THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 23, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:51 a.m. [ET] to approve a special expenses budget; and study Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act; and for the consideration of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Good day, honourable senators. I am Brent Cotter, a senator from Saskatchewan and chair of this committee. I would like to invite my colleagues to introduce themselves.
[Translation]
Senator Boisvenu: Senator Pierre-Hugues Boisvenu, deputy chair of the committee. Welcome, Senator Carignan.
Senator Dagenais: Jean-Guy Dagenais from Montreal, Quebec.
Senator Dalphond: Pierre Dalphond, De Lorimier division, in Quebec.
[English]
Senator Prosper: Senator P. J. Prosper, Nova Scotia.
[Translation]
The Honourable Claude Carignan, P.C., sponsor of the bill: Senator Carignan, of Quebec, Mille Isles division.
[English]
Senator Busson: Senator Bev Busson, from British Columbia.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
Senator McNair: Senator John McNair from New Brunswick.
[English]
Senator Dasko: Donna Dasko, a senator from Ontario.
The Chair: Thank you, colleagues. I would like to extend a welcome to Senator Dagenais, who only occasionally is able to join our committee, and to Senator McNair, who is joining and getting a taste of what happens at the Legal and Constitutional Affairs Committee. Welcome to you both.
We have an ever-so-brief matter to deal with, a budget consideration. Before we move to Bill S-231, we have to deal with this budget issue. We have a budget before us of a grand total of $6,000, which we ask for annually to purchase updated Criminal Codes for members of the committee. A copy of the draft budget was circulated, colleagues, and I would like to ask this question: Is it agreed that the budget allocation for Criminal Codes in the amount of $6,000 be approved for submission to the Standing Committee on Internal Economy, Budgets and Administration for the fiscal year that ends March 31, 2024? Is it agreed?
Hon. Senators: Agreed.
The Chair: Not particularly enthusiastically, but, nevertheless, thank you.
Honourable senators, we are meeting today to continue our study of Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act. You will recall that we began our study briefly on this recently and are continuing it.
Today, the committee is pleased to welcome the sponsor of the Senate public bill, the Honourable Senator Claude Carignan. Welcome and thank you for joining us, Senator Carignan. We’ll begin with your opening remarks of approximately five minutes and, as you know, that will be followed by questions and discussion. Actually, I have noted here that you should take as much as ten minutes, if you need it, sir. That will be followed, as you will know, by questions and discussion with you among senators.
The floor is yours.
[Translation]
Senator Carignan: Dear colleagues, thank you for welcoming me.
Today we are studying Bill S-231. I’d like to acknowledge the presence of a witness you’ve already seen, Mr. Greg Yost, who is behind me, and who actively participated with me in drafting the bill. I want to thank him, because he did it voluntarily, without any remuneration, out of passion for the cause, which must be emphasized.
This bill aims to better protect public safety by promoting the reliable identification of perpetrators of criminal offences. I’m thinking not only of serial murderers, but also of the perpetrators of other serious crimes, such as sexual assault, kidnapping, and trafficking in illegal firearms. Indeed, police officers can find DNA at any type of crime scene.
Before describing the main measures of my bill, I’ll quickly explain how the National DNA Data Bank works. Operated by officials of the Royal Canadian Mounted Police, this government data bank is a formidable tool that enables police officers to identify suspects through their genetic fingerprints. The bank contains various files. For example, the crime scene index contains genetic samples from DNA found at a crime scene, while the convicted offender index contains genetic samples from offenders guilty of criminal offences.
Current legislation allows bank officials to inform police officers when there is an exact match between these two files, i.e., when the crime scene sample is identical to the one from the convicted person. When there is a match in the bank, the police cannot use the DNA sample from the bank as evidence. However, they can take this match into account in their reasons for arresting a suspect or applying for a warrant from a judge to authorize them to take a DNA sample which, in this case, can be used as evidence at trial to establish guilt.
Unfortunately, current legislation does not allow the bank to be used to its full potential, which prevents, in many criminal cases, the prevention or solving of crimes or miscarriages of justice or the elucidation of crimes, particularly in the case of serious offences endangering the safety of Canadians. Many crimes that remain unsolved after detection of a suspect’s DNA are cases of sexual assault of women, murdered women, raped and murdered children. The flagship measure of Bill S-231 aims to increase the number of offences for which judges would be required to demand a DNA sample from the convicted person.
This measure responds to a recommendation made in three parliamentary reports: the 2010 report of the House of Commons Standing Committee on Justice and Human Rights; the 2011 report of the Standing Senate Committee on Legal and Constitutional Affairs, which at the time included Senator Fraser, Senator Baker, Senator Carstairs, Senator Joyal, Senator Rivest and Senator Nolin, among others; and a 2017 report that focused on court delays, issued by a Senate committee that included Senator Jaffer, Senator Joyal, Senator Sinclair and Senator White, among others. They all recommended an increase in the number of offences provided for in the law.
As you heard from Mr. Yost, Mr. Bird and Mr. Maguire in their testimony, the more DNA profiles of convicted offenders there are in the bank, the more opportunities there are to find matches with profiles from crime scenes. Adding a profile to the convicted offender index can help solve past crimes and future ones. Take the real-life example of the murder of Guylaine Potvin, committed in Jonquière in 2000, whose alleged perpetrator was arrested 22 years later. Prior to this arrest, this man had a criminal history of theft, trespassing at night, attempted break and enter, threats and assault.
Since all of these are Bill S-231 offences, this individual’s DNA would have been taken at conviction for any of his previous criminal acts. This suggests that this murder could have been solved much sooner had Bill S-231 been in effect, as bank officials would then have been able to obtain a match of his DNA.
If passed, my bill would give more options for using the National DNA Data Bank. The key word is “identify.” Identifying offenders by their genetic fingerprints is more reliable, but plays the same role as fingerprint identification. Its role is to be able to accurately identify a suspect so they can be recognized and distinguished from another if they leave their fingerprints or DNA at a crime scene.
In summary, the main purpose of my bill is, on the one hand, to increase the number of offences for which a judge would be obliged to order DNA fingerprinting. This would include all criminal offences punishable by five years’ imprisonment or more, including all violent offences under the Criminal Code.
You will remember that in 2022, the Supreme Court of Canada recalled in R. v. Sharma that the maximum penalty for an offence is an appropriate indicator in a statute to define a category of offences deemed more serious by the legislator. Bill S-231 proposes to authorize kinship searches for serious offences punishable by a maximum sentence of 14 years or more, in cases where there is an emergency or where other investigative methods have been used to no avail. This measure will enable bank officials to disclose to investigators that there is a partial match between DNA found at the crime scene and that obtained from a convicted offender who is a biological relative of the offender. Such information will enable police officers to continue or relaunch their investigations.
However, according to some stakeholders, Bill S-231 would contribute to the overrepresentation of Indigenous persons and other overrepresented groups in the criminal justice system. I would like to remind you that a DNA sample is taken from a person who has been found guilty beyond a reasonable doubt. It is therefore in no way racial or discriminatory profiling.
I’d also like to submit that the Native Women’s Association of Canada is in favour of the bill. In its brief, it recalled that Indigenous women and girls “are disproportionately victims of sexual violence” and that, consequently, the measures proposed in Bill S-231 could make it possible to resolve these investigations “faster and more easily than under the current system.”
Also in its brief, the association asserts, and I quote:
Bill S-231 does not explicitly seek to remedy the overrepresentation of Indigenous women in penal institutions, but its mechanisms have the potential to reduce wrongful convictions and eliminate subjective bias against Indigenous women . . . the amendments proposed by Bill S-231 can reduce the risk of wrongful convictions when DNA evidence can be used to identify the proper culprit, which may reduce Indigenous women’s wrongful conviction rates and the likelihood of entering wrongful guilty pleas.
Like this association, the National DNA Data Bank Advisory Committee, the Canadian Association of Chiefs of Police and other experts support my bill. In particular, they are in favour of this measure, which increases the number of offences for which a convicted person must provide a DNA sample to the bank.
Lastly, on January 27, 2022, the chair of the National DNA Data Bank Advisory Committee wrote a letter to the Commissioner of the RCMP, Brenda Lucki, and copied the Minister of Public Safety, Marco Mendicino. The committee asked them to act and to work with me to move Bill S-231 forward quickly. The committee also wrote to the Commissioner of the RCMP in 2017 to support the Senate committee’s recommendation in its report on court delays. The Senate committee recommended that the Minister of Justice introduce legislation to amend the Criminal Code to allow the immediate and automatic taking of a DNA sample from any adult who has been convicted of a designated offence as defined in section 487.04. Bill S-231 seeks to do just that, by implementing the recommendations of both the Senate and House of Commons committees.
Thank you, Mr. Chair.
[English]
The Chair: Thank you, Senator Carignan.
I want to invite senators to ask questions and engage in discussion with you, beginning with our deputy chair, Senator Boisvenu.
