Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 4 - Evidence

OTTAWA, Thursday, December 2, 1999

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-10, to amend the National Defence Act, the DNA Information Act and the Criminal Code, met this day at 10:45 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: I see a quorum. Welcome and please proceed.

Ms Marian Harymann, Senior Policy Analyst, Law Enforcement Division, Department of the Solicitor General of Canada: I am responsible for the overall management of Bill S-10; as such, I am familiar with all aspects of it. The Department of the Solicitor General is responsible particularly for the amendments to the DNA Identification Act.

Dr. Ron Fourney, Research Scientist, DNA Methods and Data Bank, Central Forensic Laboratory, Royal Canadian Mounted Police: I am a research scientist, but I am also the officer in charge of the National DNA Data Bank. It is my responsibility to make the science work, and to implement, develop, and run the operations of the National DNA Data Bank.

Mr. Michael Zigayer, Senior Legal Counsel, Criminal Law Policy, Department of Justice: I have been involved in the development of all the DNA legislation that has been brought to Parliament -- Bill C-104 in 1995, Bill C-3, and now Bill S-10 -- in terms of the Criminal Code aspects as well as providing legal advice in the development of the data bank legislation.

Mr. Stanley Cohen, Senior Legal Counsel, Human Rights Law Section, Department of Justice: My field is human rights. From the point of view of this committee, it is domestic human rights, with particular regard to the Charter of Rights and Freedoms and the criminal justice process. I appeared before you on Bill C-3. I have been involved in scrutinizing these developments with respect to any Charter implications that there may be.

Ms Jane Harrigan, Commander; Director, Pension and Finance Legal Services, Office of the Legal Advisor, Department of National Defence: I was a member of the National Defence Act amendment team for the previous two years. I was monitoring and assisting the amendment team when they appeared in the Senate before you on Bill C-25. When the fact that we were not included in Bill C-3 was raised, I was put on the project, and I have been working with Marian Harymann and Michael Zigayer ever since. I have stayed with it, even though I have come off of the NDA amendment team.

Mr. John Maguire, Commander, Director of Law/Military Justice Policy and Research, Office of the Judge Advocate General, Department of National Defence: I was a member of the Bill C-25 DNA amendment team and left the team in August to join this directorate. Our directorate has been consulted in the development of this bill. In particular, our concern is the interplay between the bill and the services.

Senator Beaudoin: Under Bill S-10, do people have the same protection they now have under the Criminal Code and the Charter generally, or is this system a little different? We have devoted a lot of time to military justice. It is very important. We have made a lot of progress. How is it possible to compare both systems? For those who fall under Bill S-10, will the same process be the same? Will the same principle apply?

Ms Harrigan: Yes. What we have attempted to do here is, as in Bill C-3, balance privacy safeguards with law enforcement requirements through the inclusion of standards and procedures that are consistent with the Criminal Code as amended by Bill C-3. We have endeavoured to set up a parallel regime.

Senator Beaudoin: It is parallel?

Ms Harrigan: Yes.

Senator Beaudoin: There is already a parallel system of justice. There is military justice and civilian justice. Those two systems are parallel. They are in accordance with our principle of law.

When we apply the same principles to an individual in National Defence, in the end will the protection be exactly the same?

Ms Harrigan: Yes. It has been tailored to fit within the context of the Code of Service Discipline. You must look at the statute that these provisions are going into. For example, in proposed Section 196.14 or proposed Section 196.15, the standards are exactly the same. There is no reference to people being discharged. There is no reference to persons who are convicted under the Young Offenders Act, because anyone being dealt with under the Code of Service Discipline is being convicted under the National Defence Act. What the judge must consider in whether to make an order is the same as in the Criminal Code as amended by Bill C-3.

In terms of privacy issues, those persons who will be dealing with DNA samples and so forth under our system will be subject to the same penalties that civilian police operating under the Criminal Code provisions will be subject to. We have been included in the actual Criminal Code offence provisions with respect to misuse of DNA.

