Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence
OTTAWA, Tuesday, May 17, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-13, to amend the Criminal Code, the DNA Identification Act and the National Defence Act, met this day at 4:05 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: We are today studying Bill C-13, to amend the Criminal Code, the DNA Identification Act and the National Defence Act.
We have with us today the Hon. Irwin Cotler, the Minister of Justice and the Attorney General of Canada. We have the Hon. Roy Cullen, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness; and from the Department of Justice we have Mr. Michael Zigayer, Senior Counsel, Criminal Law Policy Section, and Mr. Stanley Cohen, the Senior General Counsel, Human Rights Law Section.
Welcome to our committee. We will hear from the minister first.
[Translation]
Mr. Irwin Cotler, Minister of Justice and Attorney General of Canada: Madam Chairman, it is a pleasure to be here today to discuss Bill C-13, to Amend the Criminal Code, the DNA Identification Act and the National Defense Act. The bill will greatly enhance the safety of Canadians by expanding significantly the scope of the DNA legislation.
[English]
I will add, in terms of some statistical data, that as of the end of November 2004, investigative leads generated by the National DNA Data Bank assisted in more than 2,400 criminal investigations, including 173 murders, 414 sexual assaults, 57 attempted murders and 333 armed robberies. In short, in the four and a half years of its existence the National DNA Data Bank has materially contributed to making Canada safer.
I will point out, because it is not always appreciated, that the bill not only enhances safety of Canadians by expanding significantly the scope of the DNA legislation, it also helps to exonerate the wrongfully convicted. As I learned in my own work with respect to applications for review of the wrongfully convicted, the DNA evidence has been materially and significantly relevant in making a determination that a miscarriage of justice likely occurred.
Recently, in the case of James Driskell in Winnipeg, Manitoba, convicted of murder in 1990, I was able to determine that a miscarriage of justice likely occurred in this case, quash the conviction and order a new trial because DNA evidence in 2002, 12 years after the initial conviction, demonstrated that the allegedly forensic evidence that connected the victim to the accused had been mistaken. One can see here the value, in that sense, of exonerating the innocent as well.
Canada's DNA data bank legislation was enacted in December 1998 and came into force on June 30, 2000. The legislation has been validated by the courts and the DNA data bank has successfully withstood dozens of constitutional challenges at the trial level and in appellate courts across this country.
[Translation]
The government proposed a limited number of amendments to the DNA data bank legislation in bill C-13 because it believes it is necessary to respond to a number of pressing issues that have been identified by the provincial attorneys general and by the commissioner of the RCMP who manages the National DNA Data Bank located here in Ottawa.
Bill C-13 does not respond to every possible concern that has been voiced with regard to DNA as an investigative tool. There will be an opportunity to consider more ambitious reform during a comprehensive parliamentary review of the entire DNA regime which is anticipated to occur lately in 2005.
[English]
I am delighted to have my officials with me, Michael Zigayer, the senior counsel in the Criminal Law Policy Section, and Stanley Cohen, senior counsel in the human rights law section, both of whom possess the necessary experience and indeed expertise to respond to those questions, something that I would not be able to do on this particular subject matter. In order to allow you appropriate time for questions, I will limit my remarks to the more significant effects of Bill C-13.
First, it extends the scope of the retroactive provisions of the legislation to cover an additional 4,700 offenders. Second, it creates a new class of ``primary designated offence'' comprised of the worst offences — those that are the most egregious of the primary designated offences — and requires a court to make a DNA data bank order where an offender is convicted of such an offence. Third, it expands the definition of ``secondary designated offence'' to bring more offenders into the scheme. Fourth, it allows courts to make DNA data bank orders against a person who has been found not only to have committed a designated offence but also to be not criminally responsible on the grounds of mental disorder.
If Bill C-13 is adopted, there will be far more entries in the National DNA Data Bank, which will undoubtedly lead to more matches between convicted offenders whose DNA profile is in the data bank and DNA found at crime scenes. Such a match would identify a suspect and focus the police investigation. It is circumstantial evidence that places the person at the scene of the crime. In some cases, there may be an innocent explanation for the person's presence. However, in many cases, the DNA evidence is the crucial piece of the puzzle in solving an otherwise cold case. Before I discuss each of these changes, I wish to remind honourable senators that the procedural safeguards in the DNA data bank legislation that provide vital protections for the genetic privacy of the offenders are not affected by Bill C-13.
I will begin with the first significant change: extending the scope of the retroactive provisions. When the DNA legislation was enacted in 1998, Parliament decided that a person would be eligible only if that person were a dangerous offender or had committed two murders or two serious sexual offences at different times and was still under sentence. Inclusion, in other words, was not automatic. The Crown had to apply to a Provincial Court judge, who had the discretion to make or to deny the order. These procedural provisions are not changed by Bill C-13. Rather, Bill C-13 expands the retroactive scheme by making a person convicted of one murder or one sexual offence or one manslaughter before June 30, 2000, and who is still under sentence at the time of the application, eligible for the retroactive scheme. As well, the bill would include now repealed sexual offences, such as indecent assault male, indecent assault female and gross indecency in the list of designated sexual offences under this retroactive scheme.
In all, the changes, as I indicated, will make some 4,700 offenders now eligible for the retroactive scheme. Correctional Service Canada will identify the offenders and provincial prosecutors will have to review the case files to determine whether they wish to make an application.
With respect to the Charter, as a general rule, section 11(i) indicates that if an individual has been found guilty of an offence and punished for it, he or she should not be punished a second time. The point is that the Charter is not involved in this proposal because, arguably, this is not a second punishment but rather a consequence of the conviction and what might be called an ancillary aspect of the sentence originally imposed. Indeed, this interpretation was recently confirmed by the Ontario Court of Appeal in the Jackpine case.
That brings me to the second major change: creating a new class of ``primary designated offence'' and requiring a court to make a DNA data bank order where an offender is convicted of such an offence. The current legislation provides for some limited judicial discretion in the case of primary designated offences. This was originally done in 1998 after an assessment of prevailing judicial attitudes and jurisprudence in order to ensure the constitutionality of the provision. Legal authorities at that time indicated that in cases of search and seizure, a form of residual discretion is required to address those particular cases where it would not be appropriate to make a DNA order. The criteria for exercising such discretion were deliberately made extremely stringent and the burden of proof was placed on the accused to demonstrate that the impact on the person's privacy and security of the person is ``grossly disproportionate to the public interest in the protection of society and the proper administration of justice.''
The proposed amendment would remove judicial discretion and would make the taking of a sample mandatory upon conviction for a very narrow category of particularly serious offences. The removal of judicial discretion will understandably strike some observers as problematic when the state is effecting a seizure of bodily substances from an individual, even one who has just been convicted of a criminal offence.
In order to take account of the various factors affecting the balancing of the two competing interests, that of the individual to privacy and those of the state to safeguard society as a whole, the general rule has been that the authorizing judge must be empowered to consider all the circumstances. No set of criteria will always be determinative or sufficient to override the right of the individual to privacy. It was thought that a sufficient degree of flexibility should be accorded to the authorizing officer in order that justice be done. For reasons that are not entirely clear, however, fewer DNA data bank orders have been issued for persons convicted of primary designated offences than were reasonably anticipated when the legislation was enacted and, as a result, important information was not finding its way into the National DNA Data Bank, NDDB. This is obviously an undesirable state of affairs that should not continue in the interests of public safety, among other interests. Consequently, we have agreed to an amendment that makes the taking of a sample from these worst case offenders virtually automatic upon conviction.
While such an amendment may invite a Charter challenge, it is capable of a sound constitutional defence based upon reason and credible arguments. Ultimately, it is our view that the state interest in crime solution and crime prevention, which is advanced by better and more accurate identification of offenders, including the elimination of suspects, outweighs the intrusion upon the individual's liberty and security of the person's interest occasioned by the taking of the DNA sample in this very narrow and stringent category of cases.
That brings me to the third major change: expanding the definition of ``secondary designated offences.'' The definition of ``secondary designated offence'' is amended significantly in the proposed legislation. It will be possible for the Crown to ask the court to make a DNA data bank order in respect of a person convicted of any offence that is punishable by imprisonment for five or more years and that has been prosecuted by indictment. Similarly, it will be possible for the Crown to ask the court to make a DNA data bank order in respect of a person convicted of an offence under the Controlled Drugs and Substances Act that is punishable by imprisonment for five or more years and that is prosecuted by indictment.
This brings me to the last major change: DNA data bank orders against a person who has been found to have committed a designated offence but also found not criminally responsible on account of mental disorder. The inclusion of those found not criminally responsible in the scheme responds to the fact that these persons have committed very serious acts but clearly cannot be convicted because of their mental state. They may have been involved in other such acts in the past and their inclusion in the DNA data bank may solve cold cases. They may also be involved in such acts in the future. However, their special status is recognized by insuring that in all cases, including that of primary designated offences, the Crown must make application and the Crown has the onus of convincing the judge to make the order.
