Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 3 - Evidence
OTTAWA, Wednesday, December 1, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-10, to amend the National Defence Act, the DNA Identification Act and the Criminal Code, met this day at 3:35 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, before I call on our witness, I wish to point out to the members of the committee that they received a booklet this week entitled "An Introduction to the Standing Senate Committee on Legal and Constitutional Affairs." This was put together over the summer, rejuvenated, revised and rewritten by the Library of Parliament and our very able assistant, Nancy Holmes. Congratulations. It is recommended reading for everyone.
We have before us today the Honourable Lawrence MacAulay, the Solicitor General of Canada. He is appearing again on Bill S-10. Members of the committee have all had a precursor to this bill, as it appeared before us in the last session. I want to congratulate Minister MacAulay for responding in such a timely fashion to our concerns about the last bill and for getting another bill to us before the last one was proclaimed. I am pleased to have the work of the committee rewarded in this way.
Please proceed.
Hon. Lawrence MacAulay, Solicitor General of Canada: Honourable senators, Bill S-10 follows up on my commitment to address your recommendation in your sixteenth report concerning the DNA Identification Act.
Almost one year ago, I appeared before this committee to address data bank legislation. At that time, you made a number of recommendations to improve the operations of the national DNA Data Bank and to better protect the privacy interest of all Canadians. I am very grateful for the excellent work this committee has done. That is why I recommended that this bill be introduced in the Senate. It is the product of your work. I would appreciate hearing from you on the bill before it proceeds to the other place.
This bill does not change the key elements of the DNA Identification Act that you endorsed last year. It addresses the recommendations you made after your careful review and further proposes some practical changes to ensure the smooth and effective implementation of the data bank. The data bank is being set up and will be in operation by next June. It remains one of our top priorities.
All provinces, territories, the police, victims and the general public are looking forward to the DNA data bank's timely implementation to improve public safety and to help solve and prevent violent crime across the country. To allow the RCMP to implement the data bank on time, your prompt consideration of this bill would be greatly appreciated.
I wish to briefly describe the key elements of Bill S-10, then turn to the DNA Identification Act regulations and the DNA Data Bank Advisory Committee.
Bill S-10 amends the National Defence Act and the DNA Identification Act to include in the national DNA data bank profiles from offenders subject to the military's Code of Service Discipline and who are convicted of serious and violent offences. Military judges will be authorized to order that samples be taken from people who are subject to the Code of Service Discipline once they are convicted of a designated offence. A designated offence for purposes of the National Defence Act will include the existing Criminal Code designated offences, as well as those service offences that are similar to the Criminal Code offences. The DNA profiles obtained from these offenders will then be entered into the data bank's convicted offenders index.
The National Defence Act has also been amended to authorize military judges to issue DNA warrants for military police investigations of designated offences committed in Canada or abroad by those who are subject to the Code of Service Discipline. Both the DNA data bank and warrant schemes in the National Defence Act are modelled after the current provisions in the Criminal Code. They include the same constitutional and privacy safeguards as the Criminal Code.
Bill S-10 also includes important new accountability measures for Parliament to strictly monitor ongoing operations of the data bank. The RCMP Commissioner must submit an annual report on the operation of the national data bank to the Solicitor General. The Solicitor General will then table the report in both Houses of Parliament. The parliamentary review provisions in the DNA Identification Act have also been amended to authorize a Senate committee to independently conduct this review.
I have given careful consideration to this committee's recommendation to provide for an ongoing five-year review. While I fully support your concern that the data bank legislation must keep pace with technological changes, I also believe that we must amend the legislation as required and when required.
Through the annual report, both Houses of Parliament will be kept informed about the data bank's operation and technological developments and can propose any legislative amendments needed to respond to evolving issues. I believe this will provide a more timely and effective approach to ensuring that the data bank legislation reflects the realities of the day.
The committee expressed concerns about the potential misuse of DNA profiles for purposes other than law enforcement. A new principal will be added to the DNA Identification Act. This will clarify that the DNA profiles and bodily samples may be used only for law enforcement purposes. This principle has been reflected in the bill instead of the regulations because of its importance in preventing possible misuse. It is a step further than the committee recommended.
