THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 29, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:21 p.m. [ET] to study Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Good evening, honourable senators. My name is Brent Cotter. I am a senator from Saskatchewan and chair of the committee. I would like to invite my colleagues to introduce themselves starting on my left.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Boisvenu: Senator Pierre-Hugues Boisvenu, deputy chair of the committee, Quebec.
Senator Dagenais: Jean-Guy Dagenais, Quebec.
Senator Carignan: Claude Carignan, Quebec.
Senator Dalphond: Pierre Dalphond, De Lorimier division, in Quebec.
[English]
Senator Klyne: Good afternoon. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
Senator Prosper: Senator P. J. Prosper, Nova Scotia, land of the Mi’kmaw people.
Senator Simons: Senator Paula Simons from Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Hello. Bernadette Clement from Ontario.
Senator Dupuis: Hello. Renée Dupuis, senatorial division of The Laurentides, Quebec.
[English]
Senator Pate: Kim Pate. I live here on the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Jaffer: Welcome. My name is Mobina Jaffer, and I’m from British Columbia.
The Chair: We are meeting 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. I want to extend a welcome to Senator Carignan — no stranger to this committee — who is the sponsor of this bill.
Today, on our first panel, we are pleased to welcome witnesses appearing by video conference, in both cases, from the Native Women’s Association of Canada, or NWAC: Carol McBride, President; and Sarah Niman, Senior Director, Legal Services. Welcome Ms. McBride and Ms. Niman.
The Canadian Association of Crown Counsel, or CACC, Jeremy Tatum, Crown Counsel, Crown Law Office — Criminal, Ontario Ministry of the Attorney General. Welcome, Mr. Tatum.
We are going to invite you to speak in a moment, each of your groups having five minutes for opening remarks starting with Ms. McBride and followed by Mr. Tatum. Ms. McBride, the floor is yours whenever you are ready.
Carol McBride, President, Native Women’s Association of Canada: Thank you. Hello. Honourable senators, thank you for inviting NWAC to bring Indigenous women’s voices into your study of Bill S-231. I am joining you from my traditional Algonquin territory, Timiskaming First Nation. Today, when I speak of Indigenous women, I am including Indigenous girls, two-spirit, trans and gender-diverse people NWAC represents.
NWAC supports the Senate’s efforts to modernize the legal framework for DNA collection under Bill S-231.
Under the proposed bill, NWAC believes that Bill S-231 meets the threshold because it lays out when DNA will be collected, where it will go and how it will be used. NWAC is especially encouraged by what Bill S-231 can mean for the families of missing and murdered Indigenous women and girls whose cases remain unsolved.
Bill S-231 proposes family searches and widening the DNA bank to be able to solve more cold cases. We don’t know exactly how many unsolved Missing and Murdered Indigenous Women and Girls, or MMIWG, cases are out there. The RCMP estimates that there might be over 1,000. NWAC’s research suggests the number is higher.
The types of cases that are likely to be left unsolved are the ones that disproportionately impact Indigenous women. Cases related to human trafficking and sex work have a direct connection to the ongoing MMIWG genocide. If any of the unsolved cases have DNA evidence without a match, Bill S-231 may help solve those crimes. Widening the net to include those convicted of most offences to provide mandatory DNA samples will help.
I understand that, under the bill, investigators with a suspect and a DNA sample could ask a biological relative of a suspect to provide DNA samples after exhausting all resources. This framework is already being used to solve cold cases.
The way NWAC understands it, Bill S-231 can help resolve cases involving Indigenous women victims faster and easier than under the current system. For example, in August 2018, in southern Ontario, a woman was violently sexually assaulted. She managed to escape and call 911. DNA samples collected from her body led investigators to develop a suspect profile, and there was no hit in the data bank at that time. The investigation soon stalled.
Three months later, a person was convicted of a secondary designated offence and gave their DNA under that order. The police identified a match. The person was arrested and charged in December 2018. In May 2020, he was convicted for a sexual assault and is scheduled to be deported once his sentence is served. In this case, the attacker was not a person of interest and was living outside the city where the assault took place. Had it not been for a DNA match, it is unlikely that the violent sexual assault would have been solved.
Witnesses before the MMIWG national inquiry told us what it would mean that they would be able to have closure on their loved one’s passing. They told us that there is a great distrust about whether the police have the will to resolve cold cases. Bill S-231 is an opportunity to give investigators the tools to prove to us that they take our concerns seriously, and that they are committed to resolving MMIWG cold cases.
With this in mind, NWAC recommends that investigators prioritize resolving MMIWG cases using the tools provided under Bill S-231.
In addition to helping families of our MMIWG loved ones whose cases remain unsolved, Bill S-231 has the potential to reduce Indigenous women’s mass incarceration by widening the DNA bank and familial DNA research that can be used to free the wrongly accused and limit miscarriages of justice. Using DNA evidence to identify the proper culprit may reduce Indigenous women’s wrongful conviction rates and likelihood of entering wrongful guilty pleas.
The feedback I share today has come from analyzing the bill from a culturally relevant, gender-based analysis lens. Otherwise, this bill does not reflect Indigenous-specific concerns as it is written. The bill treats privacy concerns as though they are the same among all Canadians, but Indigenous peoples’ historic marginalization and cultural genocide mean we are more vulnerable to abuses of power, including privacy breaches.
In order to assess whether Bill S-231 upholds and protects Indigenous peoples’ rights to free, prior and informed consent to privacy and to maintain control of their genetic research, like DNA, more research and review are needed.
When Public Safety Canada prepares a review on the second anniversary of Bill S-231’s enactment, NWAC suggests that the minister also research the bill’s impact on Indigenous peoples’ collective and individual privacy rights within the familial searching regime. This review should pay particular attention to whether processes and outcomes will perpetuate systemic discrimination against Indigenous peoples.
I thank you for hearing my concerns and for inviting an Indigenous women’s perspective into your study of Bill S-231. If you have any questions, I do have legal counsel here with me, Ms. Sarah Niman.
The Chair: Thank you, Ms. McBride.
I invite Mr. Tatum to address us for approximately five minutes.
Jeremy Tatum, Crown Counsel, Crown Law Office — Criminal, Ontario Ministry of the Attorney General, Canadian Association of Crown Counsel: Thank you very much, honourable senators and Mr. Chair. I am pleased to appear before you on behalf of the Canadian Association of Crown Counsel, particularly alongside the Native Women’s Association of Canada. Meegwetch.
The CACC is comprised of organizations of Crown prosecutors, civil lawyers and notaries employed by the Crown in the federal government and each of the provinces and territories. These member organizations represent front-line lawyers in each province as well as the federal prosecutions service and the Department of Justice Canada.
The CACC has asked me to appear before you on account of my DNA and search-and-seizure litigation experience, including that I argued the first case in Canada where the police use of investigative genetic genealogy was determined to be constitutional.
As I am appearing on behalf of the CACC, the statements I make do not represent the Government of Ontario or the Ministry of the Attorney General where I work as Crown counsel. As a former defence lawyer and as a Crown prosecutor, I have observed the revolutionary nature of DNA evidence in identifying human remains, criminal offenders and the innocent.
The CACC supports the present form of the bill, with two caveats. First, we recommend that DNA data bank orders continue to be imposed at the time of sentence or a not criminally responsible, or NCR, finding mainly for administrative coherence and also because a secondary designated offender would have the right to be heard about the “grossly disproportionate impact” of the order before it’s made.
Second, amending section 487.051(4) of the Criminal Code to add that the order remains in force until it is executed would create clarity surrounding the validity of the order and consistency with the warrant order provision in section 487.0551.
I will now address the CACC’s three primary submissions in support of the bill. These submissions and our position on the further proposed amendments from the Canadian Association of Chiefs of Police are contained in the brief filed earlier today with linked case law and statute citations.
First is the importance of DNA as an investigative tool. Canada’s Parliament and courts have repeatedly recognized that law enforcement acquisition of DNA evidence whether pursuant to a court order, warrant or through another common law warrantless authority, like a discard or a consent sample, is a lawful investigative tool and essential to the proper functioning of the administration of justice.
Individuals found guilty of a crime “. . . have a much reduced expectation of privacy” and, by their crimes, they “ . . . have lost any reasonable expectation that their identity will remain secret from law enforcement authorities.” Simply put, there is no right to absolute anonymity.
Second, our courts have reaffirmed that DNA data bank orders are not punishment or a sentence perpetuating overrepresentation. A DNA order is a consequence of being found guilty and not a punishment itself. The data bank’s objective is to assist with the investigation of future and past crimes, whether that be through identifying a perpetrator and/or a victim.
The Criminal Code already has built into it an appeal mechanism if a DNA order is the product of legal error or injustice. General concerns about the overrepresentation of Indigenous and racialized individuals in the criminal justice system do not, in our respectful submission, undermine the valid public policy objectives underlying Bill S-231.
As the Native Women’s Association of Canada has advocated, morally innocent women and children — frequently Indigenous and persons of colour — are overwhelmingly the victims of violent crime and are deserving of greater protection by the criminal justice system.