I would also like to mention that Bill C-13 adds Internet luring of a child, uttering threats, criminal harassment and ``criminal organization'' offences to the list of designated offences. I believe honourable senators will agree that such serious offences should be subject to the DNA data bank legislation. In conclusion, honourable senators, I would like to underscore that the current DNA legal regime has survived Charter challenge and attempts at invalidation, due in large measure to the obvious restraint that went into its design and the careful tailoring of means to objectives that the statute evinces.
We appreciate that a change in the design structure and variance from the general approach adopted earlier does open the legislation to pressure tactics. The move to a scheme that employs, in part, a generic definition based on the criteria of offence characterization — indictable offences — and sentence length, with five years as the cut-off point, represents a significant divergence from the original policy and design principles of the scheme.
It bears noting, however — and I regard this as a significant point in appreciating this issue — that the choice of a five-year cut-off has constitutional significance, and in my view, is superior in terms of Charter consistency to a two- year dividing line. Five years is not only a recognized borderline in terms of specifying the seriousness of the offence, it is also the point of demarcation that the Charter specifies in terms of entitlement to the extra procedural protection that trial by jury confers. In my view, while it may invite a new Charter challenge, we believe that for the same reasons as before, and with respect to the application of proportionality principles, the courts will once again validate the scheme.
I will now turn it over to the Parliamentary Secretary to the Honourable Minister of Public Safety.
The Honourable Roy Cullen, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness: Honourable senators, the Minister of Justice has described to you the important changes that this bill proposes to the Criminal Code and the partner provisions in the National Defence Act. These changes will make a significant contribution to public safety in Canada, but the changes to the code and the act for the DNA sampling of convicted offenders are only as effective as the operation of the National DNA Data Bank, or NDDB.
The NDDB has been in operation now for almost five years, and five very successful years at that. Already, over 3,300 criminal investigations have been assisted because the data bank was able to connect a convicted offender to an unsolved crime scene. In over 400 more cases, they have shown a link between two or more unsolved crime scenes, giving investigators new leads. This is a tremendous achievement in a short space of time and a tribute to the professionalism and expertise of the scientific staff both at the data bank and at the regional forensic laboratories, RCMP and provincial, who make the system work. They are helping our law enforcement agencies bring offenders to justice in some of the most serious and violent crimes that we know.
[Translation]
The amendments that have been explained by the Minister of Justice cannot but improve the performance.
[English]
In the five years since the data bank started operations, we have learned something about how these operations could be made more effective and efficient. Bill C-13 also, therefore, contains some important changes to data bank rules and procedures. I should like to explain why they are so important.
First, there is an issue over what we have come to call facially defective orders. Soon after the data bank opened on June 30, 2000, staff there began to notice that, in a small number of cases, the court order under which a DNA sample had been taken from a convicted offender did not appear to relate to a designated offence. These cases have continued to occur, and the data bank is now holding on to almost 600 orders and related samples. I should point out that is in relation to a total of 77,000 orders, and that is less than 1 per cent, which compares quite favourably to other jurisdictions. Just to be clear, this means that almost 600 convicted offenders have had DNA samples taken in situations where this may not have been properly authorized. The samples have not been analyzed and are being held securely. Their privacy is not in jeopardy, but the situation needs to be corrected.
[Translation]
It is a situation that no one had anticipated when the original legislation was implemented. We do not know exactly why it is so. There may be several reasons.
[English]
In some cases, there may have been a simple clerical error, such as when the order was being written up the wrong offence number was recorded on the form. In other cases, an offender may have been convicted on several counts and a non-designated offence is shown on the order instead of an eligible designated offence for which that person was also convicted, essentially another clerical error. There may have been also cases where an order really has been made in respect of a non-designated offence.
Whatever the cause of the defective order in any particular case, under the rules contained in the DNA Identification Act, the data bank is not allowed either to analyze or to destroy the samples. It can only store them, and apart from notifying the police that no further action can be taken, the samples remain in limbo.
At clause 16, Bill C-13 proposes a procedure whereby the data bank can take action both on the accumulated cases and on any new cases that emerge by following up with the relevant provincial Attorney General or the director of military prosecutions, as appropriate. If, after making his own inquiries, including court proceedings if necessary, the Attorney General confirms that the original order is valid, or if he sends the data bank a corrected order, the sample already being held will be analyzed and entered into the convicted offender index. However, if neither of these things happens within the specified time period, or if the Attorney General sends the data bank a new court order quashing the first one, the sample will be destroyed. The privacy of the convicted offender will be preserved, and the data bank will have a significant and unnecessary burden removed.
All this underlines, honourable senators, the importance of education and training on the proper application and extent of this complex and still quite new legislation for all those who are charged with applying it. This will be part of a planned implementation process for Bill C-13, but we need to fix the legislation itself, too, to make it as clear as possible.
The second area of importance for the data bank's operations is in clause 17 of this bill. It actually came to light only after Bill C-13 was introduced last fall, another consequence of practical experience of operating the scheme. It was the subject of amendments introduced by the government on May 5. These reflect operational and scientific realities that the DNA Identification Act does not capture.
Madam Chairman, the first part of this relates to what are known as ``moderate matches.'' This is rather complicated and I hope I can explain it properly to you. If not, we have the officials who I am sure can mop up later.
As you know, the data bank contains two indices, the convicted offender index and the crime scene index, or the COI and CSI, which are compared against each other to identify links or hits. When a sample is taken from a convicted offender for DNA analysis, it is done under ideal controlled conditions and a complete DNA profile can be obtained, but crime scenes are not pristine. In some cases, forensic scientists are simply not able to derive a complete profile from a crime scene sample, for example, because it has been exposed to the elements over time or because it contains a mixture of bodily samples, perhaps from multiple offenders or innocent third parties. The data bank only declares a full or complete match between a new crime scene profile and an existing convicted offender or crime scene profile when all the genetic locations chosen for comparison on two profiles are identical.
When a crime scene profile is in itself incomplete, the comparison with those already contained in the COI and CSI is less discriminating, and it cannot produce a complete match. Instead of only one suspect being identified, there might be several potential matches of individuals who cannot be excluded as the donor, or potential links with several different crime scenes. These less discriminating matches are described as moderate matches.
Madam Chairman and senators, in order to assist criminal investigations as best they can, the data bank had developed the practice of conferring with forensic scientists at the laboratories that generated the crime scene profile or profiles involved in these moderate match cases in an effort to try to narrow down the number of potential matches by discussing the scientific and technical detail of the DNA analysis results. Narrowing down the number of potential matches in this way helps the police to focus their investigations, making best use of their resources. To assist these discussions, the relevant DNA profiles were shared between all the relevant laboratories. Toward the end of last year, the data bank realized that this sharing of profiles for scientific discussion was in fact caught by the more general prohibition in the act on the communication of profiles outside the data bank. The procedures were stopped immediately and the moderate match cases were held in abeyance, with no match results being issued.
An interim administrative solution has been implemented to enable discussions to take place without actually sharing the profile, which is nothing more than a series of numbers with no identifying personal information, but this is burdensome on busy scientists and not a very efficient use of their resources.
Madam Chairman, in the interests of the effective investigation of the serious criminal offences involved, it is vital that we amend the legislation to make absolutely clear that the data bank may, in these cases, share and discuss the relevant DNA profiles with the other scientists involved. At the same time, we need to reinforce Parliament's intention to create a DNA data bank, the establishment of a convicted offender's index and crime scene index, which can fully talk to each other and make matches between DNA profiles to support police investigation and the prosecution of serious crimes; and, let it not be forgotten, to exonerate individuals and eliminate them from police investigations.
The act is currently very specific on the subject of the convicted offenders' index but makes little mention of the crime scene index and the detail of the cross-checking that needs to happen if the whole system is to be fully effective. Bill C-13 will make all of this absolutely clear. Let me make it absolutely clear that this is in no way an attempt to subvert the act's careful protections on the privacy of personal genetic information. These will very explicitly be maintained.
As the Minister of Justice has mentioned, a full parliamentary review of the entire scheme, including the amendments contained in Bill C-13, if they are enacted, is expected to begin later this year. All of those amendments can be reviewed again at that time.
[Translation]
Mr. Cullen: Following the review, other changes might be proposed, but in the meantime, I believe that we can bring immediate improvements to the existing system with the changes that I am announcing to you today.
[English]
The data bank has already proven beyond doubt the value of this leading-edge science in helping law enforcement stay ahead of criminals. We need to ensure that it continues to be a highly effective crime-solving tool and that the founding legislation is as clear and as unambiguous as we can make it.
[Translation]
I would like to underline my support to Bill C-13 by telling you that it will contribute significantly to the public safety of Canadian men and women.
The Chairman: We know that the bill proposes significant changes to the list of primary designated offenses. You mentioned earlier the adding of all child pornography offenses. As well, the bill amends to a lesser degree a list of secondary designated offenses by adding to it, for example, criminal harassment. These are important distinctions. In the case of primary offenses, the court only has discretionary power. Please correct me if I am wrong, but the court is required to limit the DNA data bank orders to these lists. Could you tell us more about the nature of the two designated offense categories and the various types of offenses that we could find within each of these lists?
