Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 47 - Evidence - Morning sitting
OTTAWA, Monday, December 7, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-3, respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts, met this day at 10:38 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I welcome all of you, including our television audience, to Room 257 in the East Block. This is the committee's seventh 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.
This 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 has approved this bill in principle. Bill C-3 was then referred to this committee for detailed consideration.
That consideration began on November 25, 1998 with the appearance of Mr. Jacques Saada, parliamentary secretary to the Solicitor General, who is the minister responsible for Bill C-3. The committee then heard two witnesses from the Central Forensic Laboratory of the RCMP, followed by witnesses from the Canadian Police Association and from the Canadian Associations of Chiefs of Police. Last week, the committee heard from the Canadian Resource Centre for Victims of Crime, the Barreau du Québec, the Department of Justice, the Canadian College of Medical Geneticists, and Professor Marie-Hélène Parizeau of Laval University.
Our consideration of Bill C-3 continues this morning with the appearance of Bruce Phillips, Privacy Commissioner of Canada. Phillip Murray, Commissioner of the RCMP, will follow him. This afternoon, the committee will hear from the Solicitor General of Canada, the Honourable Lawrence Macaulay, who is the sponsor of this bill.
Tomorrow, there will be clause-by-clause consideration of the bill, at which time the committee will decide whether to pass the bill as is, recommend amendments, or recommend that the bill not proceed. The committee will then report its decision to the Senate for consideration.
Before I invite Mr. Phillips to make a statement, I would also, for the benefit of our television audience, introduce the people who sit beside me. On my left is Dr. Heather Lang, Clerk of the Committee, and on my right is Marilyn Pilon, the researcher provided to us by the Library of Parliament.
Senator Joyal: Madam Chair, I would like to inform the public that, since our last meeting, we have received the judgment of the Superior Court of Massachusetts and a copy of the Massachusetts state law. I would like our audience to know that we have those documents in our hands, and that we are studying them for further discussion in this committee.
The Chairman: That is right. This committee asked to receive those documents at a previous sitting.
Mr. Phillips, the table is now yours.
Mr. Bruce Phillips, Privacy Commissioner of Canada: Perhaps, Madam Chair, I too could introduce a few contributors to this morning's session. With me today is Eugene Oscapella, who is a special consultant to my office. Like a number of members of your committee, he is learned in the law. He is also learned in many aspects of the privacy issue, and has written a number of what can carefully be described as seminal works on such things as biometric subjects in the field of privacy -- drug testing, amongst others. Also with me is Melanie Miller, a very valued member of our staff who specializes in research on these issues.
My brief has been distributed, and I do not propose to read it in its entirety. I have had the advantage of seeing, thanks to CPAC, the earlier sessions of this committee on the subject. I know that this committee is well informed on the essence and particulars of this bill. You are obviously all up to speed on this.
Owing to previous experience with this committee, I know that the committee members generally do understand the societal aspects of informational privacy very well, so I will not give you my standard lecture on what privacy is. It was clear to me from earlier sessions that you do know that privacy, particularly in the information age, is a very important human and civil right -- one that is under serious pressure from a great many quarters, thanks largely to the rapid advance of technology. Many different groups, including governments and institutions of all kinds, are now struggling to cope with the problem of extracting the benefits that modern technology can bring to our society, while at the same time preserving a reasonable level of privacy protection for individuals, and for society as a whole.
People tend to see privacy almost exclusively as a contest between the individual right and the collective general good. I think that that is a misconception, because privacy is an issue that literally has countless manifestations in our daily lives. Almost everything we do has a privacy component to it. What is really contained in the notion of privacy is the degree to which, as individuals, we will continue to respect each other. There is a basic, important, societal issue here that goes beyond merely respecting people's individual notions of what it is they can -- or would like to -- keep from disclosure to the public.
As Mr. Justice La Forest said on a previous occasion, privacy is at the heart of liberty in a modern state. Therefore, we tinker with it at our peril, we diminish this right at our peril, and we must be absolutely certain that, if there is to be any subtraction from the degree of personal privacy that we now enjoy, there must be an overwhelming, powerful case made on its behalf.
We have appeared several times, and before both houses, on the issue of DNA evidence in a law enforcement context. Those of you who have had an opportunity to look at some of our previous evidence know that the office of the Privacy Commissioner is aware of the great value of DNA evidence as a law enforcement and crime inspection tool. We make no objection to the use of that evidence. In fact, as citizens, we applaud the use of DNA evidence for the purpose of criminal identification. The more precise police investigative tools can be, the better. In the long run, it should be as important in establishing people's innocence as it is in determining their culpability. We already have one or two important examples where that has occurred, so we are not here to contest the principle of DNA evidence.
We do have some observations, though, on some of the particulars of this bill. We believe that DNA fingerprinting is an extraordinarily useful criminal investigation tool. The proposal contained in this particular bill to create a data bank that contains not only the fingerprint analysis derived from the sample, however, but also the samples themselves, goes too far.
We have listened to other witnesses, and it is our belief that they have made only the flimsiest of cases for the retention of the body samples. We are concerned with the retention of body samples because of a phenomenon of the information age which we and others in our business describe as "function creep" -- that is, if the information is available somewhere, someone will come and get it and use it for unrelated purposes. We have had many examples of that in the public service, some of which have led us into the courts. To paraphrase the book about baseball, if you build it, they will come. If you have the samples, someone will think of some other unrelated use for the information. If we have it, they will come and get it.
Even though the bill describes limitations on the usage of the material, we do not think that the bill stands as any kind of a barrier. Parliaments change all the time, regulations can always be passed, bureaucrats are inventive, and I fear that, as long as the samples themselves are available, sooner or later, someone will pierce whatever safeguards have been erected in this, and will use these samples for other purposes. These "other purposes" could be such things as research into the kinds of assumed criminal behaviour that DNA analysis might reveal, which may not have anything whatsoever to do with proving the guilt, innocence, or culpability of someone in a particular crime.
As a consequence of this, and in the face of no convincing argument for keeping the samples, I would ask that the bill be amended to allow the retention and storage only of the fingerprint analysis derived from the sample.
I am also concerned, and this is a related issue, with what strikes me as loose language or imprecise language in the limitation on the purpose of the samples. The bill says that the DNA samples will be used only for forensic DNA analysis. I have searched in vain in this bill for a precise definition of "forensic DNA analysis". I think the bill would be improved if the purpose limitation had much more precise language, and states that this can only be used for identification purposes in criminal investigations.
I wish I had brought some specific language for a proposed amendment. I have not, but I have looked in the dictionary to see exactly what "forensic" might mean in the context of this bill. Even the Oxford Dictionary is not very helpful, because the definition of "forensic" is so broad as to include almost any use a policeman or some researcher might decide on. I quote:
forensic... 1 of or used in connection with courts of law, esp. in relation to crime detection (forensic evidence). 2 of or employing forensic science.
forensic medicine... the application of medical knowledge to legal problems.
If that is what forensic analysis means, it can carry us a long way from the identification of criminal suspects and, in my view, constitutes a serious weakness in this bill.
There are one or two other issues here. If it is the judgment of this committee and Parliament that the argument in favour of retaining the samples is convincing -- I hope it is not -- it might be useful, then, to consider revising the scheme a bit to retain samples only for the most serious offences.
The way the bill is currently written, it would allow the retention of body samples for secondary as well as primary designated offences, which raises an interesting possibility. We could have a situation where a person is convicted of common assault which did not involve much more than pushing a police officer. The sample is taken and is kept for a year, at which point, according to the bill, the sample is to be expunged, unless the person is involved in another offence. The other offence is not defined in any way and, as nearly as I can make out, could involve jaywalking. That does not seem to be sufficiently precise for this kind of highly intrusive police investigative tool. I would invite you to consider that.
Mr. Eugene Oscapella, Legal Advisor, Oscapella & Associates Consulting Ltd.: DNA is a valuable tool in criminal investigations, but I do not think we want to oversell the value of these sorts of investigative techniques in terms of reducing criminal activity in society. I was looking yesterday at statistics on crime in the United Kingdom. They have had their data base in operation since 1995. Crimes of violence against people increased both in 1996 and 1997, as did sexual offences; two categories of offences for which one might think DNA would be most effective.
It is unfair to use these statistics to show that DNA does not work, because it does work. It is not the only way we have to deal with criminal activity, however. We still need to look at preventive measures and other measures. It is not just a matter of building a better mousetrap after the event.
I am not denying that there are many reasons for these increases in criminal activity in Britain. In fact, perhaps DNA evidence prevented the increase from being larger than it might have been otherwise. However, I do not think we can just look at DNA evidence as the solution.
From the testimony of some of the witnesses who have appeared before you, it appears that they consider it to be such a gigantic leap forward that it almost seems it would be a panacea. I hope I am not being unfair to them, but I think that we must put this into perspective. There is a lot more to dealing with crime than using this very intrusive -- but sometimes necessary -- technique.
Mr. Phillips: I noticed you had witnesses here the other day from various police organizations, and that they argued for what I consider to be a wholly unacceptable enlargement of the collection power when it comes to this issue. They wanted to make it charge-based. In the committee members' questions, I thought I detected a great deal of scepticism about that approach, and I hope my impression was correct.
This kind of police investigative tool -- using bodily samples -- is about as intrusive as one can get. I believe that the government and Parliament have, to this point, acted with considerable and commendable restraint in moving down this path, and are doing this by incremental, experienced-based approaches. At this stage of the game, I do not think that any justification has been given for the idea that everyone who is arrested should be forced to give a sample, and I do not think that the committee should entertain this idea. Let us have a little experience with this first.
When the first DNA bill came before Parliament a few years ago, I was very pleased to note the careful and prudent way this had been approached by the government, which had restricted the use of the DNA sampling authority to a list of specified offences. One could debate whether or not it is too broad, but, on the whole, I think it struck a reasonable balance. It is, for example, almost exactly the same as a couple of other states -- such as New Zealand -- with a similar constitutional and parliamentary establishment.
I the police interest in getting as much authority and as broad an authority as they can. It is the duty of all of us, however, to ensure that the police occupy a proper place in our so society, and do not become invested with powers they do not need.
Senator Kinsella: The issue of accountability is an issue that speaks mutatis mutandis when one gets into the area of the invasion of privacy and the limitation of any of our rights.
As the Privacy Commissioner, you serve as an officer of Parliament. That makes it possible for Parliament, through an officer like you, to assist in a very direct manner with regards to the responsibility in the area of accountability that both Houses have. Would privacy issues be given the extra safeguard that many of us want to see by adding a provision to the bill whereby the Privacy Commissioner could provide for a special audit on the DNA data bank? The official who operates the data bank under the act does not report directly to Parliament. Would you comment on that?
