deal with the issue of DNA data banking. However, it does discuss the issue of retention and use of evidence that has been validly and lawfully acquired. Of course, a data bank is all about retention and use. Consequently, what the court says in the Arp decision about retention and use is relevant to what is being considered here.

To that extent, the comments that Mr. Zigayer has referred to are strongly supportive of the ability to create a data bank and to retain and use the information that has been gathered for that purpose.

Senator Beaudoin: May we then infer that, once a test has been taken lawfully, it can be retained for an indefinite period of time?

Mr. Cohen: There are no limiting words in that case. The issue of data banking information did not figure in the Supreme Court decision in Beare, which had to do with fingerprinting. Underlying the reality of that judgment is the long-standing Canadian practice of data banking fingerprint information and retaining it essentially indefinitely.

That is as far as I would carry any comparison between fingerprinting and DNA, because they stand on different juridical bases in terms of how the courts have treated the two matters. However, in terms of data banking and retention of information for an indefinite period, the real issue deals with the nature of the safeguards and conditions that are built into the scheme.

Senator Beaudoin: That is a response to the issue of indefinite conservation.

The second point has to do with abusive utilization. Was the decision of the court last week material in this case?

Mr. Cohen: It is to a certain extent. The Arp decision was actually taken before the Supreme Court of Canada because of what the Court had previously decided in the case of Borden.

In Borden, a form of abuse occurred in the sense that the police used a trick or a stratagem in order to obtain DNA to prove a particular offence. They actually told the person they were asking for his consent in order to prove quite another matter. Thus, an issue of abuse was involved there.

With respect to conservation, in the Arp decision the Court says that, as long as we have a situation of validity in the acquisition, there is no problem with retaining and using it. Obviously, if one verges into the area of abuse and accountability, there is a whole spectrum of controls that come into play. Mr. Zigayer is well positioned to speak to those matters.

Mr. Zigayer: The Arp decision is silent on the question of abuse. In fact, the whole notion of abuse is addressed in the legislation. When I appeared recently as a witness before this committee, the issue was raised several times.

There are a number of agencies that will have a supervisory role with respect to the management of the national DNA data bank. The Privacy Commissioner and the Auditor General will have the opportunity to review it at any time. As well, there are the internal RCMP mechanisms and the internal RCMP discipline. There is the criminal offence which is set out in the legislation and which carries a serious penalty. The RCMP Public Complaints Commission could also deal with this issue. When the Solicitor General appears next week, he may have more to say on this subject.

Through the development of this legislation, we were very conscious of the need to protect against the misuse of both the DNA samples and the DNA profiles. It is really the samples that are most subject to misuse. That is what the Privacy Commissioner has expressed in the past and why he questions the retention of the bodily substances once the DNA profile has been obtained.

On the other hand, you have heard the scientific arguments from the RCMP as to why you would need to hold on to the bodily substances. Perhaps when the Commissioner of the RCMP appears before you, he will have more details on this.

There is a need for a secure facility within which to house the bodily substances and to ensure that there is no outside access.

When there was consultation in 1996 under the then Solicitor General, Mr. Gray, a discussion paper was distributed and there were across-Canada consultations on the establishment of a national DNA data bank.

One of the questions asked was which organization would you like to see as the repository for this national data bank? By a long margin, the body in which people had the most confidence was the RCMP.

Senator Beaudoin: Are the words and expressions used in the proposed legislation before us strong enough to eliminate the possible misuse or abuse of the DNA sample?

Mr. Zigayer: I think that you have a very good beginning. It may be that there will be a completion of this beginning through the regulations, through internal RCMP guidelines for managing the data bank and the analysis of the bodily substances that are sent to it from across the country.

As I understand it, the RCMP proposes to do the analysis of all convicted offenders at its central laboratory here in Ottawa, separate and apart from the casework that the other forensic labs in its system will be doing.

Through both the regulations and the internal guidelines and policies, we can have confidence that there will be security for the bodily substances and there will not be any abuse of bodily substances.

It is also important to note that the RCMP has been working with these types of materials for approximately 10 years and there have not been any problems up to now. There has always been the potential for something to go wrong but it has not gone wrong because they have very stringent controls.

Mr. Gaudette, Mr. Fourney and others at the RCMP have been careful to establish systems to ensure against errors but also to ensure against the misuse of the materials given to them.

Senator Andreychuk: On a question of clarification, you were saying that the law would be embedded either in the regulations or in the internal processes. Where will it be?

Mr. Zigayer: I do not know. I have not been involved in that work. I know that the work is underway now and that there must be consultations with the provinces of Quebec and Ontario. There must also be consultations within the RCMP, between Ottawa, which is the headquarters, and its other satellite labs. I have been told that I will be involved in the development of these regulations. However, at this point, there is nothing to show you.

There have been discussions. It was only about a month ago that there were consultations at the Canadian Police College. People were brought in from across the country to start working on this.

At the same time, it is also important to remember that, before this is up and running, it will take about 18 months. We do have time to apply ourselves to do it right -- to look at what the Americans or the British are doing with respect to the protection of information or the treatment of items which go into the data bank as well as the exchanges between satellite labs and the central lab.

At this point I am not going to mislead you. There is nothing to show you. Perhaps the commissioner has more information than I have. You could ask him.

Mr. Cohen: There is one further observation that one could make in relation to preventing abuses and safeguards. There is the entire criminal law overlay here, both within the legislation itself, in terms of the penalties that are created, as well as the possible use of certain Criminal Code offences such as breach of trust. Those are additional levers that could come into play.

Senator Grafstein: Mr. Cohen, I am not familiar with the recent articles on privacy. I understood in your introduction that you had written a recent article on privacy, is that correct? If so, I would appreciate having a copy of that article. I enjoy spending my midnight hours burning the oil and reading articles on privacy.

Mr. Cohen: I wish I could help you out. The text that I wrote on privacy is called Invasion of Privacy.It relates to the state of Canada's wiretap laws in 1983.

Senator Grafstein: Was that was post-Charter?

Mr. Cohen: It was post-Charter. In the years immediately after the introduction of the Charter, the Supreme Court took a hard look at a variety of provisions in the Criminal Code and struck down those dealing with wiretapping. A new wiretap law was introduced, but I cannot claim credit for that.