Individual DNA on the data bank is anonymized, non-coded and does not reveal medical, physical or mental characteristics. Unless an offender committed another offence and left his or her abandoned DNA behind for law enforcement collection, he will not be identified through the data bank and will be left alone. The fact that an individual is on the data bank is also not admissible in court. A DNA warrant is necessary in order to obtain results that may be presented in court.
On the topic of young persons, I want to clarify that the constitutionality of mandatory “super-primary” and “presumptive primary” DNA orders for young persons has already been determined to be constitutional. There are also legislative safeguards in sections 9.1 and 10.1 of the Youth Criminal Justice Act mandating the removal and destruction of young persons’ DNA records that are unaffected by this bill.
In my final 30 seconds or so remaining, investigative genetic genealogy, or IGG, is distinct from familial searching and not the subject of Bill S-231.
Unfortunately, two witnesses’ comments on November 9, 2023, failed to acknowledge that no court in Canada or the United States has found police use of IGG to be unlawful. There are now two reported rulings in Canada — one from Ontario and the other from Alberta — and several in the United States that have ruled law enforcement use to be constitutional.
I am happy to take questions, if necessary, to put IGG in the different legal frameworks. Those are my opening statements. Thank you.
The Chair: Thank you, Mr. Tatum, and thank you for being focused on your time.
Colleagues, we have a number of questioners. I want to preserve an opportunity for Senator Dagenais, who is the critic of the bill, and Senator Carignan, particularly near the end, if they would like to pose questions. I invite you to limit your engagement to four minutes each.
[Translation]
Senator Boisvenu: Welcome, witnesses. My questions are for Ms. McBride.
In 2015, the RCMP determined that the number of unresolved cases of missing and murdered Indigenous women and girls stood at 204: 106 homicide cases and 98 missing cases. I’m sure the National Inquiry into Missing and Murdered Indigenous Women and Girls’ number is a lot higher.
I listened closely to your testimony, and my first question is about whether your position on this is really central with respect to the excessively high number of missing and murdered Indigenous women. Are you really making the connection between the registry, this bill, and what’s happening to Indigenous women?
[English]
Ms. McBride: I totally agree. This would be a very good tool to solve some of these outstanding crimes as well as the future ones that will come forward, but, yes, definitely.
[Translation]
Senator Boisvenu: In your remarks, you talked about false accusations. Do you have examples of miscarriages of justice against convicted Indigenous women and girls?
Do you have examples that would show how this data bank could prevent false accusations against Indigenous women or girls?
[English]
Ms. McBride: I will ask Sarah Niman, our legal counsel, to please answer that one.
Sarah Niman, Senior Director, Legal Services, Native Women’s Association of Canada: Thank you. We don’t have specific examples or cases that I can point you to that NWAC has been directly involved in. However, based on the testimony before the national inquiry into MMIWG and our own internal research into Indigenous women’s distrust and broken relationship with police, a lot of this distrust is rooted in the fact that systemic biases inherent in the criminal justice system incentivize them to enter wrongful guilty pleas so that they can facilitate the process of getting out and getting back to their children or their families when that is promised to them.
In fact, we are hoping that Bill S-231 can achieve the idea that DNA doesn’t lie. Widening the data bank increases the accuracy of that evidence. It will decrease the chances there will be wrongful convictions and wrongful accusations when there is DNA evidence with high accuracy.
We’re hoping that when we put those two things together — that is, the systemic discrimination built in through subjective actors and the high scientific accuracy of DNA evidence — they will work together to reduce Indigenous women’s overincarceration.
Senator Boisvenu: Thank you, madam.
Senator Dalphond: I think it’s Mr. Tatum who has referred to the two cases before the Canadian courts using some private data bank, I understand. Could you elaborate on that, please?
Mr. Tatum: The two cases that I alluded to are cases from trial courts. One in Ontario is Her Majesty the Queen v. Robert Steven Wright. That’s the Sudbury, Ontario, murder prosecution. The other is the Cochrane case from Alberta that was under a publication ban until late last week when the verdict was released. They are cases where the police used what is commonly referred to as genetic genealogy in order to generate a presumptive identification.
What is important to understand, senators, is that presumptive identification, much like a hit or a match using the National DNA Data Bank, is the start of a process that ultimately culminates in a DNA warrant being applied for by the police to a provincial court judge that makes full disclosure of the police investigation up to that point, the familial-related information that is generated and the investigative tip as well as the subsequent investigative steps.
In the case of Robert Steven Wright, the trial judge concluded that Mr. Wright had no reasonable expectation of privacy over the familial matches that were generated through comparison of an abandoned crime scene sample under the deceased’s finger nails with other individuals who had autonomously uploaded their DNA profile or kit to a publicly accessible site called GEDmatch. That is an important distinction that, unfortunately, wasn’t made by prior witnesses. When we’re talking about investigative genetic genealogy, the sites used by law enforcement for human remains and criminal investigations are publicly accessible sites. Members of the public opt to use the site, and they control whether or not their autonomous, individual profile is shared with law enforcement. That can be changed at any point. You can opt in or out at any point as well. I hope that answers your question.
Senator Dalphond: Yes. Did you say that judicial authorization was given to the police to seek that type of permission?
Mr. Tatum: I indicated that after the police, in both instances, had used these sites in order to try to ascertain a potential extended family member of the unknown perpetrator who was associated with the crime scene sample that was left by the believed killer, they used traditional investigative means to try to generate leads and speak with family members about their family tree, so to speak.
That is what culminated in both instances, and in this IGG process, in the police writing a DNA warrant in order to have a direct comparison sample made with the suspect against the reference sample, namely, the abandoned crime scene sample of the unknown perpetrator. That’s why I say the use of investigative genetic genealogy, much like the use of the data bank, is for the hope of generating presumptive identification but, ultimately, the direct comparison that is done against the believed perpetrator would come through a DNA warrant. The result of that testing is what the prosecution would seek to proffer in court in trying to establish the accused’s identification.
Senator Dalphond: Thank you.
The Chair: Thank you both.
Senator Prosper: Ms. McBride, thank you for your testimony. What I gather from it is that you are in favour of Bill S-231. You mentioned the utility of using DNA for solving cases especially involving missing and murdered Indigenous women and girls, cases involving wrongful conviction and cold case files as well.
You also mentioned a certain provision involving the second anniversary where research can be done with respect to the impacts that this legislation can have on Indigenous peoples and where it would examine — and, correct me on this — whether there exists issues with respect to systemic discrimination against Indigenous people. You also make reference to FPIC, free prior and informed consent, with respect to privacy and the protection of DNA. Could you expand on that a bit more, if you don’t mind? Thank you.
Ms. McBride: I’ll ask legal counsel to answer that. That question is more technical than I feel I can answer.
Ms. Niman: Thank you, President McBride.
Right now, the application of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, remains a bit of a legal vacuum. We know that it applies in Canada but we don’t know what the parameters of some of its promises will look like.
NWAC suggests that upon the second anniversary of the bill’s enactment, part of the review incorporate an UNDRIP review to ensure that where Indigenous peoples have a specific and affirmed right to autonomy over their genetic materials and to their right to free, prior and informed consent, those principles will be woven into the ways in which Indigenous people are interacting with the tools provided for by this bill.
The Indigenous folks that we spoke to in consultation for developing this position highlighted a concern about their privacy rights. They pointed to a history of not being consulted at the FPIC standard and of having a fear that this kind of thing will be used against them in prosecutions. That’s a reasonable fear based on the colonial history that is informing those positions.
More review needs to be done, but that doesn’t take away from NWAC’s overall support of the bill at this point.
Senator Prosper: Thank you very much.
Senator Jaffer: Ms. McBride, I’m following up with what Senator Prosper said in that are you concerned about the use of familial searching with respect to Indigenous peoples and about an increase in discrimination against Indigenous people with the expanded use of technology?
Ms. McBride: Ms. Niman, can you answer that one?
Senator Jaffer: Thank you.
Ms. Niman: Yes. I’m glad you raised that, Senator Jaffer, because that is the element of this bill where I think that the grounds are most ripe for the potential of systemic discrimination to perpetuate as opposed to reduce. That involves a human element and some of the subjective choices that are made.
It is NWAC’s understanding — and, we proceed with our support for the bill on this good faith — that those tools will be used by investigators as a last resort with the goal of addressing and resolving cold cases while prioritizing those MMIWG cases above all else.
Where familial searching is used to resolve those cases, that brings families closure in a way that they have asked us for, both NWAC and at the national inquiry. If, upon the two-year review, it is clear that that tool is being misused or is being used to perpetuate systemic discrimination, at that point NWAC will re‑evaluate its support for this measure.
Senator Jaffer: If I may, Ms. McBride, continue with your lawyer. Ms. Niman, do you believe that the overrepresentation of Indigenous people in the databases is an issue that might perpetuate their overrepresentation in the prisons?