Mr. Phillips: The RCMP, which will be responsible for maintaining this bank, comes under the jurisdiction of the Privacy Act. That gives us the authority to conduct section 37 compliance audits.
I have a very small staff, however. We are snowed under by the amount of work we already have. Given the sensitivity of this issue, and its undoubted rising importance in the field of law enforcement, there could well be merit in the suggestion that you have put forward. It would signify Parliament's special interest in the subject. It would, from the very outset, ensure that the managers of the information would be required to keep a proper audit trail. It would make it possible for me to go to the people who control the purse and point out to them that I have a special responsibility in this area, and I need to be in a position to obtain the necessary expertise to do that kind of audit.
That is a good suggestion and, if Parliament were to task us with that, it is one we would accept with a good deal of enthusiasm.
Senator Kinsella: Building on that, let us look at clause 10(2) of the bill, on page 6. Notwithstanding your caution to us about the maintenance of bodily substances, in this subsection we have the provision that forensic DNA analysis may be performed on bodily substances that are stored, if significant technological advances justify the analysis.
In the legislative terminology, that is a Henry VIII kind of bill, where we have a skeleton but we do not know what will happen. It is futuristic, and it operates totally on the basis of simply "if the commissioner is of the opinion", and not by regulation, which would be subject to the scrutiny of regulations by Parliament. There is no oversight at all.
Is that an example of where the Privacy Commissioner could at least be testing the judgment call that is made for new kinds of analyses being done, because "significant" is another soft word? What are your views on that?
Mr. Phillips: That clause is the principal justification for the creation of a bank that includes the storage of bodily samples. The only substantive argument that has ever been given to us about the necessity for keeping the samples is that the technology for the analysis may change or is changing. As a consequence, DNA fingerprint profiles done on the existing technology may be rendered obsolete or unusable by changing technology. There are many ifs and maybes in that argument, and I do not believe that legislation should proceed on the basis of ifs and maybes.
With respect to testing the commissioner's opinion that it is justified, I believe that a proper audit power would cover the point if the commissioner, in the course of doing an audit, does enjoy considerable elbow room in offering opinions about the way things have been done. I would not wish to be put in the position of trying to second-guess the commissioner on routine law enforcement decision-making. I do not believe that, with the proper audit authority, I would need to single out any particular aspect of the operation of the data bank as being worthy of any special attention.
Senator Kinsella: When you consider the literature that is at the cutting edge in this area, what are some of the possible new technologies that would reveal and possibly open up a whole new area in criminology? I am thinking about the psychosomatic kinds of analyses that are associated with DNA, which become quite invasive. Looking a couple of years down the road, what do you see on the horizon in terms of the fact that, if you do these analyses, there may be an element of psychological disposition?
Mr. Phillips: I do not need to look down the road. We can look back on the road and already see an outstanding example of the kind of problem that excessive reliance on this science can produce. I do not know how many of you here are familiar with the XYY syndrome case in Europe. I believe it was Holland.
Mr. Oscapella: Scotland.
Mr. Phillips: Scotland. In any event, DNA scientists had identified the XYY factor in DNA analysis as being indicative of a predisposition to criminal behaviour. Much was made of this at the time, and it was thought to have been a wonderful scientific advance. This would allow us to tell who might or might not be a criminal.
I do not know whether any judicial or law enforcement decisions were ever based on that, but certainly there was a great deal of interest at the time. Subsequent further research in the field of DNA analysis has proved that that theory is absolute bunkum. One can translate that into the whole field of drawing conclusions about possible modes or patterns of behaviour from DNA analysis.
Mr. Oscapella has done a good deal more research in this particular area than I have, and I am only one of his many devoted readers. I believe, however, that I paraphrase him correctly when I say that many factors in the field of behavioural science must be taken into account in trying to weigh the value of any predictive aspect of DNA science, and that we must be very careful.
It is a little different when it comes to physical illnesses, and it is now established that DNA analysis can determine, with almost total certainty, whether or not a person will become victim to certain kinds of ailments, such as sickle-cell anaemia. However, it is in this area of predictive behavioural science that we must be extremely careful.
Mr. Oscapella: More recently, in the Netherlands, they thought they had found a family of men who seemed to have this predisposition to outbursts of violent activity, and they thought they had located a genetic link to this behaviour. Further research has challenged the initial research, and the scientists who did the initial research never claimed that this was a definitive study that showed that a genetic trait is responsible for a particular kind of behaviour.
Taking new discoveries as fact when they are still scientifically half-baked is the danger of relying on behavioural traits. That is not the intent of this bill, of course, but that, in part, is our concern about the keeping of the samples -- that it will lead to research that will generate theories that have not yet been established. There will be political pressure to rely on those theories, and the community will jump on some of those theories as if they have been proven. We must be very cautious about that.
Senator Joyal: I would like to thank you, Mr. Phillips, for your very useful comments. If you have had the opportunity to watch our proceedings on CPAC, you will understand how concerned we are about ensuring that this legislation protects the rights and freedoms of Canadians.
The fundamental concern about this bill is with regard to section 8 of the Charter, which guarantees the right of Canadians to security against unreasonable search and seizure. This bill would compel anyone found guilty of certain offences to provide a sample.
The purpose of the bill is stated in clause 3; it is to establish a national DNA data bank to help law enforcement agencies identify persons. This bill has a very broad interest, which must be balanced between the rights of the individual and the rights of Canadian society to be protected against criminals.
Can you cite any Supreme Court of Canada cases that would help us to conclude that this bill is constitutional under the Charter? Section 1 of the Charter says that there are reasonable limits to rights and freedoms in a free and democratic society.
This bill impacts upon the personal integrity of individuals in a major way. Are those impacts reasonable in the context of law enforcement? That is the first question to be answered, and everything else must follow from that.
Mr. Oscapella has probably researched that question at length for you. I would like to get your perception of that, because that is the legal test that must be applied to the fundamental purpose of the bill. We must determine whether the data bank, which would be permanent storage of samples for further forensic scientific discoveries in the future, would meet the test of the limits of a free and democratic society.
Mr. Phillips: I cannot answer that question in that way. The issue of what is reasonable in a free and democratic society is ultimately a decision to be made elsewhere. I cannot try to anticipate the judgment of the Supreme Court of Canada. I must approach this in a different way.
There are a number of judgments of the Supreme Court on record that deal with search and seizure issues generally, and some of them may have already been provided to this committee. We can give you a list of the ones that we think are relevant.
As an individual, I start from the proposition that society at large already has, and I think reasonably has, accepted that law enforcement authorities must have some power to do things in an investigative capacity. Some of those things would constitute a reduction of a normal body of rights to be enjoyed by citizens.
I believe that that question has already been answered. The question for this committee, myself, and everyone else, which will always remain a matter of argument, is what further contractions or changes are justifiable to the rights that, to some extent, will be abridged in the law enforcement context. I agree with you that that is the task of this committee.
In my view, as I have said already, the use of DNA evidence as a law enforcement tool is a reasonable thing for law enforcement people. I see the public good to be derived from it. The issue is not whether the use of DNA evidence is or is not a justifiable police exercise. Rather, the issue is the terms and conditions under which it will be done. This is less an argument in principle than an argument about making more precise the degree to which this privacy right, in the case of persons suspected of criminal activity, will be abridged.
In my opinion, this is too loose. It does not adequately define what forensic DNA analysis is. It does not, in this bill, specifically limit the use of that information to the identification aspect. It leaves open the possibility of using the information for other things.
If Parliament has already generally accepted the use of DNA evidence as a law enforcement tool -- which it has -- and if that has met broad public acceptance -- which it has -- let us ensure that it is precise and exact, and let us not leave too much room. With due deference to policemen, they are always anxious to enlarge their ability to conduct investigations. It is our duty to ensure that they are confined to those things that are absolutely necessary to get the job done.
It is not necessary to keep bodily samples for the purpose of criminal suspect identification. No argument has been advanced to persuade me that they need to keep the samples.
Senator Joyal: I would like to get Mr. Oscapella's comments on this issue. The elements that I feel are in dispute are not, as you said properly, the fact that DNA proof should be accessible to law enforcement officers. If the police, after a person's arrest and conviction, find elements of DNA at the scene of the crime and want to test it against a sample from a suspect, they can go to a court and apply for an authorization to obtain samples from the accused person. That is not what we are discussing. This has been settled, as you have already said, properly in Parliament. I want to restate that, because people are listening to us, and I want them to understand clearly what we are doing.
Once a person has been convicted, that person is automatically required to give a DNA sample, even though that person is not suspected of any other crime at that point. Thus, we are doing something more than just linking a particular set of circumstances to that person. This is where we have to make a judgment. Is the right of society to be protected balanced against everyone's right to be secure against unreasonable search or seizure, as section 8 of the Charter states?
We are saying to people who have been sentenced on the two sets of offences, "From now on you will be subjected to providing samples."
Mr. Phillips: Thank you for that clarification. I did not understand your question correctly the first time around.
I must say that I am not terribly comfortable with that aspect of the bill. There is an element of guilt by association with crime of a different kind, if you want to put it that way, and that would bother people. The argument that you have heard in its defence, of course, is that in principle it is no different than the way that fingerprint evidence is currently used.
To that argument, I would say if fingerprint science were being brought before Parliament for the first time today, Parliament would take a much harder look at the authority that has been granted for the use of fingerprint evidence than it did 70 or 80 years ago. There is no particular virtue in repeating mistakes that have been made in a different context.
Beyond saying that, it seems to me that you have raised an important issue here. I certainly would not attempt to offer any kind of developed argument based upon case law.
Mr. Oscapella might have something to say about that. As a person whose function in life is to advocate respect for a particularly important civil right, I would have to say I share your discomfort. That is all I can say.
Mr. Oscapella: On the analysis of the constitutional issues, I would defer to the Department of Justice. Mr. Zigayer and Mr. Cohen from the department were here last week. They are more qualified to speak on constitutional issues than I am.
We have looked at this issue from the perspective of privacy, and completely apart from the notion of what the Supreme Court has said. It is less an analysis of the current legal thinking on an issue than it is an assessment of how we feel our society should operate. That is the approach we have taken. It is not strictly a legalistic approach. It is more based on the philosophical position -- that is, how do we regulate the affairs of human beings in society? How do we ensure the maximum degree of autonomy that is compatible with other values in a democratic society?
That is the way we have looked at things. I know the department has looked at the issues of the retroactive operation of the legislation for people who have been convicted and are incarcerated once the legislation comes into effect. They have explained to senators that the apparent absurdities that have been alleged about those positions are, in fact, soundly based in constitutional law. We are not challenging that. What we have said is that if the legislation is to operate retrospectively, it is really a constitutional issue.