[Translation]
Senator Boisvenu: Welcome, Senator Carignan. Thank you for this valuable bill, which is especially important for victims and their loved ones. These cases often involve murders and the victims have disappeared.
You spoke about the advisory committee and a letter written at the time that asked the minister and the Commissioner of the RCMP to work with you. Did the minister or the RCMP contact you?
Senator Carignan: I tried to meet with Minister Mendicino and Minister Lametti. However, nothing came of this request. I would have appreciated the opportunity to discuss the matter with them. Unfortunately, it wasn’t possible, and the ministers then changed.
Senator Boisvenu: However, the chair of the committee was interested.
Senator Carignan: Yes, certainly, according to everything that I’ve read and the correspondence that I’ve seen. I submitted an access to information request to see the correspondence between the minister’s office and the committee. This was an urgent request from them, in response to the Senate committee’s recommendations.
Senator Boisvenu: One major issue affecting our justice system, particularly in Quebec, is delays that generate enormous costs for the system. Can the improvements to the National DNA Data Bank help reduce delays? As you said in your presentation, this bank is a tool for solving cases.
Senator Carignan: Definitely. This was included in the recommendations when we did the study — because I appointed some of the members, but you were also a member of that committee. The arguments for expanding the use of the DNA data bank included the need for irrefutable evidence. As a result, the number of investigations and suspects is reduced, and efforts are more quickly and efficiently directed towards eliminating the not-guilty people. When a suspect is brought in and charged with DNA evidence, the power of the evidence often leads to guilty pleas. This avoids trials, since the accused people are more likely to plead guilty when there is DNA evidence.
Senator Boisvenu: In some countries, such as the United States, Great Britain, New Zealand and Australia, DNA is taken when an accused person is arrested. I gather that, according to your bill, DNA will be taken when charges are laid.
Senator Carignan: Upon conviction.
Senator Boisvenu: Exactly. This means that people who are arrested and released for lack of evidence or on a technicality... Does not having their fingerprints deprive us of a great deal of information?
Senator Carignan: When a person is convicted, they lose part of their expectation of privacy. For that reason, I’m recommending in the bill that DNA be taken upon conviction. However, a provision calls for a study of the issue and for DNA to be taken along with fingerprints when charges are laid.
A number of decisions equate taking DNA with fingerprinting for identification purposes. We can hardly do without this modern evidence tool. It would be like saying that fingerprints are a horse, and DNA is a car. Yes, the horse can get us from point A to point B. However, these days, I think that a car is a better option, even though the horse may be of some use. Fingerprints have become obsolete. With DNA evidence, any reasonably intelligent criminal wears gloves. DNA evidence provides much more certainty.
Senator Boisvenu: Thank you.
Senator Dalphond: Thank you, Senator Carignan, for this bill. Thank you for joining us this morning. I had the same question as Senator Boisvenu, or actually the answer to Senator Boisvenu’s question. You started talking about how the Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs must consider the possibility of taking DNA samples using the methods set out in the Identification of Criminals Act, meaning at the Bertillon system stage. Not only would fingerprints be taken, but also a DNA fingerprint. You said that the minister must report to each house within a fairly short time, on the second anniversary of the coming into force of the legislation?
Senator Carignan: Yes.
Senator Dalphond: Why not include this directly in the legislation right now? You seem to be saying that this should be done, but you aren’t doing it. You’re including it in the legislation by saying that the minister has a duty to report.
Senator Carignan: Obviously, this is a private member’s bill. I believe that, in this situation, we should perhaps move forward with a certain amount of social acceptability and knowledge. The scientific knowledge is there, but are people aware of it? Are they informed enough to ensure greater acceptability? It would be good to carry out a study to clarify this part.
Obviously, when a person is found guilty, the expectation of privacy disappears almost automatically. If we put it there, so to speak, we can’t go wrong. If we put it before that step, it can lead to debates. The process of asking the minister to conduct a study, hold public consultations and report back will help inform and educate the public — and probably lead to greater acceptance when the bill comes into force.
If you want my opinion, I’d obviously prefer that it be done right away. The comparison could then be made immediately. Perhaps the person could be charged not with a single crime, but with a series of crimes.
As I mentioned earlier, what really struck me when I was working on this file, in the reports I read, the RCMP reports, the advisory committee reports, the cold cases where there are traces of DNA, they’re almost always murders of women, rapes and murders of children. If we increase the data by arresting a person, even if the person may be acquitted, perhaps something else will be discovered by obtaining DNA upon arrest. However, that’s another step.
Senator Dalphond: Why, then, if it’s a question of social acceptability, wouldn’t it be the Minister of Justice and not the Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs who would be responsible for conducting this study?
Senator Carignan: I don’t necessarily have a preference. The Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs was chosen because the RCMP is responsible for the bank. I want the best person.
Senator Dalphond: Thank you.
[English]
Senator Prosper: Thank you so much for your testimony.
I was just listening to some other witnesses on this particular bill, and one of the witnesses referenced a certain concept called genetic discrimination and how intrusive a piece of legislation like this could be with respect to the issue of over-representation of not just Indigenous people — but it is certainly a consideration amongst that group as well — particularly with respect to the use of familial DNA and with respect to the lives of Indigenous peoples. What do you say when you hear a concept like genetic discrimination being mentioned?
[Translation]
Senator Carignan: I’ve done some work on genetic discrimination, particularly when we worked with Senator Cowan to amend a bill to prohibit genetic discrimination. In the case of genetic discrimination, we will look for coding elements other than the identification element. What we’re currently aiming to do with DNA, what is intended for the National DNA Data Bank, is really the data or coding that will identify the individual, and not information on race, eye colour and predisposition to disease.
All that information isn’t processed, isn’t part of the bank and isn’t collected. The only part of the DNA coding is the part that identifies the individual and is unique to them. This greatly limits the intrusion into privacy. That’s what the courts have recognized, that the balance between rights and discrimination or the identification of this private information has been reduced because of the techniques used. There’s a balance with respect to the expectation of privacy, of what is expected within an expectation of privacy. How is the data collected when the person has been convicted? It’s recognized that, especially for adults, their expectation of privacy with respect to the police, law enforcement authorities or the general public, disappears. The courts have ruled that to be a justification.
As for overrepresentation, the beauty of the DNA data bank is that it can also exonerate people. If you go to the police chiefs, I don’t know if they’ll be able to deal with that part of the investigations…. When they conduct investigations, they’ll ask people if they want to submit their DNA, and they’ll be able to exonerate many people using that evidence. It also serves to exonerate people and focus efforts on more compelling suspect targets.
I’m having trouble seeing a negative impact in terms of overrepresentation or discrimination. Is overrepresentation a problem? It is, and that’s why the Native Women’s Association of Canada supports the bill. You can ask them questions. They are in favour of the bill because it will also make it possible to exonerate people who are innocent, as we have seen in certain cases where DNA evidence has made it possible to uncover miscarriages of justice.
I’d like to add something on the issue of biology and familial ties because I didn’t answer the question. That’s another area that needs to be explored. This part is familial research. A much more serious test has been planned that draws to some extent on the ethical practices of certain European countries. It has been included in the legislation for very serious crimes once all other resources have been exhausted. I know that some professors have suggested creating an ethics committee to oversee this practice. I have no problem with an ethics committee overseeing this practice. The bill already provides for regulatory power. Through regulations, the Governor-in-Council could establish an ethics committee to ensure that everything is done properly and in accordance with professional practices.
[English]
The Chair: That used up your time, Senator Prosper. We will move on.
Senator Busson: Thank you, senator. I appreciate the opportunity to ask you a question.
The preamble of Bill C-231 states:
… Whereas the effectiveness of the national DNA data bank depends on the number of DNA profiles in the convicted offenders index to be compared to the DNA profiles in the crime scene index …
Sadly, it goes on to say:
… Whereas Canada has, on a per capita basis, far fewer DNA profiles in the convicted offenders index of its national DNA data bank than the national DNA data banks of other free and democratic countries, resulting in fewer chances of identifying the perpetrators of serious and violent crimes …
You’ve done an incredibly good job, in my opinion, of explaining how this bill will improve the ability not just to find perpetrators of serious crimes but also to protect the innocent. I’m trying to imagine what the opponents of this bill would argue, given the compelling comments that you made in your presentation.
[Translation]
Senator Carignan: As I explained earlier, I have difficulty understanding why we would deprive ourselves of modern evidence. I have difficulty understanding that argument and why we would forgo obtaining information that could help find murderers.
Once again, what shocks and surprises me the most in everything I’ve read is that, often, in these situations, it’s women and children who are raped and murdered. It would be a good thing if it were possible to get more information, even in the case of crimes committed by young people under age 18. The Supreme Court and the appeal courts recognize DNA sampling. I’m the son of farmers, and it’s like being given the choice between a tractor and a horse and plow to do the plowing. I’m definitely going to choose the tractor. I find it hard to understand why anyone would deprive themselves of essential information.
Senator Busson: Thank you very much.