A number of changes are also being made to the Criminal Code in response to concerns raised by the federal and provincial heads of prosecution. These changes will: clarify that a court is not required to make a data bank order when advised that the person's DNA profile is already in the data bank; authorize provincial court judges to endorse data bank orders granted in other provinces; repeal the provisions allowing a person to express a choice on the type of DNA sample to provide; and ensure that new samples of bodily substances are collected whenever a data bank order is imposed. These changes have been recommended by the provinces and territories, as they have been worked to put this data bank in place.
In response to your request to review the regulations in support of the DNA Identification Act before they are published, I am pleased to table the draft regulations. All of the provinces and territories endorsed them during our consultations with them.
Two sets of regulations are being proposed. The first set will establish the DNA Data Bank Advisory Committee to provide advice on the implementation and operation of the data bank. As you will see, the advisory committee will include a representative from the Privacy Commission, which was one of the recommendations of this committee. The second set will address the provisions of the DNA Identification Act.
To enable the RCMP Commissioner to establish the advisory committee soon, the regulations must be proclaimed before the data bank is operational. The other set will come into force once the data bank is implemented. I welcome your comments on both of these drafts before and during your consideration of Bill S-10.
I am confident that all of these changes in Bill S-10 will improve the legislation and ensure the creation of an effective national DNA data bank. I look forward to the results of your review of Bill S-10 so we may proceed quickly in ensuring that the changes are made by the time the data bank is implemented.
The Chairman: We have copies of the draft regulations here, which will be circulated to all committee members.
Senator Beaudoin: Mr. Minister, our concern is with the privacy of the DNA data, as well as with the possible misuse of data and the collaboration between the federal authorities and the provincial attorneys-general. In our system, criminal law is federal but the administration of justice is provincial. What kind of collaboration would the provincial attorneys-general have? What do you have in mind? Perhaps the question is already answered in the regulations, which are already accepted, but I should like to know more.
It may be a perfect system and it may be the thing to do, but we must do it with certain purposes in mind. We cannot have DNA information on television and things like that. Are you satisfied with the secrecy surrounding all of this? What are your relations with your provincial colleagues?
Mr. MacAulay: Given the concerns expressed by this committee about the potential misuse of DNA profiles, we decided to put a new principle not in the regulations but right in the act. It is now the law of the land that these profiles must not be used for anything but law enforcement.
Senator Beaudoin: It is in the new act.
Mr. MacAulay: It is in the new act, not in the regulations.
Senator Beaudoin: It can always be in the regulations to a certain extent later on, or is it only in the act?
Mr. MacAulay: It is in the act.
I have gained a great respect for the Senate because of my appearances before this committee.
Senator Beaudoin: In Quebec, for example -- but not only Quebec, because Ontario has its own police and all the other provinces are using the federal police -- the system is such that in your opinion there may be no possible leak. How is the security established?
Mr. MacAulay: Clause 5 of the bill amends section 4 of the DNA Identification Act and reads as follows:
(b) the DNA profiles, as well as samples of bodily substance from which the profiles are derived, may be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose;
That is in the act. It is not in the regulations. That change was made because of the recommendations from this committee. You highlighted and we changed.
Senator Beaudoin: The misuse of DNA profiles may be dangerous.
Mr. MacAulay: It would be wrong, and now it is against the law of the country if it should happen.
Senator Beaudoin: Do you table a report every year in the House of Commons?
Mr. MacAulay: The Commissioner of the RCMP issues a report to me, and then I table it in both Houses each year.
That addresses a further problem that you will probably bring to my attention, as you have with respect to the five-year review. There is also an ongoing one-year review. The reason for that is all the technological changes that may take place. We would never want to leave if we got to year three. We would not wait until year five. Each year there will be a report for you to evaluate. If changes are deemed necessary, hopefully the powers that be -- yourselves and members from the other place -- will make them at that time and not wait for the five-year review. That was the feeling we had. The review is important but perhaps even more important than you were indicating. There will be a review each year to give you a chance to evaluate the process.
Senator Beaudoin: We are used to the five-year review because it is in many statutes, and we have no objection to that. There are so many cases before the courts with respect to sections 7 to 14 of the Charter that it might be good to come before the Parliament of Canada for legislative changes. I agree with you on that.