That said, one of the underlying concerns that we have about many expansions of state powers -- and this is only one example of the expansion of many state powers that we see in society today -- is that there is not an explicitly stated constitutional right to privacy in the Charter. There is a right that has been eked out of sections 7 and 8 of the Charter; however, there is no explicit constitutional right to privacy. This is a point that Mr. Phillips has made on many occasions. If there were an explicit constitutional right, that might provide us with some more comfort with some of the intrusions we see being advocated in the name of state regulation of citizen activities.
Senator Grafstein: I would like to examine the proposed legislation as a paradigm in relation to your mandate. When I examine the proposed legislation as passed by the other place, the Privacy Act is only referred to in clause 6(5) of the legislation. There is no reference to privacy issues, except generically, save and except with respect to contracts or agreements that may be entered into with foreign powers or states.
I wish to deal with the domestic issue first, and then move to the international. In your brief last year, you talked about the problem with respect to the reach of the Privacy Act as it applies in Canada. It is a federal statute, and does not apply to provincial jurisdiction. It is true that provincial jurisdictions now have privacy acts in place. In some instances, their standards are a touch higher. In many instances, however, they are much lower.
Are you now concerned with the bill as it applies to your mandate, in terms of assuring Canadians that there will be a consistent standard of privacy, both federally and provincially, as it applies to this area? The criminal law falls under federal jurisdiction. The administration of justice is provincial.
Are there any gaps in this bill as it applies to the possible use that provincial or municipal officials might be able to make of it without the safeguards that we have at the federal level?
What happens when there is a conflict between the Privacy Act and this legislation? Which would govern? It is not clear to me which takes priority if there is a direct conflict -- and I am trying to encapsulate your submission -- between the very astute and tough standards for privacy in your act, and the criminal law. Does the criminal law take priority? I do not have the answer to that question.
Based on what we have in the proposed legislation, how can we be satisfied that section 8.2(f) of the Privacy Act is sufficient to be encapsulated into an international agreement to preserve a sample that might go to one of the American states that have the ability, under their law, to administer justice? I know time is limited, so perhaps you can just give us some probing responses to that.
Mr. Phillips: I compliment you on your careful reading of this bill. In fact, I was going to refer to a couple of these things but, in order to conserve time, I did not do so.
With respect to statutory priorities, the Privacy Act is subject to other acts of Parliament. It does not enjoy paramountcy, so it is possible that clauses could be put in this bill that would override the Privacy Act.
I am not concerned, as far as we understand this bill, that that is a particular problem. The informational practices concerned here will be governed by the Privacy Act. However, Senator Kinsella's suggestion of a more carefully defined and potent audit authority would be helpful. There have been cases where good privacy practice has been overridden by other statutes. There is no question about that, and we are now engaged in important litigation with another department, which cited ministerial authority to run a department as sufficient justification to set aside privacy rights. We do not accept that. We are now in court, and the courts will have to settle that.
In the case of the criminal law, I do not think that the federal-provincial issue is a large problem, because provincial authorities have to operate under the Criminal Code even though they may administer it. We have not had a great deal of difficulty in that area up to this point.
With respect to informational exchanges that are made under agreements between the Government of Canada, and not only international but also provincial entities, yes, there is a very serious problem here. This statute, along with many others, authorizes informational exchanges. In many of those cases we, as an office, have no right or role in their construction to ensure that adequate privacy protection will exist in the hands of the recipient of the information.
Senator Grafstein: You do not have an audit authority?
Mr. Phillips: We have an audit authority, yes. However, I must be frank. Our office has 38 people, 20 of whom are involved in the investigation of complaints, and a few more of whom, such as Mr. Oscapella and Ms Miller, are involved in other things. We do not have the kind of audit staff that will allow us to examine in detail the hundreds and hundreds of informational exchange agreements that are now in existence, and more of them are coming along all the time.
We have tried to get a handle on this, and I have managed, in a more general way, to get some cooperation from the departments. For example, in the downsizing of some government operations and the transfer of their functions to the private sector, we have persuaded the government to implement a policy that these new private-sector entities would be expected to provide the same degree of privacy protection that employees previously enjoyed under the act. However, I can tell you, without having to look at all of these hundreds of agreements, that not very many of them would contain specific privacy protections.
You are quite right that, at least in the international context, it becomes even more of a problem. That is to say, once the information has left the country, Canada has no control over what happens to it, unless such control is specifically provided for in the exchange agreement.
We could, in this case, probably get some improvement. For example, the RCMP is constantly exchanging information with Interpol, the FBI and other law enforcement authorities around the world.
In the case of DNA, if they want to send a sample to match with other samples, it is not necessary to attach a name to the analysis. The exchange agreement might be written that way. However, that would have to be specifically stated in this bill. Otherwise, they will write an information exchange agreement that is most agreeable to them, and it may not contain that kind of protection.
Senator, you have certainly identified a serious problem.
Senator Grafstein: You may have seen some very interesting testimony that we heard from a geneticist, who gave us some insight into the scientific community's debate about the limits of the use of DNA for this particular purpose.
To characterize his evidence, I think it would be fair to say that the scientific community was split about how far the DNA should reach. Again, I guess we all agree that there is no question that DNA should be used in the criminal law process. No one questions that. The questions and the difficulty and the delicacy lie in where you draw the line, where you limit the reach, and what type of protective mechanisms you should build in.
His suggestion was that it would be useful to have a scientific advisory panel for that. It would be a check, in effect, and would force people to be careful about the boundaries and about the use of the sample itself. Do you believe that would that be helpful?
Mr. Phillips: That is a very good idea. I believe that the Commissioner of the RCMP intends to establish some sort of an advisory group.
Senator Grafstein: It is not in the legislation.
Mr. Phillips: It is not here, but it should be. It would be an improvement if it were there, and the composition of such a committee, to some extent, might be defined as well. I think that is a very good idea. The ethical issue here is difficult. Every additional use of DNA evidence, in my opinion, must be subjected to a very thoroughgoing debate, because we are getting farther and farther into unexplored territory in terms of human relations.
Mr. Oscapella may wish to add something. I know this is a subject that concerns him as well.
Mr. Oscapella: Certainly, there are issues surrounding that. I believe some of the witnesses who testified last week were speaking to the fact that they would only use what they called non-coding DNA -- DNA from which no identified characteristic can be derived. It can simply be used for identification. It would certainly be useful to have something like that written into the legislation, or to have a scientific advisory committee that would lead in that direction. This is because, even if the scientists want to operate on a very definite basis, there is no guarantee that other pressures will not be brought to bear on them, or that people will not try to side-step them. Therefore, I would certainly support the notion of a scientific advisory committee as well.
Mr. Phillips: With respect to the relationship of my office to the RCMP, Senator Kinsella suggested putting in some language with respect to audit. I wonder whether it is not worth considering putting some language in here that would give the Office of the Privacy Commissioner at least a consultative function on some of these questions. I am not suggesting that my office should have the right to override the commissioner on questions of this kind. I do think, however, that there might be some value in requiring the commissioner to consult with my office on such things as informational exchanges. In that way, at least we would be in a position, at the time that these agreements are written, to make some suggestions with respect to privacy protections that otherwise might not occur to people whose principal function is in an area other than privacy.
Senator Moore: Would that be as part of the suggested advisory body, or would that be in addition to it?
Mr. Phillips: The advisory body is an idea that the Commissioner of the RCMP has in mind right now. I do not know what sort of mandate such a council would have. The exchange of information with other law enforcement agencies occurs on a regular basis in the RCMP, and that will continue, no matter what an advisory council says.
I do not think it would be an efficient means of dealing with that problem, because advisory councils will be composed of people from a broad variety of professions, interests and geographical locations, and will only meet from time to time.
In the business of developing informational exchanges, they generally need to move promptly, and any advice that will be tendered should be delivered in the same way. This is not an unprecedented arrangement. Under existing Treasury Board policy, for example, government departments are required to consult with us about data linkages. In a couple of cases -- for example, public interest disclosures -- departments that propose to make them are required to notify us. We have a good deal of experience in that respect.
We could see the exchange that is proposed, and if we thought that there were some significant oversight with respect to privacy or some improvement, we could offer suggestions. We would be in a position to do that. If that requirement were to be laid on the Commissioner, that might be a useful additional protection here.
Senator Bryden: Mr. Phillips, it is a pleasant thing for me to hear you express your opinions in person. I spent many years listening to your opinions at the end of the national news broadcast. It is nice to see that, while a few years have passed, the same force is still there.
I mentioned the expression of your opinions because Senator Grafstein asked: If there were to be a conflict between the Privacy Act and this proposed legislation, which would prevail? I think you made it clear that the Privacy Act is subject to other acts of Parliament.
As Privacy Commissioner, you have the power to investigate. As much as anyone, the Privacy Commissioner is a creature of statute. There is no common law tradition. Whatever powers you have are a result of the act that established your office. Your general view to review comes under section 37, which relates back to the protection of personal information.
For the record, I wish to read section 7 of the Privacy Act, which states:
Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except
(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or
(b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).
Without quoting from the proposed sections of Bill C-3, clearly there are provisions in that bill that are designed to circumscribe the use of the information for the purposes outlined in the bill. Is that reasonably accurate?
Mr. Phillips: That is precisely the problem. That is why we are asking for a more specific purpose clause in the bill. The term "DNA forensic analysis" is far too broad, and is subject to broad interpretation. I agree with you.
Senator Bryden: You would have seen and read some, but probably not all, of the evidence before us. Arguments were made -- you have referred to some of them -- that, in the interests of public policy, the bodily sample should be maintained so that, as additional technology becomes available, we do not have to ask someone for another sample. That was one of the arguments.
It is important to maintain the bodily substance, perhaps, for reasons of efficiency, expediency and the continuing usefulness of the data bank. That is my understanding. There is prohibition in the act, and penalties and sanctions against anyone, including the commissioner, who uses those substances for purpose other than the one specified in the proposed legislation. Is that correct?
Mr. Phillips: Yes.
Senator Bryden: I am not trying to be mischievous or difficult, but I recognize that you and your staff are coming from an exposure to privacy issues and concerns about where government policy and government initiatives compete with a person's right to privacy. Those exposures would relate carrying out your duties under your present act, because that is your mandate.
You made a number of points. First, you applaud DNA for the purpose of criminal investigation. You made that quite clear. Once again, you expressed your concern and your opinion concerning the maintenance of the bodily substances and not simplifying the profile. That is a fair comment on the proposed legislation, and I have some concerns with it as well.
You also made the comments that you applauded the incremental approach, and the experience-based approach towards the government's movement into this area. I take it that means going back to 1994, when you could use DNA to identify criminals. Another increment is putting that identification in the data bank. I think I have quoted you reasonably.
