THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, December 7, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:48 a.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.
[Translation]
The Chair: Good morning, honourable senators, and welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
My name is Brent Cotter, and I am a senator from Saskatchewan and the Chair of the Legal and Constitutional Affairs Committee of the Senate. I would like to invite my colleagues to introduce themselves, starting on my right.
Senator D. Patterson: Thank you. Good morning, colleagues. Dennis Patterson, senator from Nunavut.
Senator McNair: Good morning, colleagues. John McNair, senator from New Brunswick, auditing the committee meeting today.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Clement: Bernadette Clement, Ontario.
Senator Jaffer: Good morning. Mobina Jaffer from British Columbia.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Klyne: Good morning. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dupuis: Good morning. Renée Dupuis, Laurentian Division, Quebec.
Senator Carignan: Good morning. Claude Carignan, Mille-Isles Division, Quebec.
Senator Boisvenu: Good morning. Pierre-Hugues Boisvenu, from Quebec, deputy chair of the committee.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
The Chair: I would like to welcome all of you today and those who may be watching online.
Senator Carignan joins us as the sponsor of the bill, not as a member of the committee, and Senator McNair is a welcome observer in our deliberations today.
Colleagues, as you know, we are undertaking today clause-by-clause consideration 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’d like to set just a few ground rules before we begin. As a reminder, colleagues, if at any point you are not clear about where we are in the process, please ask for clarification. I want to ensure that at all times, we all have the same understanding of where we are. I know there are some amendments under consideration, and it’s important for us to be attentive to ensure that you are in the right location in our discussions and deliberations.
In terms of the mechanics of the process, when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of the clause. I think the amendments we have received so far have been organized in that way.
If a senator is opposed to an entire clause, the proper process is not to move a motion to debate the entire clause but to vote against the clause as standing as part of the bill.
Some amendments that are moved may have consequential effects on other parts of the bill. It is, therefore, useful to this process if a senator moving an amendment identifies to the committee other clauses in the bill where this amendment could have such an effect. Otherwise, it will be difficult for members of the committee to remain consistent in their decision making.
Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of amendments to establish which ones may be of consequence to others and which ones may be contradictory, although I think it’s fair to say that Senator Boisvenu, in the amendments he has proposed, has tried to identify some of those patterns.
If committee members ever have any questions about the process or the propriety of anything occurring, they can raise a point of order. As chair, I will listen to argument, decide when there has been sufficient discussion with respect to the matter or order and make a ruling.
The committee, as you know, is the ultimate master of its business within the bounds established by the Senate, and a ruling by the chair can be appealed to the full committee by asking whether the ruling shall be sustained.
I wish to remind honourable senators that if there is ever uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll-call vote, which obviously will provide unambiguous results. The clerk will undertake a roll-call vote if one is requested.
Finally, senators, a reminder that a tied vote with respect to any motion on the table negates the motion.
Do you have any questions before we begin? All of that is standard operating procedure, and I want to thank you for that.
Let’s begin. I’ll take you through a series of questions in relation to the bill and clause-by-clause approval and any amendments appropriate.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-231?
Hon. Senators: Agreed.
The Chair: Thank you. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry? Here we have an amendment proposed by Senator Boisvenu.
[Translation]
Senator Boisvenu: Here is my amendment:
That Bill S-231 be amended in clause 3, on page 3,
(a) by replacing line 1 with the following:
“3 Section 487.051 of the Act is re-”;
(b) by adding the following after line 26:
“(4) When the court makes an order authorizing the taking of samples of bodily substances, it may make an order in Form 5.041 to require the person to report at the place, day and time set out in the order and submit to the taking of the samples. These orders remain in force until they are executed.”.
I would ask Senator Carignan to explain this amendment.
Senator Carignan: Thank you, Senator Boisvenu, so the amendment is to clarify the time when the order can be executed. This issue has been raised by various stakeholders, including the Canadian Association of Crown Counsel, who felt that without this amendment, there was a risk of creating uncertainty if the samples could not be taken on the date and time set. So the orders remain in force until they are executed, it avoids having a legal vacuum or having to resubmit if the date has passed. It also avoids situations where the judge could be functus officio, in other words, where the judge would not have jurisdiction anymore and could not reissue an order. This clarifies the law and is consistent with the recommendation of the Canadian Association of Crown Counsel and the National Police Federation, which recommended making this amendment.
[English]
The Chair: Can I invite other comments with respect to this proposed amendment? Hearing none, all those in favour of the amendment?
Some Hon. Senators: Agreed.
The Chair: Is anyone opposed? I think Senator Simons was expressing opposition.
Senator Simons: No. Senator Simons wishes to speak to the clause itself.
The Chair: To the clause itself? This is to deal with the amendment. All those in favour of the amendment?
Hon. Senators: Agreed.
The Chair: All those opposed? Hearing none, we will take the amendment as adopted.
Now with respect to the clause, Senator Simons.
Senator Simons: Rather than propose an amendment to clause 3, I’m going to propose that the best path forward is to strike the clause, which would be to return the language of the clause to the status quo. Let me explain my two reasons why.
What this clause does is add the phrase “. . . or found to be not criminally responsible on account of mental disorder . . .” to the existing legislation. This raises some significant concerns for me. I take seriously Senator Batters’ point made in an earlier meeting that someone who has been found not criminally responsible is still found to be guilty in law. But this is a particularly sensitive designation in Canadian jurisprudence. Someone who is not criminally responsible suffers an illness that renders them unable to understand the nature of their actions, and they have been deemed, both by the examining physicians and by the court, to be unable to form the mens rea, the necessary guilty mind, to have understood the nature of the offence that they were committing.