Mr. Cotler: I will share what is being added to the list because I do have a list here. Let me give you a summary of this list. It starts with section 235, murder, and then you have manslaughter, causing bodily harm with intent, assault with a weapon, causing bodily harm, aggravated assault, bodily harm, sexual assault with a weapon, uttering threats, unlawfully causing grievous bodily arm, aggravated sexual assault, kidnapping, living on the avails of prostitution of a person who is under the age of 18, causing bodily harm with a firearm, administering poison or other noxious substance with intent to endanger the life of a person or to cause bodily harm, overcoming resistance to commission of offense, robbery, extortion. That is the list in terms of these offenses.
The Chairman: I would like perhaps to deal with another aspect, more technical and mechanical, regarding the implementation of systems for the sampling of bodily substances, after which I will give the floor to members. With Bill C-13, it is expected that there will be a significant increase in the number of the DNA data bank orders. Within a few months, the number of DNA profiles in the data bank will probably go up significantly.
In terms of logistics, in terms of personnel, equipment and funding, do we have in place the required resources to adequately meet the increased demand for the sampling of bodily substances?
Mr. Cotler: I will begin and will then ask Mr. Zigayer to give more details. The RCMP and prosecutors, among others, have asked for these amendments and have asked questions about the resources that will be deployed. The provincial attorneys general have been the first to make this request. I will ask Mr. Zigayer to answer on the issue of resources.
Mr. Michael E. Zigayer, Senior Council, Criminal Law Policy Section, Department of Justice Canada: We have a situation where the existing resources of the national data bank are not completely utilized. There are not as many court orders as we had anticipated. If there is an increased number of them, the existing resources will be sufficient to meet the demand.
Moreover, I would say that the effect will not be immediate, because it will take some time to implement this legislation. Some sections will take force immediately upon royal assent, but others can be put into force at any time, in consultation with the provincial attorneys general. We believe that it would be important to develop guidelines for crown prosecutors throughout the country. I have already talked with colleagues in British Columbia, in Alberta, in Ontario, in Quebec, in New Brunswick and in Saskatchewan. They are all interested in recreating a committee that we had established in 2000 to facilitate the implementation of this legislation, to make sure that we better understand what the amendments could entail and to make sure that everything is implemented appropriately.
We will now work with the National Judicial Institute to develop documents and material for judges. We had not done so in the past. We do not know the reason why we have not had as many court orders as anticipated. One possibility is the need to have better training for judges. You have understood that more than 600 court orders should not be there. There is something wrong with the court orders.
So we could remedy this situation with better training. The Departments of Public Safety and Justice will work together with our provincial colleagues to improve the situation.
[English]
Mr. Cullen: If I can just add to that. When I visited the DNA data bank some months ago, the comment of the officials was there was a lot of capacity and they were concerned that only 50 per cent of the DNA with respect to primary offences was coming. They were quite capable and had the capacity to absorb that. In fact, they wanted the DNA to come to the labs so they could process it.
There is a forensic lab in Edmonton that originally the RCMP was planning to phase out as part of the expenditure review process.
Given some of the anticipated changes if Bill C-13 is enacted and other capacity issues, the decision was made to leave that lab open, so there will be additional capacity there as well.
Senator Kinsella: Let me begin with the comment of Minister Cullen about the review that is to be undertaken toward the end of the year.
First of all, to build on the chair's question about resources, will that review look at the entire issue of resources? Second, does the review have a statutory base? Is this a review that is required by statute? Do you wish to explicate a little about that review?
Mr. Cullen: Yes, the five-year review is statutory.
Senator Kinsella: In both Houses. Conducted by each House?
Senator Milne: Yes.
Senator Kinsella: I understand that when profiles are developed, they are done in groups. I was told groups of 36 or so. It is a kind of bundling of profiles. Is that true?
If that is true, that brings me to clause 18(2) on page 26 of the bill. When the order is made to get rid of a profile, can it be acted upon forthwith or is there a technical problem?
Mr. Zigayer: There are two questions. On the first you are correct. We are only talking now about the National DNA Data Bank operation rather than the crime scene investigation, where it is one case separate from all other cases. At the data bank, in order to develop efficiencies, the RCMP is cutting edge. They are leading the world in the development and use of robotics in the actual analysis of the DNA profile.
Each of the individual samples has to be prepared by a technician. They can do, I believe, 90 at a time. I am sure I am saying the obvious, but you are welcome to visit the data bank and see the operation at any time. I know I do not have to get Commissioner Zaccardelli's permission to make that offer.
I know the members of the committee have been there. It is an impressive operation.
They are capable of complying with or meeting what is provided for in clause 18 of the bill. It has happened in the past. This is the removal of information or rendering it inaccessible. Suppose an individual is acquitted on appeal. That has happened. I can tell the committee that there has been a case that has taken two or three years to get to the Court of Appeal of Ontario, dealing with the interpretation of one of the sections that was enacted in 1998 and implemented in 2000. The DNA profiles of two previously convicted offenders have to be rendered inaccessible, basically, taken out.
They do not physically take things out. There is a technical reason for this. It has always been described to me as a necklace; if you cut the string, all the pearls will fall off. They render the DNA profile of that person inaccessible. The DNA profile itself will continue to be contained in this collection of DNA profiles, but the address, the actual identifier, will have been removed. It is way too complicated for my lawyer's understanding, but it works and it renders that DNA profile anonymous.
Senator Kinsella: The exact wording that is in Bill C-13 is ``Access to information in the convicted offender's index shall be permanently removed without delay if...'' and it gives the circumstances.
Mr. Zigayer: Rather than the actual DNA, it is access to it.
Senator Kinsella: Thank you for that clarification. On another topic, some of my colleagues and I are examining the Anti-terrorism Act. I was curious to find out whether a person under preventive detention subject to the Anti-terrorism Act provisions can have DNA samples taken against his or her will.
Mr. Zigayer: No, you have to have a conviction. If that person is being investigated for a particular crime, there is access to the DNA warrant.
Mr. Cotler: The warrant scheme under investigation; you will have to otherwise proceed after conviction.
Senator Kinsella: On the retroactivity clause that came into the bill through work in your House committee, Minister Cotler, let me ask this question first.
When it came into the House as a government bill, you would have given your certificate saying it is Charter compliant. When it is amended in committee, what is the process? Do you get a second request? We have amended your bill, is it still Charter compliant?
Mr. Cotler: The notion of Charter compliance is an ongoing one. The ministerial responsibility is to certify that the bill initially was and after amendment remains Charter compliant. That is why in my remarks to you, I discussed that the amendments that have been made will perhaps invite Charter challenges. Thus far, the legislation has withstood Charter challenges, both at the trial and appellant level in courts across this country. In my view the same principles that the courts relied on to validate the legislation will sustain the amendments in terms of any Charter challenges to them that may arise.
Let me give an example. In R. v. Murrins, the accused in that case submitted that section 487.052 of the Criminal Code was contrary to sections 7 and 11(i) of the Charter. The court found that there had been no infringement of section 7 — and this is the kind of reasoning that would feed into an approach now as well — since the physical intrusion and inconvenience associated with the taking of a DNA sample are trivial in the context of a person convicted of a designated offence and are not sufficient to engage a fundamental justice analysis. In addition, the court was not persuaded that the ordering of a DNA sample constitutes punishment within the meaning of subsection 11(i) of the Charter.
In a significant appellant case, the appellant who had been convicted of one count of aggravated assault and two counts of assault with a weapon argued hereto that section 487.051 of the Criminal Code violated sections 8, 7, 11(d) and 11(i) of the Charter. You had a broad-based Charter challenge relying on different sections.
The British Columbia Court of Appeal, relying on the Murrins case I just cited, and R. v. Briggs and R. v. Hendry, upheld the constitutionality of the legislation. I will deal with one aspect of it because it is relevant to the section 1 finding of fact and conclusion of law that a court would undertake now with respect to any Charter challenges.
The court argued as follows.
The Court found no violation, holding that the scheme is not solely concerned with identifying the offender in relation to other crimes, but also to deter potential repeat offenders, to promote the safety of the community, streamline investigations, and to assist the innocent by early exclusion from investigative suspicions.
The set of considerations that the court relied on there would be the same set of considerations that a court would rely on now, even having regard to the amendments that have been made for Charter considerations.
Senator Kinsella: Bill C-13 allows for samples to be taken in the case of a verdict of not criminally responsible. When you reflected upon that and its constitutionality, given that a not criminally responsible person is not guilty of the crime, nor has a conviction been entered on that crime, did you see any problems?
Mr. Cotler: My colleague, Stanley Cohen, has made a study of this, so he will be in the best position to answer.
Mr. Stanley Cohen, Senior General Counsel, Human Rights Law Section, Department of Justice Canada: Perhaps I can relate this to your previous question as well.
The Minister of Justice has an ongoing obligation under section 4.1 of the Department of Justice Act to scrutinize legislation for Charter compatibility. However, there is no sign-off in the sense of certifying in a formal sense. The minister has a duty to report where Charter inconsistency is found.
In this case, where there has been no report, the proper inference is that there has been an examination of the legislation for Charter compliance, and that applies to all the provisions now before you.