Ms. Niman: We had a long discussion about this internally at NWAC. Eventually, our position lands on the trust and the science. DNA doesn’t lie. If there is an overrepresentation of samples provided by Indigenous folks because they have been overconvicted, that is a reflection that is a result of the criminal process. We rely on the assurances and tests that have come from the Supreme Court that have guaranteed that everybody’s Charter rights and privacy rights are being respected and upheld.
As my fellow witness Mr. Tatum so eloquently put it, it is a consequence, not a punishment. Lots of consequences will disproportionately impact Indigenous people by virtue of their being overrepresented in the system. However, at this point, we’re not concerned that it will unfairly target Indigenous people with crimes the way that systemic discrimination does because DNA doesn’t lie. In that case, it would be a fair accusation if a DNA match is made.
Senator Jaffer: Thank you.
Senator Batters: Thank you to our witnesses for being here today. First, I would like to ask Ms. McBride from the Native Women’s Association of Canada a question. Last week, our committee heard from an expert from the National DNA Data Bank Advisory Committee. He agreed with the familial search measure in Bill S-231 because it has stringent criteria.
Do you think the criteria in S-231 provide assurances that this investigative method will only be used in exceptional circumstances that could save lives? I note that this investigative technique can only be used if it involves a serious crime punishable by a maximum sentence of 14 years, or more, imprisonment, and where other investigative methods have been used in vain where the urgency of the situation justifies it.
Second, could you give us some real-life examples of perpetrators of crimes against missing and murdered Indigenous women and girls who potentially could have been identified earlier if S-231 had been in place? I’m wondering about a case like, for example, that of serial killer Robert Pickton.
Ms. McBride: Thank you. I’ll ask Ms. Niman again to answer the question.
Ms. Niman: Thank you. Senator Batters, as President McBride alluded to in her opening statement, this bill treats all Canadians the same, though we know that is not the case.
What I think you’re alluding to is although familial searching comes with strict parameters and applications, none of the on‑the-record discussions surrounding this bill have specifically addressed the systemic discrimination elephant in the room, namely, that we know it will not treat Indigenous people the same way as Canadians when we look at the history of their systemic overrepresentation. It’s important to understand that anytime there is that element of subjective discretion or decision making on the part of investigators, there are some inherent biases baked in. We need to account for those. NWAC enters this with good faith that those tools will be used responsibly and in alignment with the UNDRIP and with the Crown’s relations with Indigenous people. However, we reserve judgment for the review period.
As for the specific examples you give, NWAC operates a live database called Safe Passage. If anyone has had a chance to look at it, it is a live map that shows examples of Indigenous women’s self-reported accounts of lack of safety, of homicide or of an Indigenous woman who has gone missing. There are cases in the thousands. Each one of those represents someone we could point to and say, “If this case is unresolved and there is DNA evidence and the tools available under S-231, those are exactly the kinds of things that families are asking for.”
One of the families that appeared before the national inquiry spoke of a time that they went out and looked for remains of their loved one on their own. When they found some that they believed could be related to the case, they brought the bone to their local police detachment and presented it as evidence asking, “Can you search it? This might be DNA evidence.” They felt very dismissed by the police officers to whom they brought it. Those are the kinds of situations where, with this greater power on the part of investigators, we feel that it will be held responsibly and will be engaged in a way that is respectful of the reconciliation principles advanced through the MMIWG national inquiry.
Senator Batters: Thank you. Wow. Thousands of cases. Thank you for giving us that example.
I now have a quick question for Mr. Tatum from the Canadian Association of Crown Counsel. Bill S-231 proposes to greatly simplify the list of designated offences under section 487.04 of the Criminal Code that authorizes DNA collection. Your organization represents Crown prosecutors. Do they agree with this measure that simplifies this list of offences? Having been in courtrooms many years myself, I know that prosecutors and judges have many things to be keeping in mind as they are going through these proceedings. I’m wondering if having a much simpler and shorter list would help prosecutors and judges remember to impose that DNA collection order on the offender upon their conviction if it’s the type of prescribed case.
The Chair: Can you give us a short answer, Mr. Tatum?
Mr. Tatum: Yes; I can. The CACC supports that amendment and believes it would simplify the operation of post-conviction DNA data bank orders and would create a coherent and clear way of identifying what offences are eligible, which are not and which are mandatory as opposed to having several classes of mandatory and presumptive secondary designated offences.
Senator Batters: Thank you very much.
The Chair: Thank you both.
Senator Simons: Thanks very much. I have a question for each set of witnesses. For Ms. Niman and Ms. McBride, I think it is one thing to say DNA doesn’t lie. But here is how systemic racism is based into the technology. We all know that Indigenous people are grotesquely disproportionately represented in our prison system. That means that most of the samples on file — a disproportionate number — will be from Indigenous people. So when you use those samples to do the familial searching, you’re going to be fishing in a pool of samples that are disproportionately those of Indigenous people.
How do you feel about the concern that this tool could be weaponized against the Indigenous community — not out of malice, but that’s how systemic racism works? It’s built into the mechanics of the system so that if a disproportionate number of samples are from Indigenous people, a disproportionate number of matches will be made to Indigenous people.
Ms. McBride: Ms. Niman?
Ms. Niman: Thank you. I think what you’re asking — and correct me if I’m wrong — is whether or not NWAC is of a position that this could be used as a tool that perpetuates overincarceration. I understand that, on the one hand, most Indigenous communities foster a sense of responsibility for actions people take and if DNA is linked to somebody, there is a pretty high likelihood that there is a connection and an opportunity for them to take accountability for any actions they have taken.
However, it doesn’t account for the myriad of reasons that may have brought that person into contact with criminal conduct in the first place. That’s the work that we do in criminal legislative reform across the board. I don’t know that in Bill S-231 and in our legislative analysis there were a lot of opportunities for us to bake in the analysis that is grounded in the systemic factors that cause a person to come into contact with the criminal justice system, either as a victim or as an accused.
So in this bill, although we didn’t see much of an opportunity to make a legislative amendment that factored in those colonial harms and the myriad of reasons that can perpetuate criminality among Indigenous people, we certainly take your point that just because somebody has a DNA link doesn’t mean that they are as culpable as somebody who is non-Indigenous for the reasons I’ve just described.
The Chair: Thank you. You’re down to a minute and a half now.
Senator Simons: For Mr. Tatum: You said that this is a consequence and not a punishment. I would like to know how you define the difference between a consequence and a punishment. I know when I was mothering my toddler, the logical consequences looked a lot like punishments to her.
Mr. Tatum: The use of that verbiage is derived from a number of Supreme Court of Canada and appeal court decisions. Some of the factors, senator, that the courts have looked at, include the non-punitive nature of a DNA order. There is no perceived liberty impact in contrast with a section 161 prohibition order that continues to restrict somebody’s mobility as to where they can attend or who they can be around. In the case of a DNA order, the courts have repeatedly found that the process itself is minimally intrusive. What’s intrusive is the informational privacy impact.
But because of the legislative safeguards that have been built into the legislation, it has been found to be constitutional. So in my brief that I filed under point 2, I footnoted the various decisions that have adopted that characterization that I’ve put forward.
The Chair: Thank you, both.
Senator Klyne: I have a question for Ms. McBride, but I also invite the Canadian Association of Crown Counsel to answer as well if he feels that it is warranted.
Bill S-231 provides that on the second anniversary following the passing of the bill, the Minister of Public Safety draft a report on the visibility of implementing DNA sampling on arrest as is currently the case with fingerprinting.
In the eventuality this becomes the case, can you comment on the position of NWAC on the proposition? Does NWAC believe there could be an intrusion of privacy on accused Indigenous offenders in the eventuality that the taking of DNA on an arrest is made legal?
Ms. McBride: I will definitely ask legal counsel to answer that one.
Ms. Niman: Thank you for bringing that up. It is a significant distinction whether a DNA sample is provided on arrest versus post-conviction.
The research that we’ve done so far is critical of the privacy rights and the constitutional guarantees under section 8 of the Charter post conviction, and we just don’t have the research that would allow NWAC to support that kind of search on arrest especially because Indigenous folks are especially vulnerable to having their rights not respected on arrest by virtue of systemic discrimination. I hope that background noise isn’t interfering with my testimony. But I will say that, at this point, NWAC does not support DNA searching upon arrest for clarity’s sake.
The Chair: Mr. Tatum, could you offer a view on this as well?
Mr. Tatum: Sure. I can indicate that from strictly a legal standpoint some of the legal considerations that pertain to a post‑conviction DNA order, namely, that the offender is no longer entitled to the presumption of innocence — what the courts have said about being a consequence of a finding of guilt or a conviction — don’t apply to the taking of a DNA sample on arrest. There have been studies done through the National DNA Data Bank Advisory Committee, as I understand it, over the years, with respect to the possibility of that amendment that have taken into account the presumption of innocence that applies to somebody at the time of arrest and the heightened privacy impact that exists for DNA sampling in contrast to fingerprinting, for example, under the Identification of Criminals Act.