We’ve heard repeatedly that taking of the DNA is not a punishment but a consequence, but if you cannot understand the consequences of your action, which is the definition of being not criminally responsible, those consequences ought not to pertain to you.
I will remind us of the words of Ms. DiGiuseppe from the Criminal Lawyers’ Association, who spoke to us on this point. She said to us in her opening statement:
. . . the proposed amendments which would eliminate the distinction between individuals convicted of a criminal offence and individuals found not criminally responsible are concerning. The jurisprudence in this area, for example the Ontario Court of Appeal’s decision in Briggs, has justified taking people’s DNA on the trigger of criminal conviction on the basis that an offender, through their choice to commit a criminal act, forfeits their right to privacy in their DNA.
I would put it to you that somebody who is not criminally responsible cannot be said to have made a choice.
In our questioning of Ms. DiGiuseppe, I asked her about this matter, specifically about the concerning degree to which somebody who may have been found not criminally responsible may still be in a psychotic or delusional state and be unable to give consent to the medical procedure that would remove DNA from their body. Ms. DiGiuseppe said in response:
I agree that the potential for this method to be experienced as state violence by the person who is undergoing collection is high, particularly when dealing with a population that, beyond suffering from issues such as paranoia, will also have a particular attitude toward forced treatment. They may have had forced treatment levied against them in other capacities, they may have lost the right to make their own medical decisions, and now the state is making them have a blood sample taken. Yes, I think that could be a very traumatic experience for an individual who doesn’t understand what is happening.
She continued by saying:
When we force a historically discriminated population that is sensitive to the idea of state-instituted forced treatment to do something like this, we have to treat that experience differently to how we might treat the experience of someone who understands the process. . . .
I think her arguments rang very true to me. To be found not criminally responsible is a very high bar. That is not just somebody who suffers from a mental illness. We heard yesterday in testimony on a different bill that many people in the criminal justice system suffer from a mental illness, but to be found not criminally responsible is a specific subset of mental illness. It means that you are literally unable to form the intent because you cannot understand the logical consequences of your actions. That is one of my reasons for wishing to strike clause 3.
The second reason is not related to that, and it has to do with the issue of primary designated offence and secondary designated offence. Under the current law, a judge has latitude to decide whether or not to order a DNA test. Returning to the status quo would mean that judges would have more responsibility and more autonomy to decide when taking this evidence would be appropriate.
In clause 2, this bill expands the nature of the offences for which a DNA sample can be collected to anything with a maximum custodial sentence of five years. Now, we know that there are all kinds of relatively non-violent offences, some of them even relatively minor offences, that have a maximum sentence of imprisonment of five years. So even if the person is getting a suspended sentence or an 18-month sentence, if the crime still has a maximum possible penalty of five years, they could be subject to having their DNA collected.
By striking clause 3, we would return to a situation where the judges would have more discretion, particularly with secondary designated offences, because the text of the clause now reads that a DNA sample must be taken from somebody with a secondary designated offence — this is the one with the five-year maximum:
. . . unless the person satisfies the court that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice . . . .
That’s an extremely high bar, and I think that there might be all kinds of occasions when a judge might be loath to order a DNA sample in a case of fraud or in cases of all kinds of white-collar crime that is easily punishable by up to five years but for which there is limited investigative purpose in taking a DNA sample.
So I know this is a significant suggestion, but those are my arguments for striking clause 3. This doesn’t gut the bill in the sense that we’ve already passed clause 2, but I think that in those two particular instances, it would return us to the extant language.
The Chair: Thank you. I’m going to invite interventions on this point, but just as a reminder with respect to the procedure to do this, it’s a matter then of voting against amended clause 3 when we come to a vote if you are opposed to the adoption of the clause.
[Translation]
Senator Carignan: This clause is an important part of the bill. It is about the court’s power to make an order in accordance with the burden of proof. In any case, we have seen that when the burden of proof is at stake, the interest of justice is quite difficult to include in the balance, because we do not know how many crimes the person may have committed. As has been said, this is not a sanction or a punishment, but an administrative procedure that means if the person has committed a white-collar crime and rape in the past, or does so in the future, the facts will remain in the file.
Removing this clause would eliminate much of the intent and effects of the bill, which has received quite significant support from investigative and police services, as well as from the DNA Data Bank Advisory Committee. The idea is to include as much data as possible in the bank and see the effect of all this. I will move an amendment later on in terms of measuring the effect. If the effect is disproportionate, an appropriate committee of the House or the Senate, which will be mandated in three years, will be able to make recommendations accordingly, in order to have fewer orders or not to take body samples at all in the case of this type of crime if the committee considers that it is not relevant.
When a person is found not criminally responsible, there is often a link to a mental health issue. I understand that, in some situations, the person may not necessarily be fully aware of the effect of the taking of their DNA. However, if the person is schizophrenic and has committed a crime, a murder or any other offence, it is quite possible that they have committed other offences or that they will commit some in the future. It must be possible to take a sample and include it in the National DNA Data Bank. This is important.
I do not have statistics on the number of serial crimes committed by schizophrenics or people with mental disorders. It is difficult to get that information. There are many unsolved crimes; if we had the DNA information, we could generate the appropriate statistics.
I suggest that this important clause of the bill be retained. With experience, in three years, we will see where things stand. Once I have moved my amendment, if you support it, we will be able to strike that balance with the committees. Much of what you have raised is about finding the proper balance between law enforcement and privacy. That is part of the balance I am suggesting with my amendment, and I think the clause will do the job.