[English]
Senator Simons: Senator Carignan, in your comments earlier, you said that you thought this was justified because it would only happen to people who had been convicted of a crime beyond a reasonable doubt. Yet in your bill, you include the power — the obligation — to take DNA samples from people who have received an absolute discharge and from people who have been found not criminally responsible for medical reasons. I am wondering why you would include such cases.
[Translation]
Senator Carignan: In fact, it’s because these are the people who committed a criminal act, and they aren’t found criminally responsible because of a mental health problem, for example. These people have committed a criminal act, but have they committed others? These are people who may have committed other crimes. Will they commit more? I think we need to be able to obtain that information, even in cases of non-criminal responsibility. The purpose of taking a DNA sample isn’t to impose a sanction or punishment. DNA samples are taken to make sure that the information is stored in a bank, and then analyzed and compared.
If I discover that extremely violent crimes have been committed and that, subsequently, I can validate the fact that the person who was found not criminally responsible is the one who committed those crimes, that the person was released from psychiatric institute X or Y, that the person has returned to society and that I am able to determine that this is the same person who reoffended, the person may still be found not criminally responsible. However, additional measures may be taken to ensure that the person receives treatment and is properly supervised. That’s simply the reason. That person hasn’t been acquitted but is considered not criminally responsible.
[English]
Senator Simons: But it is a form of punishment. You say it isn’t, but surely it is a form of punishment to surrender so much of yourself. I am concerned. I could see your argument if you were just talking about a person reoffending, but we’re also talking about using that to cross-match with other relatives. You could have a situation, for example, of an Indigenous woman who receives an absolute discharge but her DNA is in the bank, and then her grandson or her granddaughter commits a crime. Now you are using the information that you harvested from somebody who received an absolute discharge as an investigative tool. I know that you consider yourself, as I do, a defender of civil liberties. I am wondering if you don’t see there is a problem there.
[Translation]
Senator Carignan: There are many aspects to your question. You added that the data of a grandson or granddaughter of someone who received an unconditional discharge would be compared.
Senator Simons: Or maybe the person’s brother.
Senator Carignan: Or maybe the brother of the person in question.
Let’s say you’ve just done a familial search, and then you fall into another category of violent crime that can lead to a sentence of more than 14 years. Let’s say a committee balanced all the evidence and made sure there are no other situations, and that every possible means were exhausted to try to identify the person who committed the violent act punishable by a sentence of more than 14 years. At that point, we’ve run out of resources and forced a familial search. In the case of a crime punishable by a sentence of more than 14 years…. We’re talking about serious crimes such as murder and rape.
I understand the frustration of the person whose data is in the bank. However, in a modern state where we have scientific evidence and are protected by the Canadian Charter of Rights and Freedoms, can we deny ourselves the right to identify a criminal who has committed rape and murder by saying, “I can’t do that, because I’d hurt the grandmother’s feelings if I collected information on a sample of her DNA that’s in the bank”?
[English]
Senator Simons: It’s an “end justifies the means” argument. By this logic, you could take a DNA sample from everybody charged or everybody at birth. That would be an excellent way we could —
Senator Carignan: No. Not charged.
[Translation]
I said “charged” a little earlier. We could even go that far, but the bill doesn’t go that far.
[English]
Senator Simons: I understand. Yes.
[Translation]
Senator Carignan: It’s along the same lines as fingerprints.
Senator Clement: Thank you for being with us, Senator Carignan. By the way, I’m the granddaughter of farmers.
Senator Carignan: And we have both been mayors.
Senator Clement: We have a lot in common.
I understood your reference. I would like to come back to Senator Prosper’s question about the overrepresentation of Indigenous, Black and racialized people in our legal system.
We heard testimony from Professor Crawford and Professor Clausius, who believe that the bill will have a negative impact.
You correctly quoted the Native Women’s Association of Canada. In their brief, the association does support the bill, but it also states that it has concerns about abuse of power and overrepresentation. Still, the brief was nuanced. I just wanted to raise that point.
Senator Carignan: Definitely.
Senator Clement: How do you plan to answer that question, that concern, that there is already evidence of overrepresentation in the bank right now? Yes, people have committed crimes, but there’s the whole issue of overrepresentation. The bank is already affected by overrepresentation, and an enlargement could lead to suspicion that will affect all these populations and their families, which will lead to further investigations within these people’s families.
I’d like to know whether you’ve considered a practical response to this concern raised by several witnesses.
Senator Carignan: There are several answers to this. In fact, we don’t know whether there is overrepresentation in the bank. We don’t know. We assume there is, but we don’t know.
Senator Clement: Precisely. There’s a lack of information.
Senator Carignan: The point is that the bank’s data is confidential. It’s used to identify; it’s confidential. Even the people who run the bank don’t know. Everything is coded to ensure anonymity. What we do know is that these are people who have been convicted of a crime.
As for overrepresentation, will fingerprints be removed? Have fingerprints contributed to overrepresentation? Fingerprints are taken when a suspect is arrested. The person hasn’t even been convicted. Should they be removed? I wouldn’t suggest doing that.
What led to this overrepresentation? There are various factors. When the sample is taken when the person is found guilty, I think that’s a guarantee. The person is found guilty beyond a reasonable doubt. Then, as the Native Women’s Association of Canada said, it will also exonerate people. If there’s an overrepresentation in the bank, they’ll be able to conduct analyses to eliminate those people. If it helps exonerate people because there’s more data in the bank, well, that’s fine.
Senator Clement: There must be some evidence about overrepresentation.
Senator Carignan: Yes, it’s well known.
Senator Clement: But we don’t have much information about why and how it happens. That’s the problem. Are we passing laws without enough data to justify the decisions we make?
Senator Carignan: I don’t think the solution to overrepresentation lies in either not using the DNA bank or using it to the fullest. There are many factors, including cultural ones and police training, that play into overrepresentation.
If we recognize Indigenous nations, should there be specialized Indigenous courts? Here’s an idea: We have municipal courts, so why not Indigenous courts to prevent overrepresentation? There are many solutions we could consider rather than deprive ourselves of a science-based tool that would enable us to identify and convict or exonerate someone. I think science should be put to good use here in 2023.
Senator Clement: Maybe we could draw more on Indigenous justice systems. I think we really need that kind of broader conversation.
Senator Carignan: I agree.
Senator Clement: We’re not there yet. Thank you for your testimony.
Senator Carignan: I agree, but, as I said, we’re studying a bill about genetics, about the DNA bank. That may not be the place for action on —
[English]
Senator Batters: Thank you for bringing forward this important bill.
As I was saying to some of the witnesses last time, I’m sure many Canadians would be very surprised to hear that we don’t already have this type of requirement in Canada, especially given all of the infiltration of American television and crime shows and that sort of thing, in addition to the news stories about situations there.
First of all, going on to the Native Women’s Association being in favour of this, I’m thinking that perhaps part of their rationale could be — I haven’t yet had a chance to read their brief, but I will — in addition to the release of people who are innocent, of course, as we have seen some really tragic cases in Canadian legal history on that type of front, it could also lead to the arrest of people who have hurt and killed Indigenous women and girls, which is such a crucial situation that we’re facing in Canada right now, and it’s very difficult, especially if it’s a lengthy period of time afterwards.
I want to ask you a little bit more about the familial searches. Your Bill S-231 measure proposes to allow familial searching in the convicted offenders database, so there needs to be conviction. Why does your bill limit this use to crimes punishable by a maximum sentence of 14 years or more and restrict it to cases of emergency or where there would be other investigative methods that have been used in vain? I’m wondering if you perhaps base those criteria on the recommendations from the advisory committee of the National DNA Data Bank?
[Translation]
Senator Carignan: I know that’s one thing they recommend. It’s about balance. If I use the familial search, there’s technically discrimination based on social condition or family relationship. The idea is to balance rights and interests and minimize the impact of that kind of discrimination.
To make sure these interests are balanced, I think it is justified to have to prove that discrimination on the basis of family relationship is minimized. I think it’s about balancing rights. In situations where you have a very serious crime and there’s no other option, you have to have to pass the test. Actually, in most jurisdictions, there’s no specific authorization for doing a familial search. Where there’s no prohibition, it’s authorized, but the process is governed by ethics committees and the policies of law enforcement agencies equivalent to the RCMP. They have best practice rules in place for these situations.
That was included in the legislation in part, but, as I said earlier, the Governor-in-Council has the power to regulate that specific part on the use of the DNA bank with respect to biological relationship. If the Governor-in-Council deems it is appropriate, they can create an ethics committee or establish more specific rules at that point.
[English]
Senator Batters: There is something else I wanted to dive into a little bit. We have had a little bit of discussion here about absolute discharge. One of the provisions of your bill provides that this would be for not only those with a conviction but also discharge. It does not say “absolute discharge,” but it says “discharge.” Of course, that would include conditional discharges as well as absolute discharges and findings of not criminally responsible. For all of those things, the common thread really is that there is a criminal finding of guilt. This is someone who has been found by a court in all of those cases — correct? — to be found guilty of the crime, and then it’s simply the sanction, whether they go on to a sentencing stream, whether they receive a discharge, whether that be conditional or absolute, or whether they have a finding of not criminally responsible. Correct?
