Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 47 - Evidence - Afternoon 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 3:10 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this is the committee's eighth meeting on Bill C-3, respecting DNA identification and to make consequential amendments to the Criminal Code and other acts. The bill provides for the establishment of a national DNA data bank to be maintained by the Commissioner of the RCMP, and used to assist law enforcement agencies in solving crimes.
The bill was passed by the House of Commons on September 29, 1998 and received first reading in the Senate the next day. The bill received second reading on October 22, 1998, meaning that the Senate approved the 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 the Canadian Association of Chiefs of Police. Last week, the committee heard from the Canadian Resources Centre of 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.
Earlier today, the committee heard testimony from Bruce Phillips, Privacy Commissioner of Canada, and Phillip Murray, Commissioner of the RCMP.
The committee will now hear from the Solicitor General of Canada, the Honourable Lawrence MacAulay, who is the sponsor of Bill C-3. 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, to recommend amendments, or recommend that the bill not proceed. The committee will then report its decision to the Senate for consideration.
I would now like to welcome you, Minister MacAulay, and ask you to make your opening statement. Please proceed.
The Honourable Lawrence MacAulay, Solicitor General of Canada: Honourable senators, thank you for inviting me here to speak about Bill C-3, which will create a national DNA data bank. This bill is the second phase of the government's DNA strategy. You are already familiar with the first phase, the DNA warrant scheme, which this committee supported in 1995.
As this committee has heard, there is overwhelming support for a national DNA data bank. The police community has told us repeatedly that a DNA data bank is one of the more significant crime prevention tools. Our intention with Bill C-3 is to create a practical law enforcement tool that protects the privacy and constitutional right of Canadians.
To ensure that the police have a tool that will stand up in the courts, Bill C-3 has been drafted in accordance with the Charter. It was developed to balance public safety needs with privacy rights, and I am confident that we have achieved this goal.
Concerns about privacy and Charter rights exist because a DNA sample has the potential to reveal much more about a person than what is revealed by a fingerprint. The views of the Privacy Commissioner have been carefully considered in the development of this bill, and safeguards are included in the bill to tightly regulate the collection, use and retention of DNA samples.
Bill C-3 also builds on the solid foundation of the DNA warrant scheme. That legislation has enabled the police to solve hundreds of serious crimes, and it has helped to clear innocent people who have been wrongfully convicted. The Supreme Court of Canada has commended this legislation, and it has withstood all constitutional challenges to date.
The warrant scheme has survived Charter challenges largely because it provides for prior judicial authorization for the collection of DNA samples. Similarly, Bill C-3 requires judicial authorization before a DNA sample can be collected from a convicted offender for DNA data bank purposes.
This government took deliberate steps to allow for a detailed study of this legislation. Extensive consultations were held with a broad range of Canadians, and the House of Commons Standing Committee on Justice and Human Rights reviewed the bill before second reading.
I am pleased that this committee has proceeded cautiously in its consideration of Bill C-3. This approach is commendable because there are many issues surrounding the use and potential misuse of DNA profiles and samples, as well as legal and ethical concerns. You have identified some of the issues that must still be resolved.
I understand the committee has raised concerns about potential misuse of DNA information. The government shares these concerns and that is why the bill contains many safeguards. DNA information can only be used for criminal identification purposes. The DNA data bank will be under the secure control of the RCMP Commissioner. All DNA samples from convicted offenders will be in one RCMP facility, and a limited number of people will have access to the data bank. The RCMP has strict testing standards, and there is a criminal penalty for abuse of DNA information.
Many checks and balances are already in place, including House of Commons and Senate committee inquiries and the Public Complaints Commission process.
I should like to assure this committee that no one in Canada's law enforcement field has ever been charged with an offence for the wrongful use or communication of DNA information.
I appreciate the suggestions made by some witnesses and the committee about the need for an independent body to assist in preventing misuse of DNA information that could occur as a result of evolving technologies. I fully support the establishment of an advisory committee that will advise on the operation of the data bank and monitor new DNA technologies as they impact on the data bank. I also support this committee's view that a Senate committee should have the same authority as the House committee in reviewing Bill C-3.