Mr. MacAulay: We felt that way too.
Ms Marian Harymann, Senior Policy Analyst, Law Enforcement Division, Department of the Solicitor General of Canada: You asked who has been consulted in the provinces and territories in preparing the implementation of the data bank. A number of groups have been established. Attorneys-general, the provinces and the territories were consulted on the draft and provided their input, which are reflected in the draft before you now. The Department of Justice has also established a federal, provincial and territorial working group to address information and issues affecting the costs of prosecutors and preparing for implementation of the data bank. They recommended proposals to fine tune the legislation, which you now see in the Criminal Code provisions of this bill.
Finally, the Department of the Solicitor General and the RCMP have set up a federal-provincial DNA implementation work group to plan for collection of the samples. This extensive work group includes police representatives from across the country, including the OPP and the SQ from Quebec, as well as the RCMP, local police forces and the provinces. They will be required to make decisions as to how data bank samples will be collected in their jurisdictions.
Mr. MacAulay: The Privacy Commissioner's representative will be part of the review as well. Any abuses to the Privacy Act as it is written would be brought forward by these people. That is another safeguard.
Senator Ghitter: I am concerned with the military aspect. When the bill speaks in terms of an ex parte application being taken, who takes the ex parte application? Why is it not just an automatic? If these offences are committed by someone in the military, should the decision not be made automatically? The ex parte application seems to consider that someone must make the application to the judge, and if no one makes the application to the judge, how is it taken? How does it move into the DNA bank?
Mr. MacAulay: How does the sample get into the data bank?
Senator Ghitter: Proposed section 196.12 says that a military judge, on ex parte application, should then make the required warrant to have the DNA analysis. Who takes the ex parte application?
Commander Jane Harrigan, Director, Pension and Finance Legal Services, Office of the Legal Advisor, Department of National Defence: The provisions that you see are parallel to the provisions in the Criminal Code. This is the parallel to section 487.05 of the code and the application for a warrant. We are not talking about court orders here. We are talking about the application for a warrant. It is also ex parte under the Criminal Code, so the same type of people would be applying for the warrant under both statutes -- police and peace officers.
Senator Ghitter: A military police officer, in order to invoke these sections, must then take the ex parte application. Is that a discretionary matter, or is it not mandatory for them to do so?
Cmdr. Harrigan: Right now a military policeman could go to a judge and apply for a warrant if he established reasonable grounds. There is nothing different here than is the case with the Criminal Code. A "peace officer" includes military police.
Senator Ghitter: If someone should choose within the military service not to take the application, even though some of these offences have been committed, then we will not have the DNA sample in our data bank.
Cmdr. Harrigan: The sample does not go to the bank at this point. This is an investigatory warrant. The sample is seized for purposes of investigation only at this stage.
Senator Ghitter: How does it get to the bank? Which sections stipulate how it gets into the data bank?
The Chairman: On conviction, I believe.
Cmdr. Harrigan: It is exactly parallel to the civil process. It is under proposed sections 196.14 and 196.15, which are parallel provisions to Criminal Code provisions. After conviction in the case of a primary designated offence, judges are able to make that order. In the case of a secondary designated offence, the prosecutor requests that the order be made. This is parallel to the civil regime.
Senator Ghitter: Once the order is made, the test is taken after conviction. From that order, a sample is put in the bank automatically.
Cmdr. Harrigan: Yes.
Senator Ghitter: Where does the bill say that?
The Chairman: Proposed section 196.15.
Cmdr. Harrigan: Actually, proposed section 196.22 provides for the transfer to the Commissioner of the RCMP. It is a parallel provision to subsection 487.07(1) of the Criminal Code. That is the authority to send it to the data bank. In turn, there are amendments to the DNA Identification Act provisions that refer to the Criminal Code provisions to provide for the parallel National Defence Act reference. A provision under the NDA enables the taking of the sample and the transmission of the sample to the DNA data bank. On the other hand, through the DNA Identification Act, there are references to the National Defence Act provisions that enable the bank to receive samples.
Senator Ghitter: In other words, at the start, you take the application ex parte in order to prove your case. If there is a conviction, you take the sample, and then there are the provisions that flow into the data bank.