The Chair: Senator Klyne, you have another minute and half if you need it.
Senator Klyne: Okay. Just on that note for the Crown counsel, are you taking disproportionality into consideration here in terms of the overrepresentation of Indigenous peoples?
Mr. Tatum: I’m sorry, what is the question?
Senator Klyne: Well, I’m just wondering if there is going to be intrusion on the privacy of accused Indigenous offenders because it’s taken at the time of arrest versus at the time of conviction.
Mr. Tatum: Generally speaking, from a legal standpoint, the concern that’s been raised or the criticism that’s been raised about DNA sampling at the time of arrest has to do with the fact that individuals are entitled to the presumption of innocence at that point, notwithstanding the obvious investigative benefit to DNA comparisons.
The concerns that have been raised about the overrepresentation of Indigenous individuals in the criminal justice system and the privacy impacts upon them are arguably very different at the time of arrest as opposed to post-conviction. So I’m not taking a position on behalf of CACC today. I’m simply saying that some of the concerns that have been raised about DNA sampling at the time of arrest don’t apply to Bill S-231 at this stage because it’s post-conviction or post‑finding of guilt that we’re dealing with.
The Chair: I often do this just before Senator Pate poses a question, and I apologize, Senator Pate.
We have four more senators to pose questions, as well as the critic and the sponsor if they wish, and with your indulgence, we might go a little bit past the hour to provide everybody the opportunity to speak, but you’ve got your full four minutes, Senator Pate.
Senator Pate: Thank you to our witnesses.
I want to pick up, Ms. Niman, on where you left off and on Senator Simons’ question.
As the MMIWG inquiry made very clear, in many instances the reasons cases go unsolved is because of a lack of police taking seriously the issues when women or families come forward.
The example you quoted of the family bringing the story of Bernice and Wilfred underscores for me the need to assess whether giving police a larger DNA data bank — particularly in light of the issue that Senator Simons raised — is the best way to go about this.
Parenthetically, I want to add that before the MMIWG inquiry, when there was a series of Indigenous women that went missing in Alberta, the local police force and the RCMP decided to do DNA samples of a number of women who knew them. That resulted in two things. In the case of two of the women, those DNA samples were later used against them. And, of the women I know who were trying to get conviction reviews, none of those cases would rely on DNA.
I’m curious as to whether you’ve looked at those components, and if the Crown wants to comment as well, but I’m particularly interested in NWAC’s position.
The Chair: That’s a question for Ms. Niman, and then for Mr. Tatum if you have a view on it.
Ms. Niman: Thank you and I’ll be brief. You’re right. What we have had to be very clear on in supporting Bill S-231 is that in giving investigators this additional tool and the widening of the DNA bank, NWAC is putting a lot of faith that it will be used in a way that advances reconciliation while being conscious of the potential for it to either not be used to help resolve MMIWG cold cases — and, in fact, watch those numbers continue to climb and not benefit Indigenous women and their families at all — or for it to be used in a way that continues to harm that trust-based relationship between Indigenous women, communities and law enforcement.
In the interest of advancing reconciliation and knowing that NWAC represents constituents that are walking that path alongside all those who are also responsible for advancing reconciliation and move that yardstick farther, we are going to support Bill S-231 with the good faith understanding that it will be used to prioritize MMIWG cases and to advance reconciliation while continuing to scrutinize it for its failure to do those things as promised and as referenced in the sponsor’s speech.
So, to answer, we will be watching closely, and, upon review, may revise our position.
The Chair: Thank you. Mr. Tatum, do you have a view to contribute?
Mr. Tatum: I would generally observe that in almost every case, or at least many that I’m aware of or have been involved in, DNA has had an inculpatory and exculpatory component to it. I have done cases where, at the same time, DNA has completely exonerated individuals. It has proved essential in identifying the individual actually responsible.
Senator, I can’t speak to the example that you gave about Indigenous women, for example, who had provided a consent sample, I gather, only to have that evidence then used against them. I would simply again emphasize — oh, please.
Senator Pate: Sorry to interrupt. What is the gender and race breakdown on those exculpatory versus inculpatory cases?
Mr. Tatum: In all the cases that I’ve alluded to where — sorry, go ahead.
Senator Pate: Because, in most cases, it’s men involved in misogynist violence where the exculpatory DNA has been used, and, with inculpatory, I’m not aware of the breakdown. I’m asking if your experience is different.
Mr. Tatum: I can’t give you data-based figures. I can simply indicate that, in the majority of the cases that I’ve done where there are intimate partner violence, sexual assaults or child sexual assaults, the perpetrators, overwhelmingly, have been male, and male perpetrators have also been excluded through consent samples or discard samples.
In instances where there’s been a female accused — I don’t have an example that comes to mind where another woman was excluded as a person of interest or possible suspect.
In historical homicide prosecutions and historical sex-based-offence prosecutions, often hundreds and sometimes thousands of tips come in on possible persons of interest or suspects even. DNA testing of consent samples, again, or discard samples allow police, consistently and reliably, to exclude someone from their investigation and, ultimately and hopefully, avoid a wrongful arrest or wrongful prosecution.
Senator D. Patterson: Mr. Tatum, you mentioned the trial court decisions which touched on the issue of privacy rights. There is a right to privacy. DNA is highly personal, private information. First, I would ask you generally about that balance.
What would you say to the suggestion that privacy rights problems are created by the shift proposed in this bill from one‑to-one matching to near or partial matching through familial searching because it turns people into suspects based not on what they’ve done but because of their family? What would you say to that concern?
Mr. Tatum: Initially, I would make the point to which Senator Batters alluded in a previous question, which is that the present incantation of section 6.41 significantly restricts biological familial searching under the National DNA Data Bank to the most serious offences and — it’s conjunctive, so “and” — where it’s investigatively necessary and where the commissioner has determined that it is essentially an option of last resort.
The way the legislation is presently preset, it inherently restricts the ability of the police to use or default to familial searching.
Again, as I understand it, this is intended to be an investigative tool to assist with making a presumptive identification. It would then be dependent on the police to take additional investigative steps to confirm an investigative theory on whether someone is a suspect or a person of interest.
I also encourage consideration of the fact that this data bank tool may also be quintessential in identifying individuals who are not responsible for the crime under investigation. It has a dual‑purpose function built into it as well.
Senator D. Patterson: The bill would also expand the scope of DNA collection to a much broader range of Criminal Code offences. That would include non-violent offences. Do you have any comments on whether that is a concern in the loss of privacy rights? Of the cases you cited, could you say whether they’ve been appealed? Thank you.
Mr. Tatum: Yes. The two cases to which I alluded are rulings in the investigative genetic genealogy context — not familial searching under the National DNA Data Bank — and they’re trial decisions. The Ontario case is presently under appeal. In the Calgary case, the verdict was only released last Friday. I can’t speak to the specifics of that case.
The second part of your question, sir, was?
Senator D. Patterson: It was about enlarging the scope to include non-violent offences. Is that a departure from privacy rights that are now protected?
Mr. Tatum: Bill S-231 is dealing with situations where an individual has been determined at a criminal standard of proof to have committed a criminal offence or criminal offences. We’re not talking about on arrest. This isn’t somebody who has just been pulled in off the street or is being ordered to provide DNA based on an arrest. A court has made a judicial finding of fact on all of the evidence before it, either pursuant to a guilty plea or after trial, that this person has committed the offence.
The courts, including our Supreme Court of Canada and appeal courts around the country, have reiterated the reduced expectation of privacy that exists in that circumstance.
Senator D. Patterson: Thank you.
The Chair: Mr. Tatum, you’re providing lots of valuable information, but I do want to give other senators a chance to pose questions, so I apologize for interrupting you.
[Translation]
Senator Dupuis: I want to thank the witnesses for being with us. I have a question for Ms. McBride.
In your remarks, you said that Indigenous women say the police don’t have the will to solve missing Indigenous women cases. I’m trying to understand your position now when you say that NWAC supports Bill S-231. Are you saying your support is what I would call “qualified”? You see, we’re going to use your position to say that, yes, Indigenous women asked us to pass Bill S-231.
I’m trying to understand the answers you gave us. You’re hoping that, with these new tools, these new investigative techniques, the police will have the will to solve cases. How do you reconcile that with the fact that people aren’t sure there’s really much interest in solving cases? Will giving them more tools also give them the will to solve unsolved cases?
[English]
Ms. McBride: I’m hoping that, with these new tools, they will have no other choice but to investigate properly and at 100%. I’ll ask Ms. Niman to add her comments.
Ms. Niman: Thank you. You’ll see in our written brief, if you haven’t already, that of our two recommendations, one is the suggestion that, upon enactment of Bill S-231, investigators apply these new tools to prioritize resolving MMIWG cases — not just to signal that they will, but to get to work and produce measurable and quantifiable results that indicate that that’s exactly what they’re doing.
[Translation]
Senator Dupuis: Thank you.
[English]
The Chair: Thank you both.