This committee has noted that there are no authorities in the bill to collect DNA samples from military offenders who are convicted of designated offences. I share the committee's concern that these offenders should be included in the data bank.
As I indicated in a letter on December 1, 1998 to the chair, I intend to proceed very quickly with a new bill so that military courts will have authority to impose data bank orders by the time the DNA data bank is set up and running. I will also propose that this bill include an amended five-year review provision to authorize a Senate committee to conduct a review.
I believe that a separate bill is the best approach for resolving these issues. All provinces and territories, the police, victims and the general public expect the federal government to implement the data bank quickly to improve public safety and help prevent violent crimes across the country.
Any amendments to Bill C-3 would delay implementation of this important tool. I ask this committee to consider that it will take at least 18 months to fully implement the data bank after Bill C-3 receives Royal Assent. That time could be used to introduce and pass a separate bill to address the important issues identified by this committee, without delay in the data bank.
I understand questions have been raised about whether the RCMP Commissioner should have sole authority to operate and control the DNA data bank. During consultations and the House committee review, the majority of respondents and witnesses said that the RCMP Commissioner is the best choice for managing the data bank.
As the RCMP Commissioner advised you today, he is already responsible for other data banks containing highly sensitive and personal information. The commissioner has an excellent record in managing these data banks. Police across the country have expressed confidence in the commissioner in this regard.
This committee has carefully explored the questions of protecting the privacy of DNA information under the control of the RCMP. The Privacy Act already authorizes the Privacy Commissioner to conduct an audit at any time so that the use of DNA information under the control of the government is monitored. The Privacy Act also ensures that DNA information may only be shared with another country if an agreement is in place, and only for the purpose of administering or enforcing a law or conducting an investigation.
As is the case with all agreements with foreign government agencies, agreements on the sharing of personal information will contain a clause prohibiting disclosure of information without Canada's consent. To further respond to this committee's concerns about protecting Canadian information abroad, the RCMP will enter into agreements only if the other country undertakes not to disclose personal information about Canadians.
This committee has heard both sides of the debate on the retention of samples. I cannot emphasize enough that retention is an essential part of the data bank. While there are valid privacy concerns about this, it is also important to have confidence in the system that is in place and that is designed to protect against abuse of DNA samples.
Without the safe retention of samples, as outlined in this bill, this government would have an ineffective data bank that falls short of its public safety objectives. If we were to destroy samples, the government would have to collect new samples from ex-offenders each time the technology changes. In many cases, collection would take place long after the original sentences were completed. This would raise even greater privacy concerns.
In summary, there is no doubt that a national data bank will be an important tool for police. It will take approximately 18 months to set up. In that time, I am committed to introduce another bill to address the concerns of this committee regarding military offenders and an independent Senate review.
I also support the establishment of an advisory committee and safeguards for international agreements. As a result of the valuable work of this committee, these matters will improve the operation of the data bank and better protect privacy interests of all Canadians.
Thank you very much for giving me this time. I will entertain questions to the best of my ability.
The Chairman: Thank you, Mr. Minister.
I will remind the senators that the minister has to leave shortly after four o'clock. In order to let us ask as many questions as possible, we should perhaps keep our own introductory statements down to a minimum.
Senator Grafstein: Mr. Minister, it may not be fair for us to impose ourselves on you in this way, since you are new to this position. You are not responsible for this bill, in the sense that you were not involved in the long and arduous process, which we understand took place in the department. It took approximately over two and a half years to generate this bill. We recognize your lack of accountability for that period, but you are now accountable, and we must deal with you as it is.
Earlier today, the RCMP Commissioner made an unequivocal statement to us that is not reflected in the bill. At page 4, he states:
No genetic information will be released. This is the case whether the query originates within Canada, or another country.
On behalf of the public, how do we satisfy ourselves that this undertaking is codified?