Senator Kinsella: Does that apply also to the certificate that is required by the Canadian Bill of Rights of 1960?
Mr. Cohen: Yes, it does.
Senator Kinsella: Is that a formal memo or formal document?
Mr. Cohen: Only one report has ever been made under the Bill of Rights. I believe that was in 1975, pre-Charter, in relation to an obscure piece of legislation. It is a formal report that is placed before Parliament, but it has only happened once.
The purposes of this process go beyond the formality. Those who are charged with devising policies and bringing forward legislation are aware that this significant responsibility exists and that the minister would have to report to the House if there is an inconsistency.
You speak about an amendment being made to a government bill in committee. If the government's legislation were changed through an amendment, the same responsibility would attach to the minister.
The situation with the not criminally responsible is ultimately a matter of justification. The public policy reasons behind having the power to take DNA samples from those found not criminally responsible are relatively straightforward and relatively easy to demonstrate. There have been cases dealing with the Charter and the not criminally responsible that deal with the fact that Parliament should use its criminal law power to address the circumstances of the not criminally responsible. Notwithstanding that they are, in a certain sense, exonerated of responsibility, they can pose a danger to society. They may be involved in activity that can constitute a further criminal charge. Therefore, it is important to have this kind of evidence available in the forensic records of police departments.
Senator Ringuette: I welcome Bill C-13.
With regard to the retroactivity you mentioned earlier, I was under the impression that since 1998 all convicted offenders in our system had to submit to DNA tests.
Was I wrong?
Mr. Zigayer: The legislation that was enacted included a very narrow retroactive scheme. That was so because we were very concerned about the possible constitutional fragility of having too broad a scheme. It was limited to those offenders with regard to whom the best arguments could be made to modify the treatment they would receive following conviction. These are all persons who were convicted before June 30, 2000. The legislation affects the treatment given them by the administration of justice.
There were three categories. The first category was persons declared by the courts to be dangerous offenders. It requires psychiatric evidence as well as an impressive criminal record to get that designation. The person has to have been convicted of a serious personal injury offence. It is an alternative to the regular sentencing regime.
The second group is serial sex offenders. Persons convicted of sexual offences, especially two or more, have the among the highest, if the not highest, recidivism rates. One of the arguments the government would use to justify the inclusion of this category is the recidivism rate.
The original legislation did not include murderers, which caused concern and controversy, so the issue was reviewed. While the person who committed only one murder did not have a perceptible recidivism rate, a person who was convicted of two or more murders at different times, essentially, a serial killer like Clifford Olson, was seen as having a higher recidivism rate. We considered that a key argument to justify the legislation if it was challenged in the courts.
That legislation has been challenged several times in the courts and has been upheld as constitutionally sound. However, it does not cover everyone who is presently in a federal penitentiary or provincial prison, and that is because we did not want legislation that would be found unconstitutional, with the result that all the orders that had been made on the basis of a too-broad scheme would be cancelled and those DNA profiles rendered inaccessible.
We took a reasoned step, and that can be explored and examined more carefully at the parliamentary review later this year.
Mr. Cotler: The provincial ministers of justice are responsible for criminal justice issues, and the Attorney General of Ontario has been pressing for early remedial legislation to address the issues that were identified by the Uniform Law Conference in 2001. That conference identified seven priority issues, one of which was the expansion of the retroactive scheme. The provincial ministers suggested then and since that Canadian police were being denied the ability to use DNA forensic science to solve past and future crimes because the present retroactive DNA data bank provisions were too narrowly drawn.
That recommendation about expanding the retroactivity application has come both from the Uniform Law Conference and its identification of priorities in 2001 and the federal-provincial-territorial meeting of ministers of justice, where this matter was reaffirmed.
Mr. Cohen: Although the legislation has survived and has been successfully defended in a variety of Charter challenges, this issue of retroactivity is only now just coming before the Supreme Court of Canada. You heard the minister refer to the Jackpine case. That case is now making its way to the Supreme Court of Canada. We have no reason to believe the result will be any different, thus sustaining the legislation, but it does point to the need to be circumspect in the way we approach the issue of retroactivity. The Charter itself has some protections against retroactive imposition of punishment. If the court should take the view that this was a form of punishment rather than an incident of conviction, the result could be different.
The way in which Parliament has approached this matter and the careful way in which we are progressing with the kinds of amendments we are introducing are really what are sustaining our ability to deal with these problems as they present themselves in an effective manner. That is an additional factor that is worth your consideration.
Senator Ringuette: For your information, I do not have a legal background. I was under the impression that our Criminal Code is in accordance with the Charter of Rights and Freedoms, so with any kind of criminal offence conviction under the Criminal Code this five-year penalty situation should not be a standard or a benchmark to order a DNA test.
Senator Pearson: We do not want everyone to have DNA tests.
Senator Ringuette: It is like a fingerprint. It can be good news or bad news, whichever side of the legal spectrum you are on. I guess that is an issue for the review.
As well, there is provision for a pardon five years after a sentence. What would happen to persons who ask for a pardon after the five-year delay and their DNA sample was ordered and is in the data bank? Will that change anything when they ask for a pardon?
Mr. Cotler: Madam Chair, I will allow my officials to answer this and other questions because I am supposed to be already meeting with the chief prosecutor of the international criminal tribunal for Sierra Leone, who is awaiting my presence. I will leave that for my officials.
The Chairman: Thank you, Mr. Minister.
Senator Milne: The minister always leaves before we are finished questioning.
Mr. Cotler: But I always come.
The Chairman: He is always here when we ask him to appear before us.
Mr. Zigayer: The issue of pardons and how they would be treated was considered, discussed and included in the DNA Identification Act, which is the separate statute that governs the operation of the National DNA Data Bank.
I will refer you to section 10(8) of the DNA Identification Act.
(8) Despite anything in this section, stored bodily substances of a person in respect of whom a pardon within the meaning of section 2 of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.
Senator Ringuette: It comes back to the access situation.
Mr. Zigayer: I was just talking about the actual bodily substances collected. Normally, they take about a dime's worth of blood.
Senator Ringuette: That is not where my question was heading. There are a certain number of recidivists, repeat offenders. Once you have the DNA of a convicted person in the system, if in the future that person requests a pardon that is granted, does the legislation provide for this DNA to stay within the system or will it be removed?
Mr. Zigayer: Madam Chair, if you give me a moment or two. I could provide it later; I think I can get it today before I leave.
Senator Milne: I would have liked to speak with the minister. It would have been nice to know what time he was planning to leave and then we would have been able to time our questions accordingly. I would have liked to ask the minister about how narrow the increased group that will come under a retroactive designation in this bill is and about setting up the DNA bank. When that bill came before this committee in 1998, the retroactive provisions were very narrow. It was not just one murder; it was two or more. In this bill before us now, just a cursory reading shows that it now even includes something like breaking and entering.
Senator Pearson: Not in the retroactive scheme.
Senator Milne: It is a primary designated offence. Where in this bill, which I have not had time to read, are the retroactive provisions expanded?
Mr. Zigayer: The section in the legislation is section 487.055.
Senator Milne: That does not help me a whole lot with the bill before us in clause by clause.
Mr. Zigayer: If you turn to page 8 of the bill, clause 5, you will see a few changes have been made. I will walk you through them. We have not touched the first category, dangerous offender. Now I am at the top of page 9. The change in (b) was to clarify the scope of what a dangerous offender was, to make sure those persons declared as dangerous offenders under earlier legislation were also captured. Next, (c) is convicted of murder. It used to say more than one murder. We took away the requirement for more than one. That is what Bill C-13 does. Then (d) talks about being convicted of a sexual offence within the meaning of subclause 5(3).
The legislation had previously spoken only of a requirement for two. Now we have taken away that requirement and said one was sufficient.
I should also mention paragraph (e) before I go any further down. At about line 20, on page 9, you see ``convicted of manslaughter.'' That is new as well.
Again at page 9, you see clause 5, subclause (2), and a reference to section 348(1). Here we are adding an offence to the definition of ``sexual offence'' for the purposes of paragraph (d) above. We are adding the offence of break and enter to commit a sexual offence in a dwelling house.
It was pointed out that to be convicted of that offence, both the break and enter and the sexual offence had to be proven, so it falls within the definition and should be included under sexual offences for the purposes of paragraph (d). It is complicated sometimes.
Senator Milne: One of the major concerns with what Senator Kinsella was speaking of was that we wanted to be absolutely sure that the legislation at that time would be Charter-proof and stand up against a constitutional challenge. The minister has spoken today of that to a certain extent. Are you gentlemen also sure that this will stand up? He had some reservations.
Mr. Cohen: I believe the minister said that while one cannot foretell the future, there is always an area of risk when you pass any legislation that has the potential to impact on rights of individuals. Certainly taking DNA from individuals does have implications for their rights under the Charter. There is an area of risk.
On the other hand, he said in his remarks that he believed that it was capable of being defended by strong and credible arguments, and that a court, if properly advised of these arguments, could support the legislation so that it would withstand constitutional scrutiny.