Senator Beaudoin: I am glad to hear that.

Senator Poy: With respect to obtaining the DNA data, is there any age limitation in relation to young offenders? Are young offenders excluded under this proposed legislation with respect to obtaining DNA?

Mr. Zigayer: Under the provisions of the Young Offenders Act, you can seek a warrant to obtain bodily samples from a suspected young offender. Similarly, if the individual is a young offender and is found guilty, the youth court judge has discretion. If the individual is of that age, whatever the cut off is, then the law would apply and the judge would have the discretion in both cases, both at the warrant level and the post finding of guilt level, to make that order.

Senator Poy: Therefore, the age of the young offender does not matter; it will be up to the judge whether to keep the samples when there is a conviction?

Mr. Zigayer: Yes. There is nothing automatic. It is a judge's decision.

Senator Ghitter: Mr. Cohen, where, if at all, in your investigation do you think this proposed legislation would be challengeable under the Charter?

Mr. Cohen: This proposed legislation runs parallel to that which is already in the Criminal Code. There have been challenges to the Criminal Code provisions. Indeed, there was a recent one in the British Columbia Supreme Court. Feeney was a notorious murder case that went up to the Supreme Court of Canada. The case was sent back on a retrial; there was a DNA issue that was raised. All of these provisions were under scrutiny by the court in that case.

There was a well reasoned and lengthy decision written in that case. That decision will canvas the concerns that you are asking me to articulate here. The judge does it far better than I can. You will find in a recent volume of the Criminal Reports; I believe it is Volume 23, 5th series, at Page 74. There you will find the judge examining the legislation, finding it well tailored and balanced, and upholding its constitutionality. I expect that to be the way in which the legislation is ultimately treated.

Senator Ghitter: On the ex parte application, if someone wished to oppose that application prior to the taking of the first DNA sample, what rights does that person have?

Mr. Cohen: Ex parte proceedings are proceedings held in the absence of counsel representing the accused person. Ex parte proceedings were one of the first objections considered in R. v. Feeney. While the judge felt that the ex parte process need not be an inevitable incident, a judge considering a warrant application could ask for representations from counsel representing an accused person, but it is not necessary. It would be the prerogative of the judge who is considering the application to determine whether to broaden out the hearing and consider whether other perspectives ought to be heard at the point of the application.

As far as the judge who heard the Feeney case is concerned, the ex parte procedure was not constitutionally defective.

Senator Ghitter: What level was the Feeney case at?

Mr. Cohen: At the British Columbia Supreme Court level.

Senator Ghitter: Has it been appealed?

Mr. Zigayer: Yes, the case has been appealed. The appeal has not been argued. The decision in R. v. Feeney essentially mirrored similar decisions on the same point, ex parte, that have been rendered by courts across the country. One such case has been argued: that is, F(S) v. Canada (Attorney General). This judgment was appealed and argued recently in the Ontario Court of Appeal. Obviously, we feel confident that that legislation will be upheld, based on the judgments of all the other courts that have spoken, including Feeney.

All search warrants are issued ex parte, in order to preserve the evidence -- so the evidence is not destroyed. DNA cannot be destroyed but it can certainly be carried out of the country. It is for that reason the warrant scheme, the ex parte scheme, has been upheld.

There is some discussion about what to do if an individual is in detention <#0107> not going anywhere, in other words. Does the ex parte continue to apply, or is it appropriate to give notice and allow the respondent to come forth at the hearing on whether the warrant should be issued. This was a policy decision by the government.

We will have to wait and see how F(S) turns out. This was one of the issues that was raised by Judge Hill at the trial level. We will see what the Ontario Court of Appeal has to say on this.

Mr. Cohen: The legislation has had some support in arbiter from the Supreme Court of Canada in the R. v. Stillman case. You will find there that Mr. Justice Cory, in examining the provisions, stated that they seem to be in line with constitutional norms.

For your own interest, you will find a decision considering constitutionality of some of the DNA scheme in Brighteyes by Mr. Justice Murray of the Alberta Court of Queen's Bench.