Senator Grafstein: Does that article have any current shelf life or has it been superseded by legislation?

Mr. Cohen: It does not relate to DNA. It relates to electronic surveillance. There is some general treatment of privacy at a conceptual, theoretical level.

Senator Grafstein: I should like to see it. If there is a copy available or if you could give us the citation, I would be happy to read it.

Mr. Cohen: I would be happy to provide a copy.

Senator Grafstein: We have just received the Supreme Court decision in R. v. Arp . Unfortunately, Madam Chairman, we have not had a chance to read it. We are reading it as we listen to the testimony, therefore, if I get some of my comments out of context, please correct me.

It seems that Mr. Justice Cory says -- and it is, I assume, an accepted principle of criminal law -- that the criminal standard of proof applies to the determination of the ultimate issue of guilt or innocence and not to any individual items of evidence.

It appears here that he is not concerned with the fact that a DNA sample obtained on consent for one purpose could be utilized for a subsequent criminal offence. Do I have that right?

Mr. Cohen: My understanding of the judgment is that the treatment of the issue of the standard of proof did not bear on the question of the use for a subsequent offence.

Senator Grafstein: I understand that. He meant it as a general principle. In other words, he laid it as a general principle, and the ultimate issue was guilt or innocence. He seemed to place individual items of evidence as a secondary issue. He was looking at the ultimate question.

Let me rephrase my question. In the case itself, it appears that a DNA sample was taken for one criminal investigation, on consent, then utilized subsequently without consent for another investigation.

Mr. Cohen: That is the point where this case differs from the Borden case.

Senator Grafstein: I understand that, but I am talking about this case.

Mr. Cohen: In this particular case, the consent that was initially given by Mr. Arp was for the future use of that evidence in criminal proceedings and it was not limited. That is why Mr. Justice Cory was prepared to agree essentially to the validation or the admission of this particular piece of evidence. He was concerned with whether or not there had been any manipulation. If there had been a limited form of consent that had been given, or had there been some trick or stratagem that had been used, then the case would be on all fours with what occurred in the Borden case and the evidence would have been rejected. There would have been a constitutional violation.

Senator Grafstein: Let me understand this proposed legislation. Essentially, you now obtain consent indirectly by warrant. You can obtain a sample by means of a warrant and the process is, in effect, a due mechanism establishing a reasonable probability -- and I am paraphrasing -- establishing a reasonable prima facie case of criminal action, Therefore, for that specific investigation, a sample can be obtained.

We have also heard that, because of the mechanisms that we talked about before, the sample cannot be readily withdrawn once it has gone into the data bank. This is one of our concerns. Let me take you through the steps.

Assuming that a person is involved again in another criminal investigation, as in the Arp case, does a warrant obtained for one investigation provide assent for a subsequent investigation as well? Or is it limited?

Mr. Zigayer: The legislation, Bill C-104, limits it unless it is related to the same transaction, in other words, the same incident. In such a case, there is a provision under Bill C-104 to use the sample.

For example, if a person commits a serious assault on someone, he is charged with aggravated assault or attempted murder. If the victim dies, the investigation becomes murder, which is another designated offence. The warrant would allow the use of evidence in the new charge, because it is considered the same transaction.

Senator Grafstein: Because it arises out of the same sequence of facts.

Mr. Zigayer: However, whatever is obtained under the warrant would never go to the data bank, unless there is a conviction.

Senator Grafstein: That is a safeguard.

Mr. Zigayer: That is a very important safeguard. Even in the case of a conviction, use of the data is at the discretion of the court.

In the case of a primary designated offence, the presumption is that it will be used, although the convicted offender has the opportunity to convince the court not to use it. With respect to secondary designated offences, which worried my colleague from the barreau, they could range from very serious to trifling cases. Such cases, however, are at the discretion of the Crown.

Senator Grafstein: Someone mentioned provisions built into the legislation whereby there would be a penalty if there was abuse of samples.

We seem to have reliable safeguards concerning the use and abuse of samples, not only by police forces, but also in the laboratories. It all falls under the commissioner's supervision. However, when it comes to international use of the DNA, these domestic safeguards will not be in place because domestic law cannot intervene in the sovereignty of another state. For example, with respect to a contract, is that a fair assessment of the situation? By contract, I mean a treaty contract that has a concurrent agreement for the use of the material, but does not allow Canadians to obtain protection from agents of a foreign country who might use or abuse a sample.

Mr. Zigayer: Before any exchanges of DNA samples or DNA profiles occur with any country, it will be incumbent upon the RCMP commissioner, or whoever does the negotiating, to ensure that certain provisions are included in the contract.Such a treaty could specify that, once the substance in question has been analysed and compared against the contents of their data bank, any residue would be returned. What is important for us, and what is important for them, is to compare the profile.

Senator Grafstein: Policing agencies like to keep as much as they can. They are very reluctant to give up evidence of any nature that would fit in a data bank. Our problem is to properly limit such situations under the Charter. It is our responsibility. How do we satisfy our citizens that they are duly protected under the Charter?

Mr. Zigayer: We must be careful when negotiating such agreements. There have not been any agreements signed and I do not believe that the Americans have a similar reciprocal provision in their legislation allowing such an exchange. However, we are building into the system, sharing capabilities in case the United States or England would wish to have such an arrangement in the future. This is important, not only in the area of criminal law, but also when dealing with sexual assault, homicide, and matters such as terrorism. As an example, one of the uses of DNA was to identify the persons responsible for an explosion in which a judge was killed in Italy.

As I remember it, the perpetrators waited on a hill for the judge's car to go by. While waiting, they smoked cigarettes and threw the butts on the ground around them. When the judge's car went by, they detonated a bomb that had been placed on the road. The investigators used the DNA from the cigarette butts to find the trigger person and thus obtained from him the names of the leaders.

This is an organized crime incident, but there are other applications in dealing with terrorism that might be helpful.

Senator Grafstein: I hear your answer, that those issues should be left to the negotiators and this legislation is not really set out from a domestic standpoint.