You cannot do much more than that. It is fairly clear that some individuals will attempt to challenge some parts of the bill, just as they have the previous legislation, but this bill has been assessed and has been judged to be Charter compliant.
Senator Milne: Both the minister and you, Mr. Cohen, spoke of the Jackpine case. It would make taking a DNA sample an ancillary aspect of punishment. Was that the term used?
Mr. Cohen: That was the term the minister employed in describing it.
Senator Milne: Since the Jackpine case has been referred to twice now, perhaps you could tell us precisely what it is.
Mr. Cohen: I can tell you from my recollection that it is a decision of the Ontario Court of Appeal. It involved a challenge to the retroactivity provisions based on section 11 of the Charter. Mr. Justice Doherty, who is probably one of the leading if not the leading criminal law jurist in the country, wrote the decision on behalf of the court. He concluded that section 11 does not apply because what is involved here is not punishment, and therefore the scheme for retroactive taking of DNA samples from individuals who were still within the system was sufficient.
Senator Milne: That is being appealed to the Supreme Court.
Mr. Cohen: That is being appealed to the Supreme Court, but as I say, it is a decision from one of the serious criminal law thinkers in the country, and it was a unanimous decision of that court.
Senator Pearson: In this committee, we prefer to take a longer time to look at proposed legislation. I am much comforted by the fact that there will be a review in which all of these issues will come back to be discussed. We will probably then have the results of that Supreme Court judgment and some level of comfort.
Two things struck me in the minister's presentation. One was the complicated discussion on moderate matches. It is the kind of question that raises in my mind concerns about the absolute certainty of the technology. On the one hand, the DNA bank has 600 samples that it should not have, apparently. These were improperly taken. I was wondering whether there has been an example of what looked like a perfect match not actually being a perfect match. Is this system of matching totally infallible, or is there any risk in it?
Mr. Zigayer: They have a very robust system of supervision, review, and checks and balances within the data bank operation itself. I am sure that if you wanted an opportunity to examine this, the National DNA Data Bank would be here to explain those technical details.
I can say that none of those 600 samples that we have referred to have been analyzed, so the DNA profiles are not in the data bank. There is no opportunity for such a match. However, the fail-safe mechanism in the overall DNA data bank and DNA warrant scheme is that if you get a match in the DNA data bank, it is an investigative lead. That information is then communicated to the investigating police force. It could have been a cold case with no identified suspect, but now the data bank has identified a suspect. They will use that information and any other information or evidence they gather in the course of the investigation to apply for a DNA warrant. Under the DNA warrant, they will get a sample from this individual that will be compared against what was found at the crime scene. If that matches, then they will likely go forward with a prosecution. Sometimes there is an innocent reason, an acceptable explanation, for why the person's DNA profile happened to be there. On the other hand, in most cases there will be no valid explanation for that DNA profile to have been at the crime scene.
Senator Pearson: That is just part of the evidence that will be used?
Mr. Zigayer: It is circumstantial, as the minister said. It is part of the overall evidentiary package that is presented to the court, but it is very exclusionary. It is very discriminatory. The chances of it being someone else are one in several million, or several billion, perhaps.
Senator Ringuette: It is like a fingerprint.
Mr. Zigayer: It is stronger.
Senator Pearson: The not responsible by reason of mental disorder was not in the first bill that we passed, so where did the pressure come from to put it in?
Perhaps that is incorrectly posed. Where was the recommendation to include it in this bill coming from?
Mr. Zigayer: It first arose in August 2001 at the Uniform Law Conference meeting in Toronto. A number of resolutions were considered and this one received support. Following that, the Department of Justice Canada developed a consultation document in 2002. It was made public to solicit comments from any interested stakeholder. The question was: Do you believe that this should be expanded to include persons not criminally responsible for reasons of mental disorder for one of these offences? The overwhelming response was yes.
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Senator Chaput: In his presentation, the minister mentioned that the legislation was not answering all of the concerns but that any concern not answered would be examined later this year.
He also talked about the Internet and child protection. Is this legislation dealing with predators that are trying to lure children through the Internet? Does it go as far as the pictures that are taken of the children? What does this do for children? The minister mentioned the Internet as a means of luring a child. What does this all mean?
Mr. Zigayer: It is a Criminal Code offense that we are considering including. It is now included in the primary offenses. It will be possible in the future to make a court order, except in cases where the convicted person can demonstrate to the court that an exception should be granted in the case, and the onus is on the convicted person to make that demonstration. The court should do so because it is the procedure for primary offenses.
Following a conviction, we can expect that the DNA profile of such a person be included in the National DNA data bank.
I should say, at the same time, that we can use the DNA mandate to help in the investigation on such an offense, if circumstances allow doing so.
Senator Chaput: Could you give me some examples of concerns that would be examined at another time if they are not included in this legislation?
Mr. Zigayer: Certainly. Since 1997-98, we have been examining this issue of establishing a national data bank and we are studying the way of obtaining DNA-based evidence for court actions. There are two arguments. The first is that we should adopt the most permissive system possible. The example that is given is that of the United Kingdom where police officers are allowed to take samples of bodily substances for the national DNA data bank and to further the investigation at the time of arrest. Even if the person is later acquitted, even if the charges are withdrawn, this is not taken out of the national data bank. So there is a lot less protection of privacy over there; but it is certainly quite useful for police investigations. So there is a debate between, on the one hand, the interests of the state and of the police and, on the other hand, the interest of privacy. This issue will be raised and is already being raised here in Canada. We can expect some pressure groups to advocate adopting the United Kingdom approach. This committee has invited the person who is responsible for the national DNA data bank in the United Kingdom to appear. The results were impressive, but at the same time, they do not have our charter, they do not have the same respect that we have in Canada for privacy. This will be an issue to be examined during the review of this legislation that could be done later this year.
As for persons who are presently incarcerated, our approach is to have a very limited retroactivity regime. And we believe that it is one of the reasons why the courts have upheld this legislation because it was in compliance with the charter; but others suggest that we should require that any person that comes out of a penitentiary provide a sample before being released. This exists in a few states and it is coming in California. We will probably say that this other jurisdiction should be looked at. Do we want to adopt that policy here? What concerns me is the case where the convicted person is in court on a secondary offense charge. The court has decided not to make a court order in the case. The Crown could have in such a case abstained from making the request. The person is still being sent to the penitentiary for one year or two. From now on, it will be a condition of release that the person be required to provide a sample. I am only saying that this is another issue that could be examined.
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Mr. Cullen: One other item came up. There was a great deal of interest in the House of Commons in developing a missing persons index. That was introduced as a private member's bill in December. It would enable matches against missing persons and crime scenes. It raised certain jurisdictional issues, so the government has begun consultations with the provinces and territories. I am sure that by the end of that consultation process there will be enough information to consider how best to proceed. The federal government has considerable interest in supporting this and in making it happen. It is simply a matter of how best to proceed.
Senator Milne: Would it involve the DNA of children?
Mr. Zigayer: No, senator, it would be more defined than missing children.
Senator Milne: You would require a DNA sample first.
Mr. Cohen: It would be possible to utilize a personal item such as a toothbrush or hairbrush to extract DNA for the police. You are right in saying that it would raise privacy issues.
Senator Milne: Would that be destroyed when the child turns 18 years of age?
Senator Eyton: The minister has a good reputation in the area of human rights and he obviously supports the bill, in general. Were there any particular provisions in the bill that gave the minister cause for concern? Perhaps Mr. Cullen or one of the other officials could answer that question.
Mr. Cullen: I will start the discussion. There was an issue around the question of the judicial discretion and making the DNA samples mandatory for primary offences. In fact, a debate in the other place was centred on making it mandatory to send DNA to the data bank for all primary offences. The advice we had from the officials was that it would create a Charter problem, so a compromise was reached in the sense of categorizing the primary offences into A and B, that is, cases of particularly heinous crimes where the judge would not have any discretion, and the less heinous crimes where the burden of proof would fall on the accused to show that DNA entered into the data bank would create a privacy issue.
I know there was a lot of discussion around that. In the final analysis and based on advice from the constitutional experts in the department, the minister was confident that there would be sound arguments to defend that decision.
If there are other issues that the minister had a concern about, perhaps the officials could comment.
Mr. Cohen: The minister set out what the controversy would be in relation to the removal of judicial discretion. He indicated that it was a defensible measure, notwithstanding that. Certainly we can expect Charter challenges around this issue. It is a question of the overall balance that the bill seeks to achieve and the methods that we use.
Senator Eyton: I personally derive some comfort from knowing that there is a review process and that it will evolve. I wondered about the minister in particular, because I suspect he has a higher standard than I. I was curious to hear if he had reservations that had not occurred to me.
Bill C-13 is not easy reading, and some consolidation might have helped. I recognize that it is a large piece of work, so you would not want it all that way, but it seems to me that sections would help. I make that comment for future reference.
This bill or its progenitor has been around for some time. I assume that it has significant political and popular support across the country. I would like you to comment on that support, particularly as it relates to legal authorities and officials. Who are the leading critics, how noisy are they and how likely are they to surface?
Mr. Cullen: The bill received unanimous support in committee, and in the House of Commons there was an agreement to fast track it at all stages.