[English]
Senator Batters: Yes. As Senator Simons said, as I have said on this bill and on a couple of other bills recently, for things like discharges, whether those be conditional or absolute, here the issue that Senator Simons is raising is about someone being found not criminally responsible on account of mental disorder. However, as I have stated before, a court, after going through an entire legal process, has found adequate finding to determine criminal guilt so that they have committed that offence.
As far as referring to this as a medical procedure, it’s six to eight drops of blood taken from someone’s finger. It’s not an invasive medical procedure. Frankly, it’s not all that different from fingerprinting when someone is actually arrested and charged rather than what has to be done here, which is a finding of criminal guilt and conviction.
And certainly, obviously, there are a lot of people in the prison system who suffer from mental illness. There are millions of Canadians who suffer from mental illness. I recognize that this is obviously at a considerably higher level, but there are adequate safeguards built into this. For the relatively non-invasive procedure that this is, it’s not substantially different than fingerprinting, yet there are a lot more safeguards built in for this. So I definitely support having this clause go forward. To remove this and to return it to how it was would make a massive difference in the bill.
[Translation]
Senator Boisvenu: Let us recall the testimonies, especially those of the police. They came to tell us that it is an indispensable tool for solving murders. Canada has one of the lowest murder resolution rates, at about 24%. The Americans or the English are closer to 70%. This bill is a tool that police officers are given to solve murders.
Moreover, the experts and police officers who appeared said that this was a minimum and that we should even go further, as some countries do. If we go even lower than what this bill proposes, we will not give an indispensable tool to police officers who work to solve murders.
Regarding mental health problems or people not being criminally responsible, 2023 will be a record year in Quebec for the number of murders committed by people found not criminally responsible, some of whom have committed two murders. To exclude people found not criminally responsible for murder is to allow them to kill again without being able to prevent the crime. It would be irresponsible to say that because someone has been found not criminally responsible, their fingerprints will not be taken.
We know that these people spend two years in a psychiatric hospital. Most people who commit murder and are found not criminally responsible will be released two years later. The Mental Health Commission of Canada will release them, even with health services that are often lacking and unable to follow up and ensure that they take their medication. In order to give police officers the tool they need and to protect the public, we should not exclude these people from the taking of DNA samples, as they are often among the ones who are left behind in society.
[English]
The Chair: Thank you.
Senator Pate: I was moved to speak because I’m not sure where Senator Boisvenu gets those stats, but it’s actually not accurate. I can think of many people who spend decades in psychiatric hospitals where they are found not criminally responsible, including for very minor offences. I just want to make sure that’s corrected on the record, please.
Senator Boisvenu: Can I respond?
The Chair: I have a list. You’ll get your turn on that very point. I’m noting this for a bit of discipline. Are there others who have not spoken who would like to make an observation?
Senator D. Patterson: Thank you, Mr. Chair. I would like to ask a question of Senator Batters. She can answer when her turn comes up. I understood her point to be, first of all, that this is not properly described with respect to Senator Simons as state violence in taking the blood test because it’s a rather innocuous finger prick that is required.
Is it your contention that even though a person may be found linked to a crime by DNA, they could still be found not criminally responsible? It is the ability to link a person to a crime, not the conviction of that person for that crime, that is the remedy sought by this clause.
The Chair: Hold that answer just in suspension while we hear from Senator Dupuis, and then we’ll provide second-round comments and answers, I think.
[Translation]
Senator Dupuis: I want to make sure I understand what we are talking about. We are being asked to delete the following passage at lines 9 and 10 in clause 3 of the bill: “found to be not criminally responsible on account of mental disorder of”. Is this correct? Thank you.
My first observation is that almost all the witnesses told us that reliable data was lacking. If we say that this or that situation is going to happen, that is a statement that goes too far at this time, given the testimony we have heard.
Moreover, it seems to me that the question has nothing to do with the fact that I consider taking DNA samples as no more than a small vaccine or a small blood test. The method itself is not a problem. It is a more fundamental right that is involved here. It is the right to life and security of the person. It is a fundamental right. I agree with the amendment.
Senator Boisvenu: I will respond.
The data I presented on the time before release, which is just over two years, comes from the Commission de la santé mentale du Québec, whose mission is the same as that of the Parole Board of Canada. It holds hearings and releases people who have committed crimes, with or without conditions.
Regarding the ones who remain incarcerated, I would say there are some, of course, but in our current system, they are exceptions.
[English]
The Chair: Senator Batters, you were invited to respond to a question from Senator Patterson.
Senator Batters: Thank you. First of all, to Senator Patterson’s question, no, I certainly don’t think that this would be applicable for someone simply linked to a crime, like perhaps they were a witness or might have been in the situation where their DNA happened to be there or something like that.
What I was speaking about is that a court has determined that person to be not criminally responsible on account of mental disorder; a court has determined for that person that the criminal standard of guilt has been met in that case, yet the court has also determined that the person is not criminally responsible because of mental disorder. That is what I was speaking about here, similar to the three different types — someone who is convicted, someone who is either conditionally or absolutely discharged by that court and this is the third thing, as Senator Simons is trying to draw out in this issue. So I hope that makes a little more sense.
The other issue that I was going to raise that I just remembered after I had finished speaking earlier was that what could actually be very helpful is having a DNA sample from someone who has been found not criminally responsible. That could be a very important factor in helping to prove that that person is not involved in a certain crime that they may be otherwise accused of. Or perhaps they could even be in a situation where because they are not as capable of providing a good defence for themselves, their DNA could actually help them prove that they are not someone who is involved in that particular crime.
The Chair: Thank you. If there are no other initial interventions, I’m going to invite Senator Simons and then close with Senator Carignan, who is the sponsor of the bill.
[Translation]
Senator Carignan: I have a question for Senator Simons.