Mr. Phillips: Yes. That is what I meant.
Senator Bryden: You went on to say that we need to have a little experience with this before we go any further.
We have been informed that it will take 18 months from the time this act, as it is presently fashioned, and which has already spent four years or so in development and consultation, is proclaimed until the schemes anticipated in it can become operational. It also states in the act that at the end of the five-year period from the time the proposed legislation becomes operational, the entire bill will be reviewed. Therefore, in order for the impact of this legislation to affect citizens of Canada, it would be reasonable to say there would be a three-year period in which the scheme envisaged in this bill will be looked at before it is subject to review.
I should know better than this, because you never ask a question unless you know the answer. I learned that a long time ago. Your view is that we need to move incrementally, and I understand that you would prefer to have the increment adding this bodily substance happen at the end of the five-year period. With that in mind, what will be significantly dangerous in relation to the impingement of citizens' privacy as a result of this bill in that three-year period before the entire bill will be reviewed?
Mr. Phillips: I think you know at least part of my answer to that, because you have already expressed it. It is a difference of approach. I say, let us see how well you get along without the authority that you requested and, if that does not work, we will have another look at it, rather than giving the authority now and seeing how it works.
I would defend that as being the more prudent approach.
Senator Bryden: Fortunately, Madam Chair, I did get the answer I was seeking. What we have here, in fact, is a difference of approach.
Mr. Phillips: Yes. However, I do not think the difference is unimportant or insignificant.
Senator Bryden: I did not imply that.
Mr. Phillips: I know you did not, senator. I am just trying to defend my position. The possible abuses that this bill seems to create might not occur within such a short time period, but, then again, they might. It may be that the 18-month period would not be sufficient for us to obtain the kind of experience that would be useful to judge whether or not they need this authority. Perhaps five years is not sufficient, either.
I come at it from this perspective. You want this authority to use DNA fingerprinting. That is a sensible improvement. Fine. Let us see how you get on with that first, before you ask for the retention of bodily samples.
Mr. Oscapella will talk to you about consistent use here, because we are not satisfied with the protections in the bill concerning consistent use.
Senator Bryden: You are not satisfied with the protection for consistent use. Is there a power or authority under your act that would allow you to investigate to determine that issue?
You are functioning as Privacy Commissioner, a creature of this statute, which gives you all of your power and authority. You are here as an expert witness because of your association with privacy. Both of us are entering into new fields.
Mr. Phillips: There is nothing in this bill that I can find -- and I look to the committee for guidance in case I have missed something -- that specifically limits the use of DNA profiles to identification of individuals for law enforcement purposes. I would like to see that in the bill. That, I think, is its principal deficiency. We might be less concerned about the retention of body samples if that kind of restriction were specifically introduced into this piece of legislation. That would ensure that section 7 of the Privacy Act would get its due respect.
Senator Bryden: The Senate also has a committee presently examining security and intelligence, and it will report some day soon, I hope. In that committee, we are constantly dealing there with the oversight and review functions. Agencies that have intrusive powers must be prepared to put up with that oversight in our type of open and democratic society.
Some committee members have a concern regarding the many, many audit functions performed on government activities. The Auditor General has oversight. The Privacy Commissioner has his work. We have individual committees such as SIRC, which oversees the federal intelligence agency. Then, we get all the way up to the court system, to which everyone has access if they feel that their rights are being impinged.
My question relates to the idea of either adding your audit role to this function, or giving you additional audit powers. Do you think that sometimes our agencies are so concerned about being prepared for the next audit that they do not have time to do their work?
Mr. Phillips: I obviously cannot speak for the other agencies. With respect to my own office, it is not an objection that has ever been made to me by any particular department. I am not surprised, since we do so few audits.
I have heard the argument elsewhere that the government is being audited to death. I can only talk to you in more general terms about my approach to this work. That may be helpful.
I do not function with any order-making power. I am only an ombudsperson. I say that with some pride and enthusiasm, because I think the ombudsman function in this area is more useful than the ability to write orders. It has provided us with the opportunity to deal with departments in a non-confrontational way.
The basic approach in my office is essentially one of education and problem solution, rather than fault-finding. We use the complaint investigation process -- which is the first and most important statutory function that is imposed on us -- as a window, if you want to put it that way, on government information management practices.
In the process of investigating complaints, we find many systemic problems. We take that information to the departments, and say that we have found something that we think can be fixed. That is in contrast with the notion of charging into a department armed with the authority of section 37, demanding that people stop what they are doing while we look at their computers.
The audit function is an important reserve power for us, but we do not use it often. I must be frank with you; that is partly because of resource considerations. It is also because of my own conviction that we already get a good insight into the way that governments behave. Some departments are much better than others are. When we see a real problem, and what I would consider to be wilful avoidance of, or indifference to, the act and the obligations it puts on governments, then we bring out the audit function.
I have done that in the past, and I will do it again in the future. By and large, though, it works better if departments have some confidence that our real interest is in making the system work better. If you will excuse my apparent immodesty, because I do not mean it that way, we can claim some success and credit. Many deputy ministers have thanked me for finding and fixing problems that frequently stem, essentially, from ignorance on the part of staff about the act itself. I am not surprised, senator. There are so many laws overruling government departments and, unless they attend seminars three times a week, it is not surprising that they frequently are not well versed in all of these obligations.
Education, in my opinion, is by far the most important thing we can do to protect privacy in the broad sense. I am very glad to see that, in another statute that is now before the House of Commons, a specific education function will be added to the Privacy Commissioner's responsibilities. We have never had that mandate. We have asked for it many times. Other parliamentary committees have recommended it in bygone years.
I look forward to that improvement in our mandate, yes.
The Chairman: Before I go to Senator Andreychuk, I should point out to you, Mr. Phillips, that you have twice mentioned that the purpose of this act is for the DNA forensics analysis of DNA. However, clause 3 reads:
The purpose of this act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act
Nowhere in the purpose does it say anything about forensic analysis.
Senator Nolin: The way I understand his concern is that, if we limit it to the purpose stated in clause 3, everything is fine. The problem is with the rest -- clause 10, for instance.
The Chairman: That is the first mention of forensic analysis in the bill, yes.
Senator Andreychuk: Mr. Phillips, I think you have credibly covered many of the concerns that some of us have had.
Penalty sections in criminal statutes often are to be used as a preventative device. While your scrutiny would be one way that we could ensure that people complied with the proposed legislation, there is always the other side, which is the charge and conviction of anyone who misuses the information.
Because of the importance of DNA and the new technology, do you believe the penalties are sufficient to warrant a preventative measure, or do you believe that they are too lenient?
Mr. Phillips: Senator, whether they are sufficient or too lenient in my opinion is not the issue. The issue is avoiding the necessity of ever having to invoke that clause.
I think the possibility of having to use this clause would be greatly diminished if purpose specification in the bill were much more precise. I am not much of a fan of punishment when it comes to privacy issues. As lawyers, you might argue that there ought to be better civil remedies for improper disclosures and so on, but the truth is that, once people's information has been misused, it is really difficult to repair the damage. A disclosure is a disclosure, and even though someone may have to pay a penalty for having done it, and provide some financial satisfaction as a consequence, it really does not address the problem.
We are much more concerned with trying to avoid that situation.
Senator Andreychuk: You would yield to the preventive aspects not the punitive actions?
Mr. Phillips: Yes.
Senator Andreychuk: You have spoken about the bodily samples being destroyed. Would you care to comment on the fact that the data bank itself and the profiles will not be destroyed, and will be kept indefinitely? Do you not have the same concerns that the data bank and the profiles might be misused or used under a broader definition of forensic analysis than you would like to see?
Mr. Phillips: No, I do not. The technique of analysis currently in use is related only to the identification of the person from whom the sample is taken. I do not have a serious concern about that.
Mr. Oscapella: Our concern about the definition of forensic DNA analysis is that it is not specific enough. It should be limited to DNA analysis related to the identification of an individual, or wording to that effect. That is critically important, of course.
Mr. Phillips: Let me add something here. I want to talk about experience. We have some experience with this. A couple of years ago, there was a town in northern Alberta, Vermilion, if I recall, where a sexual offence had occurred. The police were of the opinion that the perpetrator was still in the community. There was some DNA evidence at the crime scene.
They invited all of the adult males in the community to voluntarily provide samples. Being good citizens, they did. In the absence of specific legislative requirements to ensure that those samples were destroyed, it took nearly two years to get them destroyed. The RCMP retained them, and we had many conversations with them, and it took two years to get rid of it. My sense of it was that they were pretty darn reluctant to do it.
That kind of situation persuades me that we must be very careful about this. Why did they want to keep that? Because all of these public spirited citizens might get involved in a crime? In a society, where do we go with this kind of thing? I was appalled a couple of years ago in Britain when the Chief Constable of the Metropolitan Police, appearing before a British parliamentary committee, suggested that every male child in Britain be required at birth to give up a sample. I have forgotten the language, but it was terribly offensive. He said that this would be terribly expensive, but it would help the police a lot. I was appalled. The committee in question actually started to study that seriously, thereby lending some credence to the notion that every person at birth must be considered to be a possible criminal suspect.
I think when you sanctify that notion in law, you are going a long way down the road toward Mr. Orwell's nightmares.
We must be careful with this. I cite that Vermilion episode as an example of the thinking that some policemen have. Given the enormous powers that policemen have, the use of these things should be carefully set out. There should be no ambiguity. If there is any latitude, it is my view that they will probably use it.
I appreciate the necessity and the value of the police in our society, and I respect a great many of them. I have been a police reporter in my time, and that was instructive. When you come to a thing like this, let us be careful and ensure that everything is written down. It is not sufficiently precise with respect to forensic DNA analysis.
The Chairman: Thank you very much, Mr. Phillips, for appearing before us.
I have one question that I would like to ask Mr. Oscapella. You mentioned when you began that the United Kingdom has had DNA data banks since 1995, and violent crime is still increasing. Has the percentage of crimes solved increased?
Mr. Oscapella: I do not know. Actually, Mr. Gaudette, who is at the back of the room, has more current figures. The overall number of what they call "note identifiable offences" is down. There has been a significant drop in property crime in those years. Of course, there are many factors that go into varying levels of criminal activity during a given time, and it is difficult to go ahead and say that the introduction of this measure was responsible for a reduction or an increase in crime.
My point was simply to show that it is not necessarily a panacea. It can be a useful tool, but crimes still go on. It is not as if all potential rapists or violent criminals decided, "gee, now that they can get the goods on us, we better not do it."
It probably has helped in some cases, and as Mr. Gaudette can tell you, there have been a number of hits. Over 21,000 links have been made between individuals and crime scenes in the British DNA data bank. It is useful.