Senator Clement: I will continue along the lines of what Senator Dupuis has just brought up. First, thank you to all three of you for your testimony and not only that but for the work that you do in this system that we have. It’s extraordinarily important, the work that all three of you do.
My question is for President McBride. It is great to see you and hear you on screen.
I want to come back to this very difficult intersection where Indigenous women live. Data clearly shows that they are overrepresented in the system as victims but also in prisons.
Ms. Niman articulated that this overrepresentation might be balanced out by the scientific accuracy of DNA. Ms. Niman used the word “faith” a lot. We’re going to have to trust. We’re going to have faith in the system.
You’ve outlined some recommendations — review, prioritization of women who have been forgotten and disrespected. But what more do you suggest we need, in the meantime, while we’re waiting for this review? What do you want to see that would support this faith that we, you and the more vulnerable communities are always called upon to have in the system? What more do you want to see us doing and our system doing? What further investments do you want to see? Give me some idea to help me share in the faith that we all need to have.
Ms. Niman: Thank you for your question. Practically, that would look like being able to hear from investigators and from families that these unsolved cases are being ticked off. We would love to be able to see within that first two-year window numbers and data to support how many investigations are reopened and reinvestigated using these new tools, followed up on, and then, ultimately, the hope is to be resolved. If they can produce that kind of data and if we could start hearing from our constituents that they’re being reached out to as families and survivors, that these cases are being resolved, then that would indicate to us that reconciliation is indeed alive as committed to within resolving cold cases of MMIWG.
What that could also look like is that because we know that Indigenous women are uniquely vulnerable to being trafficked and to sex work, they automatically face a higher likelihood of being victims of these unsolved cases. Working back from the number of cold cases we have, going upstream and finding out why so many Indigenous people, especially women and gender-diverse folks, are falling in to begin with at this juncture of being disproportionately vulnerable to sex trafficking.
Senator Clement: Thank you.
The Chair: Thank you, senator. Senator Dagenais, as critic, if you have any questions for the witnesses, this is a good opportunity.
[Translation]
Senator Dagenais: I have a quick question for Mr. Tatum.
Once the bill is passed and the system is in place, do you see anything in this bill that defence lawyers could use to pose constitutional challenges to broader use of DNA by the judicial system?
[English]
Mr. Tatum: I would make two points in response to that question. Bill S-231 seeks to maintain discretion, at least with secondary designated offences, over whether a DNA order should be imposed, albeit it changes the threshold to grossly disproportionate. That will inevitably give rise to litigation about whether a DNA order is warranted in those circumstances.
One of the other related legal considerations that this committee and, perhaps, eventually a court, if the bill is passed, would have to consider is the point of threshold that should exist or apply to an individual who is found not criminally responsible by mental disorder. When Ms. DiGiuseppe appeared on behalf of the Criminal Lawyers Association, she referred to a recent Ontario Court of Appeal decision called R. v. Roche. I have included that in my brief with a link to it. One of the comments that the court makes at paragraph 11 is the “. . . unique status of an NCR offender is reflected in the discretionary nature of the statutory provision.” This committee, and perhaps a court eventually, will have to consider whether there is a legal issue for not mandating DNA for an NCR offender as opposed to making it a presumptive DNA offence.
I can indicate that the Criminal Code was recently amended in the sex offender registry provisions under section 490.012 in order to indicate that in the case of an NCR offender, a SOIRA order is presumptive, and there is a series of statutory conditions under subsection 3 that have to be considered before such an order could be made.
[Translation]
Senator Dagenais: Thank you, Mr. Tatum.
Senator Carignan: I’d rather give up my time. Thank you.
[English]
The Chair: Colleagues, I want to thank you for your engagement with these witnesses before us today, and I want to extend a particular thanks to Ms. McBride, Ms. Niman and Mr. Tatum. This discussion has been fascinating, from my point of view, and very helpful to the committee. We appreciate very much the time you spent with us during this stretch of time. We’ve pushed you beyond the limits of what we’ve requested. I want to thank you for that, and also on behalf of the committee, for the submissions you’ve provided on the study of this bill.
Colleagues, we will now move to our next panel.
We are pleased to welcome from the Office of the Privacy Commissioner of Canada, Gregory Smolynec, Deputy Commissioner, Policy and Promotion Sector; Lacey Batalov, Director, Government Advisory Directorate; and Nadia Sayed, Legal Counsel, Legal Services Directorate.
Welcome and thank you for joining us. I’m going to turn the floor over to you for roughly five minutes of remarks, and then we will engage with senators’ questions.
Gregory Smolynec, Deputy Commissioner, Policy and Promotion Sector, Office of the Privacy Commissioner of Canada: Thank you, Mr. Chair and members of the committee, for the invitation to appear on this bill.
DNA is highly sensitive personal information. While DNA profiles can help prosecute violent offenders, solve longstanding cold cases and bring closure to victims and their families, their collection and retention must take into consideration the universal right to privacy.
The National DNA Data Bank serves a valuable law enforcement function. Since its inception, the National DNA Data Bank Advisory Committee has provided advice to the RCMP on the data bank’s operations. The advisory committee includes a representative from our office as well as the policing, legal, scientific and academic communities.
When a draft of Bill S-231 was reviewed by the advisory committee, we raised a number of concerns. I will discuss those in some greater detail today.
Our office is particularly concerned about the increased scope of DNA collection that would be undertaken if the bill receives Royal Assent. As currently worded, nearly all Criminal Code offences, including non-violent offences, would trigger the collection of DNA samples from individuals. That is a significant departure from the model that was put in place in 1998. Under the original DNA identification act, DNA samples were collected for only the most serious crimes. That is far more in keeping with the spirit of the act, which includes a principles section that explicitly recognizes the role of privacy and the need for strong safeguards to protect personal information.
Any expansion of the collection and use of DNA profiles must be shown to be necessary, proportionate, likely to be effective and minimally intrusive. We have yet to see evidence that the benefits of the proposed expansion of DNA sampling, particularly from offenders who committed non-violent and less serious offences, would be proportionate to the privacy rights lost.
[Translation]
We have also raised concerns about new DNA profiling uses in Bill S-231, specifically familial searching.
Essentially, the proposed changes would allow police to use DNA samples to identify near or partial matches in DNA datasets, as opposed to one-to-one matches.
The goal is to allow law enforcement to find potential family members of suspects through hereditary markers, thereby narrowing their list of suspects, or opening new lines of inquiry not yet explored.
From a privacy perspective, familial searching is problematic because it turns people into potential suspects not because of what they have done, but simply because of biological relationships.
Shifting from one-to-one matching in this manner is also a concern for vulnerable groups, such as youth, or communities that may already be over-represented in prisons and law enforcement databases, such as visible minorities and Indigenous people.
Given the proposed expansion of the context in which it would be permissible to collect and use biological samples, we would also expect more rigorous accountability protections to be introduced, such as an ongoing review requirement.
[English]
Finally, we have concerns with respect to transparency. The bill eliminates an existing requirement that peace officers file a report when they take a DNA sample.
These issues speak to oversight and accountability, which are both key principles of strong privacy protection.
That concludes my statement. Thank you for your time. I would be happy to elaborate on any of my comments, and I welcome your questions.
The Chair: Thank you, Mr. Smolynec. We have a list of senators who wish to pose questions to you. The list is fairly long. We might try to limit our interventions to four minutes each. If there is extra time, we’ll conduct a second round.
[Translation]
Senator Boisvenu: Good afternoon, Mr. Smolynec.
I tried to figure out from your testimony whether you are for or against the bill.
You don’t find recent Supreme Court decisions to be contrary to your position. In Rodgers, the Supreme Court stated:
It is beyond dispute that DNA sampling is a far more powerful identification tool than fingerprinting. Therein lies the heightened societal interest in adding this modern technology to the arsenal of identification tools.
I’m trying to understand. Do you think the bill will have an impact on privacy?
Mr. Smolynec: In a word, yes.
There’s expansion, the increased scope.
Senator Boisvenu: How many complaints have you received in the past 10 years from people who believe their privacy was violated because of their inclusion in the current data bank?
Mr. Smolynec: I don’t have the numbers to answer your question.
Senator Boisvenu: Then on what grounds are you saying that the bill would be an invasion of privacy if you’ve never had any complaints about the existing model?
Mr. Smolynec: First, I don’t believe we said it was an invasion of privacy, but we do have concerns about the—
Senator Boisvenu: Let’s just say that’s basically the same thing.
Mr. Smolynec: No, I think there’s a difference between the two.
First of all, we don’t have any evidence that it will solve cases. So, we’d like to see some research that says it will.
Senator Boisvenu: This legislation, like all legislation, will normally be reviewed every five years. Do you want to base your judgment on an assessment in the near future — in five years — as to whether the legislation will actually have this effect, or whether you want to start by putting some guidelines in the legislation?
Mr. Smolynec: There are privacy principles at stake here, and these principles are important; we have to recognize that there are these principles.