Cmdr. Harrigan: Yes. All warrants under the Criminal Code are ex parte. The policeman goes to a justice of the peace. In the case of DNA, because of the sensitivity surrounding DNA, they take it a step higher and bring it to a judge or, under the National Defence Act, to a military judge. However, those applications tend to be ex parte because there is a police investigation.
The Chairman: The confusion may be arising because in the previous bill that was before us, it was quite clear that DNA samples can only be entered into the data bank on conviction, not before. Anything that the police forces do to solve their case is their choice, but DNA samples must be taken anew before they are entered into the data bank and only on conviction.
Senator Fraser: Picking up on a point about security of the system, I note the clause stating that any DNA profile that is transmitted to the Commissioner of the RCMP electronically shall be transmitted using an encrypted, secure network with controlled access at the points of entry and receipt. That refers to electronic transmission of profiles.
I was wondering about the security of samples. There is an interesting passage in the proposed regulations about the sample kit, what it must include, and that it must be safely and securely packed, sealed, labelled and addressed for transporting the samples. However, there is utter silence on what happens once it is safely packaged, sealed and delivered. Is that because somewhere else there is a system governing the transportation of evidence?
Ms Harymann: The DNA Identification Act indicates that the samples must be transmitted to the Commissioner of the RCMP and nothing else can be done with those samples. That would constitute unauthorized use. The RCMP are in the process of developing the sample collection kit and instructions that, if followed, will ensure quality and ensure that the samples are reliable, valid and free from contamination.
The doctor who is responsible for the DNA data bank will be with us tomorrow morning. He will be able to elaborate further on exactly what the RCMP is in the process of developing.
Senator Nolin: Thank you for the diligence that you and your office have shown in responding to the concerns of this committee. It has been duly noted that more than once you and your department have moved quickly in answering our concerns. We are very pleased to see that.
Do you think the 18-month time frame for the full implementation of the data bank you referred to when you appeared in front of this committee in regard to Bill C-3 still is realistic?
Mr. MacAulay: It is, yes.
Senator Nolin: Within that 18 months, the bank will be fully operational.
Mr. MacAulay: That is also why the regulations were distributed to you. It would be good if you could evaluate them. I am sure that you will because you do an excellent job. It is helpful to us.
Senator Nolin: The specific offences that extend a reference as the services offences are listed under secondary offences. Could you explain to us why? Do you think some of those offences should be listed as primary offences? What is the rationale behind that?
Cmdr. Harrigan: We tried to provide for the same primary and secondary offences that you see under the Criminal Code. We also looked at the fact that the regime would be operating in a military context, so we were looking to capture serious offences that were similar under the Criminal Code categories of designated offences. I will deal with them one at a time.
Senator Nolin: First, let us take (b)(i), "violence to person bringing materiel to forces." I do not have in front of me the actual definition of the infraction. If I compare that with aggravated assault -- and aggravated assault is a primary offence, and violence to a person bringing materiel to forces is not -- it is a secondary designated offence? Why?
Cmdr. Harrigan: I would compare that more to an assault.
Senator Nolin: Which is a secondary designated offence.
Cmdr. Harrigan: It is a very serious offence, but there are some in the secondary designated list. We were trying to stay with the spirit of what had been used in the breakdown.
Senator Nolin: The next one, (b)(ii), relates to mutiny with violence. I imagine it does not occur very often at DND.
Cmdr. Harrigan: Thankfully not. On the other hand, you can have a mutiny with violence that does not necessarily involve an aggravated assault. We were trying to avoid being put in a situation of Criminal Code offences only. We either charge mutiny with violence, where we cannot put a sample in the data bank, which would be appropriate in this case to do so, or we go with assault. Obviously we want to go with what is considered to be the much more serious military offence. However, we tried to remain faithful to the spirit of the division between primary and secondary designated offences. These are offences where DNA evidence may be left at the scene of the offence. That is how they categorize secondary designated offences, and we tried to be true to that.
Senator Nolin: In Bill C-3, there was a provision authorizing the taking of substances of previously convicted multiple sex offenders and murderers. There is no parallel in Bill S-10 for military people. What is the reason for that?