Senator Carignan: Exactly.
Senator Batters: Thank you.
Senator Dasko: Thank you, Senator Carignan, for your bill. I have a couple of quick questions and then another one a little more detailed.
You had said that after this bill we will see an increase in the number of DNA profiles in our data banks. What are you expecting in terms of the increase? Will it be a 100% increase in DNA profiles or maybe 10%? Have you actually looked at that to understand how we’re going to increase our bank?
[Translation]
Senator Carignan: Let me share some information from my office. We sent an access to information request to the Minister of Public Safety. We got access to the National DNA Data Bank’s briefing note to the minister and the commissioner’s briefing note to the minister.
Their impact numbers were on the order of 70,000 additional profiles in the first year. After that, things would slow down. I can get you the exact number, but, if memory serves, it was around 70,000. Right now, it’s about 30-some.
[English]
Senator Dasko: So what would that represent as an increase? Is that a 100% increase over what’s there?
[Translation]
Senator Carignan: In the first year, it’s 80% to 85%, but after that, it’ll probably be 50% to 60%. There’s a backlog.
[English]
Senator Dasko: That’s a very significant increase in DNA profiles.
[Translation]
Senator Carignan: Yes, but it’s still a far cry from what we see when we look at other jurisdictions. We have a lot of catching up to do.
[English]
Senator Dasko: Right.
Just as a point of information, do our law enforcement agencies have access to foreign DNA data banks?
[Translation]
Senator Carignan: I didn’t understand your question. Would you mind repeating it?
[English]
Senator Dasko: Yes. Just as a point of information, do our law enforcement agencies have access to foreign DNA data banks? Can we access that?
[Translation]
Senator Carignan: Do our police forces have access to foreign DNA data banks. Is that it?
[English]
Senator Dasko: Yes, foreign DNA data banks for matching purposes.
[Translation]
Senator Carignan: I think so, but you would have to ask the agencies specifically, because it must depend on the legislation in different countries. Nevertheless, I’m inclined to say yes, in accordance with the conditions and criteria they have to follow.
[English]
Senator Dasko: So we already have a potential pool of matches?
[Translation]
Senator Carignan: We have some, but keep in mind — this is something we’ve heard about — the whole issue of genetic genealogy, where people turn to data banks to trace their ancestry and, in so doing, automatically give up their DNA. We see that in the U.S. It’s starting in Canada, and there’s no doubt that the data are accessible here as well. The data banks are created in such a way that they fall within the public domain.
[English]
Senator Dasko: Yes, and is law enforcement able to use those sources?
[Translation]
Senator Carignan: Yes, just as we can use them.
[English]
Senator Dasko: You referred earlier to a sense of resistance to your bill coming from, let’s say, some public perception. Could you elaborate on that? Are you sensing reluctance? Canada is a country that generally embraces new technologies, and we have seen many examples of cold cases being solved by the use of DNA. Are you getting a sense of reluctance on the part of Canadians to accept this, or do you think people are generally welcoming of this initiative?
[Translation]
Senator Carignan: When I mentioned that, I was referring mainly to the time of arrest, not to conviction. I can understand why there would be resistance as regards the time of arrest since the person hasn’t been convicted yet. The person has some expectation of privacy. Fingerprinting is more known and accepted. There’s some mystery around this, so people need information. Social acceptability is often about a lack of information. You are an expert on polling. You can survey people one day, and then put out a lot of information to educate them about a cause or situation. If you survey them again a month later, you won’t get the same results. These are things we see. I’ve seen serial homicide and rape cases where the same person with the same DNA profile committed rapes, break-ins, killed women and children. The same person, and we don’t know who it is, but I’m very much looking forward to their being caught.
[English]
The Chair: Thank you.
Let me advise everyone that we will go a bit over time out of respect for Senator Carignan, but there won’t be time for a second round. This will be the last question. I had been thinking of inviting Senator McNair and Senator Cotter, if they had questions, but we’re going to run out of time.
[Translation]
Senator Dupuis: Are you asking me to give my time to the chair of the committee? Thank you for being here, Senator Carignan. I’m trying to get a better handle on new section 6.41, in clause 18 of your bill. A number of discretionary powers are being provided. It caught my attention. The provision says “may make a request” to the commissioner, who may conduct the comparison requested if, in the commissioner’s opinion, the DNA profile could be that of a biological relative, and the commissioner may communicate the results to the investigating authority. Usually, there is reluctance to pass legislation containing discretionary powers that are not subject to any parameters. Can you tell me why the very beginning of the amendment proposed in clause 18 refers to “an investigating authority”? Who does that refer to?
Senator Carignan: It refers to police services, investigative services.
Senator Dupuis: Public investigative services or private investigative services, or both?
Senator Carignan: Obviously, it refers to criminal and murder investigations. I don’t think any private authorities investigate murders.
Senator Dupuis: The provision introduces the idea of an investigating authority, which may make a request to the commissioner to conduct a comparison. Proposed subsection 6.41(3) says that, if in the commissioner’s opinion, the DNA profile compared under subsection 6.41(2) could be the profile of… What are the criteria the commissioner will use to determine whether it “could be the profile of”? Does the commissioner rely on intuition to decide whether the DNA profile could fit the situation described? What does the commissioner refer to? The commissioner could be satisfied that…
Senator Carignan: No, it’s the comparison. A scientific process is carried out to compare the information or markers in the DNA profile in the data bank with the DNA that was identified because the police or investigative service sent it. Obviously, judgment comes into play: The farther apart they are in terms of heredity, the more uncertainty there is. My DNA is much closer to that of the young woman over there, who is my daughter, than it is to the DNA of someone else in the room. As far as the comparison is concerned, then, there is an element of judgment.
Senator Dupuis: That’s why I’m asking. What are the criteria?
Senator Carignan: The scientific markers, the markers in the DNA profile in the data bank as compared with the information in the DNA being submitted.
Senator Dupuis: I’m just trying to understand the logic of the bill, because it involves a system where the court has to make an order, but it doesn’t give the court any discretion. You don’t have a choice. when faced with situation X, you have to make an order. The commissioner, however, does not have to make an order if they are satisfied. That already brings it down a level, and if we look further in the bill, it says “may make a request,” but the commissioner “may conduct,” and if in the commissioner’s opinion, the DNA profile “could be the profile of a biological relative.” If we look further down in the bill, we see that, ultimately, the commissioner has considerable discretion, but it isn’t subject to any parameters.
Senator Carignan: That is the reason for the regulatory power. That one, in particular, refers to the profile of a biological relative. Depending on how distant the biological relationship between the profile in the data bank and the profile being compared, the commissioner undertakes an analysis to determine whether it’s a close or distant relative. That is the reason for the language that’s used.
The Canadian Association of Chiefs of Police recommends replacing the word “may” with “shall.” If you wish to propose an amendment to that effect, I certainly wouldn’t object.
The other thing is that the regulatory power is addressed in clause 23, where it refers to amending section 12 of the act by adding paragraph (c.1), “respecting the application of section 6.41.” That means the Governor-in-Council can establish rules to oversee this discretionary power and provide more clarity, whether by creating an ethics board or circumscribing the discretionary power.
[English]
The Chair: Thank you.
That brings to a close the time that we have, Senator Carignan. Colleagues, on your behalf, I extend our thanks and appreciation for the Honourable Senator Carignan joining us as the sponsor of this bill to present it and also to engage in, as usual, lively discussion with colleagues.
In our second panel today, we’re pleased to welcome Frederick Bieber, Bio-Medical Ethics Expert, Brigham and Women’s Hospital, Pathology, National DNA Data Bank Advisory Committee, here by video conference; and Derrill Prevett, Legal Expert, Forensic DNA, National DNA Data Bank Advisory Committee, also by video conference. In person, from the Canadian Association of Chiefs of Police, we have Stephen Smith, Detective Sergeant, Homicide and Missing Persons Unit, Toronto Police Service; and from the Canadian Association of Chiefs of Police, Andrew Chan, Acting Deputy Chief, Vancouver Police Department. Welcome, gentlemen, and thank you for joining us.
We’re going to begin with opening remarks from the folks from the National DNA Data Bank Advisory Committee, followed by representatives of the Canadian Association of Chiefs of Police. We will invite each organization to speak for approximately five minutes each, and that will be followed by questions and discussion with senators. I should alert you, in case you are attentive to time yourselves, gentlemen, that we’re going to try to bring this discussion to an end at 1:40 Ottawa time. We have a small committee deliberation matter that we need to deal with before we return to the chamber. The floor is yours.
Derrill Prevett, Legal Expert, Forensic DNA, National DNA Data Bank Advisory Committee: Thank you, Mr. Chairman. Perhaps I’ll go first.