We have an undertaking. No one questions the undertaking or its integrity. We also have your parallel undertaking that states:
To further respond to this committee's concerns about protecting Canadian information abroad, the RCMP will enter into agreements only if the other country undertakes not to disclose personal information about Canadians.
We understand your desire to retain the samples in the bank, however, in the absence of a statutory requirement, how do we satisfy the Canadian public that this will be the case for this legislation?
Mr. MacAulay: It is my understanding, honourable senators, that the issue is addressed in the bill. I would ask Mr. DuBrule to respond to this.
Mr. Paul DuBrule, Director, Legal Services, Department of the Solicitor General of Canada: Subclauses (3) and (4) of clause 6 of the bill refer to DNA profiles being the type of information that will be disclosed. That is not a sample. Samples will not, do not and cannot cross borders.
That issue is dealt with here. The commissioner can communicate the DNA profile contained in the crime scene index. At the discretion of the commissioner, the profile can leave the country in relation to an unidentified individual DNA found at a crime scene. The profile can then be matched with the profile found abroad.
Senator Grafstein: I have a problem with that and perhaps you can help me. The definition of DNA profile found in the interpretation of the bill states:
"DNA profile" means the results of forensic DNA analysis of a bodily substance.
I do not mean to quarrel, but there is a concern that there does not appear to be a constraint on the utilization of the DNA profile with respect to "no genetic information will be released". They do not seem to be related in a precise way.
I am not in any way trying to undermine the integrity of the RCMP. This is a legislative issue. A number of Canadians are concerned that their genetic information not be used for other than the narrow purpose of criminal identification. I am delighted that the commissioner saw fit to make that unequivocal statement. However, the legislation does not seem to confirm to his statement.
Please take us through the definition and clause 6.
Mr. DuBrule: Clause 6 goes back to the DNA profile, which is not the sample. It is the identification label, if you wish to put it in those terms.
Senator Grafstein: Your definition is broader than that.
I understand "profile" and I understand "sample". However, the definition is not clear to me. The definition states:
"DNA profile" means the results of forensic DNA analysis of a bodily substance.
I am suggesting it is broader. Please correct me if I am wrong.
Madam Chairman, to be fair to the minister, I did not notice the minister in advance, because we just received this information this morning. If he wishes to return to this issue in order to consult with his officials, that is fine.
I have other questions. To be fair to others, I should like to reserve and then come back on the advisory.
Senator Andreychuk: I am concerned about the way the DNA data bank functions within Canada. Would you, as the minister, undertake to receive a yearly report on the operations of the data bank, and would you table it in Parliament?
Mr. MacAulay: We will have an advisory committee in place. In addition, the committee in the Senate and the committee in the House of Commons also have the authority to review the act in the fifth year.
Senator Andreychuk: The exclusive authority to maintain the conduct of the data bank is a very sensitive right that we are giving to the RCMP. There will be an 18-month start-up period and the review five years later. It seems to me that this is such a new area that it demands more scrutiny by the RCMP to the minister, as well as the minister to Parliament. Some annual undertaking is warranted. Would you not agree?
Mr. MacAulay: I understand the commissioner indicated this morning that he would be only too pleased to provide it on a yearly basis.
Senator Andreychuk: If I recall, the RCMP Commissioner was very concerned about making sure that there is a comfort level for everyone on the data bank issue. If I understood his words, he would provide it to the minister.
Senator Grafstein: That is not my recollection, but I do not wish to quarrel with my colleague.
Mr. MacAulay: In all fairness, the Commissioner of the RCMP does have responsibility for DNA samples at this time. He has had the responsibility for a number of years, and there has never been a problem. No one has ever been convicted of an offence further to information being improperly released. The Commissioner of the RCMP has an excellent track record in this area. I understand that he did indicate he would provide a report on a yearly basis.
Senator Andreychuk: Would he report to you or to Parliament?
Mr. MacAulay: To me, yes, and I would table the report with Parliament, of course.
Senator Andreychuk: I do not think he said that.
Senator Kinsella: As a supplementary on that, the Commissioner of the RCMP is not an officer of Parliament. Therefore, he must report to you and then you would report to Parliament.