Cmdr. Harrigan: When we were working with the Office of the Solicitor General on this, we went through each provision in Bill C-3 and looked at whether it really applied to us and our system. By and large, the answer was yes to virtually everything.
In this case, you must look at the categories involved. The first one -- I do not have the provision in front of me -- relates to repetitive murderers. First, we do not have too many murderers in our jurisdiction, and as military members they would not be around for the second one, so that was a no-brainer. That one did not apply. Second, we do not have anyone designated as a dangerous offender. That does not apply.
It comes down to the last one -- individuals who commit serial sexual assaults. They are serving two years. No one in the system matches that description either. We do not see anyone coming up in the process right now who matches that description. Given that this bill will come into force hopefully by June, we did not see how this applied.
Senator Poy: Mr. Minister, I am new on this committee, so I am not too familiar with this issue. I was not here last year to hear all the questions and find out what happened, so the questions I raise may have been answered already.
Have the details been worked out with respect to a built-in security system in order to prevent the underworld from obtaining these samples of DNA data? How do you prevent misuse, even by members of the RCMP? Have all these details been worked out?
Mr. MacAulay: We have the security measures in place, and the RCMP will be at the data bank itself. When I appeared here last year, I met a very aggressive group of senators.
Senator Poy: I was not one of them.
Mr. MacAulay: They had a few suggestions, and I listened to them.
As I cited previously, the bill states:
(b) the DNA profile, as well as samples of bodily substances from which the profiles are derived, may be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose;
It is a criminal offence to use them for anything else.
This committee requested an ongoing five-year review, but in fact now the RCMP will be reporting each year to me. I will be tabling a report to the Senate and to the House of Commons each year. The Privacy Commissioner is part of that. If there is any unauthorized use, it would be indicated by the Privacy Commissioner.
Senator Poy: I know that this is already written into the bill, but not all of the citizens of this country are law-abiding. How do we prevent them from obtaining this information?
Mr. MacAulay: You arrest them and take them to court. If they break the law, they pay the price.
Senator Poy: That could be too late for some of these samples. They could be sold to the underworld.
The Chairman: During the discussion of the last bill, we went through a very long educational process on the committee with respect to DNA sampling, how the sampling is taken and how things will be coded so no one without authorization can ever obtain the code.
Mr. MacAulay: The profiles and the samples are stored in different areas. That is one example. You will have other officials here tomorrow who can assist with those in-depth details on security. The overall issue is that the law indicates that the samples cannot be used for anything else. If they are, then the law has been broken and someone will pay the price.
There is also, because of the recommendation of this committee, a review each year with the Office of the Privacy Commissioner, which puts pretty strong protection in place for the samples and the profiles. That is important.
The Chairman: I have a question about something you mentioned during your presentation about repealing certain provisions and allowing an individual to express a choice on the type of DNA sample to provide. This is on pages 19 and 20 of the bill, where the provisions that were in the original bill are repealed. Why was this done?
Mr. MacAulay: Different technology is used in certain provinces. Forensic scientists indicate that the best sample is a blood sample. We want to use the best sample possible, and that is what will happen. They will not have a choice.
Senator Fraser: I had asked officials that precise question. They answered that sometimes you need to choose your own method of sampling. They cited a case that was just before the courts in Saskatchewan. A physician was charged with rape, and he rigged his own blood sample twice so that his DNA samples did not match. They had to come back and take a hair to obtain a correct sample. If he had been able to say "No, you can only take blood," where would we be?
Mr. MacAulay: You are right, of course, but usually it works the other way. In this case, however, you are correct.
Senator Fraser: He was found guilty.
Senator Nolin: He can appeal.
Senator Fraser: This is alleged to have happened.
The Chairman: Thank you very much, Mr. Minister, for your attendance here today. You did indeed listen to us. I also thank you for your courtesy in introducing this bill in the Senate.
Mr. MacAulay: I do not think I could be evaluated as a slow learner. I got a crash course in the Senate. My first piece of legislation went to Committee of the Whole. I met a lively crew that evening and I spent most of the evening there.
It was my pleasure to be here this afternoon, Madam Chairman.
The committee adjourned.