You have received the background information from us, but I just want to remind you that the National DNA Data Bank Advisory Committee is an independent committee of members of various disciplines who are appointed by the Minister of Public Safety. Its mandate includes recommendations to the Commissioner of the RCMP and Minister of Public Safety to make the National DNA Data Bank more effective and efficient in the interest of public safety.
Now, the three central features of Bill S-231, of course, are to expand the list of designated offences to include nearly all Criminal Code offences, to make data bank sample orders automatic for all designated offences and to recognize the value of using familial searching in certain serious cases.
In general, the advisory committee agrees with the four points set out in Bill S-231’s preamble. Forensic DNA analysis is a means of identification. You have heard this many times. It is not punishment. The effectiveness of the National DNA Data Bank depends upon the number of profiles within it. There is clearly a shortfall in the number of submissions received by the National DNA Data Bank, given Canada’s population. Lastly, familial searching has a proven record of assisting investigations into certain serious crimes that have been resistant to other forms of investigation.
Originally, in 2000, there were 16 primary designated offences and 25 secondary offences for which a National DNA Data Bank sampling order could be made, and in 2008, following a Department of Justice Canada research project, which identified this significant gap between the number of DNA profiles that could have been submitted and what actually was, legislative amendments were made to remove discretion to make an order for certain offences. I mention that because automatic orders are not new to our law. While a slight improvement occurred, the number of submissions remained well below what was anticipated. In short, the National DNA Data Bank is not receiving the number of submissions expected, given Canada’s population, and is precluded from using a well-developed forensic application — familial searching.
The advisory committee supports automatic taking of DNA samples upon conviction of any adult of a designated offence. This was clearly articulated before both the House and Senate committees reviewing the DNA Identification Act in 2009 and 2010. Both the Standing Senate Committee on Legal and Constitutional Affairs and the House of Commons Standing Committee on Public Safety and National Security have recommended this in their reports on this issue in the past. A report from the Standing Senate Committee on Legal and Constitutional Affairs in 2010 recommended that the Criminal Code be amended to allow for the immediate and automatic collection of DNA samples from any adult who has been convicted of a designated offence. The National DNA Data Bank Advisory Committee sees this as the single most important legislative change that could significantly strengthen the value and positive impact of the National DNA Data Bank for Canadians.
On December 3, 2015, the advisory committee recommended familial searching be adopted. Former Advisory Committee Chairman Richard Bergman discussed familial searching with a Senate committee as early as 2009. If, after a routine search, no exact matches are identified, a search for similar DNA profiles may identify other possible persons of interest worthy of further investigation. The National DNA Data Bank Advisory Committee has concluded that the benefit to public safety by the use of familial searching outweighs whatever inherent privacy risks may exist.
We must achieve a proper balance between protecting the privacy of the individual while allowing modern forensic methods to be employed to investigate certain offences. The humanitarian aspect of not doing what is possible to protect the public must be considered. The public remains at risk when violent criminals remain at large. Therefore, the National DNA Data Bank Advisory Committee urges you to consider implementing these important changes.
Thank you, Mr. Chairman.
The Chair: You were one second over your time, Mr. Prevett. Thank you very much.
I invite Acting Deputy Chief Chan and Detective Sergeant Smith to make their presentations.
Andrew Chan, Acting Deputy Chief, Vancouver Police Department, Canadian Association of Chiefs of Police: Thank you, Mr. Chairman.
Honourable senators and distinguished members of this committee, on behalf of Chief Danny Smyth, President of the Canadian Association of Chiefs of Police, CACP, I am pleased to be given the opportunity to meet with you today. I am Acting Deputy Chief Andrew Chan with the Vancouver Police Department. I am representing the CACP Law Amendments Committee, and I am joined by Acting Detective Sergeant Stephen Smith, a member of the Toronto Police homicide cold case squad. We welcome the opportunity to speak to you today about Bill S-231. We have also prepared a written submission that we hope you have had the opportunity to review.
For more than two decades, the National DNA Data Bank has been an important tool for law enforcement, and we see Bill S-231 as an opportunity to make the data bank more effective. After briefly outlining our support for key provisions of the bill, we will propose some further amendments.
The collection and use of DNA profiles protects society and the administration of justice by facilitating the early detection, arrest and conviction of criminal offenders. It also streamlines investigations and protects the innocent by eliminating suspects and exonerating the wrongly convicted.
Other countries and American states have expanded their DNA database regimes to include all the offences that we would refer to as indictable or hybrid offences, while Canada’s list continues to be restrictive. The CACP supports making a primary designated offence any offence under the Criminal Code and other federal statutes that is punishable on indictment by five years or more and a secondary designated offence as any indictable offence that is punishable by less than five years of imprisonment, including summary conviction offences that may also be prosecuted by indictment. This critical change will expand the overall utility of the National DNA Data Bank. We believe this can be done in a manner that respects Charter obligations and Youth Criminal Justice Act principles while striking an appropriate balance between individual rights and public safety.
Advances in DNA technology have allowed police agencies to take unknown samples from crime scenes and find potential family members of suspects by looking for hereditary markers. Bill S-231 would amend the DNA Identification Act to allow a search to determine whether a DNA profile submitted for comparison could be that of a biological relative of a person whose DNA profile is in the various DNA indices. The CACP supports this amendment in principle.
The CACP also supports the efficiency created in the proposed amendment that would allow a peace officer to forego the taking of a DNA sample when satisfied that the person’s DNA is already in the Convicted Offenders Index.
I will now highlight three proposed further amendments.
The first one relates to seeking a DNA order after the sentencing hearing. DNA orders for both primary and secondary designated offences should be made at sentencing for both primary and secondary offences to simplify the procedure and ensure consistency. As it relates to proposed further amendments, the proposed section 487.053(3) of the Criminal Code would allow the court to make a DNA order to be fulfilled within 90 days after conclusion of court proceedings in certain circumstances. The CACP respectfully submits that the ability for the Crown to seek a DNA order post-sentencing hearing should not be time limited, or the Crown should be given the opportunity to seek leave of the court to extend the time for seeking a DNA order in the appropriate circumstances.
The second proposed amendment is relation to prescribing the date, time and place for the taking of bodily samples. Section 487.051(4) permits the court to make an order authorizing the taking of bodily samples and requiring the offender to report at a place, day and time set out in the order. The CACP submits that the offender and the police should be able to agree on a given time and date or reschedule the taking of DNA samples in appropriate circumstances within a given time frame. This would be particularly useful in rural and northern regions.
The CACP submits that familial DNA comparisons as proposed in section 6.41(1) of the DNA Identification Act should not include the Victims Index and Voluntary Donors Index, as they may have unintended consequences for obtaining DNA samples from those donors.
Finally, proposed section 6.41(2) of the act provides that the commissioner may conduct a familial DNA comparison under certain circumstances. The CACP submits that the word “may” should be replaced with “shall” and that the familial DNA comparison should be mandatory so long as the commissioner is satisfied that the preconditions listed within the bill have been met.
In conclusion, overall, the CACP supports Bill S-231, and we believe it will enhance safety and security for all Canadians. In closing, we would like to thank the Honourable Senator Carignan and his staff for drafting a bill that strives to modernize the National DNA Data Bank and the investigative use of DNA.
We thank you, and we are happy to take any questions.
The Chair: Thank you, Deputy Chief Chan.
We have a questions list. We are working in a bit of a time constraint, so I am going to invite us, colleagues, to limit our interventions to four minutes each. If we have extra time, we will return to you.
[Translation]
Senator Boisvenu: Welcome to the witnesses. Mr. Chan and Mr. Smith, I want to talk about the basis for the bill and your work at its core. We know that families are following these proceedings, possibly the loved ones of missing or murdered individuals who have been waiting years, even decades, for answers. The crime solution rate in Canada, especially for murder and disappearance cases, is very low because tools to support police work are lacking. How will this tool finally give families the answers they have long been waiting for?
[English]
Stephen Smith, Detective Sergeant, Homicide and Missing Persons Unit, Toronto Police Service, Canadian Association of Chiefs of Police: Thank you, sir.
The more DNA profiles we provide in our National DNA Data Bank through our convicted offender index, the more chances we have of that matching up with a crime scene index where there is a crime and an outstanding DNA profile that we have yet to match with an offender. Basically, when we have an outstanding crime scene DNA profile, it is like searching for a needle in a haystack. The more DNA profiles we have on file, the more chances of a match.
Familial testing, even though it is limited to parent, siblings or children, would also provide the opportunity of being able to find an offender who had committed an offence and left their DNA at a crime scene. We would be able to match that up, go back to traditional policing means to ensure that that person is actually the offender, and, if so, arrest that person.
Senator Dalphond: Thank you to our witnesses for being here today.