I am trying to understand your point. Senator Dupuis said that you only want to remove the part of the clause pertaining to people who are not criminally responsible on account of mental disorder. However, what I understood is that you wanted to remove clause 3 of the bill altogether.
Actually, I am not sure what you are asking. Senator Dupuis’ question surprised me and your answer surprised me even more.
Do you want to remove only the part about people who are not criminally responsible due to mental disorder or do you want to delete all of clause 3 and go back to the previous version of the section? If so, it changes the aim of the bill, which is to go from a discretionary model to a mandatory model.
[English]
Senator Simons: The advice of the law clerk was that what I should do in this instance is to vote against the clause rather than to amend that one sentence. You are right, there are two parts to the impact of that. One, as I described, deals with the issue of people being non-culpable; they should, therefore, not be subject to consequences. But the other part, as I described, is that this would return it to the discretion of judges, especially in the case of secondary designated offences, which have maximum sentences of five years. There might be very little investigative purpose in taking a DNA sample from somebody who has been found guilty of criminal trespass or bank fraud or — I mean, there are all kinds of — I shan’t bore you by going through all items in the Criminal Code that are subject to a possible five-year maximum sentence.
That was on the advice of the law clerk, whose suggestion was that I vote against the clause. But you are right. A separate strategy might have been to amend it by taking out the words “not criminally responsible,” and perhaps if people don’t vote to strike the clause, that’s what I will suggest next.
I just want to come back to some of the issues raised around the table here, and I want to thank everyone for their thoughtful contributions to this debate.
I want to stress again that somebody who has been deemed not criminally responsible is suffering from an illness. They have a catastrophic health condition which renders them completely unable to appreciate the nature of their action. To subject such a person to a consequence — if that’s the word we’re using instead of punishment — is still disproportionate because they cannot, by the nature of their physiological condition, comprehend the consequences of their actions, and this could be one of them.
To say that as a medical intervention, drawing blood in this way is relatively minor — that’s in the eye of the beholder. If somebody is a paranoid schizophrenic or fully floridly psychotic, being forced to be pricked and have blood squeezed out of them — to us, I don’t have any qualms about going to the doctor and having them withdraw all kinds of blood. But I’m in my right mind, and somebody who isn’t may perceive that intervention very differently.
Finally, I want to respond to Senator Batters’ point that the DNA may prove exculpatory and may help clear someone. In that case, their own lawyer is perfectly capable of suggesting that their client offer up a DNA sample to clear them of a crime. To force someone to give up that bodily autonomy and the profound privacy rights of their own DNA because someday it might clear them of a future crime — the logical reductio ad absurdum is that we should all provide our DNA on our eighteenth birthday, and then we would all be protected from being accused of crimes. We don’t do that, and there are very good reasons for it.
[Translation]
Senator Dupuis: I apologize. I do not want to cut Senator Carignan off, but I would like to know exactly what we are talking about here.
I think I asked the question clearly and this led you to make your comment. Is the amendment before us to remove clause 3 of the bill or to remove part of lines 9 and 10?
I asked if we are talking about removing the part of the sentence that says “found to be not criminally responsible on account of mental disorder of”, and I was told yes. Now I hear it is something else. So we would end up with two amendments.
Is it possible to know exactly what amendment we are talking about?
Senator Simons: I was not wearing an earpiece to hear the interpretation, and maybe I misunderstood. It is not an amendment.
[English]
The Chair: Senator Simons, you need to get me to recognize you before you intervene.
Senator Simons: Sorry.
The Chair: We are having a debate on whether or not we would adopt clause 3 of Senator Carignan’s bill as amended a short while ago. So, it is not a debate right now with respect to removing two or three lines, but rejecting the clause, defeating the clause.
[Translation]
Senator Dupuis: Thank you for the clarification.
[English]
The Chair: I’ll just put on the table a small understanding, and I think we can confirm that. Then I will invite Senator Carignan to make some observations, and then we will invite a vote on the clause.
I think I’m correct in my understanding that in the present regime, people who are not criminally responsible may be required by reason of a mental disorder to provide DNA samples if ordered by a judge who judges it to be in the administration of justice. This amendment with respect to folks who are not criminally responsible lowers the bar for that requirement in the language that Senator Carignan has proposed in this portion of the bill. It’s not as though we are going from nothing to this standard. There is a potential for that to occur in the existing legislation — just so that we have at least that basic understanding.
I’m now going to invite Senator Carignan to offer some closing observations on this debate, and then I’m going to invite a vote on the adoption or rejection of this clause.
[Translation]
Senator Carignan: Thank you for this clarification, which I wanted to make. Obviously, if this clause is outright deleted, the bill is virtually killed. Indeed, the purpose of the bill is to make the taking of samples automatic rather than discretionary—that is one thing.
Second, the issue of mental disorders already is provided for in section 487.053. It is possible to obtain an order to take a sample from a person who is not criminally responsible on account of mental disorder. This is not a system revolution.
This is why the amendment I want to propose, if accepted, aims to review the situation in three years, specifically on the issue of privacy rights. To balance it all, we want to cover the issue in three years and ask ourselves whether we have gone too far and we should be returning to a discretionary method for mental disorders. This already exists for mental disorders, so if we vote against this clause, it is as if we were voting against the bill. We remove the very meaning of the bill.
[English]
The Chair: If it’s a new point, I think, yes —
Senator Boisvenu: A question for Senator Clement — Senator Simons, excuse me.
The Chair: Is it a new point?
Senator Boisvenu: A short one.
[Translation]
Senator Simons, why did the law clerk suggest that you withdraw this clause rather than move an amendment?