When a new start is made, usually for new programs and initiatives by government and federal institutions, institutions are required to provide privacy assessments and considerations. One of the factors in the assessments is to analyze the specific risks to vulnerable populations, for example, by those affected by these initiatives.
Senator Boisvenu: In this case, they aren’t affected at all by the legislation at all, and the old framework remains in place.
Mr. Smolynec: Yes, but I’m thinking, for instance, of Indigenous communities.
We want to know if there are risks. We’re not saying whether there are necessarily risks, but we’d like to know if there are; it’s a question of privacy principle.
Senator Boisvenu: Thank you very much.
[English]
Senator Prosper: I just want to follow up on a previous question by Senator Boisvenu regarding principles.
You spoke of principles of privacy rights. I recall another discussion with another witness on this particular bill where there was a process at play with respect to the balance between the administration of justice and privacy rights. I’m curious about those principles for consideration. For any new initiative, as you mentioned earlier, one must take a look at those principles.
What principles do you foresee as some of the key attributes that could encompass principles related to privacy rights?
Mr. Smolynec: Key principles include necessity and proportionality.
Are these measures necessary to achieve the policy goals put forward? Are they proportional to the loss of privacy rights that could be at play? Those two key principles.
There is also a principle, very closely related to proportionality and necessity, which is of effectiveness. Is the measure going to be effective? If the goal of the legislation is to solve serious crimes and to resolve cold cases, will that happen? Is this going to be an effective way to go about attaining those goals?
Minimization of the effects of the privacy rights is another key principle.
Those are some of the key considerations.
Senator Prosper: Thank you for that.
Lacey Batalov, Director, Government Advisory Directorate, Office of the Privacy Commissioner of Canada: When we get into the specifics of the DNA data bank itself, we look at things like limiting retention safeguards and principles around limiting collection. That would come into the proportionality discussion as well. Some of those come in more at the program implementation level, but I think they still apply at the broader level too.
The Chair: Thank you, both.
Senator Simons: I wanted to ask first if you could give us some examples of the kinds of crimes where you think this may be disproportionate either because they are non-violent or they are more minor than a murder or a sexual assault. For somebody who is convicted of a serious fraud, for example, I don’t know that having their DNA on file is going to prevent the next bank fraud.
What would be some examples of crimes you think are inappropriately scoped?
Mr. Smolynec: We have a question, as we relayed in our statement, about whether non-violent crimes and less serious crimes should be within the scope of the legislation.
Senator Simons: So what would some examples be?
Mr. Smolynec: We wonder in our own discussions whether a trespassing crime, for instance, would be subject.
Senator Simons: So criminal trespass would be captured by this?
Mr. Smolynec: I hesitate to answer your question because it’s not as if we have done a study of all offences and the correlation between conviction of these offences and the relationship that might exist with serious crime.
We’re not here as experts in criminology, but we have these questions. This speaks to the issue of whether the expansion of the list of criminal convictions under the scope of the bill is necessary to achieving goals of resolving serious crimes, such as violent crimes, and finding other obvious good causes.
Nadia Sayed, Legal Counsel, Legal Services Directorate, Office of the Privacy Commissioner of Canada: Senator, I can give you a few examples. Defamatory liable, for example, would be caught under the existing bill; a DNA order would be mandatory. Perjury is another example.
It’s really a question as to whether it’s necessary or proportionate with that type of offence.
Senator Simons: I was a journalist for 30 years. Hearing that defamatory libel might be covered sends chills down my spine.
I want to follow up to a question earlier. I’m really concerned about the statistics of this. In the pool of DNA samples, logic tells us, as we look at the incarceration rates, that the greatest representation will be of Indigenous people because they are disproportionately incarcerated. That creates an exponential effect that when you go to match up, the biggest database you have is of Indigenous offenders. So you are more likely to successfully use the DNA data bank to capture family members of Indigenous offenders.
I wondered if you had any concerns that you could speak about regarding the potential for that kind of systemic racism. No one isn’t saying that this is how it was intentionally designed, but that would be the logical consequence of fishing in a pool that is disproportionately the DNA of Indigenous offenders.
Mr. Smolynec: Thank you, senator. We raised that concern, but we can’t speak to what the exact outcomes would be of this legislation should it receive Royal Assent.
In usual privacy impact assessment evaluations, it’s a risk. One of the things the federal institutions have to do is evaluate how different vulnerable populations would be affected.
So we’re flagging that this needs to be considered. It’s a concern. It needs to be addressed. But we can’t say exactly what the effects will be both of the broadening of the scope for convictions but also the aspects concerning familial searching.
But it’s definitely a concern that needs to be addressed.
Senator Simons: The risk to be perceived defines the duty to be obeyed.
Senator Batters: Thank you very much.
I would like to go back to that Rodgers decision. The Supreme Court of Canada in the Rodgers decision stated that the loss of privacy for a person providing a DNA sample to the data bank is minimal as it is comparable to fingerprinting. That decision also states:
. . . It is beyond dispute that DNA sampling is a far more powerful identification tool than fingerprinting. Therein lies the heightened societal interest in adding this modern technology to the arsenal of identification tools.
In light of that decision, then, and that quote I just read, would you not agree that the Supreme Court of Canada decision contradicts your concerns about privacy regarding DNA sampling of a convicted person for the National DNA Data Bank?
I believe you told my colleague that you don’t necessarily have any case law to bolster your contention here. If that is so, how do you distinguish that case?
Ms. Sayed: Thank you for the question.
It’s important to note that, in the Rodgers decision, the Supreme Court of Canada was making findings based on the national data bank that existed at the time. It is true that the court said that analogy could be drawn to fingerprinting, specifically because the purposes for which the national data bank allows DNA to be used is quite limited. So the courts said there is virtually infinite potential for intrusiveness in a DNA analysis, but because the scheme currently restricts it to identification purposes, the court did draw that analogy.
However, this bill would allow the use for a new purpose, which is familial searching, which is not something that is currently permitted under the scheme. That is a way in which this is really distinct from a fingerprint. A fingerprint doesn’t reveal anything about your links to family members, but a DNA sample would.
Senator Batters: Although, of course, a fingerprint would not be upon conviction, and this would be. As well, for familial searches, it has to be a very serious offence of up to 14 years or more in prison.
I note that all of you are here from the Office of the Privacy Commissioner, but the actual Privacy Commissioner of Canada, Mr. Philippe Dufresne, is not here today. This is regarding a bill you are opposing, encouraging us not to pass.
Is that usual? Why isn’t the Privacy Commissioner himself here to defend these positions? Is that maybe because this is a senator’s private bill rather than a government bill?
Mr. Smolynec: No. The Privacy Commissioner was committed to participation in an Asia Pacific Privacy Authorities forum. That’s where he is.
Senator Batters: So he is overseas somewhere?
Mr. Smolynec: Yes, he is.
Senator Batters: Okay. Thank you.
Mr. Smolynec: But no, absolutely not. He sends his regrets. He asked me to represent him at this. He was fully briefed and reviewed all of our materials as well.
Senator Batters: Thank you.
Senator Jaffer: Thank you to all three of you for being here.
Further to some of the questions that Senator Simons has asked, I wanted to ask about familial searching. Should we be worried about privacy rights of innocent individuals, the impacts on the presumption of innocence of a family member, potential genetic surveillance of certain groups that might be overrepresented in the justice system and the unintended disclosure of incidental information?
This is with the respect to the right to freedom to search for genetic relatives of profiled persons. You covered this a bit, but I wanted you to expand on this.
Mr. Smolynec: Our point of departure is that there are questions and there are concerns. These questions and concerns could use further elaboration, study, research and so on. This applies to both the issues of proportionality and the principles that are in play.
If we’re talking about familial searching, it is a new departure to conduct an investigation that, perhaps, in the investigative context, implicates people who potentially have had nothing to do with the criminal activity or the event in question or so on.
There is a need to consider the privacy implications for these individuals. What are the broader privacy implications? What is the utility of these measures and so on? Will they be effective? Are they proportional and necessary, in addition to a set of other principles about how the material would be collected retained and so on?
The questions that revolve around some of these issues are not necessarily for us to be answering. We do raise the privacy dimensions of the problématique. We are concerned, of course. That’s our raison d’etre — the protection of Canadians’ privacy rights.
When we come to the collection of DNA that may implicate large numbers of people who have nothing to do with an event or a crime, that obviously needs to be considered in great detail.
Senator Jaffer: As I understand what you’re saying, this issue needs to be studied further before we proceed with the bill as to the implications of this bill. Is that what you’re saying?
Mr. Smolynec: We’re raising the issues of whether it is necessary, for instance, on the scope of the numbers and types of convictions that are included under the scope of the bill. If we have questions about the necessity and the proportionality, information is missing to address those questions: Is it necessary? Will it be effective?
What are the policy goals behind the bill? If it is to solve serious crime, does DNA collection on perjury correlate in any way with the resolution of serious crime? If it doesn’t, then that aspect probably isn’t necessary or proportional, and it won’t be effective either. It seems to be a gratuitous collection of personal information which doesn’t meet the policy objectives of the legislation before you.