There are many other factors that we must deal with if we want to look at reducing violent and hurtful crime in society. This is one of them, but it is not going to be the panacea. It is a helpful tool, but it is not the ultimate answer.
Once we introduce a power, it will be very difficult to take it back. The steady accretion of powers in the hands of state authorities over the past decades makes it necessary to grant these powers cautiously, particularly in the social and political climate of our times. I am cautious about moving forward too quickly on this.
The Chairman: Thank you very much. It has been a pleasure having both of you as witnesses. It has been an interesting morning for us.
Senators, our next panel of witnesses are representatives of the RCMP.
Please proceed.
Mr. Phillip Murray, Commissioner of the RCMP: Honourable senators, I am pleased to be here with you today to bring another perspective to your consideration of Bill C-3, which proposes the establishment of a national DNA data bank to be maintained by the RCMP.
[Translation]
You have heard from the Privacy Commissioner. You've heard from the lawyers and the scientists, the policy makers and others. You have been very thorough in your consideration of this powerful legislation. You must satisfy yourselves that it achieves its intended purposes and withstands the test of time. I hope that I can assist in this pursuit, by sharing my perspective as a police officer, a police chief, and steward of Canada's existing national identification data banks.
Like you, I have considered the issues surrounding DNA banking. I share the concerns of the Committee that we achieve a balance between privacy and personal safety. I also share your goal that the proposed DNA data bank function in the broader public interest. I am confident that the proposed legislation will achieve this goal.
[English]
I am not a scientist. I understand the power of DNA technology only in terms of its benefits to law enforcement. There is an identification tool so powerful in its differentiation between individuals that it is virtually infallible. It is the most widely recognized, unchangeable and fail-safe means of personal identification known to mankind. It is a complex science with a fascinating history and a standardized method of analysis. It has applications in many situations, including the identification of medical conditions and predispositions. However, its ability to reveal personal information can be misused; its unauthorized use or disclosure can lead to an invasion of privacy.
What is this incredible identification tool? It is fingerprinting. First introduced in Canada in 1911, the fingerprint repository is now taken for granted. The fact that medical researchers have linked abnormal fingerprints and palm prints to numerous mental disorders, including chromosome abnormalities such as own`s syndrome, has not hampered our efforts to harness fingerprint technology for the positive identification of criminals.
Before fingerprinting became common, the police used a system known as the Bertillon Signaletic System. This method of identification involves the measurement of body parts.One could only imagine the discussions we would be having today if we were currently examining a new repository of criminal identification information based on the measurement of body parts. How could we ensure that the police would not abuse this tool and begin measuring body parts outside the accepted and standardized system?
My point is this: the information that the police use in their work is, and always has been, sensitive, personal information that is open to abuse. Consequently, we have established policies, practices, standards and conventions to ensure that sensitive police information is not abused. These systems have been in place and working for many years. DNA technology is an extension of existing tools for the identification and apprehension of criminals. However, it is understood that the information stored in our DNA far exceeds that of existing identification methods and the potential for abuse is of special concern. In the wrong hands, DNA information is powerfully dangerous. But in the right hands, it is powerfully discriminating and helpful in preventing and investigating crime.
Privacy and security of DNA samples and DNA information were the prime considerations of the RCMP in designing the proposed DNA data bank and its operations. Before addressing the specific measures that we have taken to protect privacy and prevent abuse, I should like to talk briefly about the use of the DNA data bank in police work.
[Translation]
The DNA data bank will allow police forces to use the DAN Warrant legislation to its fullest potential. The crime scene index will be of immense importance in linking crimes across jurisdictions, and will help in apprehending serial and repeat offenders. Statistics from the Federal Bureau of Investigation show that rapists average five undetected sexual offences prior to being arrested. The crime scene index can reduce this number by linking crimes earlier.
[English]
The DNA data bank will assist the police in identifying and apprehending repeat offenders by comparing DNA information from the crime scene to that found in the convicted offender index. In cases where no match is found between the crime scene DNA information and the information in the convicted offender index, it will help focus investigations by eliminating suspects whose DNA is already in the data bank.
By narrowing the field of suspects, linking crimes early in the investigation or assisting in the identification of suspects, the data bank is expected to reduce the length and cost of many investigations. Investigations of serious sex offences, for instance, can cost millions. The data bank will result in greater certainty regarding the identity of suspects. It has the potential to reduce the length of trial and increase the likelihood of conviction. It is therefore expected to improve the overall efficiency of the criminal justice system. It is also anticipated that knowledge of an existing DNA sample in the data bank will deter criminals from offending again.
This is tremendously exciting technology from a crime prevention and law enforcement perspective. The introduction of a central fingerprint repository is considered a watershed in policing in Canada. I believe that history will record the introduction of DNA data banking in Canada as the most significant advancement in criminal identification since the introduction of fingerprints.
[Translation]
The committee has identified some legitimate concerns regarding DNA technology, the integrity of biological samples to be stored in the data bank, and the potential for misuse of sensitive genetic information. I would like to address some of these concerns now.
[English]
With respect to the misuse of DNA information, I should like to emphasize that no one outside the RCMP data bank will receive the actual DNA profile of a convicted offender. In reporting the results of queries against a crime scene or the convicted offender index, the only information conveyed to the originator will be information concerning another crime scene, in the case of a hit on the crime scene index, or the name of the convicted offender, in the case of a hit in the convicted offender index. I emphasize once again that absolutely no genetic information will be released. This is the case whether the query originates within Canada or from another country.
Biological samples will be stored separate from the DNA data bank operations in a secure unit. These samples will not be accessed unless and until a major technological change requires the data bank to be updated.
The RCMP has been mindful of the concerns of the privacy commissioner throughout the design stage and would welcome his continuing participation in developing policies to ensure that privacy and the integrity of biological samples and information continues to be given top priority.
In addition to a technical working group of forensic scientists, we will establish a DNA data bank advisory committee with representation from various stakeholders. We would be pleased to have someone from the Office of the Privacy Commissioner participate as an active participant on that committee.
The RCMP has a long history of protecting sensitive information, such as that held within the fingerprint and criminal history repositories, the Canadian Police Information Centre and the Firearms Registry.
In 1996, the privacy commissioner scrutinized the RCMP's criminal record and fingerprint repositories. In his report, he was satisfied that the RCMP was respecting the provisions of the Privacy Act, as well as the Criminal Records Act and the Young Offenders Act. There has, to my knowledge, never been an unlawful disclosure of information in the units managing these repositories. Its operations have been found to comply with the Privacy Act and ministerial directives with respect to the disclosure of information. The privacy commissioner may audit the operation of these repositories at any time, and I am confident that we could again withstand this scrutiny.
[Translation]
The protection of personal information within the DNA data bank will be governed by the same strict adherence to policy that currently governs the operation of the other repositories of the RCMP. The same provisions for compliance with the Privacy Act, Criminal Records Act and Young Offenders Act will apply, as well the same mechanisms for audit.
[English]
Our national repositories are the envy of many other countries, and the RCMP works to maintain its reputation in administering these data banks. Consultations on the DNA data bank proposal and the national police services as a whole confirm that our law enforcement partners consider the placement of these repositories within the RCMP, under the authority of the commissioner, to be appropriate. This support is due to the track record of the RCMP in operating and maintaining existing repositories on behalf of Canadians, police and government departments.
Honourable senators, I would be happy to discuss in more detail any of the issues you have raised concerning privacy or any other aspect of the proposed data bank. The RCMP would like to be as open and transparent as possible with respect to our intended use of the data bank, its operations, and the existing and planned measures to ensure the privacy of Canadians. I invite any questions you may have.
Senator Kinsella: On page 5 of your presentation, you mention the Canadian Police Information Centre. Is that what you call CPIC?
Mr. Murray: Yes.
Senator Kinsella: How well has CPIC been working? What kinds of problems have you had with it? If that is the model, what are we learning from that particular system that would apply to your responsibilities with this new data bank? Have there been problems with CPIC?
Mr. Murray: In very recent times, there have been some technical problems with CPIC because of the sheer age of the system and the volume of material it contains. I gather your question addresses more the larger issue of how well it has been received.
The CPIC system goes back to the early 1970s. In that regard, an advisory committee was set up at that time and remains in place. This advisory committee of stakeholders ensures that the policies, procedures, and checks and balances that are in place to ensure privacy are maintained.
Despite its age, it is still a word-class system. Obviously, it needs to be reinvented and re-engineered, and we have a plan in place to do that. It is just a question of getting the appropriate funding in order to accomplish that.
We have a project referred to as CPIC 2001, with the objective of having the work completed by that particular time. It has been an unbelievably successful story vis-à-vis police officers on the street being able to gain immediate access to data on criminal records, as well as wanted persons, stolen vehicles, and the like.
Senator Kinsella: I noticed when I read the RCMP estimates for this year that roughly $5 million is set aside for the DNA data bank. Do you think that will be sufficient for you to meet your responsibility under this bill to maintain the data bank? Will it allow you to bring in the best state-of-the-art computer technology? Will it be Y2K friendly?
Mr. Murray: The Y2K issue in its own right is significant. We are satisfied that what is being proposed will address that issue.
A fair bit of research has been done on what the expectations are of the data bank in Canada based on the experience of the U.S., U.K. and other countries. Our team is satisfied that those sorts of numbers will satisfactorily meet our needs.
Senator Kinsella: The estimate for the gun registry is now over $141 million.
Are you satisfied that the estimate of $5 million, with $3 million for start-up capital and $2 million for operational expenses, will be sufficient?
This act imposes upon your shoulders tremendous statutory responsibility. You must be sure that you are given the means to be able to meet that responsibility.
Mr. Murray: Perhaps Mr. Gaudette can be more specific in that regard. However, as I said earlier, we have done a fair bit of research based on the experience of other countries and we are satisfied that those sorts of global numbers will address the issue.
Mr. Barry Gaudette, Chief Scientist, Central Forensic Laboratory, Royal Canadian Mounted Police: Our most recent estimate of the start-up cost for the data bank is approximately $3.6 million, with annual operating costs in the order of about $5 million per year.
We are not considering that the RCMP would be covering all of the expenses for this data bank. There are other means being investigated as far as negotiations with the provinces right now.
Mr. Murray: You are now talking about the casework analysis. With those numbers, we are talking about the operation of the data bank itself. Federal-provincial consultations on casework analysis at the local level are a different issue.
Senator Kinsella: Staying with the operational issue, the maintenance of this data bank is added to your responsibilities as the commissioner, and based on what we heard from the previous witness, to which you made some allusion, it seems to me that independence of the commissioner will be terribly important.