[English]
Senator Simons: As I said earlier, it was on the advice of the law clerk that this was the cleaner way to approach it. Perhaps I have chosen the wrong strategy, but that is why.
The Chair: We are about to vote on whether to adopt clause 3 of the bill as amended. I should just mention, Senator Simons, that if the clause is adopted as amended, there is no room for you to come back and offer a more moderated amendment. So those in favour of the clause —
An Hon. Senator: Could we have a roll-call vote?
The Chair: A roll-call vote? All right. Sure.
Sara Gajic, Clerk of the Committee: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Gajic: The Honourable Senator Batters?
Senator Batters: Yes.
Ms. Gajic: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Gajic: The Honourable Senator Clement?
Senator Clement: No.
Ms. Gajic: The Honourable Senator Dupuis?
[Translation]
Senator Dupuis: Excuse me, Mr. Chair, I need further clarification. Are we voting on clause 3 as amended?
[English]
The Chair: As amended a bit earlier, that’s correct. The whole clause. Clause 3 of Senator Carignan’s bill.
Ms. Gajic: The Honourable Senator Dupuis?
Senator Dupuis: Abstention.
Ms. Gajic: The Honourable Senator Jaffer?
Senator Jaffer: No.
Ms. Gajic: The Honourable Senator Klyne?
Senator Klyne: No.
Ms. Gajic: The Honourable Senator Pate?
Senator Pate: No.
Ms. Gajic: The Honourable Senator Patterson?
Senator D. Patterson: No.
Ms. Gajic: The Honourable Senator Prosper?
Senator Prosper: No.
Ms. Gajic: The Honourable Senator Simons?
Senator Simons: No.
Ms. Gajic: Yeas, 2; nays, 8; abstentions, 1.
The Chair: Colleagues, I declare clause 3 as amended defeated.
We turn now to clause 4. Shall clause 4 carry?
[Translation]
Senator Boisvenu: I have a proposal for clause 4: I propose to delete that clause from the bill.
[English]
The Chair: In that case, the process is for you to vote against it when we have a vote on the clause. Before we get to that, Senator Simons has an amendment to propose to clause 4.
Senator Simons, can you read the amendment and then describe your reason for advancing it? Just so that we’re on track, this is amendment PS-S231-4-3-31.
Senator Simons: I move:
That Bill S-231 be amended in clause 4,
(a) on page 3,
(i) by replacing lines 31 to 33 with the following:
“substances when it finds the person guilty.”,
(ii) by replacing line 36 with the following:
“substances when it imposes a sentence on a person, directs that they be discharged or directs”;
(b) on page 4,
(i) by deleting lines 1 and 2,
(ii) by replacing lines 6 and 7 with the following:
“imposes a sentence on a person, di-”.
I always find reading those things is a bit like trying to understand the Hebrew when I make my rare forays into the synagogue. This amendment would effectively take out the words “not criminally responsible on account of mental disorder” from the end of the paragraph.
The Chair: Do you want to say more about that?
Senator Simons: No. This is the logical consequence. I shan’t repeat all the arguments.
The Chair: Are there any comments with respect to this proposed amendment?
Senator Carignan: Yes. I don’t know if I can make a point of order, but the amendment seems to go against the objective of the bill.
[Translation]
I think it is borderline; anyway, there is going to be a proposal to delete clause 4.
I do not know if Senator Simons is prepared to withdraw her amendment if there is a proposal to delete clause 4.
[English]
The Chair: Senator Klyne, we’re on a point of order raised by Senator Carignan that this proposed amendment is outside the scope of the bill. I’ll rule on that shortly. Do you want to intervene on that point?
Senator Klyne: I have a point of order in terms of the dialogue going back here. I suppose it’s my fault, trying to follow this, but I was a little confused. Have I effectively, by saying no, approved or accepted Senator Simons’ motion?
The Chair: Not yet. When you voted “no” in the previous discussion, you rejected or voted not to adopt clause 3 of Senator Carignan’s bill.
Senator Klyne: I didn’t intend to do that, but I got lost in the shuffle of back and forth.
The Chair: We might note that you’re not entirely committed to your vote on the last amendment, but it was going to carry anyway by a substantial margin. I think that’s fair. It’s useful for us to know that you might have over-voted on that point, but the outcome is, I think, still the same.
Senator Klyne: Thank you.
The Chair: This is a question, as I understand it, from Senator Carignan. Let me say first, as a technical matter, if you’re not a member of the committee, you’re not entitled to raise a point of order, but I nevertheless want to make a ruling. It’s deserving of consideration for just a moment.
Colleagues, one of the difficulties — and, in a way, I think it is the point that Senator Boisvenu referenced that a better strategy is to remove clause 4 — is that some of the language in clause 4 refers back to a clause which we have just defeated. It is therefore somewhat complicated. We might adopt this amendment, but then we will have problems with the clause itself, given that it incorporates language that refers now to a clause that no longer exists.
I’m going to rule that the consideration of this amendment — sorry, Senator Batters?
Senator Batters: Thank you. Yes, first, on that, I was just going to say that, as you referenced at the very start of the meeting, if you’re basically against the substance of what that particular part says, then your correct strategy is to vote against it, not to try to amend it. That is exactly what we’re dealing with here. Also, as the sponsor of the bill indicated that he wants to delete the clause, I’m not really sure why we’re going through this entire exercise of potentially dealing with an amendment. The sponsor of the bill says he wants to delete the clause, so I think we should just proceed with that.
The Chair: As the sponsor, he offers us some guidance, but he doesn’t determine our outcomes here.