Senator Jaffer: Thank you.
Senator Klyne: Ms. Batalov, we’ve heard that the National DNA Data Bank Advisory Committee is quite open to the use of new technologies. We also heard previously of concerns in the integrity and reliability of such new technologies, as well as their implications in regard to genetic discrimination and the invasion of privacy. For example, it may be cheaper to reproduce a whole genome versus certain portions of it, as is currently done using CODIS. Can you comment further on emerging technologies that the National DNA Data Bank may seek to incorporate going forward?
Ms. Batalov: I can’t comment at this time, no, on any further technology they might seek to incorporate. My role there is to provide privacy advice. So what they may be considering in the future, I don’t have any further information.
Senator Klyne: Thank you.
Mr. Smolynec, I just need to cite some of your opening remarks that are of concern for me as you relayed them.
As currently worded, nearly all Criminal Code offences, including non-violent offences, would trigger the collection of DNA samples from individuals. That’s a significant departure from the model that was put in place in 1998.
Under the original model, DNA identification samples were collected for only the most serious crimes. This is far more in keeping with the spirit of the act which includes a principle section that explicitly recognizes a role of privacy and the need for strong safeguards to protect personal information.
You went on further to say we have yet to see evidence of benefits around that. Further, you also raised concerns about new profiling uses in Bill S-231, specifically familial searching. From a privacy perspective, familial searching is problematic because it turns people into potential suspects, not because of what they have done but simply because of biological relationships.
Finally, you also have concerns with respect to transparency. The bill eliminates an existing requirement that peace officers file a report when they take a DNA sample.
From your conclusion, these issues speak to oversight and accountability, which are both key principles of strong privacy protection, and I agree. Did you want to comment on some of those things where the bill is expanding into areas where maybe it should not?
Mr. Smolynec: An overarching and perhaps enveloping concern is that we have questions about whether this is necessary. Is it proportionate? Will it be effective? Some of our questions around the expansion of the list of offences relate to that.
Senator Klyne: I would like you to address the idea that this has moved from the most serious crimes into a large expansion, from non-violent to the less significant. Is that an overreach of some sort?
Mr. Smolynec: A key consideration for our office is whether the privacy intrusion is proportionate to the attainment of the policy goals.
Senator Klyne: This is a strong, violent crime versus something else?
Mr. Smolynec: The question is, in these non-violent offences, will the bill help to attain the policy objectives underlining the legislation? If the policy objective of the legislation is to resolve cold cases and serious crimes, then does the collection of DNA on a perjury conviction correlate to the goal?
Senator Klyne: Just in the interest of time, or we’re not going to get —
The Chair: I think we have to let him answer. Just briefly, Mr. Smolynec?
Mr. Smolynec: The questions around this are whether these new measures in the legislation will actually have the purported effect being claimed in the policy goals of the legislation. If they don’t have those effects and they are not going to be effective, essentially, then we question if they will be proportionate or will they be —
Senator Klyne: I have one more quick question. The bill eliminates an existing requirement that peace officers file a report when they take a DNA sample. Is that concerning?
Mr. Smolynec: Yes, because it speaks to accountability. If it’s necessary for a peace officer to file a report, then you have a paper trail of what measures have been taken, when they were taken and by whom they were taken.
Senator Klyne: Thank you.
[Translation]
Senator Dupuis: I’d like to thank our witnesses for being here today.
My question is about the right to privacy. How do you relate this to the Canadian Human Rights Act, which prohibits discrimination? Section 3 prohibits discrimination on the basis of family status and genetic characteristics. We’re talking about matching the DNA of convicted individuals with a family member. Subsection 3(3) goes on to say:
… refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics.
Can you explain the link between the two? There’s the privacy aspect, which is an extremely important element, but it’s also a fundamental human right. What is the link between the two, please?
Mr. Smolynec: The link between the fundamental right to privacy and discrimination?
Senator Dupuis: The fundamental right to privacy and the prohibition against discrimination, which are set out in the Canadian Human Rights Act, based on family status or genetic characteristics — are two types of fundamental rights being added here?
Mr. Smolynec: It’s not an addition; there are links between the right to privacy and other rights, as well as fundamental freedoms, not just non-discrimination. I think the right to privacy is a right that often acts as an instrumental right to respect other rights, even democratic rights. So, if there are breaches of privacy, there can be consequences and it can cause problems for other fundamental rights. It’s not separate, but it’s certainly related.
Senator Dupuis: I have another quick question. You talked about the need for transparency. Can you refer us to something or explain more specifically what you mean by “transparency?”
That was the last point you made; you said that it would require more rigorous measures and greater transparency.
Mr. Smolynec: One aspect of transparency is having data on the effects of all these measures on rights, so that’s one aspect. Transparency is another fundamental principle of information rights.
Senator Dupuis: Thank you.
[English]
Senator Pate: Thank you very much for your testimony and for your work. I want to follow up on two things. A comment that’s been made by those who have researched in this area is that it isn’t Indigenous women or those representing missing and murdered Indigenous women and girls who came forward with this type of legislation. It tends to be something offered up when, in fact, they’re seeking broader systemic change.
One of the warnings provided by people like Jessica Kolopenuk is that these biotechnologies might actually be abused in the surveillance and management of Indigenous peoples, as many around this table have already mentioned.
Have you seen other options being looked at internationally? You mentioned that the Privacy Commissioner is overseas. Have you seen this type of legislation? In addition to the cautions that you’ve already proposed, are there other issues that may or may not have been raised to this point?
Mr. Smolynec: I’m not sure that I will be able to answer your question directly, but it is not my intent to not answer it.
When I think of the new technologies such as various biometrics, there is huge growth in the number of biometric technologies for various purposes, including for the purposes of criminal investigation, of anti-fraud measures and so on. It’s a sea change technologically in terms of biometric collection. As you know, there are also historic changes in the use of various digital technologies, such as artificial intelligence.
The pace of technological change is such that it’s difficult to foresee all the consequences of new technologies and their different applications and different domains like law enforcement and so on. I think it behooves us to be cautious about unforeseen consequences. Various measures have good intent. My bank may want to take my voice print to be able to identify me to protect my financial investment in the bank, my personal security with the bank. However, if that voice print is collected inappropriately or irresponsibly, it could put me at risk. The bank is not trying to put me at risk, but it might do so if it doesn’t collect it properly and doesn’t take all these different and unanticipated consequences into consideration.
A roundabout way of answering your question is I don’t know if this is anyone’s intent, but there may be inadvertent consequences that need to be carefully considered and researched.
Senator Pate: Have you done a privacy impact assessment of this?
Mr. Smolynec: It’s for federal institutions to conduct privacy impact assessments according to government policy, not law. We would like to see this to be a legislative requirement, but it’s not.
A few privacy impact assessments have been done on the National DNA Data Bank and a few amendments are being put forward to those privacy impact assessments. We made recommendations in response to those privacy impact assessments. The RCMP has implemented our recommendations, but there haven’t been privacy impact assessments, for instance, on familial searching, and so on.
One of the first things in a privacy impact assessment that would be a key base for early consideration is whether there’s lawful authority to do the collection of personal information.
Senator Clement: I’m going to continue with that. Thank you, Senator Pate.
Thank you to all three of you, deputy commissioner and colleagues, for being here.
We are often called upon here to review legislation with not much evidence. People say that, “We just don’t have the evidence. But we’re going to go ahead anyway and make these laws.” It’s concerning.
You talked about the necessary principles — proportionate and likely to be effective. What evidence do you need to see to support that? Is that about those privacy impact assessments, which we know have not been done here on familial searches? What is your role in collecting that evidence? Who is collecting that evidence?
Thank you for being here while the previous witnesses were here. You heard the Native Women’s Association of Canada endorsing this legislation and yet still highlighting some concerns and saying, “We’re going to review this two-year period.” What do you want to see in that two-year period? What kind of evidence do you want to see to deal with these concerns?
Mr. Smolynec: We’re not here to necessarily provide an argument for the new policy measures, nor are we here to necessarily provide an argument against especially good privacy practices or good policy objectives. We’re not here to make the argument criminological or sociological about the effects of the legislation, but we are flagging those concerns.
Regarding the evidence of which you speak, the only thing I would say is what’s the theory that the evidence would provide an answer to? What’s the research question that we’re looking to answer? Something presumably comprehensive. Something presumably fulsome. In this context, on only some of the aspects that we are talking about, is it necessary? Will it be effective? That begs the question: What are the policy objectives of the legislation? Does the said expansion of offences and the collection of DNA related to that expansion in any way attain the policy objectives of resolving serious crime?
What’s the theory of the legislation? By “theory” I mean what are the policy objectives? Do the measures respond to those policy objectives? What evidence is related to that? In our case, we’re concerned with the privacy principles. Is it necessary? Is it proportionate? What can we expect? Will it be effective?
These are general answers to the question of, you know, what questions are you trying to answer and what evidence is needed to answer those questions.