Senator Ghitter: Why does it have to be ex parte? This is a little different than a search warrant. It is an individual's person. What is the reason for the ex parte? Why would one not give notice to the accused -- or is she or she accused at this point? The individual may in fact not be accused at this time. It is part of the accumulation of the evidence?

Mr. Zigayer: Simply because the individual could take off.

If the person is in custody, then that is different. In that case, there is no ability to escape or to obstruct justice. However, in the normal course of obtaining a search warrant -- and this is essentially a search warrant to obtain or seek things that are part of the body -- you want to avoid the opportunity for the individual to effect the course of justice.

Senator Moore: Ms Harymann, the Solicitor General yesterday told us that things looked like they were on track and that the data bank will be in operation in June 2000, as originally stated last year when we were considering the other bill.

Given that, and with respect to the draft regulations dealing with the DNA data bank advisory committee, have you started to fill out the committee? Various disciplines are to be represented. Are you soliciting committee members from all regions of the country?

Ms Harymann: The RCMP is responsible for the establishment of the committee. The Commissioner of the RCMP will be appointing members to the committee. It is intended that it will be formed before the data bank is officially implemented so that it may provide advice on implementation.

I will ask Dr. Fourney, who is directly involved in the setting up of this committee, to address your question more thoroughly.

Senator Moore: In my opinion, it is important that the committee be in place, to start to set up the framework before the bank is there. Would you not agree?

Mr. Fourney: Yes. We have worked extensively to form a very good committee. It will be comprised of seven individuals, from law and judiciary, privacy, medical genetics, population biology, biomedical ethics, policing, and myself as a technical representative for the actual science behind it.

Until proclamation, we cannot move forward to officially appoint these individuals. We have approached a number of individuals with renowned international expertise. They seem favourable to the idea and excited to be a member of the committee.

We are hoping to have an official meeting. However, if not, then we intend to have an orientation workshop to have these individuals attuned to the various aspects of the science and some of the legal questions. We are working on this diligently, as we speak.

Senator Moore: When would you envisage having the workshop meeting?

Mr. Fourney: About the third week of January.

Senator Moore: What provinces are the prospective members from?

Mr. Fourney: From across Canada, and one international member as well.

Senator Poy: Dr. Fourney, when you set up the data bank, will it be retroactive to persons already convicted of crimes or to those who are already in prison? Would their samples be taken immediately?

Mr. Fourney: Yes.

Senator Poy: Everybody in prison will have their data stored; correct?

Mr. Zigayer: There is a very limited retroactive scheme. It is in the Criminal Code. It was enacted in Bill C-3. Only three categories of offenders will be brought within it. One category is the dangerous offenders. They are the persons who essentially will be in prison for the rest of their lives. Another category is people who have committed more than one murder at different times. The third category is persons who have been convicted of more than one sexual offence -- sexual assault, aggravated sexual assault. The total number of individuals that we have identified is around 1,700.

Ms Harymann: The number changes daily as some offenders' sentences have been completed. However, the last number we had was about 2,400.

Senator Poy: In the future though, from the time the data bank is set up, the categories will change, right? It will include more criminals than you just mentioned.

Mr. Zigayer: That is just the retroactive scheme. Going forward, anyone convicted of a designated offence may be required to provide bodily substances and have their DNA profile included in the data bank. It is a question for the judge to determine. The judge has the discretion, after the person has been convicted, taking into account the record of the accused, the circumstances of the offence, and other factors, to determine whether it is appropriate to make the order in that case.

For example, break and enter is a secondary designated offence. If a young person is convicted of break and enter, the judge in that case may decline to make the order. In fact, since it is a secondary offence, it is at the discretion of the provincial Crown to make the application for that order. The provincial Crown may determine that it is not an appropriate case.

On the other hand, sexual assault is a primary designated offence. In that type of case, the judge will make the order, unless defence counsel, the accused, demonstrates that it would be inappropriate to make that order.