Senator Simons, if you’re comfortable with the observation that I have made that this is an unnecessary amendment given the complications we have with the clause itself, then I invite you to withdraw your amendment and invite us to vote on the wisdom of retaining the clause at all. In light of Senator Carignan’s indication and the messages from Senator Boisvenu, I would invite us to go straight to the vote on the adoption or otherwise of clause 4.
Shall clause 4 carry?
Some Hon. Senators: No.
The Chair: Hearing no one in favour, at least speaking, and seeing probably the lack of necessity of a roll call — Senator Patterson?
Senator D. Patterson: Agreed.
The Chair: — I declare clause 4 defeated.
Carrying on, shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 —
Senator Simons: I’m very sorry, my apologies. I’m going to beg indulgence to revert, because I did have amendments.
The Chair: Do you have a new amendment, Senator Simons? The reason I ask is because the ones that have been circulated come a little bit later in the consideration of the bill.
Senator Simons: I’m very sorry. This is my fault, and it was, again, not an amendment. Clauses 6, 7 and 8 are about the role of peace officers in reporting, and this was speaking to the issue of whether we should remove the requirement for peace officers to have to file a report.
When we heard from Gregory Smolynec, Deputy Commissioner in the Office of the Privacy Commissioner —
The Chair: Could I understand where we are in this conversation, Senator Simons? Are you proposing an amendment to the bill?
Senator Simons: No.
The Chair: An amendment to one of the clauses we’ve just been dealing with?
Senator Simons: No. Again, this is a vote against. My apologies. I had circulated the road map, but I didn’t look at it myself.
The Chair: Should I understand that you want to record yourself as voting against the adoption of these clauses?
Senator Simons: Yes, and I wanted to explain why. It’s my mistake.
The Chair: If I understand correctly, you weren’t properly located in our consideration, yes? I’m a little uncomfortable unravelling the vote here because you were opposed to these clauses.
Senator Simons: Yes, but if I explained why, would that help my defence?
The Chair: I’m going to invite you to provide an explanation and then I’ll decide whether we go backwards. I want to be fair to the committee.
Senator Simons: Yes, and I’m mortified.
These clauses deal with the question of whether or not there’s a peace officer who files a report.
This is a quote from the testimony of Mr. Smolynec:
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.
Then, when Senator Klyne asked a question about this in the hearings —
The Chair: Senator Klyne would like to know where we are in this debate. Is there a specific clause?
Senator Simons: Yes, clauses 6, 7 and 8.
The Chair: Carry on briefly.
Senator Simons: Clause 6 repeals the requirement for a peace officer to file a report. Clause 8 does the same. It’s clause 6 and clause 8 that are the most problematic ones.
The Chair: I think we got your point.
Senator Simons: I just want to say that when Senator Klyne asked about this in his committee testimony — sorry, this is Mr. Smolynec’s response:
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.
Then he says:
. . . 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.
My concern is that clauses 6 and 8 remove the requirement for the police to file a report.
The Chair: I’m going to invite, then, a re-vote on it. Are we still satisfied to adopt clause 6? Those in favour of adopting clause 6?
An Hon. Senator: On division.
The Chair: Senator Simons, is that acceptable?
Shall clause 7 carry?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 8 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 9 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 10 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 11 carry?
Some Hon. Senators: Agreed.
The Chair: Carried on division.
Shall clause 12 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: No.
The Chair: Carried on division. Shall clause 13 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried on division. Shall clause 14 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried on division. Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Sorry, was it on division for 15?
Shall clause 16 carry? Senator Simons.
Senator Simons: Clause 16 is another “not criminally responsible” part, and this has to deal with it in the National Defence Act, in particular. The concern here is for consistency in language about “not criminally responsible”; if we removed it in other instances, we should here. I think it’s particularly acute when we’re talking about the National Defence Act because you’re going to have more people who may be more likely to be suffering from post-traumatic stress disorder and other mental illnesses that result from their time in service.
The Chair: So this is speaking against the adoption of this clause.
Senator Simons: Yes.
The Chair: Are there other interventions on this point? This is clause 16.
Senator Simons: The language in the National Defence Act is different than in the Criminal Code. It says, “not responsible on account of mental disorder.”
The Chair: Other interventions on this? Hearing none, I’m going to invite the question: Shall clause 16 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: I think this requires a roll-call vote. This is the vote on the adoption of the clause.
Ms. Gajic: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Gajic: The Honourable Senator Batters?
Senator Batters: Yes.
Ms. Gajic: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Gajic: The Honourable Senator Clement?
Senator Clement: No.
Ms. Gajic: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Ms. Gajic: The Honourable Senator Jaffer?
Senator Jaffer: No.
Ms. Gajic: The Honourable Senator Klyne?
Senator Klyne: Abstain.
Ms. Gajic: The Honourable Senator Pate?
Senator Pate: No.
Ms. Gajic: The Honourable Senator Patterson?
Senator D. Patterson: No.
Ms. Gajic: The Honourable Senator Prosper?
Senator Prosper: No.
Ms. Gajic: The Honourable Senator Simons?
Senator Simons: No.
Ms. Gajic: Yeas, 2; nays, 7; abstentions, 2.
The Chair: Clause 16 is defeated.
Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Does this raise any questions? Senator Simons, I want to be ready.
Shall clause 17 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried on division. Shall clause 18 carry? Senator Boisvenu has an amendment.
Senator Clement: I’m going to try to make the case to vote against this entire clause, however you want to position that for clarity.
The Chair: With respect to clause 18?
Senator Clement: With respect to clause 18.
The Chair: We’re initially going to hear discussion regarding the amendment, consider the amendment, vote on the amendment and then we will turn to a discussion of the clause itself and vote on the clause.
Senator Clement: Thank you.