Mr. Zigayer: On page 4 of the legislation, clause 6(5) reads:

Subsections (3) and (4) apply only if the Government of Canada or one of its institutions has entered into an agreement or arrangement in accordance with paragraph 8 (2)(f) of the Privacy Act, with that government, international organization or institution, as the case may be, authorizing the communication solely for the purposes of the investigation or prosecution of a criminal offence.

I do not have paragraph 8(2)(f) of the Privacy Act with me tonight, but my colleague Mr. DuBrule, who will be accompanying the Solicitor General on Monday, may be able to provide you with more assistance.

Senator Grafstein: I know from experience with my American colleagues in Congress that they are very protective about allowing a foreign agreement to impinge in any way, shape or form on their sovereignty as it relates to prosecution of their people.

Mr. Zigayer: I do not think we would oblige them to prosecute their people for something, but certainly these are going to be one-off situations.

There will be an umbrella agreement and, as I understand it, similar to the mutual legal assistance where there is an issue, it is brought forward as a one-off and decided. If we discover that there has been abuse of the system, it is certainly open to us to refuse to undertake any more cooperation in this area.

Mr. Cohen: One additional aspect has to do with the fact that, while we cannot control the actions of another sovereign nation, we do have control and the Charter does reach the actions of Canadian state actors and all Canadian state action. We control the nature of the agreement, and the way in which that agreement is being implemented by Canadian police in providing samples. If, as you seem to be concerned, there are known abuses that are taking place under that action or agreement, then I would suggest that the Charter does reach that particular kind of activity. I am strengthened in that view because, not too many weeks ago, the Supreme Court of Canada handed down a decision which even extended the reach of the Charter extra-territorially in a case called Cook. There is some room there. I would not be too extravagant in what I would claim from that, but there is some room.

The Chairman: Further to Senator Grafstein's comments on that issue, Canada then comes to an agreement with the United States and shares certain DNA information with them. That is according to all the legislation that we have, including the Privacy Act.

What control do we then have over the United States, or any other country, about sharing that information with a third country -- a country that we ourselves would not sign any agreement with?

Mr. Zigayer: Your question is, if we have an agreement with the United States to exchange this type of information for law enforcement purposes, what is to prevent them from sending this very same information on to another country. This must be written into the agreement. The deal is between ourselves and whoever is the contracting state. I absolutely believe that one of the provisions must be a limitation on secondary transmission.

The Chairman: Do you think that should be part of the regulations?

Mr. Zigayer: It is open to the commissioner and the Solicitor General to develop the regulations that they consider are appropriate for the administration of the proposed DNA identification act.

In general terms, I see this as being a rational provision, whether you include it in the regulations or you instruct your lawyers who will be negotiating the treaty that this must be a condition.

The Chairman: This might be something to revisit five years down the road under the review provisions of this act.

Senator Joyal: Madam Chairman, your comments should be included in our report to the Senate. It is a preoccupation that we all share because it is too easy to have access to information through the back door when we do not wish to give that information at the front door.

I take this opportunity to ask the representatives of the Department of Justice the very questions that some witnesses have brought forward to us. I refer to the difference in treatment for people who have committed more than one crime. I am referring to the clause in the bill that amends section 487.055(1). You will remember that this is the section whereby representatives of the association of chiefs of police and other witnesses do not understand why a person must commit a series of crimes at different periods of time to find herself or himself under the provisions of section 487.055.

Could you tell us the origin of that provision in the bill?

Mr. Cohen: We must begin with the proposition that any aspect of retroactivity that one introduces into a measure of this nature increases the risk -- if one can put it that way -- to the measure as a whole, because of the general distaste for retroactivity in penal statutes. One starts with the proposition that there should be no crime and no punishment for that crime if it was not a crime at the time that it was committed. There should not be any penalty imposed that was not the penalty available at the time that the act was disposed of in court.

These principles basically find expression in sections 11(g) and 11(i) of the Charter. Therefore, if you wanted to say what would be the most Charter-proof type of legislation one could bring forward, one would be talking about a purely prospective piece of legislation which would deal only with the taking of samples upon conviction. There are very strong public policy justifications for wanting to enlarge that. In fact, the legislation does enlarge the field by extending its reach to three groups of currently serving offenders: dangerous offenders, multiple sex offenders and multiple murderers.

These three groups were selected because the primary justification for the protection and safety of the public could be most manifest when we were bringing these particular groups within the ambit of the act. Dangerous offenders, by their very nature and by means of the process that has been used in order to label them as dangerous offenders, are offenders who have been deemed to be a continuing risk to society. Multiple sex offenders are offenders who have a high rate of recidivism in terms of their criminality. While recidivism rates are low for murderers, when we have the phenomenon of a person who has committed a second, separate murder, we have a sufficient signpost that what we have here is an individual who represents a serious threat to society. This, again, goes to the issue of justification for taking samples from this particular group.

As one moves out beyond that, one increases the risk to the measure of the whole. It may be that Charter jurisprudence will evolve, perhaps in response to a challenge to the point where it may be clear that the courts are prepared to tolerate a degree of latitude. It may also be the opposite. The courts might think we have taken too big a risk. In our analysis, we come to the conclusion that this is constitutionally sound, or at least that there are credible arguments that can be brought in support of the measure as it stands.

Once the legislation stops coming into being and the reality is tested, what will stand the test is the restraint and the tailoring that has gone into the legislation. If one reaches for too much, one imperils the whole project.

Mr. Zigayer: It is important to recognize that this is a consequence of conviction. It is not actually an aspect of sentence, but a consequence of conviction. It may sound like I am playing with words, but it is an important concept.

To provide a little more background on dangerous offenders, when these persons are found guilty at the end of a trial, instead of the Crown proceeding with the ordinary sentencing procedures, it will seek a direct authority from the attorney general of the province. The Crown must be supported by the attorney general of the province in making an application to the court to have the person designated as a dangerous offender. Psychiatric evidence is called. It allows the court to have a certain determination of the future risk this individual poses to society.

I certainly am confident that this is the strongest aspect of the retroactive scheme. Persons who are dangerous offenders remain dangerous offenders.

With respect to the repeat sex offender, statistics indicate that there is a higher rate of recidivism. This would certainly justify, or at least enable us to argue before the courts, that there is a justification for including them in the group.