I’m looking at your brief, Chief Chan and Mr. Smith. I am interested in the familial comparisons. You referred to a well‑known case in California where identification was finally possible using data from consumer DNA-testing companies. Are you proposing that we go in that direction, or will you here have access only to the bank that is under the control of the RCMP? Will that exclude the police force from going to seek assistance from DNA-testing companies with or without a warrant?
Mr. Smith: Sir, I do not believe so. It is two completely different things. What we are proposing is familial testing through the National DNA Data Bank only with the convicted offender index. Investigative genetic genealogy is an investigative technique that police services utilize. I think there is a bit of a misconception. We don’t use all consumer or pay‑per‑use DNA sources in the U.S. 23andMe and AncestryDNA prohibit police involvement. You cannot access anything in there. There are only two databases in the U.S. that allow police involvement for investigative genetic genealogy, and that’s GEDmatch and FamilyTreeDNA. Both have it in their terms of service and ask for informed consent from people. In GEDmatch, you actually have to go in and click from a no to a yes for police involvement to be able to utilize it, so it is two completely different techniques.
Senator Dalphond: But it is being used now?
Mr. Smith: Yes, it is being used now.
Senator Dalphond: By Canadian police forces?
Mr. Chan: Correct.
Senator Dalphond: Going to the U.S. data bank.
Mr. Chan: It’s a world data bank, so anybody in the world can put in their DNA. Basically, you put your DNA up on a consumer database such AncestryDNA, and if you want to take your DNA profile from there, you can move it to what is called GEDmatch. It’s a kind of clearing house from all the DNA sources, from all the source units, 23andMe, AncestryDNA, and people put their DNA there to get bigger matches because, in the genealogical community, you only get matches from your database.
So we’re clear, if police did have access to Ancestry.com, we would probably solve every cold case in the world because there are that many profiles in that database. But we don’t have access to those databases, just so that’s very clear.
Senator Dalphond: I will have more questions later. Thank you.
Senator Prosper: Mr. Chan, I’m quite curious about the familial process. I’m hoping that maybe you can explain a bit about the methodology in terms of how specific markers are used as a comparative. As I think you suggested further, when that is used as a basis, there are the traditional policing means that you mentioned on follow-up. Could you provide further testimony context to that? Thank you very much.
Mr. Chan: Thank you. I will defer to my colleague in regard to the familial DNA comparisons. He is the expert in that subject matter. I can touch on some of the other conventional policing techniques.
Mr. Smith: Thank you, sir.
It is two very different streams of DNA. Our National DNA Data Bank uses STR DNA, which is short tandem repeat. It is basically your 20 markers that make you different from everybody else in the world. You have your own set of DNA 20 repeat markers. In investigative genetic genealogy or familial matching, you use SNP, or single-nucleotide polymorphism. That’s your gene between the genes, and you have hundreds of thousands, if not millions. You are able to utilize SNP testing in DNA to show how related you are to anybody else in the world. It comes up with eye colour, hair colour and those sorts of things that lend in down familial lines. But for the NDDB purposes, we only use STR data, and even for familial testing we use STR data, which means we are using only between 13 and 20 markers depending on how fulsome the DNA sample is. That is why it limits us to only parent, children or sibling matches. We don’t go outside to cousins, that far out. It’s your tight, familial unit.
Senator Batters: Thank you to all of you for being here, including our witnesses online.
To our witnesses from the Canadian Association of Chiefs of Police, on January 13, 2022, Alexandra Foster from the Office of the Privacy Commissioner of Canada wrote to the Chair of the National DNA Data Bank Advisory Committee, Brendan Heffernan, expressing concerns about the aspect of Bill S-231 that increases the number of offences requiring convicted individuals to provide a DNA sample from the bank’s convict file. I will read you an excerpt from Ms. Foster’s letter because I want to know your perspective on her reasoning.
We note that it is unclear why automatic collection of DNA profiles would be required or useful for offences such as perjury, defamatory libel or public mischief, to name only a few. There should also be demonstrable evidence of the need to make sampling orders mandatory upon conviction and remove judicial discretion. Further, it is not clear to us, based on the evidence presented, that the benefits outweigh …
Could you please let me know your perspective on her comments there?
Mr. Chan: Thank you.
From the CACP perspective, some valid concerns were raised in what you just read out. The point of the amendments to this bill relate to policing in Canada being able to have wider access to investigative techniques, including DNA, to solve major cases and violent offences. Some of the offences you mentioned are absolutely not violent offences; however, it has been proven that they have been linked to violent offences by the same individuals. Some examples have been given previously.
I don’t know if my colleague has something to add?
Mr. Smith: Yes, I have a couple of quick points.
We are noticing in the courts that judges are sometimes forgetting to make the order or Crown attorneys are forgetting to ask for the order. That’s why we would be asking for an automatic order. That way, we’re not missing people that we actually need on the data bank who are not being ordered to put their DNA on there.
Senator Batters: Thank you.
Also, to the two of you, Professor Crawford testified before our committee about this bill, and I quote to you an excerpt of his remarks to ask if you agree with his statement on familiar searching:
CODIS can be used to make side-by-side comparisons of immediate family, but it is also known to have very poor efficiency in searching data banks for relatives, and it cannot identify distantly related individuals. For these reasons, the FBI does not permit its use in familial searches.
What are your responses to those comments?
Mr. Chan: I believe there were some other submissions that gave a different perspective on that testimony. Do you want to expand on that?
Mr. Smith: Yes.
Just so we’re clear, the Americans do use familial testing. The CODIS system is set up for that. We have that system. We just don’t have familial testing activated. It’s turned off in Canada. They do utilize it. Not all U.S. states utilize it, but most of the states are now utilizing it.
On the other part, as far as showing far-out relatives, that’s correct. Because you are using STR DNA, as I said, you can’t go beyond parents, children or siblings with any sort of ability to prove that.
Senator Batters: If I could just interrupt you, because I want to get this in. I think I understand correctly that large states, like California and New York — those are two of the states that do allow this type of familial searching. Is that correct?
Mr. Smith: That’s correct, yes.
The Chair: If we could just go back, Senator Prosper, I may have interrupted Deputy Chief Chan in answering a portion of your question. I want to apologize. I feel I cut you off. You can take a moment to bring that back onto the table, if you wish.
Senator Prosper: Yes. I believe you were ready to answer that second follow-up on traditional policing means. I wanted to get a bit of perspective.
Mr. Chan: Thank you, senator.
In relation to your question, I won’t get into the minute details of other investigative techniques, but we have said in our submission that familial DNA comparison would be just one tool in the tool box. A myriad of other techniques are available to the police. We would not use this in every case. Traditional techniques, like regular investigations, interviews, surveillance, things like that, would be used by police on a regular basis in addition to this. This just enhances our ability to arrest the offenders and put the right people into custody.
Senator Simons: My question is for Dr. Bieber. I’ve been looking you up, and I see that you, like our chair, were born in Saskatchewan, but you have spent most of your career in the United States. You’ve done remarkable work in the wake of the 9/11 terrorist attack and in the wake of Hurricane Katarina to use DNA to identify victims.
Because it’s been a long time since you’ve lived in Canada, you may not be as aware of the crisis we have in this country of over-representation of Indigenous people in our prison population where, say, for example, 48% of federal prisoners in women’s prisons in Canada are Indigenous. That number is even higher in the Prairies. Overall, well over 30% of people convicted and serving federal sentences are Indigenous.
I worry about a kind of snowball effect. That means a disproportionate — grotesquely disproportionate — number of the samples would be from Indigenous prisoners, which would make it easier to convict future Indigenous criminals through familial DNA matching or just recidivism. I worry that might have a multiplier effect for the number of Indigenous people in custody. This is an issue that Senator Clement raised in her conversation with Senator Carignan, but I am interested, Dr. Bieber, to hear what you make of that from an ethical perspective.
Frederick R. Bieber, Bio-Medical Ethics Expert, Brigham and Women’s Hospital, Pathology, National DNA Data Bank Advisory Committee: Thank you for the question.
Indeed, I was just back in Regina not too long ago and met with some of the Indigenous tribal leaders. I’m working with CIRNAC, the Crown-Indigenous Relations and Northern Affairs Canada, with regard to the school grave issues and the possibility of using DNA.
I am very familiar with this concept. It is important to realize that, in many jurisdictions around the world, the majority of victims of violent crime are also minority women. The rhetorical question I would ask all of us to address is, how can we turn our backs on women of colour, tribal groups, when we know we have tools in the toolbox that could help identify the perpetrators of crime, in this case against Indigenous women and children in Canada?
Most crimes occur within social groups — not between. That’s not always the rule but, by and large, so far, in the jurisdictions around the world that have used familial searching, if the police are investigating a crime against a woman of colour, for example, they are more likely to find a potential person of interest in that same category of individuals.