Mr. MacAulay: He would submit it to me, and then I must submit it to Parliament. I believe that would cover Senator Andreychuk's concerns.
Senator Andreychuk: Yes, it would. We know when we give information to other sources that they can give us their word. However, we are not quite sure what happens, as we have discovered with passport information. Other police forces may not be under the same strict obligations as ours.
Should another police force misuse the information we give them, short of cancelling the agreements, which would defeat the purposes of our intention, what is the remedy for Canada?
Mr. MacAulay: Over the years, we have dealt with police forces around the world on a significantly high level, and we have not had abuses into other areas. Though it is a very sensitive area, we would have little reason to be concerned,. We will be very cautious. We must have agreements with the police forces with whom we deal across our borders. We have done it previously in other areas, so we feel very confident that foreign governments will use this very cautiously.
It is only the name that is released.
Senator Andreychuk: Will there be any new provisions, practices or procedures put in place to monitor that part?
Mr. MacAulay: We will put an advisory group in place to monitor this. A very small number of people will have access to this information within our own country. It will be handled very cautiously by very few people but, of course, it will be much larger when we establish the bank. However, we have had this information in this country protected very successfully and handled very professionally for a number of years by the Commissioner of the RCMP.
Senator Andreychuk: I will leave it at that. My concern is that we not take this additional information-gathering source as a routine. This is highly sensitive. We must make sure that we have not mandated the advisory council to do it all, but that you, as minister, will ensure that there are proper practices and that you monitor them. The problem is never at the start-up, it is always later when the process becomes routine.
Mr. MacAulay: You are right, senator. Your suggestion is well taken. We will have the committee. The commissioner will be reporting to me. I will be tabling the report. We will take all the precautions that we possibly can. This is not routine. I have been here two weeks, but these people have been working on it for two and a half years. This is not something that has happened in a nonchalant manner. It has been cautiously handled, as it should.
Senator Nolin: We acknowledge the fact that you recognize our concern, and you have decided to introduce a new bill within 18 months.
As I told my colleagues privately this morning, we will support and we will vote for your bill, as it is now, taking into consideration that you publicly undertake, informally, to introduce proper legislation and address the concerns that we have raised during the hearings of this committee.
As we have heard from the expert witnesses from the forensic division of the RCMP, technology is evolving. One of the concerns that we all have here, as well as in the House of Commons, is the destruction of links, the destruction of profile. If we can destroy a sample -- and the bill already deals with destruction of samples -- we are not destroying profile because of cost concerns as well as for technical reasons.
We hope that within the next 18 months, and hopefully before you introduce your bill, we will have this new technology available to ensure that, if we destroy the sample, we will also destroy the profile. If your new bill can touch upon that, we will be very glad to hear from you.
I have a policy question concerning the problems we may encounter with privacy, since we will be maintaining those profiles somewhere and they will be available. Even if the bill says that the access and the link between a specific individual and a specific profile will be destroyed, the profile will still exist.
If the only reason for that is based on cost, I hope you, Mr. Minister, will force the experts to try to find a way to make that happen and destroy those profiles.
Mr. MacAulay: All I can tell you is that we will look at that issue.
Senator Nolin: A concern was raised this morning about clause 11 of the bill, which relates to an offence punishable by imprisonment for a term of two years. Personally, I find that too short.
Looking at the list of secondary designated offences, in no instance, except for one, is the punishment under those offences less than five years. I do not know the English version of "proxénétisme", but if you are the father of a young person between 14 and 18 and you are the "proxénète" of that person, you will be in jail for a maximum of two years. That is the only offence in that list punishable by less than two years.
I have a problem with the government creating an offence punishable by only two years. The way the offence is created, most offenders will be people working for the RCMP. We want those people to receive the following message from this institution, "Do not do it."
Do you agree that two years is too short?
Mr. MacAulay: Senator, as you are aware, it used to be six months, and we changed it two years. We have never had such an offence.
Pursuant to the Criminal Code, offenders can also be charged with breach of trust, which I understand can be more serious. It is not fully limited to this.