The Chair: Senator Boisvenu, do you want to introduce and read your proposed amendment to clause 18?
[Translation]
Senator Boisvenu: Mr. Chair, I withdraw my amendment.
[English]
The Chair: Colleagues, that amendment, which was numbered PHB-S231-18-7-16, is withdrawn.
We’re now going to turn to debate on the adoption of clause 18, and I’m going to invite Senator Clement to begin the discussion.
Senator Clement: Thank you, Mr. Chair.
I’m going to ask the committee to consider voting against this clause. This is about familial searches, and I can tell you that there is unease around how far this could go. I’d like to quote from some of the witnesses we heard.
I’d like to start with Katharina Clausius, Associate Professor, Department of Literatures and Languages of the World, Université de Montréal:
The specific risks associated with familial searching have been described at length, including in this committee’s 2010 Statutory Review of the DNA Identification Act and also in the recent brief submitted to this committee by Dr. Maguire. The risks include stigmatization of families as genetically criminal; the violation of the expectation of presumed innocence; exposure of innocent family members to unreasonable search and to genetic discrimination; and accidental revelation of confidential information to extended relations, including instances of false paternity or adoption.
Ms. Clausius goes on to say:
What is particularly urgent about the notion of familial searching and this idea of identifying families and, by extension, larger communities, extended families and communities as more likely to have criminal tendencies than others is that it goes against the spirit and probably also the actual legislation of the Canadian Genetic Non-Discrimination Act.
We can recall that there was an interesting conversation between Senator Prosper and the witness on this issue and that particular legislation.
Michael Crawford, Professor, Department of Biomedical Sciences, University of Windsor, also said:
If the NDDB is open to familial searches, then you are definitionally using that whole population of profiles as a search query, and innocent people are going to be routinely interrogated as potential suspects. That’s a form of discrimination if 40% of the incarcerated population is Indigenous.
He goes on to state:
I would argue that in opening the NDDB to familial searches, you will be specifically interrogating, in a biased way, specific subpopulations of the Canadian population.
We heard Gregory Smolynec, Deputy Commissioner, Policy and Promotion Sector, Office of the Privacy Commissioner of Canada, raising privacy concerns. I’ll quote from him finally:
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? . . .
So I have great unease around extending this in this way. You’ve heard me speak consistently about systemic discrimination in our criminal system and overrepresentation. The overrepresentation that is currently baked into this system only feels like it’s going to be amplified by the inclusion of familial searches, so I’m arguing against voting for this particular clause.
The Chair: Other comments, interventions?
[Translation]
Senator Dupuis: I think that clause 18 of the bill also poses a problem in terms of the overrepresentation of members of racialized or aboriginal groups, including women, who are detained or accused outside the judicial process, by extending the impact of the overrepresentation to biological relatives. That seems to me to be unacceptable discrimination. Thank you.
[English]
Senator Batters: On this, I would note that throughout the study of this bill we heard from a number of witnesses who talked about the significant restrictions that are contained in this bill to limit familial searching. First, it has to be a convicted offender. It’s limited to crimes that are punishable by a maximum sentence of 14 years or more and restricted to cases of emergency or where other investigative methods have been used in vain. That’s a very important distinction here. As well, we heard from some witnesses from some of these vulnerable communities. I remember asking one of the witnesses about this, I believe from the Native Women’s Association. They expressed that this could very much assist in the arrest of people who have hurt and killed Indigenous women and girls.
As well, we’ve talked about some other very high-profile cases where DNA helped to find people not guilty after many years, including David Milgaard. I think that’s important in this whole thing. It’s very restricted because it’s noted to be something that’s kind of new here. However, it’s used in many states, including in New York and in California, two of the biggest states in the United States.
The Chair: Thank you, Senator Batters. Other interventions? Senator Carignan, it’s your bill. You have the last word on this, if you wish.
[Translation]
Senator Carignan: No, it is no longer my bill.
[English]
The Chair: This is a motion on whether or not clause 18 shall carry. Those in favour of clause 18?
Some Hon. Senators: Agreed.
An Hon. Senator: No.
The Chair: We’ll do a roll-call vote.
Ms. Gajic: The Honourable Senator Cotter?
Senator Cotter: No.
Ms. Gajic: The Honourable Senator Batters?
Senator Batters: Yes.
Ms. Gajic: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Gajic: The Honourable Senator Clement?
Senator Clement: No.
Ms. Gajic: The Honourable Senator Dupuis?
Senator Dupuis: No.
Ms. Gajic: The Honourable Senator Jaffer?
Senator Jaffer: No.
Ms. Gajic: The Honourable Senator Klyne?
Senator Klyne: No.
Ms. Gajic: The Honourable Senator Pate?
Senator Pate: No.
Ms. Gajic: The Honourable Senator Patterson?
Senator D. Patterson: Yes.
Ms. Gajic: The Honourable Senator Prosper?
Senator Prosper: No.
Ms. Gajic: The Honourable Senator Simons?
Senator Simons: No.
Ms. Gajic: Yeas, 3; nays, 8.
The Chair: I declare clause 18 defeated.
Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 20 carry? Senator Simons, you have a proposed amendment.
Senator Simons: I have an amendment and I will read it.
The Chair: For those who are following the paper, this is PS-S231-20-8-39.
Senator Simons: I move:
That Bill S-231 be amended in clause 20, on page 8, by replacing lines 39 to 41 with the following:
“(b) the person has no other findings of guilt or discharges for a designated offence or”.
This is the final removal of the lines about “not criminally responsible” to keep parallel. This is the consequential amendment to other amendments.
The Chair: Can your previous arguments apply to this?
Senator Simons: Yes.
The Chair: Other comments or interventions on this point? All those in favour, then, of the amendment?