The best example I can think of was the first use of familial searching in the United States, which came in 2008, just two years after we published our paper in Science in 2006, describing the method, the statistical algorithm, to do a familial search. That, by the way, was based on our humanitarian work on 9/11 and at plane crashes where we use close biological relatives to identify victims of these mass disasters. The very first time California tried the method that we described in our Science paper, they found a person who has since been convicted and sentenced. All of his victims were women of colour, Black, African-American women. Every single one of his victims was from a so-called minority group.
The other side of justice is the rights of victims and would-be victims. I honestly don’t know — and I’ve thought about this from all perspectives. I work with judges, defence attorneys, the courts, all the time, around the world. I don’t understand how we can ignore an important tool when used in very limited circumstances — very, very limited circumstances — when all other manners of investigation used by the Mounties or the constabulary use have run into a dead end, and there are still potential victims there. I don’t know how we cannot use it in these highly selective cases with all the constraints that Bill C-231 puts in.
Any advisory group that the Senate or the Department of Justice will want to put in place can determine in which cases we use familial searches and whether it is justified. Virtually, all the time, only a single name is given to law enforcement. It is not a wide sweep where people are kicking down the doors of everyone in a neighbourhood. It’s usually a single name from a very close relative, as you’ve heard already today, a parent, a child or a sibling. Because in order for this to work with the STR markers that are used in Canada or elsewhere, it has to be a first-degree relative, someone who shares one half of the DNA with someone in the data bank.
I hope that’s helpful.
The Chair: Thank you, Professor Bieber.
[Translation]
Senator Dupuis: Thank you to the witnesses for being here today. My question is for the Canadian Association of Chiefs of Police representatives. My understanding is that the National DNA Data Bank contains two main indices, the convicted offender index and the crime scene index.
Also referred to is the fact that, since 2018, the data bank has included a missing persons index, an index of relatives of missing persons, a human remains index, a victims index and a voluntary donors index.
Can you explain the interrelationship between those three data banks? How do you think Bill S-231 will affect the interrelationship between the three data banks?
[English]
Mr. Smith: Thank you.
Bill S-231 would really only affect the convicted offender as well as the crime scene database. Those would be the two where we would be using the familial testing against each other.
The other indices are utilized for finding people who are missing. In the past, we didn’t do a good job of collecting DNA from people who were missing. Now, when people are reported missing, we go and collect, if we can, their DNA, if we’re able to get a hairbrush, a toothbrush or something. If that’s not available, we collect as close a relative’s DNA as we can, and we put those indices up.
We find unidentified human remains at times, and it could be 20, 30 or 40 years down the road, and we will have that DNA on file. Once we take the DNA from the skeleton, we’ll be able to match it up familial with the indices for the missing person and say unequivocally that that person is this person that went missing 40 years ago in whatever city of Canada. We tend to find our missing people all over Canada. They are spread out all over the country, and they may not be found for years and years if they ended up in a wooded area or something like that. That’s what that indices is for, but it isn’t affected by Bill S-231. That’s a crime scene index and convicted offender index to solve outstanding criminal offences.
[Translation]
Senator Dupuis: Why the separation between the first two indices and the third, the missing persons index? Is that police practice? Can the first two indices and the third communicate and share information?
[English]
Mr. Smith: Technically, there could be. Looking at privacy concerns, we don’t want to bring people who are missing into a criminal environment. Missing people are missing, and our criminal environment is our criminal environment. They never overlap. Going missing isn’t a criminal offence. We want to keep that separated for people’s privacy results and those sorts of things. I think you see that we have made big strides in missing persons over the past few years, especially in Toronto. Just because somebody goes missing, that shouldn’t be out there for everybody to see for the remainder of their lives. There are a lot of reasons why people go missing, so we want to protect that person’s privacy. They may have had a short break in something that had gone on in their life, and we want to ensure that they are not looked at as somebody criminal or that it doesn’t affect them for the rest of their lives. If a young person goes missing, their future should not be bound by the fact that they went missing when they were 18 years old.
The Chair: Thank you, both. As you can see, the time is winding down, and I wanted to provide the last opportunity for intervention to the sponsor of the bill, Senator Carignan.
[Translation]
Senator Carignan: My question is for the police representatives. It has to do with the amendments you’re proposing. I’m clear on replacing “may” with “shall,” something Senator Dupuis referred to earlier. I actually wondered about the right term to use, and the word “may” was chosen. As far as the 90 days for the offence is concerned, there are two types of offences. One is automatically imposed at sentencing and for the other, I decided to go with a limit of 90 days. The reason is that, in the first case, when it’s automatic, the accused has been convicted. The judge doesn’t have the discretion needed to order that a sample be taken. For the second type of offence, the judge has to decide, but the accused has the right of representation not to use his DNA and not to provide a sample. That’s why I decided to go with 90 days — to allow time for proper procedure.
Does that explanation change your opinion on the proposed amendment, or do you think it’s a logical response, one that is in keeping with some good faith in the person’s representation regarding the collection of their DNA?
[English]
Mr. Smith: I think our position on that is to put in limitations, just because there are so many variables that come into these that you can’t even think about. If someone is convicted virtually and they may be in a different country, they may not be serving time. Are we able to get their DNA within the 90 days? Maybe something such as “forthwith,” without explaining what “forthwith” is, to provide the DNA. There is a whole process we will obviously have to establish in order to collect that DNA. Our debate with that is just putting a time limit on it, and once we go past that 90 days, does that mean that we now cannot collect that DNA? Or do we have to apply to the courts for an extension? I think if we just manipulate the wording a bit to maybe say “forthwith,” that would give us the option of collecting it immediately or whenever was practicable.
The Chair: Thank you, sir.
I think that brings us to the conclusion of this round of discussion with our witnesses. Once again, thank you, senators, for being so precise in your interventions and also to the witnesses for providing concise, precise and very helpful responses to our questions and enabling us to really understand this bill a bit better. At this point, I want to bring this round to a close by thanking all four of you for your attendance today and for helping us in understanding the bill quite a bit better.
Colleagues, I propose, if it’s agreeable to you, that we would continue on for two items that the committee needs to deal with. You will see right now being circulated in English and French observations to be attached to our committee report on Bill S-13. This observation was directed by your committee, and the steering committee put it together, which was agreed there. It has been supplemented by one additional sentence highlighted in grey on the second page in English and French. I’m hoping that you will agree with that modest addition. I recognize that you are just receiving it now, except for the one person who drafted it. We can hear from Senator Simons, who is the architect of this sentence.
Senator Simons: I wanted to say two things.
The style of this report is not to name a specific witness, but the sentence speaks to concerns that were raised by Natan Obed when he testified and said that there had been virtually no consultation with ITK. That’s what this is a reference to specifically.
I just have to add one thing because I am a grammatical pedant, and you can be mad at me. The word “fulsome” is an insult. It means something is over the top or fawning. A fulsome compliment would be if I went, “Oh, Bernadette, I just love that jacket. It’s so gorgeous on you.” Could we say “thorough” or “complete” or something that is not subject to potential misinterpretation?
An Hon. Senator: “Full.”
Senator Simons: “Full” is good. The word is not used in French.
The Chair: Okay. Is that agreed?
Senator Pate: I thought there was more than one witness who said there wasn’t consultation.
Senator Simons: There may have been more than one witness.
Senator Pate: Can we just say “witnesses”?
The Chair: I think we’d have to say “some witnesses” because if you just say “witnesses” —
Senator Simons: I’m fine with that.
[Translation]
Senator Dupuis: I’m following up on my usual concern. I’m talking about the previous sentence:
Most witnesses categorically emphasized the necessity of full consultation with Indigenous peoples when implementing the action plan, including with respect to the amendments.
If we add “A witness raised concerns regarding the lack of consultation,” I think, in the previous sentence, we should say “most witnesses” or “many witnesses categorically emphasized” or “emphasized the lack of consultation and the necessity of full consultation.” They aren’t two separate things. A number of witnesses, and I agree with them, pointed to the total lack of consultation and the absolute need for full consultation.
If we put it all in the same sentence, it’s clear we are talking about the same reality, and we don’t need to add a separate element that seems disconnected from the previous sentence.
[English]
Senator Simons: Should I respond, or should I wait my turn?
The Chair: It is your turn.
Senator Simons: Thank you.
I think that’s a fair point. Maybe we can tweak the sentence above, and then we don’t need the second sentence. “Most witnesses categorically emphasized the necessity of full consultation with Indigenous peoples of —”
Senator Dupuis: Given that such consultations have not been conducted yet.
Senator Simons: Full and complete. In French, it’s better. It says complete consultations, “consultations complètes”. If we used “complètes” and “full” —
[Translation]
Senator Dupuis: Could we add this to your sentence, in English:
[English]
Several witnesses raised concerns regarding lack of consultation. It makes clear the need for complete consultations with Indigenous peoples.
Senator Simons: Yes, and then take out the previous sentence.
[Translation]
Senator Dupuis: We could ask the steering committee to combine the two sentences into one.
[English]
The Chair: Is that the will of the committee?
We had planned to actually present this report in about one hour’s time. These are valuable conversations, but it’s going to make it a little difficult to get us into the Senate at 1:45 p.m.