Senator Nolin: Another offence pursuant to the Criminal Code concerns wiretapping or eavesdropping. That is punishable by five years -- not as a minimum, but five years. It is very serious. We are talking about privacy.
I am trying to compare the offence that you have created in the bill with other offences that we already have in the Criminal Code. Where is the balance with those offences? Breach of trust is important and it is already there. It is important for Parliament to warn people who might consider doing something other than what the bill provides for that they will face serious consequences.
I am raising this concern, and I am sure you will agree with me.
Mr. MacAulay: Senator, as you are aware, a very limited number of RCMP officers will be dealing with these samples. They can be prosecuted under the Criminal Code for a breach of trust, and they will also most likely lose their jobs. There is a lot more to it than just the two years and the point is well taken.
Senator Nolin: I have another point regarding the five-year review.
We recently dealt with Bill C-25 and the National Defence Act and courts martial. We amended the bill regarding the five-year review. Bill C-25 introduced a new scheme of courts martial and a new process of justice in National Defence. We all agreed to adopt a review by an independent body, because it is new and it is technical. In addition, we must maintain equilibrium between various fundamental concerns. Further to that review, a report will be written and tabled in front of both Houses.
Would you agree to that type of process?
Mr. MacAulay: Is that every year?
Senator Nolin: It is every five years.
Mr. MacAulay: There will be a review in the fifth year. Are you concerned that it does not continue?
Senator Nolin: I am concerned because of the evolving technology.
Mr. MacAulay: As you are aware, the commissioner will be reporting to me every year, not every five years, on the activities and that report will be tabled.
Senator Nolin: Will the RCMP Commissioner specifically report on the DNA act, or will he report generally on his administration?
Mr. MacAulay: We want to ensure that everything is confidential and done as well as possible. Looking at the whole package, this is not new under the jurisdiction of the RCMP Commissioner, although it is much larger. Very few people will have access. The penalties -- although I know you do not agree -- are severe in the end. A very limited number of persons have access, and we have had no previous problems in this area. That does not mean we never will, but I think we have addressed it reasonably well. I know you do not fully agree.
Senator Nolin: I agree on the review. If we are to have a good review, it should be independent. There should be a report made from that review, and that report can be looked at by Parliament.
Mr. MacAulay: We also have an advisory committee.
Senator Nolin: Would you agree to having an advisory committee enshrined in the bill?
Mr. Jean Fournier, Deputy Minister, Department of the Solicitor General of Canada: Honourable senators, my understanding is that, this morning, the Commissioner of the RCMP, Phillip Murray, gave an undertaking to this group to have the review included in the regulations.
Senator Grafstein: That is what we asked for, and he asked for flexibility in the event he wanted to change the structure.
Senator Nolin: I am talking about the fundamental concept of having an advisory board. I strongly agree with the commissioner that we should not force him to come back here to set up the board. However, for me, at least the creation, the existence of such a body is critical.
We can deal with that issue when you introduce your amending legislation, and I would be pleased to look at it at the time.
Mr. MacAulay: Thank you, senator.
Senator Joyal: I should first commend the minister. Although you are new in your portfolio, you have assumed your new responsibilities, and you have taken on important endeavours insofar as the implementation of this bill is concerned. If that is a sign of the way you will do things in the future, it will be appreciated by this committee.
In your opening statement, you put your finger on the very core of the fundamental concern we have as the Standing Senate Committee on Legal and Constitutional Affairs. It is the proper balance between the rights of Canadians to their privacy when they are accused and when they are sentenced, and the rights of Canadian society to be protected. We have been wrestling with this bill at various stages of its implementation and definition to ensure that this preoccupation remains at the core of our legislation. Further to the testimony of the Commissioner of the RCMP this morning, as well as the testimony of the Privacy Commissioner, you will understand that the regulations that will be issued pursuant to this bill are fundamental in reaching that objective.