I would ask you a few questions about the independence of the Commissioner of the RCMP, particularly about keeping him being free from the influence of ministers. That would be very important.
Does Bill C-44 raise the possibility of weakening the independence of the Commissioner of the RCMP, as there will be a move from serving at good behaviour?
The Chairman: We are discussing Bill C-3 here. I would prefer that our questions relate to that.
Senator Kinsella: You may prefer it, but it is very relevant to the independence of the Commissioner of the RCMP under this proposed legislation. By statute, we will impose very serious added responsibilities on his shoulders.
I am curious. If I cannot get the answer, I will attempt to get it from the minister later today, but does that make a difference, in your mind?
Mr. Murray: Bill C-44 has nothing to do with the RCMP. The Commissioner of the RCMP serves at pleasure and always has. Bill C-44 does not address the Commissioner of the RCMP.
I can only relate the track record that we have traditionally had in maintaining all of the national data banks, whether it is CPIC, the National Fingerprint Bureau, the Canadian Police College or the Criminal Intelligence Service of Canada.
We have always functioned independently of government. In this case, the legislation is clear as to the responsibilities of the commissioner. It is also clear that any abuse is subject to criminal sanctions. There is statutory protection as well as an historical track record that would indicate that it is quite safe to put this particular piece of legislation in the RCMP's hands.
It is consistent with the national police services being managed on behalf of the Government of Canada within the RCMP. Historically, that has placed all of those systems at arm's length from the government. This is another indication of a continuance of that trust that has been in place for many years.
Senator Kinsella: On that point, commissioner, if there are problems of independence in the management of that data bank by employees under the RCMP legislation, in addition to what is provided for by this bill, would the Public Complaints Commission be a vehicle under which citizens could make a complaint?
Mr. Murray: Yes, it would. If there were an issue involving the conduct of any member of the RCMP, including the commissioner, on the part of any citizen, it would be subject to the scrutiny of the Public Complaints Commission.
In addition to that, there is access to parliamentary committees in relation to the ongoing functioning of the RCMP. Anything in relation to this or any other responsibility that the commissioner has is certainly subject to that kind of oversight, as well.
The scrutiny of the courts cannot be ignored. It is a very important aspect. Ultimately, the information that flows from this data bank becomes part of the criminal case before the courts. Therefore, the oversight of the courts in terms of how well the system functions and how fair and equitable it is is subject to all the scrutiny of the Charter implications, as well.
Senator Kinsella: If a minister of the Crown were trying to influence the operation of the DNA, or get information out of the bank, does a unit such as the special federal inquiries unit still exist? Is there a different operation?
Mr. Murray: We do not have a unit, per se. Those sorts of investigations are carried out within the commercial crime units of the RCMP. They are not a separate unit anymore.
I can assure you that no minister has any access to ongoing criminal investigations. This would be no different. Clearly, there is such a thing as integrity. We function at arm's length from government when it comes to conducting criminal investigations.
There are enough checks and balances in the system to ensure that access is completely controlled through the laboratory system so that ordinary police officers would not have direct access to the data bank. It must go through a designated series of protocols.
In addition to that, as mentioned earlier, there will be an advisory committee in place to ensure that there are appropriate checks and balances to dissuade that type of activity, should it even potentially exist.
Senator Nolin: Thank you very much, Commissioner Murray, for being here this morning.
Clause 11 of the bill refers to wrongdoing by people who will fall under your responsibility. What are the regimes that you intend to create, or probably have already created, to ensure that those offences will never occur from your personnel?
Mr. Murray: During the course of the next 18 months or so, during the work-up period, the intention is to get the advisory committee in place, to work up a series of protocols, checks and balances, to ensure that the access to the data bank is consistent with the intent of the proposed legislation.
If there is a complaint or even a suggestion that there is misuse, then a criminal investigation -- a statutory investigation -- would be undertaken under this proposed legislation. It does provide for a specific criminal offence.
In addition to that, we have the code of conduct provisions of the RCMP Act dealing with the conduct of employees who may have violated that code. We also said earlier that there would also be a provision for the involvement of the Public Complaints Commission if the conduct of an individual member of the RCMP were involved.
There are a number of ways of getting at the action itself; first of all, through the legislation; second, through the code of conduct; and third, through the oversight of the Public Complaints Commission. From a legislative perspective, there is good protection. In addition to that, it is clear that over the course of the next year and a half, there will have to be in place appropriate vehicles for checks and balances to ensure that no one individual has complete access. That is part of what the experts will be working out, along with their advisors from outside the RCMP who are stakeholders in this initiative, including the Privacy Commissioner.
Senator Nolin: When you talk about complaints, I am convinced that you are not only referring to complaints from the public, you are also talking about complaints from within the RCMP.
Mr. Murray: Yes, very much so, or from another police agency.
Senator Nolin: Clause 10, paragraph 2, gives you great power. It gives the authority, if you are of the opinion that analysis is justified because of significant technological advances, to permit analysis to take place. We have just heard from the Privacy Commissioner that he is concerned about how this subsection is written.
First, how do you react to such concern, and second, how do you intend to apply this subsection?
Mr. Murray: We would only invoke this section if the technology had advanced to the point where not only nationally but also internationally our data bank was becoming irrelevant, for example, if the technology we are now using, the PCR, was no longer relevant. This is, after all, a science that is improving almost constantly. In 10 years from now, or even five years from now, it may well be that this particular technique will have been superseded by something else that research will have advanced.
Our advisory committee will provide advice as to whether or not we should move to a different technology. There are enough checks and balances in the advisory committee to ensure that we will not be running off on our own without ensuring that all considerations are taken into account.
That clause is certainly flexible enough but, at the same time, there are enough checks and balances in place to ensure that everyone's interests will be protected.
Senator Nolin: You are talking about checks and balances. I am sure that you would have no objection if we were to amend this bill to ensure that those checks and balances are enshrined in or built into the act?
Mr. Murray: I would have no hesitation if that were built into the act, but at some point someone must make the judgment as to when to move forward. I am saying that that decision should be made by the person who is responsible for the data bank, and that person should be given the best advice possible. We must also ensure that that technology would be acceptable in the courts and it is in line with the direction that is taking place internationally as well as within our own country.
Obviously, we would want to continue to be state of the art and provide the best possible service to our clients, the front-line police officers, to ensure that we were responding as efficiently as possible. As you probably are aware, the existing technology is considerably faster than the previous one. Perhaps Dr. Fourney could deal with that specifically because we have every indication that as time goes by the technology will improve and will be much more efficient than it is now.
The Chairman: We already heard from Dr. Fourney to quite some degree, but perhaps you could quickly update some of the members of the committee that were not here when you gave your evidence.
Senator Nolin: My question was not really about the scientific aspect. It was more how you as the commissioner will be governing yourself if you receive such advice. We already heard about the science and we are not questioning that. We are questioning you, the person who will be in charge. You will be the only one to decide that, so you will have a great power. My question was more how you will govern yourself when you have that power and you gave me an answer.
Mr. Murray: Again, the short answer is that I would take the very best advice from the advisory committee whenever they feel the time is right to make a switch, based on all the evidence available.
Senator Nolin: Many witnesses have referred to an 18-month period between the assent of this bill and the start of the operation. What will happen within that period of 18 months?
Mr. Murray: There is no authority to spend until such time as the bill is passed. We could not start until the legislation is in fact proclaimed. That involves the hiring of 31 people, virtually immediately, and starting the training process to build up their individual capabilities for the first 12 months. Then the expectation is that the remaining six months will be used to test the system to ensure that it is functioning according to the legislation, first of all, and that it will ultimately meet the scrutiny of the courts. There is a 12-month hiring and training period and then six months of testing before we go operational. That is the usage of that 18-month period.
Senator Nolin: I am sure you will write many regulations.
Mr. Murray: During that period of time, the regulations and policies that will flow from that will be based on experience. The policy makers will bear in mind the requirements of the legislation and all of the issues identified by the advisory committee in terms of ensuring that there are appropriate checks and balances in place, as I indicated earlier.
Senator Nolin: Those regulations will be subject to scrutiny by Parliament.
Mr. Murray: They will, very much so, yes.
Senator Andreychuk: Senator Nolin has touched on some of my points. I will go over them a bit more, however.
You are saying that you will institute rules, practices and procedures that are similar to those you are using in CPIC, et cetera. I recall those wonderful years when CPIC was being set up and the problems were in educating the force, getting the systems on track, the scrutiny of the systems, the double-checks. Do you believe that this technology requires more than what CPIC required? If so, are you putting in more rules and more double-checks than you have? You seem to imply that we have some standards and we will use them and apply them.
Mr. Murray: It is safe to say that we are very cognizant of all the issues and the concerns that are associated with this very powerful piece of legislation. It is absolutely essential that we get it right the first time. Two of the 31 people will be engaged in exactly that process on a full-time basis, ensuring that issue is addressed.
The education of the broader community is very important. We also have the benefit of recent data banks in a number of other Western democratic countries, so we have that experience to draw on, as well.
It is not as if we will be reinventing the wheel. There is a great deal of experience out there. The international scientific community has worked, and will continue to work, very closely together to ensure that they are sharing best practices and that we are dealing with all the potential issues.
I am satisfied that there is a sufficient amount of time to be able to put that in place. Of course, we will be monitoring it very closely as it evolves.
Senator Andreychuk: It has been pointed out in previous testimony that the protocols and the codes by the scientific community are just being put into place and that they are really peer evaluations. Will you be relying on what the scientific community tells you?
Mr. Murray: To some extent. However, we will also have the advisory committee, which will be made up of other stakeholders apart from scientists. We want to ensure that all of the players have their say at the table and that the checks and balances are adequate to address the interests of all the stakeholders.
Senator Andreychuk: I understand that some of the labs with which you will be working are under your direct control. However, I understand that two laboratories will not be under your control.
Mr. Murray: The labs in Ontario and Quebec already work extremely closely. We have a national standard that is used. Thus, the RCMP labs, as well as the laboratories in Ontario and Quebec, all use the same standards and protocols.
Over and above that, there are several private laboratories in British Columbia, I believe. An individual police agency is able to use a private lab to do analysis if they so wish. However, it will have to come back through one of the designated labs, be it the six RCMP labs or the two provincial labs in Ontario and Quebec in order to be processed into the national data bank.
There are only two private laboratories at present. However, in the future, it is conceivable that there could be more than two. We want to ensure that there is one national standard and that a private lab meets that before a sample is processed into the national data bank.
Senator Andreychuk: I believe we were told that once the profiles are removed from the data bank, the identification is also removed. If I recall the testimony correctly, the profile remains in the data bank. We were told that it will stay there because it is not efficient and is too costly to try to do the tests per profile. There is a band that does 36, if I recall correctly. Because of that, the profile will remain. This bill does not talk about destruction but about the removal of identification. Is that your understanding? If the technology would allow for destruction, would you support it?