When you look at murders, you must think of Mr. Latimer. He is a one-time murderer. He has been convicted and sentenced before this legislation comes into force. Would the court consider him the type of person to be brought within the scope of the legislation if it were retroactive, if we went the way the police were suggesting and say all murderers? Or is it better to preserve the legislation by saying persons who have already shown twice that they are prepared to commit a homicide pose a higher risk to society? Those persons may present a higher risk, and that is how we hope to defend this legislation. I am sure that we will have to defend it at some stage. We are defending everything these days.

Senator Joyal: In other words, your own interpretation of what could stand the test of the court led you to include in that clause the repetition of the same crime. In terms of sexual offences, you make a distinction between that and someone who, as you say in paragraph (b) of the bill, has been convicted of more than one murder. In other words, you base your conclusion on the nature and the repetition of the crime more than on the simple one crime. Have I understood what you are saying?

Mr. Zigayer: I think you have the gist of it. It is not my opinion. It is the department's view that where there is a higher risk, there is a greater justification for a greater retroactive approach.

As my colleague Mr. Cohen was saying, in principle, it is very difficult to conceive of the enactment of any retroactive legislation. In fact, when representatives of the Criminal Lawyers' Association appeared before the Standing Committee on Justice and Human Rights that was considering this legislation, they suggested that the whole provision would fall because it was applying ex post facto to an offender who had previously been convicted. The courts were at that point functus.

Senator Joyal: Are you saying that even so, you expect this clause could be contested in court in an effort to have it declared null and void under the Charter?

Mr. Zigayer: I suppose Mr. Cohen and I would say that reasonable arguments could be made in support of this legislation.

Senator Joyal: In the history of our criminal law, are there other examples where retroactivity stood the test of the court?

Mr. Cohen: Many examples of retroactive legislation are debated and discussed in the courts. Before the Charter, they were dealt with as a matter of statutory interpretation. The principle against retroactivity was thought to be confined primarily to substantive law and not to be a barrier to applying the law retroactively to matters of procedure or evidence. Nuances and complexities come into any discussion of retroactivity.

A case where it was contended that retroactive law was in place and was unconstitutional concerned the war crimes litigation involving Mr. Finta. The Supreme Court took the view that this was not retroactive legislation. However, one of the judges said that it could be viewed as retroactive legislation, but nevertheless would be justifiable under the Charter. That opinion at least shows you an example of judicial decision-making where, even if you infringe on a constitutional principle, the legislation can still be upheld because of the policy justifications.

Senator Joyal: Perhaps the witness would turn to the last two pages of the judgment in R. v. Arp. On pages 25 and 26 of the judgment, there is a very important element that I should like to read into the record. I believe it touches exactly on my previous discussion. It states:

It is, in my view, both illogical and undesirable to suggest that when a body sample, be it hair or blood, is voluntarily surrendered to the police with full recognition that it is to be used in the course of the investigation that there continues to be an expectation of privacy extending to the "informational content" of that sample. In my view, no such an expectation real or implied existed$.

Of course, that is based on the condition of the given consent being valid, as the court stated in the previous paragraph. The consent being valid means that the person under investigation is informed that what he or she is giving as a body sample will be used in the investigation or in other aspects of crimes related to that investigation.

How can we reconcile the situation where a body sample is surrendered voluntarily and the case, as Justice Dubin mentioned in his opinion, where the sample has been taken through "the intrusive nature of bodily sample seizures"?

When a person submits himself or herself to give a sample voluntarily, that is one situation. However, when a person is under a seizure, that is a different situation. Where do we draw the line for "informational content," the wording used by the court, which I think is important?

We know from the present scientific presentation that "the informational content" of DNA is almost endless. Once it is in the bank, it will be available forever for all types of information accessibility. In the bill, where do we draw the line between those two situations? In my opinion, persons who are under a seizure do not have the same type of guarantees as persons who voluntarily offer samples and say that they have no problem, that the police may do whatever they want with their samples.

The judgment to which you refer establishes a principle. However, I do not think it is a principle which can be stretched to the point where the informational content is pervasive, all over the board and forever. It will be that way once it is in the data bank.

Mr. Zigayer: It is important to remember what Mr. Justice Dubin was reviewing in his decision. He was analysing the police proposal for an automatic seizure without prior judicial authorization. He is said that that will not apply.

In the Arp decision, we have a substance lawfully obtained by the police. The police can lawfully obtain substances or exhibits in a number of ways. First, they can be given by consent. That is what happened in the Arp case. It also happened in the Borden case but, as Mr. Cohen said earlier, there is a distinction to be drawn on whether it was an informed consent. Consent is one way to lawfully obtain information or evidence.

Another way to obtain evidence is through a warrant or a judicial authorization, whatever you want to call it. One should step back and see the larger picture and then ask whether it is a lawful seizure. If it is, then the person from whom the substance has been taken has lost the expectation of privacy.

Senator Joyal: Does the loss of privacy relate to that specific accusation?

Mr. Zigayer: Yes, it depends on the understanding. It depends on the authority in the warrant or in the authorization. In the DNA warrant scheme, we are very clear. We even make it a requirement for the police officer, before he takes the sample, before he proceeds with that investigative procedure, to tell the person the purpose of the warrant and what can be done with it.

Similarly, there is a purpose set out in the DNA data bank legislation. In the DNA Identification Act, which is the title of this bill, we see what it is all about. There is a statement of purpose and a statement of principle.

The consequential amendments to the Criminal Code, which allow for courts to make these orders, are tied into this bill. There is a very clear statement in public law -- through Parliament having passed this legislation, I hope -- as to that purpose. That purpose is to enable police to investigate crimes, to protect society and to justify the sample taking and sample retention. The Arp decision states that there is no time limit for the retention.

Senator Moore: Is there no limit once the sample is voluntarily given?

Mr. Zigayer: If the police lawfully obtain the sample, whether by consent or warrant, then they can retain it indefinitely. That is how I am reading the Arp decision. Perhaps Mr. Cohen has a different opinion.