The regulations will become an essential part of this bill. In order to meet our concerns, as well as your concern to create a statute that can stand up to constitutional or legal challenges, should the regulations not be sent to us for advice before they are proclaimed? The work we have been doing in the last weeks -- it has been important work and I do not pretend that we are experts -- will ensure that our major preoccupations are addressed.
Further to the discussions that we will have once you introduce the bill you mentioned in your opening remarks, could you send to us the draft regulations?
We would certainly deal with them as expeditiously as we are dealing with this bill. We want to ensure that the mechanisms implemented to monitor the statute satisfy our objective to maintain the balance between the rights of the individual and the rights of society. Is that something you could envisage?
Mr. MacAulay: Yes, senator, it certainly is. The regulations will be prepublished. I assure you that you will receive them, comment on them and evaluate them.
Senator Joyal: Madam Chairman, this committee needs a reference from the Senate to conduct a formal study of the regulations. With that proviso, I commend the minister for his flexibility and interest.
Many of our preoccupations, such as the "genetic information" and the penalties imposed pursuant to an offence, could be reflected in one way or another in the regulations. If we have fair and serious input, as we have had since the beginning of our discussions with the help of your experts, we will be able to maintain the balance that we are striving to strike. We will certainly do our utmost to ensure that we do not delay the implementation of the bill.
Mr. MacAulay: Thank you, senator. When I became a full minister, I had the privilege of appearing before a Committee of the Whole of the Senate on back-to-work legislation. They told me I was coming down for 15 minutes. Two and a half hours later, I can assure you that I knew that legislation very well.
I am well aware of how serious the Senate is. You need not underscore your knowledge in these areas. I would not appear before you without being well prepared.
Senator Grafstein: In response to my earlier question, if you have a short response, that would be helpful.
Ms Yvette Aloisi, Director General, Police and Law Enforcement Directorate, Department of the Solicitor General of Canada: Madam Chairman, I have consulted with my colleagues from the RCMP. They tell me that the definition in Bill C-3 is consistent with the definition in the warrant scheme. The definition of "forensic" is taken in the context of law enforcement and not for medical reasons. I understand that you may have some difficulties with that. If you wish, the RCMP and ourselves are ready to clarify in the regulations what we mean by "DNA profile"; that what is meant here is not a profile for medical reasons, but just for forensic reasons, for law enforcement.
Senator Grafstein: So there would be a prohibition in the regulations.
Ms Aloisi: Yes.
Senator Grafstein: Let me move to another topic quickly, which was raised by Senator Nolin. As he fairly put it, this committee has been preoccupied with not impeding legislation, but trying to keep it streamlined and modernized. That was the basis of our amendment concerning the criminal justice system, where we required a review every five years.
Because of the statement of the commissioner, who acknowledged that the technology is moving even more quickly than he anticipated, and since he will be ultimately the responsible official, a perennial five-year review might be something for the department and for you, sir, to consider.
I say that because we do not know, as we sit here, where we are going in this legislation or the limits of it. The department does not know. The commissioner who is responsible does not know. I listened to the commissioner very carefully, and I think this would be accurate. If not, staff can correct me.
The commissioner said he would undertake to write on an annual basis a special section in his general report dealing with the DNA investigatory system. However, based on our previous experience, that report does not give us enough information to see if the underlying system is working appropriately and if it reflects our privacy concerns.
Mr. MacAulay: I can assure you that we will evaluate that.
Senator Grafstein: You have an opportunity between now and your next amendment to consider this. We hope you will consider it very positively, because it is good for you, for Parliament and for the public to know that Canadian parliamentarians are concerned with privacy. Privacy is a national consideration. We must not just talk about it. Parliament must be forced to review this on a regular basis. That is why I suggest you incorporate it in your next revision. Certainly, it will be a recommendation that I will make in our report.
Mr. MacAulay: I am pleased you brought that up, senator.
The Chairman: If there are no further questions, I will thank you, Mr. Minister, for being so responsive to the concerns that this committee has raised. You and your department have done a fine job. Please be assured that we do not wish to attack the legislation or the department. In a non-partisan way, we are trying to work with you to ensure that the rights of Canadians are protected.
The committee adjourned.