Senator Batters: I have a larger discussion about this. When I just saw this two minutes ago when it was passed out, I sort of expected to see a very brief observation about the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, issue. This is really not at all what I expected to see. I didn’t expect to see a recitation of some of the evidence. I thought it was going to be much more about the consultation part and less about these other issues.
Given that we just received this, I don’t have an opportunity to go back to what we actually heard and what we thought such an observation would entail. Usually, of course, we receive an observation considerably before our meeting and then have a chance to look at it and do it afterwards. Perhaps we could have this carried over to our next meeting. Then we can have a chance to look at it and have a chance for a better discussion than the one minute right now.
The Chair: Let me just say that with the exception of what Senator Simons added, this was previously distributed to the committee late yesterday, once it was signed off by steering.
[Translation]
Senator Dupuis: I propose completely removing the sentence in grey and submitting the report without further ado, since it’s very clear in the French sentence that this is what the witnesses told us.
Since we had already agreed that it was fine and that you had the mandate to go ahead, I propose that the report be adopted as is, that the grey portion be removed and that the report be submitted as soon as possible.
Senator Boisvenu: I’m referring to the tone of the last sentence, where it says that the committee “urges the government.”
I think this is more of a recommendation to the government, since the word “urge” conveys a sense of giving an order. I think if we do —
Senator Dalphond: “Invites the government?”
Senator Boisvenu: Yes, “invites the government,” instead of “urges.” “Urge” means “do it right away.”
The other thing we have to do is decide whether we are recommending implementation or consultation on implementation.
Senator Dupuis: We are recommending consultation.
Senator Boisvenu: Not implementation?
Senator Dalphond: Consultation.
Senator Boisvenu: It says somewhere that we are recommending implementation of the act.
Senator Dalphond: The last paragraph begins as follows: “This committee invites the government to initiate without delay consultations.”
Senator Boisvenu: For implementation?
Senator Dupuis: No, to uphold, “ . . . that is required to uphold the consultation obligations . . . ”
[English]
The Chair: I think that we are now sort of drafting by committee, and we’re never going to make it today. What we should do is invite a series of suggestions, if you could, to ways in which you would like this changed, and we will reconvene and consider it at the next meeting of the committee. We have a series of votes about whether we wipe out Senator Simons’ provision, and we are making adjustments word by word as we go here. Would it be acceptable to you that we do it that way? Senator LaBoucane-Benson will be a little disappointed. She was hoping this might show up today, but I don’t think it can.
[Translation]
Senator Dupuis: Can we ask the steering committee to come up with and distribute a revised version by the next meeting, so we aren’t in the same boat?
I thought we had agreed on the document. We could ask the steering committee to send us the updated version ahead of time, so this doesn’t happen again.
Senator Dalphond: I believe it was sent out yesterday.
[English]
The Chair: I think that would be fine, although on the points we have just been identifying, it would be useful to communicate maybe a sentence or a few words to the clerk, and we will try and consolidate those in another version that you can see in advance.
Could I just invite us ever so briefly to turn to the second question? Senator Boisvenu had proposed at steering that we consider the reordering of the agenda of bills to be considered before the committee immediately following the consideration and conclusion of Senator Carignan’s bill. There was no consensus at steering, and it was his and perhaps my request that this question be considered by the whole committee.
Essentially, if I might just provide the summary, Senator Boisvenu proposed that the bill being sponsored by Senator Batters, because it’s a C bill, should get higher priority and should be considered next after the conclusion of Bill C-231, which was Senator Carignan’s bill. There was not a consensus on that in the committee, and if I may say, without identifying who, some felt that the standard arrangement — the normal practice — was first-in-first-out regardless of source. Given that there wasn’t a consensus, it was understandable that we would consider that at the committee. I think that’s a fair description, Senator Boisvenu, but I know it’s Senator Batters’ bill on the point, and I’m going invite Senator Batters to make an observation.
We should try to decide this quickly because, among other things, we agreed at steering to try to accommodate a couple of senators for clause by clause by moving the clause by clause to December 7, and as a result, we have created an opening next Thursday, November 30. We need to know which bill we’re going to move to. If we agreed to the reordering, it would be Senator Batters’ bill, and if not, it would be Senator Pate’s bill on the conditional release issue. That’s the reason it feels a bit urgent, but we do need a focused decision.
[Translation]
Senator Dupuis: Pardon me, Mr. Chair, but I have a point of order, I believe it’s called.
The discussion you want us to have is about reordering consideration of the bills. What we have to determine is whether we want to reorder the bills, regardless of whose name is attached. There is a principle at play, one we need to consider before determining whether we are going to study a bill sponsored by Senator X or Senator Y. That, we’ll do later.
I propose that, first, we discuss whether to deviate from committee practice, which is to examine bills as they are introduced and referred to us.
[English]
Senator Dalphond: I think this is the basic issue. It’s not particular to one specific bill. I have a bill that is at the bottom of the list and was already discussed before this committee through the budget. My point is that we have orders of reference. They come to this place, and there was a debate in the chamber, and there was agreement that at one point, this bill was moving. Therefore, we should process these bills in the order that we receive them. This is reflective of the will of the chamber.
The Chair: I think the issue is whether or not we stay with that standard of practice or we make an adjustment. I think it’s perfectly legitimate for a senator to propose such an adjustment. In fact, I might invite the way we proceed here is, essentially, to invite Senator Batters to propose a reordering of the bill that would put her bill next after Senator Carignan’s bill, and then we can just vote on that.
[Translation]
Senator Boisvenu: I understand Senator Dupuis’s view, but the steering committee has always had a purpose. The steering committee spoke this morning, and that discussion is why we are talking about this now. We aren’t questioning the document. We looked at the document, the steering committee proposed amendments, and that’s what we need to deal with. Otherwise, why bother with a steering committee if we want to do all the work in committee?
[English]
The Chair: Senator Boisvenu, I don’t think the steering committee is proposing a change. There was no consensus.
Senator Boisvenu: You asked me this morning about bringing my proposal here.
The Chair: Right. That’s what I think what we are trying to do: a simple motion from Senator Batters to move her bill next in line. It raises some of the questions about the normal prioritization that Senator Dupuis identified, but I do think we need to make a decision on that. We sort of have the understanding of what we’re talking about. I’m going to invite the question on that. Those in support of Senator Batters’ motion —
Senator Batters: Just a minute. Can I actually say something?
The Chair: Sure. I thought you did, but go ahead.
Senator Batters: No, I have not said anything about this.
First of all, it’s not my bill. It’s an MP’s bill from the House of Commons, Mel Arnold, who had this bill passed unanimously in the House of Commons quite some time ago. It was referred to this committee back in June, after a few months of waiting for it to be referred to this committee, after I as the sponsor and the critic had spoken quite some time before.
Let’s remember what the bill is about. It’s Bill C-291, a very common-sense change to change the words “child pornography” everywhere that it appears in the Criminal Code and elsewhere — because that is not an appropriate term — to “child sexual exploitation and abuse.” Even the government Senate leader, I would point out, very recently confirmed in the chamber that the government supports this change and this bill. They have actually changed their terminology in accordance with this in Bill S-12, the government bill on this matter.
I would also point out that I have been on this committee for almost 11 years, and it actually wasn’t at all the normal course perhaps until just a few years ago, but certainly not even when I was on steering committee three years ago I think. It was actually C bills that had passed the House of Commons were given a preferential status generally. Senator Dalphond’s bill that he sponsored that passed in the House of Commons, similarly with a lot of support in the House of Commons, perhaps even unanimously as well, Bill C-233, was referred to our committee after second reading right before the Christmas break, December 14, 2022. Then we had our Christmas break. Within the first two weeks of our sitting in February, it was considered at our committee starting February 14, 2023. That one took, essentially, two weeks when we were actually sitting, not this six-month time frame, for a very similar bill on a criminal justice matter, widespread support not only in this chamber but also in the House of Commons.
I would propose that, yes, it’s a bill that can be dealt with relatively quickly and will make things better for Canadians.
The Chair: Thank you, Senator Batters.
Those in favour of moving this, bill sponsored by Senator Batters in the Senate, to the next priority for the committee indicate in favour. Those in favour?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I would say the proposal is defeated.
Senator Batters: Recorded vote.
The Chair: Recorded vote.
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Labrosse: The Honourable Senator Busson?
Senator Busson: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Abstention.
Mr. Labrosse: The Honourable Senator Dupuis?
Senator Dupuis: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 3; nays, 6; abstentions, 1.
The Chair: I declare the motion defeated.
Colleagues, that means that we will turn our mind to Senator Pate’s bill beginning next Thursday, and that requires you to provide some assistance, including all senators, in terms of witnesses so that we can get to them in a timely way. Thank you for your patience in considering this.
I know we’re close to the time when the chamber begins. At this point, I am going to declare the meeting adjourned. Thank you.
(The committee adjourned.)