Mr. Cohen: You have asked how we can reconcile the Dubin opinion with the Arp decision. You have asked where we draw the line. To begin with, Mr. Justice Dubin is consistent with Arp. The Arp decision concerns a case of acquisition of DNA information on consent. That is where it draws the line. The consent must be a true consent, a fully informed consent. The scope cannot be limited.

Mr. Justice Dubin asks the question: Can you take DNA samples without a warrant on arrest or charge by the police? He draws the line by saying that a warrant is needed, that a sample cannot be taken without a warrant.

How does that line up with Bill C-3 and data banking? Bill C-3 gives you another entity but it is a close analogue to the warrant. Basically, it is this judicial order that is discussed. This order is compatible with the standards set out in the Hunter v. Southam decision. A judicial order is essentially a judicial authorization, which can only be obtained after demonstration of proof beyond a reasonable doubt that the person committed a designated offence. It is subject to judicial discretion to refuse to make that order. It basically makes only a minimal intrusion on the individual's expectation of privacy because it is applied to the individual who has been convicted of a designated offence.

Once convicted of an offence, an individual's privacy expectations are diminished accordingly. There is commentary and Supreme Court jurisprudence to verify that as well. The lines are drawn in these three settings and they are consistent with each other.

Senator Joyal: I agree with you regarding the procedure under Bill C-3. It must be strictly followed. Authorization must be granted by a judge to get a bodily sample in relation to a specific offence where the judge is of the opinion that there is serious reason to believe that the person may be guilty. I do not question that. Once that sample has been properly taken, the Court has essentially already found that a person has lost, to some point, his or her privacy. However, that privacy is not lost forever and on every account. There are limits to that loss of privacy.

I am concerned about the permanency of the data bank. I think you have heard the testimony of the previous witnesses. There is serious concern among credible people in the legal system that a data bank without any term limit seems to go beyond what is reasonable in a free and democratic society.

Justice Dubin said that, in weighing what is in the data bank versus the need for the public to be protected, there appears to be no weight in that approach.

Once a person has been sentenced, the invasion of his or her privacy goes on forever. The fact is that a sample of their blood or tissue, will be in the data bank forever. There are no time limits in terms of protection under the Charter.

You have been very cautious in your explanation about the retention process. I am not sure that you will meet the test of the court on that issue.

Mr. Cohen: There is one sentiment that has been expressed in the jurisprudence that at least provides a partial answer to what you say -- and what you say persuasively, senator. In O'Connor, which does not have to do with data banking, but has everything to do with personal privacy and information, Madam Justice L'Heureux-Dubé stated that privacy can never be absolute; it must be balanced against legitimate societal needs. The Supreme Court has recognized that the essence of such a balancing process lies in assessing a reasonable expectation of privacy, and balancing that expectation against the necessity of interference from the state.

It is true that what is involved here is an important kind of balancing process. The courts that have looked at the DNA scheme under Bill C-104 have examined the purposes that have been pursued in that legislation, which are equal to the purposes that are being pursued here. They have found those purposes and objectives to be compelling. The argument, at least, is in support of this approach. When the courts come to consider the data banking scheme here, they will also find it compelling.

Mr. Zigayer: I listened to the representative of the Barreau du Québec. She mentioned a 10-your limit on the retention of every individual sample retained for the data bank purposes. In other words, 10 years after each order, the Crown would have to go back to court to ask for a continuation of that retention order. I cannot imagine what this would cost the provincial Crown, because they would have to have people doing this full-time. In fact, there would be a great deal of confusion, too, in terms of trying to keep track of these things as they expire at the 10-year point.

I think that Arp will assist us, as will our experience with the fingerprint data bank. In Bill C-3, we are distinguishing ourselves from the fingerprint data bank, in that we do not permit the retention in the DNA data of DNA profiles of persons who have been acquitted. There is an important distinction between that and the fingerprint data bank.

In principle, the informational content of that fingerprint data bank can be retained indefinitely. We have had it in place since early this century. Thus, we do have a model to look at. If we are assessing the objectives of the two, they are fairly similar.

Senator Joyal: I submit to you, as was submitted to us by some witnesses who are practitioners, that that section could be contested in the courts. I think it is one of the weak points of the bill. As far as retroactivity is concerned, one can realize that the serial killer is certainly someone who is a danger to society. That is a matter of common sense.

The list of offences is pretty long. As Ms Brosseau testified, I am not sure that the interests of the public's protection are totally ensured by the maintenance of this informational content, nor I am certain about what will be accessible in the years ahead.

The point of the bill is to authorize storing informational content in a data bank, but we do not know what our technological abilities will be in five years. Scientific people have told us that someone's propensity can be identified. I have difficulty reconciling myself to such an intrusion into someone's life. The fundamental principle of our system is that, once you are sentenced, you do your time, and you may return to society. Keeping a record forever stigmatizes those people.

Mr. Zigayer: When we designed the warrant scheme, as well as the data bank scheme, we did not make it applicable to every offence in the Criminal Code. We dealt mostly with violent crimes, including sexual assault, and not property crimes in general. Thus, you see those types of crimes in the lists of designated offences, both primary and secondary. That is one measure we have taken to try to address the balancing problem that you have identified, senator.

We have done another thing, as well. We treated young offenders in a different way. We have incorporated the record-keeping approach found in the Young Offenders Act into our approach to the retention of DNA profiles and bodily substances under this legislation. For example, a young person has committed a designated offence -- let us say a break and enter -- and the court orders that a bodily sample be taken and included in the data bank. At the end of a certain period of time, that person's record under the Young Offenders Act would be set aside. The same approach is being taken with respect to the retention of samples and setting aside the profile.

As for a permanent or long-term consequence of conviction -- and, I want to raise this for your consideration -- there are the firearms prohibition orders. They can be made for a lifetime. That is a long time. I suspect that my colleague, Mr. Cohen, might be able to identify a few more types of consequences of convictions that have a long-term impact, even beyond the expiration of sentence.

For example, you can commit a robbery. Let us say that you are imprisoned for one year for the robbery. Your firearms prohibition order will continue into the future. If you have committed more than one offence, the court may impose a lifetime ban on the possession of firearms. That is to say, it can have a long-term effect.