Hon. Senators: Agreed.
An Hon. Senator: No.
The Chair: Is on division satisfactory here, or would you like a roll-call vote?
An Hon. Senator: On division.
The Chair: The amendment is adopted on division.
Shall clause 20 as amended carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 21 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 23 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 24 carry? Senator Clement, you have an amendment to this clause. This is BC-S231-24-9-19.
Senator Clement: I move:
That Bill S-231 be amended in clause 24, on page 9, by replacing line 19 with the following:
“Act, with specific analysis of the inculpatory and exculpatory effects that DNA sampling have had on Indigenous, Black and racialized populations.”.
In the context of a review — and the review is quite appropriate always — I would like to be more specific.
I’m mindful and respectful of the fact that the Native Women’s Association has testified that they are in support of this bill. It’s quite painful to hear that testimony and to see that Indigenous women are living in that intersectionality between being victims and overrepresented as such, but also overrepresented in the prison population. This idea that DNA can be used to finally treat Indigenous victims, Indigenous women who are missing and murdered, and that we can use DNA to go further — to be respectful, to investigate appropriately — is a powerful, powerful thing.
At the same time, there is a flip side, and this is where we want to make sure that we’re capturing the fact that there is this overrepresentation and systemic discrimination and that it involves Indigenous people, Black men, Black women and racialized people.
This is my argument to include, be more specific and spell out exactly that we’re also talking about Black and racialized populations.
The Chair: Are there other comments or interventions with respect to this amendment?
Hearing none, all those in favour of the amendment, say “yea.” All those opposed? On division?
An Hon. Senator: On division.
The Chair: The amendment is adopted, on division.
Shall clause 24 as amended carry? Carried.
Senator Boisvenu, you have a proposed new clause, clause 24.1.
[Translation]
Senator Boisvenu: As Senator Carignan confirmed, this bill no longer makes much sense, so I withdraw my amendment.
[English]
The Chair: The amendment is withdrawn.
Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Carried.
There is a proposed clause 25.1 from Senator Boisvenu. Is that withdrawn as well, sir, or will you . . .
[Translation]
Senator Boisvenu: It is the same principle, Mr. Chair. To the great disappointment of the victims and the police, I withdraw the amendment.
[English]
The Chair: The contemplated clause 25.1 is withdrawn.
Shall clause 26 carry?
Hon. Senators: Agreed.
The Chair: Carried.
We have now completed all of the meaty, substantial clauses of the bill. We’re going to turn to the concluding questions.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed? Carried.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee, including updating cross-references and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Carried.
Colleagues, does the committee wish to consider appending observations to the report? I think saying “yes” but not having any is tricky, so I think we are in agreement that there will not be observations appended to the report. Is that agreed? No observations? Thank you.
Is it agreed that I report this bill, as amended, to the Senate in both official languages?
Hon. Senators: Agreed.
The Chair: Thank you, colleagues. That concludes the substantive portion of our meeting. I appreciate the challenges this has presented for you, and I appreciate the civility and respect you have shown in the discussions that took place today.
Just before we conclude, without signalling Senator Patterson’s absence from committee next week, he has advised me that this is likely the last committee meeting he will attend during December. That actually means it is the last committee meeting he will attend, at least of this committee, during his tenure as a senator in the Parliament of Canada.
First, on behalf of all of us, I want to extend our thanks and appreciation, not just as senators but also as Canadians, for the contributions he has made to our work and to the work of the people of Canada in his deliberations in this committee and in other places. I have known Dennis longer than he has appreciated, since he was a little bit ahead of me in law school. I’m sorry that what I said kind of acknowledges that you are older than me, Senator Patterson, but not by much. I have always had a great deal of admiration for him during his career before joining the Senate and also here.
I do want to invite Senator Prosper, as a colleague of his in the Canadian Senators Group, to speak, but I want to acknowledge Senator Dupuis first.
[Translation]
Senator Dupuis: Senator Patterson, when I was sworn into the Senate of Canada, we met at Centre Block and discussed a number of things and issues that were of interest to both of us. I must say that it has been a pleasure working with you. I greatly respect your contribution to the Senate of Canada. Thank you.
[English]
Senator Prosper: During my recent involvement, I just want to acknowledge Senator Patterson for reaching out to me personally and really allowing me to feel like there was a place for me in this honourable institution. From what I have understood and learned, his involvement and his promise back when he was elected to create this vast territory of Nunavut — the relationship he has with elders and many in that territory garnered a lot of respect for Senator Patterson.
He worked to make, I believe, nine Indigenous languages entrenched within the Northwest Territories as official languages. He shut down all residential schools within the territory when he was education minister. He certainly has lots of allies, and he played a critical role in the recognition of having section 35 within the Constitution Act, 1982.
Those are but a few of his many accomplishments. I am just so honoured to know you, senator, and I wish you a full and wonderful career after this. Thank you, wela’lioq.
The Chair: We’re doing the short version of what will happen later, just to get it over with, Senator Patterson.
Senator Jaffer: I’m going to speak on a personal level. Senator Patterson and I have worked together for many years, from the Arctic Committee to the National Security Committee and others. One of the things that I really appreciate about you is that you’ve always listened to me and you have always been very kind to me. I will always treasure that. Thank you, Senator Patterson.
Hon. Senators: Hear, hear.
The Chair: If I may say, unless we are able to get the Constitution amended in the next couple of weeks, we might have to do two or three of these things in the next short while. I hope you will indulge me if I highlight that when the opportunity is appropriate.
I think this brings our deliberations today to an end. Thank you, colleagues, once again for your good work in the committee.
(The committee adjourned.)