Mr. Murray: We would have no objection, senator, if, in the future, the technology would allow for that particular profile to be isolated. Unfortunately, it does not at the moment. There is a check and balance in place that in reality gives effect to it. You cannot gain access to it, in any event, although it is there. At a point in time, if the technology had advanced to the point that you could physically eliminate it, then we would have no difficulty with destroying it as opposed to rendering it inaccessible the way it is at the moment.
Senator Andreychuk: The reason it cannot be destroyed now is simply because of costs, is that correct?
Mr. Murray: It is more than that. The technology is not sufficiently advanced. If you pull one out, you destroy the whole group.
Senator Andreychuk: Effectively, if you could do one at a time, which I presume the technology will allow you to do, it is not cost effective. That is what we were told.
Mr. Ron Fourney, Research Scientist, DNA Methods and Data Bank, Central Forensic Laboratory, Royal Canadian Mounted Police: There are two aspects to it. The checks and balances for quality on that product is the entire gel. There may be additional samples. There are some introductory technologies where you can run one sample at a time. If is fairly expensive. You still have a question of how to relate the controls that may be necessary to relate to these samples.
We in the RCMP have chosen to use, as has the U.K. and many other laboratories on the forefront of this technology, the best, validated procedures. They are identical to what we would use operationally. Thus, not only have they withstood scrutiny among the scientific community, they have also made it through court challenges and the special validation process.
In the future, there could be a cost-effective technology that will do one at a time. Potentially, then, we could eliminate an individual sample. However, at this time, the chosen validated procedure is what we are actually putting forward for the data bank.
Senator Andreychuk: You have stated in your presentation that the need for the data bank will work as a deterrent to offenders.
Mr. Murray: In this particular case, you are talking about if there is an acquittal, for example.
Senator Andreychuk: No. You are saying that by virtue of having a data bank and some offender knowing he is trapped in the data bank, that might deter him from carrying on his criminal activity.
Mr. Murray: That is a different issue, which deals with the retention of samples. I thought in your earlier questions you were referring to someone who has been acquitted on appeal, for example, which is where it is rendered inaccessible. The other issue is the long-term deterrent. Historically, people have reoffended. The very fact that your DNA is in a data bank could be a deterrent for not re-offending. Even if it happened in one case, it would be worth it.
As I mentioned earlier, some statistics show that sexual predators would have completed five offences prior to being caught. If you take that into consideration, there could be old cases that had occurred many years before that could be related to the DNA. Bearing in mind that the person has been convicted, it remains in the system, just as fingerprints do, over the long term.
Senator Andreychuk: If profiles remain and you have absolute discretion over them at the moment, as the bill sets out, could you conceive of turning over all the profiles, even if they do not have the identifying marks, for further medical research?
Mr. Murray: No. I could not conceive of doing that because this measure does not provide for it. It would be a criminal offence to do that.
I indicated earlier that all sorts of research has been done with regard to fingerprints, but none of that was ever done using fingerprints that were in the national data bank. It was done independently. There is already a lot of medical research going on in relation to DNA. The purpose of this measure is strictly to deal with the prevention of crime and with law enforcement generally. Under no circumstances would we release that kind of information because there simply is not any legislative authority to do so.
Senator Grafstein: This has been for us a very interesting exploration. We share your disqualifier that we are not scientists. We are trying to grasp an issue, which, for us, is a major sea change. We do not quite understand the shoreline of the sea change. You will forgive us if we are pressing some particular matters because it is more a sense of trying to understand the limits and extent of the legislation than any direct disagreement with respect to the purpose, which is to prevent crime in a cost-efficient and a fair way.
I wish to turn to your statement with regard to clause 10 of the bill. It is an unequivocal statement, one with which we obviously agree. On page 4, you state:
No genetic information will be released.
The purpose here is not to in any way, shape or form release genetic information. However, when we turn to clause 10(1), the language is not as precise as that.
Let me give you the phrase I want to focus on, and that is "storing" or "safely storing" and so on, and the words say, "for the purpose of forensic DNA analysis." I then turn to the Oxford Dictionary, and read the definition of the word "forensic," which says, "of or used in connection with the courts of law, esp. in relation to crime detection," but the generic or general use is for the courts of law. Later on it defines "forensic medicine" as "the application of medical knowledge to legal problems." Thus, it seems to me to be broader than just the context of the definition in the bill. I am not speaking of your intention. The definition in the bill seems to be somewhat broader.
Have you any comment about that, other than your statement that, for your purposes, it will only be used for criminal identification? The power seems to be larger than that.
Mr. Murray: You seem to be hanging on the definition of the word "forensic." One must go back to the stated intention of the legislation, earlier on in the act, which tends to be more specific. Clause 3 talks about the purposes of, or the principles behind, the legislation. The definition of the word "forensic" itself can perhaps be applied more generally, but the stated objectives of the bill are certainly not general but rather very specific. One would have to relate the phrase back to the larger intention of the legislation rather than hanging it on the specific definition of "forensic."
For our purposes, we have no choice but to use the bill for exactly the purposes for which it was intended. I can use that same analogy going back to the National Fingerprint Bureau under the Criminal Records Act and the Identification of Criminals Act, which specify exactly what that fingerprint bureau can be used for. We are certainly not allowed to share that information beyond the intended purposes of the legislation.
Senator Grafstein: Let me take it to the next step with regard to application. Then I want to come back to an earlier principle.
You say here that no genetic "informs" will be released, whether the query originates within Canada or in another country. I am sure you have reviewed our earlier questions about the concern some of us have with respect to not allowing the sample or the markers to be sent to a different jurisdiction and used for broader purposes.
Mr. Murray: Yes, I have.
Senator Grafstein: What is your intention with respect to that? How do you intend to ensure that no genetic information will be released in another country in that sense? Is it all tied in to the agreement or the treaty?
Mr. Murray: The intent is not to treat them differently from anyone else. We will not be providing that type of information beyond the data banks. We will merely say that there has been a hit in the crime index, or the name of the person, if it is in the other index. We will not be actually releasing the profiles in any situation. That should not be an issue because it is not an issue within our own country. Clearly, it would not be an issue in relation to another country.
Senator Grafstein: Let me turn to another topic, and that is the advisory committee. We welcome your testimony on that. That is very helpful.
We have heard your responses as to the purpose of the DNA advisory committee, and your intention to have representation from various stakeholders. By that, I assume you mean policing organizations, both federally and provincially, as well as scientific and technical advice. You have added as well that you would be pleased if someone from the Office of the Privacy Commissioner participated.
Again, in response to Senator Nolin, you said that you have no objection to that being encapsulated in the legislation, if necessary, but you intend to set that up notwithstanding the legislation.
Mr. Murray: That is correct, sir.
Senator Grafstein: I ask you this because you have been given, as you have agreed, large power here. How would you see this operating? Let us assume for the moment that there is a conflict between the scientific parties to the advisory committee and the policing stakeholders. The policing stakeholders say we should broaden, in effect, the tests. Your scientific people say no, that might be too unreasonable. How would you be motivated? How would you deal with it? It is an advisory panel. Tell us how your own thought process would be working on such a conflict within an advisory committee.
Mr. Murray: My own sense is that if that were to occur, then I would look beyond the boundaries of this country to what is happening in other countries, to see how those relationships have developed and how, in fact, the decisions are made to move to an emerging technology. Is the timing correct to do that? I think that one would have to be more guided by the overall advice from the scientific community as opposed to individual police officers on the street who would always want to have the latest mousetrap, whatever it may be, without necessarily knowing the full implications of what might occur.
My own sense is that one would draw on what is happening elsewhere if there were a very significant conflict within our own country.
There is a great deal of collaboration and goodwill associated with the development of this technology, and agreement on the need to get it right. I want to commend this committee for taking such care with it, because it is a significant change. When we are talking about something as intrusive as this, we all want to ensure that we protect the rights of ordinary citizens from being abused. Everyone involved in that process has the same objective. By getting a variety of different stakeholders to the table, we hope to provide sufficient checks and balances to ensure that people do not move in a direction that is not in the best interests of the public at large.
Senator Grafstein: You may have heard or anticipated questions with respect to federal-provincial jurisdiction here. Again, I think the committee members are looking for a very strong safeguard that the materials within the data bank, or the application thereof, will be tightly constrained by the bill. There are some penalties and so on. Are you satisfied or are there any problems with the federal-provincial relationship here because of the different jurisdictions and powers with respect to the application of this bill? Are you comfortable with this? Do you foresee any problems?
Mr. Murray: I am comfortable with it. Although the administration of justice is the responsibility of the provinces, there has always been an understanding that the national police services, which this national data bank would clearly fall into, would be operated by the federal government. The provinces' role is to feed them. They feed in the data, but the federal government has always run the national systems.
Historically, the RCMP has been asked by the Government of Canada to do it on their behalf, at arm's length, so there is no impression of any kind of government interference in terms of the operational aspects of all the systems. This is just another example of that. There has been a long history of very close federal-provincial collaboration through the RCMP and the provincial and municipal police agencies across the country. The system functions extremely well. I would see that this would be no different. I cannot envisage any problems in this particular initiative.
Senator Nolin: I have a supplementary question on the international aspect of this bill. What did you tell Senator Grafstein you would do if you are requested and Canada has an agreement with another country?
Mr. Murray: We would do exactly the same as we would with anything within the country if we had that protocol in place. If there were a hit on the crime index base, we would advise them of that. If it were a hit on the name index, then we would provide the name.
Senator Nolin: You would also provide the profile?
Mr. Murray: We would not provide the profile.
Senator Nolin: Clause 6(4) of the bill says that you will be allowed to do that. Paragraph 3 states that if you receive one from another jurisdiction or country, you will compare them. Paragraph 4 says that if you are requested to do so, you can also send the profile to another jurisdiction. What about the substance?
Mr. Gaudette: That refers to when a Canadian police force wants to take something from our crime scene index and search it against an American or British, or whatever, data bank. We would be communicating that profile but there would be no identifiers on it because it comes from an unsolved crime.
The Chairman: In that section, "law enforcement agency" means a Canadian law enforcement agency, does it?
Senator Nolin: Read the bottom of paragraph 4. It refers to foreign governments. You are saying, basically, that paragraph 4 would only refer to profiles that are not retraceable to a specific individual.
Mr. Murray: Yes, the ones that are not identified.
Senator Nolin: It is not precise if you want to restrain that communication. Would you admit that? That is to say, we are not trying to enforce, we are trying to make it work properly.