Senator Moore: The possession of a firearm is a lot different than having your characteristics reported genetically.

Mr. Zigayer: I appreciate what you are saying. However, it is important to return to what the RCMP experts told us about exactly what they are keeping. They go to those parts of the chromosome that are described as non-coding and highly polymorphic. "Non-coding" means that at the present time, across this planet, no one knows what these locations on the DNA molecule are for, or whether they code for anything. Perhaps they just act as filler. I do not know, and the scientists do not know. They have not been identified.

They have gone to those non-coding areas specifically to avoid bringing into the DNA profile any information such as the predisposition for cancer, or whatever. They have told us that they have sought those types of locations or markers so that they can have a profile that tells only how this person is distinguished from other persons. That is the highly polymorphic side -- that is, highly differentiating between individuals.

Senator Moore: Does it distinguish as to race?

Mr. Zigayer: Our friends from the RCMP are here tonight. I do not know what they look for, but I am sure that they could find it if they wanted to do so. I think they are looking for things that differentiate between individuals. They are here, so perhaps we can ask them.

The Chairman: We were told that they specifically picked these particular locations because they did not code for anything that anyone, as yet, has discovered.

Mr. Zigayer: That is another measure being taken to try to minimize the Charter exposure and concerns over privacy.

Senator Fraser: This follows directly on the preceding discussion. One of the great safeguards that has been described to us is that the testing will only concern these 13 loci, which code for nothing and are extremely unlikely, we think, ever to be found to code for anything. That would be a great safeguard, but I do not see anything like that safeguard written into this bill.

Am I missing something here? All I see is the admirable clause 4, which says that we must protect personal privacy. I do not see anything specific about testing only for this unique material. In some cases, it would be a tremendous temptation to test for other things when a horrible crime has been committed. If that is what we are testing for now, and if that is all the machines test for now, then this may be more of a future worry than a present one. Nonetheless, have I missed something in this bill?

Mr. Zigayer: You are absolutely right. There is nothing written into the legislation that requires the forensic laboratories to seek out only those highly polymorphic non-coding loci on the DNA molecule.

At the same time, we heard from the representatives of the RCMP the other night that they are not interested in that. They want to find those highly polymorphic non-codings. That is what they are looking for, and that is what would be of most benefit to them. I suppose their colleagues in other countries may be at the cutting edge of DNA technology in developing means of identifying individuals.

You might want to raise this point with the commissioner of the RCMP. It might be appropriate for this fine-tuning of the legislation to be achieved through the regulations. For example, if this occurred two or three years ago, the RCMP might have proposed nine loci to you. However, they have now developed new tests, and they want to be more exact in their identification.

In order to eliminate more suspects -- and so that the computer churns out one suspect, not 20 -- they now want to go to 13 loci. It would be a lot easier to amend regulations than it would be to bring a bill forward and have it amended through Parliament. It might be more appropriate to address that through regulations or through internal RCMP guidelines. I should not express a preference on either of those.

Senator Grafstein: This is interesting. On the public policy side, we have decided that for purposes of youth, public policy is such that we want to restrain and contain the use of materials obtained from them for data bank purposes. That seems to be good public policy.

What is the limit in the Young Offenders Act?

Mr. Zigayer: It is the age of 18.

Senator Grafstein: Let us say that someone is one month over that age, and he is charged with an assault. His name is then entered into that data bank in perpetuity.

There appears to be some recognition of this in the policy. I am not talking about the Charter now. We have two levels of concern. One is the Charter restrictions. We are now starting to raise policy concerns. There appears to be an inconsistency between Mr. Justice Dubin's opinions and the opinions of the other learned former justices, namely, Bison and Taylor, with that of the present Supreme Court in the Arp decision. It is much broader than I thought.

I went over some of the ground that one of my colleagues raised, namely, that once samples are obtained for the purposes of a particular crime, they can be utilized, as a general rule, without limitation or restriction.

There appears to be no principle that narrows it use once it has been appropriately obtained. Perhaps we should not be concerned about it as a Charter issue, but it should be a policy issue. It gives me graver concern here, as my colleagues have said, for someone who commits an assault in a bar at age 19. We should not think back on our own misbegotten youth. I am looking at Senator Buchanan, to take a random example, and we could imagine him, say, taking a poke at someone when he was a youth. A DNA sample would have been taken, and that sample -- including his medical records -- would have been stored forever in the national data bank.

I make that as a general comment, because we need a little more time to probe the cases and information that we have been given today. I am sure we will come back at the next stage with other witnesses, but I want to thank the witnesses for their help and advice as we navigate through this rather complex wicket.

Mr. Zigayer: If Senator Buchanan had committed this grievous assault as a youth, I would hope that his lawyer, under the new legislation, would be saying, "This is his first offence; he has a great future ahead of him". His lawyer would say that, not only should he be given a conditional or absolute discharge, but also the order to take a sample should not be made. In fact, he probably would have gone to see the Crown, and asked that an application not be made in this case, because he is a really good kid.

Senator Grafstein: That is discretionary. Still, the court has that discretion too. If you lose with the Crown, you can still can make your pitch with the judge, and he will say, "I know him, I have seen no previous convictions, this seems to be out of character, and perhaps he was a little juiced when he did this".

I might have greater confidence in the magistrates of Nova Scotia than the most recent decision on first reading of the Supreme Court of Canada, but that is another issue.

Senator Joyal: I want to come back to a point on the data bank. You will think it is an obsession of mine, but I feel that is an extremely important issue for the future. What we are doing tonight will have consequences for years to come, and they will be very serious.

My point is regarding the procedure that should be followed if and when scientific research allows us to get more information from the analysis of an individual's DNA. What procedures should the RCMP follow to get the authorization to go beyond what is essentially identified at this point in time in the bill?

I am concerned that if we are opening the door to everything in the future, we must be very conscious of what we are doing and what we are legislating. I have no objection, in principle, to the fact that scientific research will continue and be much more effective, and that the way to store data will not need a gel and all the things that have been described to us.

When we were told that, I had the impression that we were being given a description of the old furniture-style radio. Today we have a radio that has only one small button, and it is not even visible.