I know from my discussions that law enforcement agencies and the groups interested in the rights of victims are solidly behind this, although I suppose some elements within the legal profession might not be as bullish on it.
We are trying to push the envelope slightly on the balance. Currently, for example, for primary offences, even though it is a requirement, with a high hurdle for exceptions, we are only getting about 50 per cent of the DNA into the lab. That caused some consternation. This is a reasonable compromise that should withstand any Charter challenge.
Perhaps Mr. Cohen or Mr. Zigayer could comment on where other pressures are coming from.
Mr. Cohen: I think you can expect the usual array of interest groups to express themselves on this matter. I am sure that the Canadian Bar Association and the Canadian Civil Liberties Association have a position. I believe that the Senate itself has an ongoing interest in this matter.
I remember being here with Mr. Zigayer in 1998 to discuss the legislation of that time. I recall the deeply felt concerns over privacy. I believe that persists in this chamber and that it will be part of both this process and the review process in the future.
Senator Eyton: I expect people around the table to know much more than I, but there are a variety of national programs for which the enabling legislation and the planning has been fine, but for which the execution has been short of perfect.
I would like to know more about the National DNA Data Bank, which I understand has been around for five years. Is it working as you suggest? Where is it located? How does it operate? I am looking for physical location, management and accountability.
Mr. Cullen: I urge the Senate committee to visit the data bank at the RCMP headquarters here in Ottawa. It is very impressive and stacks up against some of the best in the world.
Senator Eyton: It has only one location but a variety of laboratories across the country that feed it?
Mr. Zigayer: They feed one side of it. The data bank in Ottawa does all the analysis of samples taken from convicted offenders. They have the highest possible quality control. As I said earlier, they are on the cutting edge in the use of robotics and efficiencies.
The Commissioner of the RCMP is responsible for its management and operation under the DNA act, and he has delegated that responsibility to an official.
There are regional forensic labs across Canada. There are about six RCMP labs and there is a provincial lab in Montreal for Quebec and in Toronto for Ontario. They do the casework. Crime scene samples are delivered to the forensic analysts at one of these regional labs. They do a forensic DNA analysis of that substance and come up with a DNA profile. If they are dealing with a ``who done it'' and do not have a suspect, they will electronically upload the DNA profile obtained from the crime scene evidence to the crime scene index in the National DNA Data Bank. Once that profile arrives in Ottawa, it is automatically compared with the contents of the National DNA Data Bank. It could match with another crime scene, which would draw a linkage between two crimes that may have been committed by the same person.
It is hoped that you will get a match with a previously convicted offender, in which case you have an investigative lead to bring that person to justice.
Senator Eyton: That information will be fed back to the appropriate authorities?
Mr. Zigayer: Yes.
Mr. Cullen: There has been some discussion and analysis in the press about a backlog of DNA samples. This is partly due to confusion in terminology. If something is in process, is it backlogged? We have tried to look at the benchmarks, the standards and the performance, internally and in other jurisdictions.
For example, priority cases are turned around within 15 days, with no exception. The rest are negotiated with the agency that has submitted the sample and a timeline for how quickly the DNA will be analyzed is agreed upon.
There have been some surveys to indicate that client satisfaction is in the high 90s, and that includes turnaround time.
The DNA Data Bank is working hard to improve its performance. Non-urgent cases are dealt with in 120 days, on average, and they are working to reduce that. Urgent cases, where the analysis is required to meet a critical court appearance, are agreed upon in advance, and those deadlines are met in almost every case.
Mr. Zigayer: With regard to the governance of the data bank, the DNA advisory committee exists because of the interest of this committee in having some kind of oversight, although they are not really an oversight group.
They provide advice to the Commissioner of the RCMP on operational issues that come along. One of the topics they advised on is the moderate match issue that Senator Pearson asked about earlier. Former Justice Peter Cory of the Supreme Court of Canada is on the committee, so it has his legal expertise. There are also representatives from several scientific domains related to the operation and use of DNA technology. There is a representative from the Office of the Privacy Commissioner on this committee as well.
That contributes to the proper operation of the data bank.
Senator Eyton: Where do the municipal police forces fit into this? We have the provincial police force. In Toronto, we have the Toronto police force. Are they subordinate to the provincial laboratory and provincial authorities, or do they work directly with the national data bank?
Mr. Zigayer: There is no one rule. Depending on the province, you will be dealing with a different forensic regional laboratory. Let us take it for granted that the Toronto Police Service deals with the Centre of Forensic Sciences, which is the Ontario regional forensic laboratory. Police forces in the Western provinces, whether they are municipal or the RCMP, deal with the regional RCMP forensic laboratories out there.
It may be because some people see it as a backlog and other people see it as a work in progress that sometimes there is urgency to get something done in a situation. In that case, the analysis will be sent, within the RCMP scheme, from one forensic laboratory to another one of their laboratories to get the work done faster. Generally speaking, that is the way it is. It is not a question of being subordinate to the RCMP. It is a partnership.
Senator Eyton: I was worried more about the management of the system than the overall national coordination. When you have more players, things get more complicated. The question then is how do you communicate, and how is that communication processed. You are telling me it is finding solutions, although there is no overall national agenda or constitution that defines any particular way of dealing with these issues.
Mr. Zigayer: There is only one National DNA Data Bank, which works very well and closely with each of the regional labs. They communicate back and forth. At some point, the information gets delivered to the police who are dealing with that regional lab. The DNA data bank is out of the picture at that point.
Senator Eyton: Are there periodic reviews of the work of the national data bank?
Mr. Zigayer: Yes, there are. The commissioner and the minister, I believe, are required to make an annual report to Parliament. Scientifically, the National DNA Data Bank is subject to audit by its professional peers. I do not know if it is an ISO situation, but it is similar to that, where experts from the U.K. lab or the FBI will come to inspect the Canadian setup and give advice or make recommendations.
Senator Joyal: This reminds me of a discussion when Senator Milne was in the chair and Senator Pearson attended those meetings.
According to an article in the Ottawa Citizen, statistics show that judges are currently ordering DNA samples in only half the cases involving the more serious offences. That seems to be the basis for the need for the bill.
We realize, through public opinion and some political parties, that the judges are not intrusive enough for the taste of some people. That being so, it was decided to make collecting a DNA sample a compulsory order of the court. The bill added to the list of previous offences that were submitted to a DNA order.
Looking at the list of offences, I have difficulty linking some of them to a prima facie need for DNA. There are offences on the list that have to do with what I call the ``bodily integrity,'' such as sexual offences, luring a child, hostage taking and so forth. We can understand that there is violence against the person. When there is violence against the person, we have to be concerned.
However, when we go on to robbery, extortion or breaking and entering a dwelling house, those have nothing to do with the person. We are dealing with goods and property if we use the traditional classification of the Criminal Code.
I wonder whether in making an automatic order for DNA in such cases, you are breaking the proportionality test of section 1 of the Charter. That test includes three elements: The means have to serve the objective; they have to cause minimal impairment; and they have to be the only means to achieve the results.
The basis of your reasoning is that the court does not seem to be as responsive as we would like it to be. In other words, the court does not exercise its discretion in a way that would satisfy the objective of the act. I would like to know who analyzes those decisions, and maybe I would be of the opinion that the court was well-founded to refuse the order. I do not take it for granted that because the court has decided half the time that the DNA order should be refused that the court was not right. There is an appreciation that should be made there that would normally be based on a study or review of those cases where the DNA order was denied.
Next, in order to fill that ``need,'' you add to the list many offences that have nothing to do with bodily integrity, that is, the right to privacy that could be infringed when the bodily integrity of another person or a victim is under consideration.
When you move beyond that and you add offences against property, it seems to me that there should be a pause. We have to ask ourselves whether it is within the philosophy of the Charter. You know the Charter as well as I do, if not better. I would like to hear your reasoning when you come forward with a bill that adds so many offences to the original list.
Mr. Zigayer: I will start, and I will ask Mr. Cohen to deal with the proportionality issues.
Let me first address why we have a bill, which was your first question. Is it simply in response to the perception that judges are not making enough DNA data bank orders? No, it is not.
The legislation before you today began its journey in 2001, only a few weeks before 9/11, at the Uniform Law Conference when Ontario brought forward a number of resolutions proposing that the Government of Canada consider certain legislative changes in consultation with the provinces and other stakeholders. We proceeded as we normally do when we get suggestions or proposals for changes to the law.
We engaged in public consultation in 2002. My colleagues, Mr. Cohen and others at Justice, and I were focused on Bill C-36 in the fall of 2001. This consultation paper saw the light of day just as summer 2002 was arriving.
Then we received responses to the priority issues identified in this paper. There was strong support for the inclusion of persons found not criminally responsible and a number of procedural changes dealing with defective DNA data bank orders. That was another issue in the consultation paper.
This proposed legislation did not come before you because of competing political priorities. We are looking at parliamentary review of this legislation in the near future, in the fall, which will allow for further discussion of some of the issues that I mentioned earlier. It was not just in response to the perception that there were not enough DNA data bank orders being made. Concerns were being raised in the first year of operation of the legislation.