Mr. Gaudette: Halfway through that paragraph, it specifically states "contained in the crime scene index." There are two indices in the data bank: one is called the crime scene index, which has only profiles without identifiers from unsolved crimes; and one called the convicted offenders' index, which has the names attached to it.
Mr. Murray: You do not know the name of that person because it is contained in an unsolved crimes index. You have the profile, but it is not associated with a person. Once again, you are comparing two crime scene indexes.
Senator Nolin: Paragraph 3 states that you will receive a profile from a foreign government and then you will look at your second index, the convicted offenders' index. If there is a match, you will send the name, period. Paragraph 4 is telling you that you can send a profile from a crime scene index to another government and they will give you the information about, perhaps, a name.
Mr. Murray: That is correct.
Senator Joyal: I should like the commissioner to return to the scope of the legislation. Many witnesses who testified before us made reference to sex offenders. That it is the type of crime that strikes citizens with greater shock and emotion than anything else. However, we were told by some witnesses that our legislation goes farther than that in the United States. In the United States, a person convicted with a crime associated with terrorism or any kind of crime linked to the security of the state is not covered by American legislation.
Over the weekend, I read the list of crimes covered by legislation in Massachusetts, for instance, which mentioned that this bill goes far beyond the legislation that exists in other countries. Why do you think it is essential for us to go beyond that and include those crimes? In the second list of offences, I read about offences, for instance, related to the dangerous operation of motor vehicles and impaired driving where bodily harm or death is caused. We are not dealing with sex offences at all there but with a totally different set of crimes.
I feel that we have opened the door a great deal already on the legislation dealing with those crimes. We will soon be holding discussions on this in other countries with which we will sign these agreements. I expect that your first objective is to sign an agreement with the United States, since it is our closest neighbouring country. However, we will find ourselves in different kinds of discussions regarding the scope of this legislation. Why do you think we should accept the list of offences the way it is outlined in this bill?
Mr. Murray: It is safe to say that the United States is a state-functioning jurisdiction, where every state has different legislation associated with this as opposed to one system. Given that legislation has been passed in many countries, in terms of extremes we are somewhat in the middle insofar as what is covered by this legislation.
When you talk about that secondary list of offences, it is important to obtain the court's authority in order to gain access to it. There is a check and balance that there is a reasonable expectation that it will be helpful in the investigation. In terms of those convictions, it is not wide open when we are talking about the secondary group of DNA. Although those particular offences are not in relation to serious violent crime, sexual or otherwise, they are still significantly serious offences in the scheme of things in terms of broader society. Consequently, there is an option for the court to say "yea" or "nay" as opposed to it being automatic in relation to the secondary group.
In all the research that was done in preparing this legislation, there was an attempt to strike a balance between the rights of the state and the individual's rights. The cut-off point was to ensure that people's rights were protected and that the court would order that secondary group.
Senator Joyal: Mr. Gaudette, do you want to add something?
Mr. Gaudette: You looked at individual state law. I do not claim to be an expert on American law, but it is my understanding that terrorism is a federal offence in the United States and would not, therefore, be covered by state law. It is also my understanding that there is a separate terrorism bill underway in the United States that paves the way for DNA analysis.
Senator Joyal: Perhaps we could proceed with my second list of concerns. Earlier in your opening statement you said that if the public has some complaints, they could go to the Public Complaints Commission operated within the RCMP context or address Parliament.
Is it your intention to report publicly to Parliament, through the proper channels, the number of cases where people have committed an offence? Would that list be made public to Parliament?
Mr. Murray: The numbers are not specifically required. However, there is provision in the bill to have it reviewed after five years. Certainly, a statistical analysis would be part of that review to see how it is functioning vis-à-vis original expectations. That is to say, are the numbers growing, is there a need for amendment, and so on? A statistical analysis would be a natural progression from that. We would be happy to provide those numbers to either this committee or a committee of the House of Commons that I appear before on an annual basis to show how the data bank is developing.
Senator Joyal: Clause 13(1), which deals with a five-year report, is not dealing with a process. It is a single five-year report, if I read it correctly:
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.
It is not a recurring five-year report. It is one five-year report. After that, we are within the traditional framework of the operation of the RCMP. I think you said yourself quite clearly that we will need to review that within five years, but there is no process there through which, on a regular basis, Parliament can know about the implementation of the act and bring their attention to it. Taking into account the overwhelming information that will be made accessible to you, and taking into account that we do not even know what the future will bring as to the changes in the technology, Parliament should have a regular review.
We cannot foresee the changes in six or seven years, or even ten years from now. There may be such drastic changes that the system will be totally different than what we are discussing today, especially as Mr. Gaudette and Mr. Fourney have explained the process. Remember that radio was very big when it was first invented. Now it is micro-sized. Perhaps, 10 years from now, all this information will fit on a microchip of some sort and these contemplated storage facilities may not be required.
Our concern is not only to allow for new initiatives but also to examine the implementation process. We do not doubt your intentions nor those of your successors, but Parliament must always remain the safeguard, the reviewer of these activities that will take place under the extraordinary powers to be granted.
We all know that, unfortunately, in the past, some abuses have taken place even though there were penalties and disciplinary initiatives. We, like you, have been in public life for years. We know it happens. We must try to prevent that. We want to ensure that this Parliament, which is the repository of the citizens' control over police activities, maintains control over the information garnered. This review is for a limited time. After only a three-year operation, we will be reviewing and then it is business as usual.
Personally, I believe that this bill opens the door to many problems that we cannot foresee at this point in time, especially on the basis of privacy invasion. I do not want to be the bogeyman here, but it is our role to question ourselves.
What kind of people will control the system after the present regime is gone? What kind of system do we need to put in place to ensure that we block the loopholes? Your announcement of an advisory committee is a most welcome initiative. It is a proper step in the right direction.
Your annual reporting to Parliament about the implementation of the bill and these specific aspects is an essential element of control. Nothing in the bill provides that control. The bill will likely be tested in court one day, taking into account the uncertainty surrounding many of its elements. It will help if you can convince the court that you have exercised due diligence in establishing a process of control.
Mr. Murray: Part of the response to Parliament on an annual basis is the estimates. Of course, a major initiative like this is included in the estimates as a specific initiative. There is a requirement to comment on each of our major functions. The DNA data bank would be one function that would require justifying the expenditure of public funds.
Consistent with that is utilization of statistics that support the continuing need of expending public funds on whatever the function happens to be. I would suggest that this particular issue would fall into that category. It would be covered in the estimates, therefore providing the annual opportunity for the House Committee on Justice and Human Rights to question me on the functioning of the data bank. That is just in terms of the parliamentary scrutiny.
Over and above that, having the Privacy Commissioner as part of the advisory committee provides another opportunity to ensure that the broader public interests are being addressed from a privacy perspective.
When we talk about the changes that will inevitably occur in the future, they will be efficiency-related. We will always have to function under the objectives and requirements of the act.
None of us can even contemplate what the future system will look like, but it must still function within the purposes and objectives of the act itself. Regardless of who happens to be in place 10 years from now, I believe the checks and balances in the act are adequate to address your concerns.
Senator Joyal: To be frank, I would have been happier if you had offered to ensure that when the regulations are drafted in the months to come, they will include directions for specific annual reporting.
I was a member of the other house for ten years. I know the estimates come to the parliamentary committee and there is a good discussion, but the discussion is all over the place. The committee does not specifically target the very fundamental elements where the privacy rights of people are at stake.
Once this bill is adopted, you will be the overall master of the thing. I would feel better in adopting this legislation if you would accept in principle that an annual report obligation will be included in the future regulations to be adopted.
Mr. Murray: I will go beyond that. Even more than in principle, I undertake to do that. I will ensure that a regulation is passed that requires an annual report to the minister outlining the activities of the data bank.
Senator Bryden: I would have been more comfortable had the reference to the advisory committee been incorporated in the act. It is not there.
I would have been more comfortable if clause 12, which refers to developing regulations, had included the establishment of an advisory committee and an annual reporting mechanism.
Clearly, members of this committee are aware that we must balance the need to perfect this piece of legislation as against reaching actual implementation and then improving it later if necessary. I happen to come down on the latter side.
I will say for the record that we need to proceed with this on balance and that a number of us will be watching very carefully the regulations that are brought forward. We will watch very carefully who makes up the advisory committee and what sort of transparency there is in relation to the concerns that we have raised.
There is an opportunity to review the legislation at the end of five years, which means at the end of three years of operation. While there is no continuing review -- and I am not suggesting that there be -- it is always possible for a House of Parliament to call an inquiry and ask an agency to account.
We would be of a view that, if you carry out the things that you are saying -- and we have no indication that you will not -- and the checks and balances are put legally in place under regulation, we look forward to seeing that.
If it does not, we also look forward to calling you to account as to why it has not happened.
Mr. Murray: I very much appreciate that. One other factor that I did not mention earlier in terms of oversight is that when the House committee studied the bill they indicated that they intended to review the progress made before the end of the current Parliament. That would be another oversight in the interim period, before the five-year review. It is conceivable that the bank would be up and running for a short period by the time that happened, so there would be another opportunity at that point.
I can understand the concern around the table, and I take it to heart and appreciate it. We all want to do the right thing. It is an emerging new field. We want to ensure we get it right in this country. I will personally undertake to ensure that I oversee the selection of the people involved and ensure that there is a sufficient base of stakeholders so we get it right.
The Chairman: Before we go on to correct the record, I believe that this review will take place five years after the coming into force of this proposed legislation, which is five years plus 18 months from now, not five years less 18 months.
Senator Bryden: The 18 months is added on.
The Chairman: Also, I would reinforce something the commissioner said. The Estimates is a tool for senators to follow things up, which we rarely do. It does require one individual senator to follow through on the issue and to ensure that they see to the Estimates and follow through and find out what actually happened.
Senator Moore: I wish to follow-up on a point Senator Bryden made with respect to the regulations. Mr. Phillips, on page 5 of your report, you said that we will establish a DNA bank advisory committee with representation from various stakeholders. You said you would personally give that your attention.
I should like to know if you are in agreement with the idea of putting in the regulations the necessary provision to establish such a bank advisory committee and who the members might be.
Mr. Murray: In principle, that makes sense. I would not want to make it so narrow that every time you wanted to add someone you had to amend the regulation, because that in itself is a very time-consuming process. We want to be as inclusive as possible.
Over time, the membership of that advisory committee will grow rather than get smaller. Perhaps if we had it restricted to five categories and then wanted to expand it would be a down side of that approach.
Senator Moore: What about the actual establishment of the advisory committee? You have no difficulty with putting that in the regulations?
Mr. Murray: Very much so.
The Chairman: This has been a very fruitful session. Thank you for giving us your assurances on matters that are troubling the committee.
The committee adjourned.