As the technology progresses, it will continue to be a major intrusion on the privacy of individuals, and there may be information that those individuals wish to keep for themselves. As science progresses, you will be able to use a hair to learn just about everything about a person. You will be able learn his or her propensity for this or that; for learning or not learning; being talented in music or not. All those inborn talents that we think we have will be readable in a DNA sample. We cannot even begin to imagine what we will be able to read in those samples years from now.

If we were to allow this to happen, I would be more at ease if there were a process through which we could ask Parliament to grant that authorization. In other words, when it comes to a situation where science has produced tools that make it easier to understand the crime, we would be able to counterbalance the invasion of privacy through an authorization process.

I am not against having better tools. On the contrary -- I think it is part of scientific research. On the other hand, however, it would not be an open door to everything in the future.

I want to see the principles stated in the legislation, and rightly interpreted by the court. I want to see a legal process that assures that we maintain the implementation of those principles. We should ensure that when scientific research opens additional doors towards understanding DNA, we observe an individual's right to maintain his or her privacy.

This is a major element in this bill. It is as if we are doing something, but we do not know what the end result of it will be in five or 10 years, or even in three years. We do not know the pace at which science will move, and I have no doubt about the talents of Mr. Fourney and Mr. Gaudette, who were here recently. We have a responsibility to maintain a balance in the system, to ensure that we are not allowing science to run ahead of us, and that we are maintaining some kind of control of it.

If we do not ensure this, our role in that process is meaningless. Once we have triggered the system, the system goes on by itself, and we have no capacity to reassess it, or to determine where it should stop in order to maintain the privacy of individuals.

Mr. Cohen: I am somewhat frustrated by some of these questions. The fact is that you have before you a piece of legislation that does have safeguards and limitations and is, in fact, confined. You have drawn attention to parts of it that you seriously worry may be subject to manipulation and abuse. That is a valid concern when one enters into largely uncharted territory.

On the other hand, what legislators have to ask themselves is whether this is consistent with life in a free and democratic society. That is the same question that Charter poses. Fifty American states have data banking legislation. The United Kingdom, Netherlands, Denmark, and other jurisdictions have it as well. We should not necessarily rely on the fact that they have it, but it is true that we are all moving into this world together.

The answer may not be completely satisfactory, but whether or not we are handing over the keys and the fear that might go with it rests with the legislature.

It is up to Parliament to oversee, adjust and review the way in which the legislation operates. Parliament will have the experience of the case law. The courts certainly will not tolerate abuses. You must expect that where litigation becomes the focus, and if there is manipulation or abuse, privacy will be respected. There is abundant case law and commentary on the importance of personal privacy.

To discuss this bill as if it somehow presents a gateway to the exploitation of a huge mass of personal information perhaps does not give enough credit to the proposed legislation. The proposed legislation declares its purposes in terms of who has the responsibility for it. Parliament has the responsibility to review the legislation within five years.

Mr. Zigayer: Mr. Cohen referred to the principles. In particular, at page 2 of the bill, clause 4(b)(ii), it is recognized and declared that:

(b) to protect the privacy of individuals with respect to personal information about themselves, safeguards must be placed on

(ii) the use of, and access to, bodily substances that are transmitted to the Commissioner for the purposes of this Act.

We all support that. It is a question of confidence in those schemes that we have put in place to protect and ensure proper use and access.

The second item I will refer you to is clause 12 of the proposed legislation, which speaks to the making of regulations.

12. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act.

Certainly, it would be open to the Governor in Council to enact regulations to perhaps provide Canadians with some greater measure of comfort with respect to future treatment of these bodily substances and profiles.

The last item would be clause 13. The review of the proposed legislation provides an opportunity to see how things have gone in five years' time. It allows us to see how the data bank has been managed, whether the technology has changed, and whether it is necessary to add to the controls that may be put in place before the data bank is operational.

Did I take it that the Solicitor General was going to bring in another piece of legislation within 18 months? This is perhaps something else that could be looked at if it was considered appropriate to put it in the legislation.

The Chairman: This is something then that will return to the Senate within 18 months, presumably in order to determine when regulations will be at least partially formulated.

I would also remind senators that we do have the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Rules and Regulations, and it reviews rules and regulations.

Senator Joyal: I would recommend that, in our report, we mention the very point that you raised about the regulations within 18 months. We would certainly like to see that taken into account.

Many of the issues that you described would be addressed by the regulations, such as the agreement that Canada might enter into with foreign states.

There are a certain number of elements that we would like to consider, such as the guidelines that have been described to us by previous witnesses. There are many elements that we would like to look into, and I would recommend that we have that in your report, as you properly stated.

Senator Grafstein: I agree with that. The problem with the Standing Joint Committee of the Senate and the House of Commons on the Scrutiny of Rules and Regulations, which I had the privilege of serving on for some time, is that a massive amount of information comes down. One does not get the opportunity to focus on the substantive aspects of the regulations.

We are talking about deep policy considerations as well as Charter considerations. I am sure that this would be useful for the witnesses, as well, so that they would not need to educate another body on the intricacies of this legislation. It might be useful to do that, and I make that suggestion to the chair to consider when preparing the draft report.

The Chairman: It will be taken into consideration.

Senator Grafstein: As well, let us consider the agreements. The guidelines with respect to those international agreements would be helpful as well.

Senator Moore: When you were drafting this bill, did you have before you the legislation from the different countries and states that now have DNA legislation in force? Did you look at it with particular concern with respect to the long-term privacy matters raised by Senator Joyal?

Mr. Zigayer: When we began our work in this area, there really was not much legislation out there. It has evolved as ours has evolved. There are bills before different countries right now, either trying to catch up to where we are, or looking at the data bank.

Senator Joyal's concern, as I understand it, and you can certainly correct me if I am wrong, has to do with retention, and the possibility that over time things that are retained may be abused or misused. He is concerned about how to guarantee against that.

By including criminal sanctions in the legislation, we have tried our best to address that. We realize that it is part of the puzzle. We also have other bodies that will have oversight powers over the DNA data bank. I spoke of the Privacy Commissioner and the Auditor General, for example.

The Senate could decide to inquire into and examine the management of the data bank. If there is an interest in monitoring the operation of the data bank, there are different mechanisms available.