You probably will not have read my comments before the committee in the House, but I was saying many of the same things that you have just said, that we do not have any evidence to indicate that courts are misapplying the law. We have anecdotal evidence, because Consulting and Audit Canada did a study in which prosecutors were asked why more orders were not being made. We got answers like, ``I forgot to ask'' or ``I forgot to remind the judge'' or ``I was afraid to remind the judge.'' Those were in the early days of the implementation of this legislation. That study was done in 2001 or 2002.
Like so many other pieces of legislation, as judges and prosecutors use it, they come to know its operation better. What is surprising and alarming to many people is the fact that that 50 per cent figure remains constant today. We still do not understand and we do not have any studies to explain why fewer than the anticipated orders are coming in.
To deal with the property offence issue, you raised the question of break and enter. That is an offence that was included in the original legislation. What we have done is moved breaking and entering into a dwelling house from the secondary list to the primary list. The reason for that is it is a serious offence. It carries a maximum of life imprisonment.
There is also the potential for violence — sexual violence or physical violence — against the homeowner, justifying its move from the secondary to the primary list. Its inclusion in the first place is based on the fact that often, persons who commit such crimes commit many similar crimes. That would be a person's profession, to break into houses for whatever purpose, whether to support a drug habit or whatever. That is what they do.
Many times, these people can injure themselves. They can cut themselves on a broken window entering the house or injure themselves on something inside. We have a case in Ottawa of a fellow who broke into houses and ate the food. He had a snack while he was in a house and was linked to the crime from DNA left on a utensil, for example, and was prosecuted and convicted. It is an effective investigative tool in those types of crimes.
That tool might be used in some parts of the country. Here in Ottawa it was used. In other parts of the country, for example in the North, you might not rely upon DNA technology to make your case because you have other ways of proving it. It is there if you need it.
Let us say a museum was broken into and a valuable artifact stolen. If the person committing the offence was injured breaking into the display case and left blood behind, that would help bring that person to justice.
I will defer to my colleagueMr. Cohen on the proportionality issue.
Mr. Cohen: You have put your finger on a difficult but important question of public policy. This legislation consistently provokes a tension between the need to respect individual privacy and the need to protect society against those who commit violent crimes. That is an issue that will not go away as we make our way through this process.
The focus of your remarks, insofar as they relate to me and my responsibility for giving advice on the Charter, is the removal of judicial discretion in relation to 16 offences that are identified in this bill. That is a significant number, but not a substantial one in relation to the total number of offences that are dealt with in the code or captured under the entire legislative framework.
A problem has been identified. It has been identified in the hearings in the other place. The 50 per cent figure that you have mentioned may be anecdotal, but it has been relayed by people who are in a position to know. I am convinced that they are in a position to bring forward additional evidence about the actual shortfall in the numbers of people who are subject to DNA sampling and admission into the DNA data bank. Therefore, there is a responsibility on policy- makers and parliamentarians to address that issue. The question is how can we do so in a way that respects constitutional norms and values? That takes us to the issues of section 1 that you mentioned.
We could be here discussing more sweeping reforms that go quite a lot further. The U.K. example has been brought forward, where the taking of samples on arrest is the operative norm. That bypasses judicial discretion and involves the automatic taking of DNA samples.
In the world we live in here in Canada, under section 1, Charter jurisprudence would involve the courts considering a comparative example of another free and democratic society adopting far-reaching methods that seem to be effective in dealing with this issue and without necessarily compromising their value. A court in Canada would have regard to that.
I am not suggesting this is something you should take on. I do believe it is an issue that you will have to confront in the future.
I would also point out that notwithstanding this particular category of what has been called the worst of the worst, or the most egregious offences that could result in the automatic taking of samples, most of the concerns that have been raised by the judiciary have been met by the judiciary examining the quality of the safeguards that were built into the legislation at the first instance.
While judicial discretion is one of those safeguards, it is not the only one. We have substantial safeguards for privacy, for keeping the samples anonymous, for maintaining the integrity of the DNA data bank itself, et cetera.
All of these things play into whether or not this is an appropriate and proportionate response to this matter.
I will not pretend that the issue of judicial discretion is not a live one. Certainly there are cases, and I referred to them in my testimony before the House committee, that suggest that discretion is very important in terms of Charter safeguards. However, there are other, countervailing considerations. One of them is you are dealing with a person who has been convicted of an offence and no longer has the benefit of the presumption of innocence. Another is that convicted persons within our system typically must expect and do expect incursions on their individual privacy. Others have advanced the argument that there is no need for a judicial determination or judicial discretion, since a trial judge has just completed a trial involving the individual in question and has convicted that individual of a serious offence. Therefore, a further consideration of whether the individual should be eligible or ineligible for DNA sampling is not required. These are the arguments that people put forward.
There is also judicial commentary in the cases that have come forward that the procedure involved here should not be equated with a warrant procedure. The trappings associated with a warrant procedure are not required at this stage in the process. Here I am referring to a decision of the Ontario Court of Appeal in a case called Briggs, which is also referred to in the other decision we discussed today, the Jackpine decision.
Substantial arguments can be advanced in support of the measure. Substantial arguments can be put forward in terms of justification. I do not minimize, and certainly I think it represents a great opportunity, the significance of the review process that will be embarked upon before very long, the chance to develop an appropriate record and to consider additional changes to the legislation to make it work effectively.
Mr. Cullen: I would not want to see the bill characterized as being responsive to, let us say, the judgment of some that courts were not ordering enough DNA to the DNA data bank for primary offences. In fact, that issue received more attention in the other place during the discussion of the bill, but the bill is meant to deal with a range of issues, including what should be on the primary list, what should be on the secondary list, the questions of retroactivity, moderate matches, and a host of other issues.
Politics is the art of the possible. There was an initial proposal that sampling for all primary offences should be made mandatory, without any discretion. If you look at the language now, for primary offences there is a very high hurdle to clear, and the onus is on the accused to show that taking the DNA and putting it in the data bank would be — I do not have the precise language — totally disproportionate to its value to the state, or something along those lines.
In fact, when we asked officials if anyone had actually presented a case along those lines, we were told that no one had. The members in the other place were concerned that about 50 per cent of the DNA for convicted murders and rapists was getting into the data bank, and I know that you have raised issues around the complete list, but these are particularly heinous crimes. When we asked the officials what arguments could be anticipated from a convicted criminal in cases like that, they could not give us any examples of ones that would clear that hurdle.
Categorizing primary offences into A and B lists was the compromise reached. The constitutional experts told us — and you perhaps did not hear the Minister of Justice earlier — that they are satisfied, and the minister is satisfied, that while it does push the envelope a little, there would be sound arguments to ward off any Charter challenge. This was the compromise that was reached in the other place.
As I said earlier, the committee in the other place gave this unanimous support, and in the House proper there was unanimous agreement to fast-track it. That is just by way of background.
Senator Joyal: I do not want to extend the debate. You have made your case extensively and I appreciate your arguments.
I have reservations about saying, ``In England they do it, and in Canada we can do it.'' The constitutional systems for the protection of rights in England and in Canada are different. Westminster is still a supreme Parliament. We do not have a supreme Parliament; the Charter is over and above us. A judge can order Parliament to change legislation within a period of time, sometimes very limited. In fact, on the last bill we had here, which was the amendments to the Criminal Code on mentally disordered persons, we had a year to adopt it. In England, as you know better than I, they have signed the European Convention on Human Rights. When the court gives a decision, it invites Parliament to consider it, but it cannot order Parliament to do it.
Besides that, the interpretation of the European Convention on Human Rights in terms of an issue of privacy like the one we have here has not been tested.
In other words, we cannot really use the situation in Britain on this issue and say, ``It is done in Britain; the mother country is doing it. We are okay, as the junior Parliament, to do it.'' I have great reservations about this.
The last decision from the House of Lords, on the security certificate, which your minister knows very well, has been set aside on the basis of the European convention that finally looked into the police system in relation to, as you remember, the famous decision of Lord Bingham. We might have to reconsider our own certificates on the basis of the decision.
In other words, there is not a clear basis for us to say we can do it because they do it. I want to put that on the record. It is the same with California. As my colleague, Senator Milne, has suggested to me, California is a state with the death penalty. When someone tells me that the California system of law can be used as an example, I sometimes have reservations. I say that we should look at exactly how the system of law works there in terms of protecting privacy before we import a practice.
That is why we have to be prudent in our system of reference when we make a comparison.
Senator Kinsella: My question has been answered in part. To what extent does Bill C-13 reflect the priority amendments proposed by the Uniform Law Conference of 2001 on DNA legislation? You have canvassed that; did you have something to add?
Mr. Zigayer: Senator Kinsella, I would note that each of the priority amendments identified by the Uniform Law Conference in 2001 has been acted upon. As well, we have gone beyond that and addressed a number of the issues that were identified in response to our public consultations in 2002. Has the committee received a briefing from the Department of Justice Canada?
Senator Milne: No, we have only the bill before us.