Senator Clement: Do privacy impact assessments provide evidence, in your view, and can you lean into those?
Mr. Smolynec: I’m a big fan of privacy impact assessments, which are usually done, not at the point of legislation, but usually for new programs or initiatives within departments or sometimes the application of new technologies.
If there is a technology for which there is a legal authority for collection of personal information, sometimes the government policy is that the new technology should be the subject of a privacy impact assessment, which we would review. The reason I’m a fan of privacy impact assessments is because they’re a very rigorously structured process to answer all of these questions, collect information and answer the questions about what the purpose is. What’s the legal authority? And we have very handy guidelines on how to conduct them which structure these discussions and answer many questions, and people bring to bear various relevant pieces of evidence in the conduct —
Senator Clement: These aren’t [Technical difficulties]-driven, right?
Mr. Smolynec: No, these are federal institutions that are obligated under the Government of Canada policy on the initiation of a new program, initiative or the use of a new technology that is likely to be privacy impactful. They have to do them. Not everyone does, by the way.
Senator Clement: Got it.
The Chair: Thank you.
Senator Dalphond: I have brief questions. Is there any federal regulation applicable to these other agencies that are collecting DNA samples for ancestry and those types of genealogical things? Is it an unregulated world or is it left to the province?
Mr. Smolynec: These are commercial enterprises, so they’re subject to our private sector federal privacy legislation, the Personal Information Protection and Electronic Documents Act, or PIPEDA, and the provisions of the private sector privacy law, which is itself principles based. One of the most important principles there is consent.
Senator Dalphond: But we’re told that consent means you apply for a test to know where your ancestors are coming from, and apparently you consent. I’m not sure people realize that. Consent apparently means that it can be used by the police who come and knock on the door.
Mr. Smolynec: It would depend on the particular commercial entity, whether they foresee that potential use and whether they actually obtain what we refer to as “meaningful consent from the people.”
Senator Dalphond: We have two systems: one that is under the RCMP, which is very tight with many rules; and one in parallel with commercial enterprises, which is more or less poorly regulated and easily accessible. So why is there a need to work on that part and not on the other part?
Mr. Smolynec: I was going to say that another aspect of these commercial entities that seek the consent, presumably, of their clients and so on, is that these people are submitting their own DNA, but they’re not necessarily providing — nor can they — consent for family members who might eventually be affected by that collection. So this is yet another space — I would call it a liminal space — where this new technology is affecting the world of privacy in different and sometimes unexpected ways.
Senator Dalphond: Thank you.
The Chair: Could I pose one question before inviting Senator Dagenais? We have heard that the proportionate collection of DNA in Canada is significantly lower than in other countries, which perhaps suggests that we have been more respectful of the privacy rights of people than in other countries. There are certainly many people who would like to see unsolved crimes solved, and DNA is a tool for achieving that.
So thinking about if this legislation were to come into force, Mr. Smolynec, it strikes me that there are some ideas and concerns that you have identified here. Gathering DNA evidence with respect to these crimes will prove to be irrelevant in the discovery and conviction of other people down the road, financial crimes and some of the others that you mentioned, such as perjury.
If one were analyzing the true effectiveness of this moderate — let me call it moderate — intervention into privacy, it seems to me that you could be helpful in telling whoever might be doing that what kinds of pieces of information would be valuable to study. Is that the sort of thing that you do? I’m not saying Senator Carignan would be the person tasked for making that assessment, but that’s the kind of thing I think down the road people like us would like to know, and I would have thought, particularly people like you. Are there some touchstones for the kinds of questions that you would want to ask, which are quite specific to this legislation when it kicks in?
Mr. Smolynec: So, specific to the legislation, perhaps I’ll come back to that in a moment.
For the record, I don’t think I need to say this: We’re in favour of solving serious crimes, we’re in favour of desirable good public policy objectives and we’re interested in knowing how these can be attained in a privacy-protected way.
We are often called upon, as we’re doing here, to respond and testify on bills that are in front of the House or the Senate to provide our privacy expertise to these kind of committee discussions. When we have a policy position on a piece of legislation, we always, I think, respectfully defer to the primacy of Parliament and provide that information to parliamentarians in the first instance.
It’s not typical for us to be involved in legislative development. I think we need to recognize for ourselves and for others that we’re not legislators, nor are we the proponents of pieces of legislation. We may have our ideas on them, but we’re not those proponents.
But I think we can have discussions, and there are all kinds of good forums in which to have discussions about things like: If we say necessity and proportionality, what does that actually mean in terms of how you operationalize that lofty principle into something concrete for something like this issue before us? What would that mean? I think we could think about how we might have those conversations.
I mean, sometimes these things are still on the academic level. For instance, we have a technology analysis team at the Office of the Privacy Commissioner. They are not focused on biotechnologies; they are focused on digital technologies. For instance, they will write slightly academic pieces on things like homomorphic encryption and other new, privacy-impactful technologies to try to understand them such as de-identification, anonymization, and so on. We have discussions with academics, in our own media and at conferences to try and make these terms operationalizable.
So a big issue in private sector privacy law is: What does it mean to de-identify data? What does it mean to anonymize data? And we will be part of that societal discussion on how you make that operationally viable for a business that wants to collect data, anonymize it, aggregate it and use it for various commercial purposes, but in a privacy-protectful way. So we do have those discussions.
I can imagine, in theory, something like this is possible on biotechnologies as well.
[Translation]
Senator Carignan: I understand what you said. There are several comments you’ve made about which we have had evidence from police officers, investigators, who are praying that we’ll have this because it will be a useful tool. I have a Supreme Court ruling here that says:
Unlike investigative DNA warrants, authorizations under the data bank provisions do not target suspected offenders nor particular offences nor do they gather evidence for use in specific prosecutions. The provisions put DNA technology to use to identify offenders—
— so people who have already been convicted of a crime; they aren’t suspected, but they have been found guilty.
Society’s interest in using this powerful new technology to assist law enforcement agencies in the identification of offenders is beyond dispute.
The Supreme Court said in 2006 that the technique is effective in identifying offenders. It will soon be 20 years. So you haven’t done those studies, despite the fact that you have a colleague on the National DNA Data Bank Advisory Committee. I understand that its role is only to raise flags on issues that will affect privacy, but nothing has prevented the advisory committee from recommending this bill.
Mr. Smolynec: We asked the same questions in committee.
Senator Carignan: Okay.
Mr. Smolynec: I think it’s important to say that we have concerns, we have questions on the principle of necessity, proportionality.
Senator Carignan: I understand. In my mind, it was put on the balance when we drafted it, but that’s another argument. A House of Commons committee and two Senate committees recommended expanding the DNA data bank. I saw Senator Jaffer earlier. She was on one of the committees.
Did you appear before those three committees at the time? I don’t remember.
Mr. Smolynec: No, I didn’t. This is the first time we’ve testified on this bill.
Senator Carignan: Great. Thank you.
Senator Dagenais: Mr. Smolynec, your testimony raises a few questions that I’d like to hear your comments on.
Are your concerns about anticipated risks strong enough to prevent society from providing its police forces with modern and effective tools for tracking down the perpetrators of a crime? Are your concerns about the potential impact on certain communities justifiable in limiting the ability of Canadian police to identify dangerous criminals with certainty?
Mr. Smolynec: I have a sincere question related to your question: Are the aspects of the bill really going to help solve these investigations? It’s a question I ask. Is the expansion proportional to the loss of privacy rights? We can answer by saying that we can solve X number of serious crimes.
The Office of the Privacy Commissioner has no data on the effectiveness of these measures, these aspects of the legislation. Will it work as you say? I’m not sure.
Senator Dagenais: We’re talking about serious crimes, not robbing a convenience store.
Mr. Smolynec: You’re talking about serious crimes for—
Senator Dagenais: The police will use DNA in investigations for serious crimes. DNA evidence has been shown to be much more effective. There’s less risk of making a mistake with DNA. When I asked you if it’s used to solve serious crimes, I could see your concerns.
Thank you for your answer, though.
[English]
The Chair: I think that concludes the time we have for our conversations with the witnesses. Let me extend my thanks to Mr. Smolynec, Ms. Sayed and Ms. Batalov. These have been very insightful conversations with you and have given us a good appreciation of the privacy perspectives with respect to this bill.
Colleagues, this brings our hearings with witnesses on Bill S-231 to a close. We will be giving clause-by-clause consideration to the bill on Thursday, December 7. Senator Carignan will be able to join us on that date as the sponsor of the bill.
Tomorrow and continuing forward, we will be looking at Bill S-230. We have the opportunity to have Senator Pate as our witness tomorrow. We’re looking forward to it. We don’t always get to cross-examine our own colleagues. This is another great opportunity for us.
Once again, I want to extend my thanks, colleagues, for your engagement in this dialogue, to the witnesses and the professional team that has supported us. As we have done today, we have pushed beyond what we normally ask. On their behalf, I want to extend our appreciation.
(The committee adjourned.)