What we tried to do was to ensure some measure of public confidence, using the methods that we normally employ. That is, to employ sanctions for misbehaviour.

Senator Moore: The committee is aware of the ongoing evolution of DNA use and banking, and that it may be before the Parliaments of other countries. I am wondering what legislation you looked at when you were drafting this. Did you look at statutes from other countries or states?

Mr. Zigayer: We looked at quite a few, not in the drafting, but in the development of the policy. We looked at Australia, New Zealand, Britain, and different American states.

The first of the many discussion papers dealing with DNA was published shortly before the Borden decision was released by the Supreme Court of Canada by a colleague of ours who is on secondment from the Attorney General of New Brunswick. Jack Walsh, one of the leading DNA experts in the country, was seconded to the Department of Justice. He did a lot of research, and he helped us in the development process. He did research looking at the American data banks, for example, and how they operated. I think we still have a few of these. I will leave this with the committee, if you like.

Senator Grafstein: Is that a compendium of that material, or is it his report?

Mr. Zigayer: This is our discussion paper, but as an annex to it, we included a summary of the U.S. DNA data banking statutes. I do not know why I did not bring it out before. For example, it shows Arizona, California, Colorado, Hawaii, and the various states as they were at that time. This is a little dated, but you will get a sense of its flavour. In addition, it provides a page or so on leads generated by U.S. DNA data banks -- in other words, where evidence has been generated identifying a suspect. This is helpful, and I will give it to the clerk immediately.

Senator Moore: Did you, in developing the policy, look at those states that have had these systems in place for the longest periods of time, and consider their experiences in terms of protecting privacy? Did those states or countries have case law?

Mr. Zigayer: A newspaper -- I do not remember which -- recently printed an article entitled "Prisoners DNA Database Ruled Unlawful". A Massachusetts superior court judge barred the state police from demanding DNA samples from prisoners, parolees, and probationers. This is one of the first U.S. court decisions to assert privacy rights in stopping DNA data banking. This is within the last few months. I will also give this to the clerk, rather than reading it all.

The Chairman: I would point out that there is a copy of Obtaining and Banking DNA Forensic Evidence in the Library of Parliament. I have a copy of it here.

Senator Joyal: It would be interesting to have the article to which the witness is referring.

Mr. Zigayer: My colleague Mr. Cohen reminds me that other challenges of the same nature to the legislation have been upheld. As I understand it, this Massachusetts case is being appealed. You will see in a moment. You will have a copy of the article.

Senator Joyal: Even though it is being appealed, it is good to see how the principles are debated and to read the judgment, because the essential elements are there in terms of law.

Mr. Zigayer: I have tried to obtain a copy of the decision, but I have not been able to do so. It is fairly recent.

Senator Joyal: Is it a decision of Massachusetts, Boston, or where?

Mr. Zigayer: It is from Massachusetts, and the report was from San Francisco.

The Chairman: I would assume, then, that you will get a copy of that to us, if you can.

Senator Joyal: Mr. Cohen mentioned that he is aware of other cases. I do not want to have a full debate on all them, but do you have a list of those? You mentioned that almost all of the American states have data banks. As you know, if there is a judgment in one state, it will spill over, and bounce back on all of the other states. Would it be possible to get a list of those cases from you?

Mr. Zigayer: We are just going on the contents of that one report. I think Mr. Cohen read it this afternoon. In contrasting this Massachusetts case with other similar cases, it said that in the other cases the legislation had been upheld, but they did not identify which states or when.

There is something else that is important, and I know that it is mentioned in a number of the opinions that we have obtained from the different appellate court judges or former appellate court judges. The fact is that DNA has been a great help in exonerating innocent persons, or in acquitting people who were wrongfully convicted.

The consequences of a wrongful conviction in the U.S. can be much more drastic than they would be here. Two persons who were on death row were exonerated by DNA evidence. In two of those opinions, there was a reference to the U.S. Justice Department study Convicted by Juries, Acquitted by Science. That is a study of 28 cases where persons were exonerated by DNA evidence. We have had similar cases in Canada. In fact, recently there was a report of one in Newfoundland.

Senator Buchanan: That was really interesting. When did this come out?

Mr. Zigayer: It just came across my desk recently.

Senator Buchanan: I am interested is this letter about the new bill that will be introduced some time in the next 18 months. I have been a good listener, and it appears to me that they want this bill to go through as quickly as possible. There are many reasons for that -- probably very good reasons -- and they want to get on with the data bank and get it all set up.

Many concerns have been heard around this table. Concerns have been expressed about the DNA data bank itself, the retention of samples, the possibility that samples will be abused or forgotten about, and the destruction of DNA profiles for accused and dismissed people, or victims. Is it possible that the new bill may give us an opportunity for a second look? As I understand it, military convictions will be included in the national DNA data bank.

As a Senate committee, we have the opportunity, with the House of Commons committee, to review this within the five-year period. That will be in the new bill. Will we not have an opportunity when that new bill comes out to take a second look at all of the concerns expressed by the learned ladies and gentlemen?

The Chairman: I would perhaps say that it all depends on what is in the new bill. Unless it opens up the entire bill for us to talk about the entire thing again, we may not be able to. Is that your impression, Mr. Zigayer?

Mr. Zigayer: I am afraid so. However, there is another way to get the government's attention. When you approve this legislation, you might want to attach some recommendations for inclusion in this new bill, along with the identified matters.

The Chairman: I am sure that is a suggestion we will take under consideration.

Senator Grafstein: I wish to read a statement into the record. I am not asking for the witness to respond to it. This would be something, however, that the minister or his assistant could respond, to because it is out of the consultation paper that was done for the Department of Justice. I am referring to page 11, which states:

On the other hand, the Privacy Commissioner stressed that a strict time limit should be placed on retaining personal genetic information (including samples).... If information is allowed to be kept for extended periods under exceptional circumstances, extraordinary care must be taken to ensure that it is used only for the purposes for which it was collected or for a consistent purpose.

Again, I hope that when the minister deals with his comments he will respond to that specific statement when he attends.

The Chairman: Thank you, gentlemen, for appearing before us tonight. You have done a very good job.

The committee adjourned.


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