Mr. Zigayer: In the document, at tab 6A and B, you will see a survey prepared by the Department of Justice on the implementation of this proposed legislation for two particular years. I did not have this with me when I appeared in the other place. These annual surveys cover the actual interpretation of the proposed legislation, court decisions, previous errors and, perhaps, the constitutionality of the proposed legislation. I want to ensure that I refer the committee to the correct tabs in the document.
The Chairman: It is difficult for us to follow.
Mr. Zigayer: The information that might be of greatest interest to the committee is in the document. Certainly, senators heard the minister speak to the Ku case, which is discussed in the document, as well as others.
Senator Cools: I disagree totally when Senator Joyal says that the courts can order Parliament. The courts can order Parliament because the Minister of Justice has decided that he will go along with that and will bring in bills requiring party discipline from members to vote for them. I reject the notion that Parliament is subject to the courts. Perhaps that situation will be resolved another day by a stronger and different-thinking kind of minister who will accept the principle that people should be governed with their own consent. That is neither here nor there.
My question is in respect of these consultations to which you referred. Mr. Zigayer, could you describe the consultation process for the committee — the nature of it, participants, leaders, and, perhaps, how much they cost and how long they ran? What are the roles of the minister and the parliamentary secretaries?
Mr. Zigayer: Senator, in the document, which unfortunately you do not have but it could be made available to you, we have provided copies of the consultation document in French and in English. This document was issued by the Department of Justice Canada.
Senator Cools: What is the name of the document?
Mr. Zigayer: It is the ``DNA Data Bank Legislation — Consultation Paper 2002.''
Senator Cools: You must understand that much of this information is advancing on us with rapid speed. This is one bill, but we are dealing with many bills coming at us all the time.
Mr. Zigayer: Senator, I quite appreciate the challenge that faces the committee. In response to your question, the Department of Justice made this document available on the Internet. In addition, we sent copies to the stakeholders who normally express an interest in the affairs of justice, such as the provincial Attorneys General, the judiciary, victims organizations, police organizations, legal organizations, the Barreau du Québec, the Canadian Bar Association, et cetera. We sent a copy to 200-plus stakeholders in addition to putting it on the website.
There were no interviews, no meetings and no travelling road show, as happens in other consultations, because we wanted to move it along rapidly. The consultations began in the spring of 2002. They continued until toward the end of November 2002, recognizing that in Canada, essentially, not much work is accomplished in July and August. To afford the opportunity to various organizations that have to meet and approve a submission to the consultation process, the date was pushed back. We never refused to accept any response to the consultation at any time. We continued to receive them even into January 2003.
Based on the results of that consultation, which was frugal because we did not travel anywhere or meet anyone, we believed that we had sufficient information with which to move forward to the development of legislative proposals. We took those to the minister and then to cabinet.
Senator Cools: During those consultations, if you had to identify the opinions that prevailed, how would you describe them? According to you, many hundreds of people were consulted.
Mr. Zigayer: I am ashamed to admit it, but we do not seem to be a very popular organization because we did not receive many responses.
Senator Cools: We always hear about these consultations. Ministers come before us and say there is no need to hear witnesses, simply pass the bill in 24 hours, or 12 hours would be even better, because the departments have already consulted with everyone. A couple of years ago I attended a set of ministerial consultations and there was not a minister in sight. That is why I am curious about this consultation process of your department, which would seem to be different, from your description.
Mr. Zigayer: Essentially, the public consultation does not end until the legislative process ends. We had enough input to begin developing a legislative proposal. That final product was introduced in the other place, where there were consultations with many impressive stakeholders on all sides of the issue. At times, one organization would express a view in support of or against something when you had anticipated they would take the other side.
This happened when we were working on the original DNA data bank legislation. Some of the women's organizations said that the government should not waste its money on creating a DNA data bank and to put the money into women's shelters instead. I did not anticipate that response.
Senator Cools: It was a waste of money.
Mr. Zigayer: We have seen this become an effective law enforcement tool. Beyond that, I could express only my personal opinion.
I will conclude by saying that those consultations continue throughout the legislative process, which we are at the end of today.
Senator Cools: I would not describe the activities of the Houses as consultations. Rather, I would describe these as committee hearings. Mr. Zigayer, to what extent are these exchanges in terms of developing a bill political or legal?
Every department is doing it. I have watched from pretty close quarters, and some of them are excessively political. You have departmental staff and officials doing the glad-handing and so on. There are other cases where some of them are brilliant, and I see good input coming in.
I am wondering, in these consultations, to what extent are you securing political support for the bill and to what extent are you developing the actual legislation? There is a difference. I see the two processes as quite different.
Mr. Zigayer: We had no bill to sell back in 2002. It was purely consultative. We wanted to see what the views of Canadians and the groups I have mentioned were on the proposals that came out of the Uniform Law Conference. I can say that we received some very well-developed submissions from different organizations. The Attorney General of Ontario, for example, provided a lengthy submission. Other organizations limited their submission to a page or so and addressed one issue in particular.
At the end of the day, we took what we had received and moved forward with it in terms of a legislative proposal. We did have some consultation, not on the basis of a draft bill but further consultations, by telephone conference call with provincial counterparts to discuss the matter with representatives of the provincial Attorneys General, the prosecutors.
Ultimately, I will return to my view that the legislative process is consultative in a sense. You are quite right. Sometimes we are all forced to deal quickly with a legislative issue. I remember that you were involved, and Senator Joyal as well, when we had to respond — and I would not say we were ordered to but that there was an obligation to respond — to the Supreme Court judgment in Feeney, where the court essentially said —
Senator Cools: It was Feeney. I remember I objected very strongly.
Mr. Zigayer: Yes, you did.
Senator Cools: I put all the so-called orders on the floor of the chamber and so on. I still feel as strongly.
Mr. Zigayer: Our view of that was the Supreme Court really did not care whether we enacted legislation or not. They had suspended the application of their judgment for six months to allow Parliament, if it wanted, to enact legislation, and because of the various interpretations by the different Attorneys General across the country of the result of Feeney, it was felt better that we enact a legislative reaction or response to that judgment.
Senator Cools: Perhaps one day, Madam Chairman, we should undertake a study among all the studies. I keep saying we should. Perhaps we should undertake a study on the nature of the proper constitutional relationship between the courts and the Parliament of Canada, because it may surprise some, but I sincerely believe that the Charter of Rights and Freedoms was never intended to disturb the balance and the design of the Constitution.
These events have occurred, and parliamentarians have been forced to comply with some of this, but I sincerely believe that Mr. Trudeau never intended that the Charter would be used to disturb what I call the balance of the Constitution. In fact, he told me so himself.
I was not joking when I was talking about Mickey Mouse and the Mousketeers. A former Minister of Justice, John Crosbie, described the courts as having become the Godzilla of the constitutional system and Parliament the Mickey Mouse, to which I was suggesting we should be more than Mousketeers.
We do not like to hear this but it is a fact. There is a plethora now of scholars studying this issue and perhaps we should take a look at it one day, because the Constitution, the BNA Act or the Charter never intended it. In fact, I argue that the Charter was intended to be part of the total Constitution and not to supplant one part or another. That is a story for another day.
The Chairman: I want to thank our witnesses for the great help they have given us today. Thank you very much for your patience.
Mr. Zigayer: I have an answer for Senator Ringuette.
I studied the law while no one was watching, and the answer is found in both the DNA Identification Act and in the Criminal Records Act. Sometimes it is like looking for Waldo.
The question as I understood it was with regard to a pardon, what would happen to access to the information if a pardon is granted. In my earlier response, I dealt with what happens to the bodily substances. They are kept and placed apart.
I will read from the DNA Identification Act.
9. (1) Subject to subsection (2), section 9.1 and the Criminal Records Act, information in the convicted offenders index shall be kept indefinitely.
That is, forever.
What does the Criminal Records Act say, because it is subject to that? This business about keeping it indefinitely, how does it relate to the Criminal Records Act?
I looked at the Criminal Records Act and two subsections in particular, 6(2) and 6(4). I will read 6(4) first.
Information in national DNA data bank
(4) For greater certainty, a judicial record of a conviction includes any information in relation to the conviction that is contained in the convicted offenders index of the national DNA data bank established under the DNA Identification Act.
DNA profiles are considered part of the judicial record for the purposes of this act. That is 6(4).
For 6(2) the French is shorter, so I will read the French.
[Translation]
Any record of a conviction in respect of which a pardon has been granted or issued that is in the custody of the commissioner or of any department or agency of the government of Canada shall be kept separate and apart from other criminal records, and no such record shall be disclosed to any person, nor shall the existence of the record or the fact of the conviction be disclosed to any person, without the prior approval of the minister.
[English]
In other words, it is put aside. It is essentially put apart from the rest of the DNA profiles, and again it is because of the technology. I will not get into it. It is like math; I am not good at that. It is essentially set apart from the rest of the convicted offender index.
Senator Ringuette: When a pardon is granted?
Mr. Zigayer: When a pardon is granted. Ultimately, access is possible, but it has to be ordered by the minister.
The Chairman: You have your answer.
Thank you very much.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-13?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clauses 1 to 10 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 11 to 20 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 21 to 31 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Do we agree this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chairman: Thank you.
The committee adjourned.