Therefore, there will be a combination. The people who commit primary designated offences are more than likely to be included in the data bank. As to those who commit secondary offences, there will be a discretion for the Crown to make the application and a discretion for the judge to decide whether to make the order.

The RCMP has estimated how many people may be included yearly.

Ms Harymann: In the first year of the operation of the data bank, we anticipate that there will be about 28,000 samples provided for the data bank. That is assuming that we capture 100 per cent of those convicted of primary offences and 10 per cent of those convicted of secondary offences, bearing in mind that DNA evidence is less likely to be found at the crime scene of a secondary offence. The information may be less useful in those cases.

Senator Poy: What happens to criminals who have been given anonymity, for example, Karla Homolka? When she is released, she can have a new profile, be a different person. Supposing you have her DNA sample, what happens to her?

Mr. Zigayer: That is a very good question. The DNA will not change, but the DNA in Dr. Fourney's DNA data bank has a linkage to the fingerprints in the criminal history data bank that the RCMP maintains nationally. Dr. Fourney will never know the identity, the name and other information pertaining to that individual.

However, there will a bar code that matches a bar code in the fingerprint identification. To go back to your example, if Homolka receives a new identify, is now known as, say, Jones, that will be recorded in the fingerprint repository. They will not lose the linkage.

We do have someone here from the RCMP who knows about the operation of the fingerprint data bank.

The Chairman: Perhaps we can invite that gentleman to the table to give us further information.

Mr. Lee Fraser, Superintendent, Officer in Charge, Forensic Identification Services, Royal Canadian Mounted Police: I am responsible for the forensic program that deals with the crime scene aspect of police work. Additionally, although I am responsible for the fingerprint branch, we look after the criminal records of convicted offenders.

To answer your question, it would be the same as a person who received a pardon. The information would be there, but there are very strict rules as to releasing or turning any of that information over. If an identification was made on the DNA data bank side, it would come over to the criminal records side. We would be able to link the DNA number to a criminal dossier number.

The information is in a secured vault. Two people must enter the vault. If a pardon, or something of that nature, is involved, the information is looked at and then government is advised. There are stringent rules governing what can be released on persons who have received a pardon. The same would apply to your example.

Senator Poy: Can fingerprints be changed?

Mr. Fraser: Fingerprints can only be changed by severe scar.

A person could plastic surgery. However, one must go through two layers of skin to do that. The skin rejuvenates itself. John Dillinger, a notorious criminal, tried that. The skin was graphed off his hands. However, the whole hand has fingers ridge detail so an individual would have to change all of it. We primarily use the fingertips. However, what John Dillinger did not work for him; we were still able to identify him by looking at other areas. It would be extremely difficult to do use plastic surgery to fool the system.

Senator Cools: Senator Poy was asking about people who have been immunized from prosecution or have completed certain kinds of plea agreements. You stated that they are treated the same as people who have been pardoned. My understanding of those individuals is that the record remains open, in the event they commit a future crime, that they are not treated as pardoned people, unless they are pardoned of course. Could you clarify that?

Mr. Fraser: I am not sure as to the correct answer. Legislators, lawyers, and judges would make decisions as to what to do with that kind of information, if it were available. If there were an order to remove that information from the fingerprint data base, it would be removed, and then we start anew. In the case of pardons, the information is not removed; however, there are many procedures to go through.

For a change of identity, however, I am not sure.

Senator Poy: That is not the same as a pardon?

Mr. Fraser: No.

Senator Joyal: Would it be possible to provide a copy of the criminal law report article to our research people, so we could have time to look into it?

The Chairman: Mr. Cohen you will provide the clerk with a copy. We will see that you receive it, Senator Joyal.

Senator Joyal: Clause 13.1 of the bill, on page 16, refers to the annual report that the RCMP Commissioner must submit to the Solicitor General, who in turn must table it in each House of Parliament within a prescribed time. Clause 13.1 refers specifically to "a report on the operations of the national DNA data bank."

A prime concern of the members of the committee and the Senate as a whole as an institution is to ensure that we, as parliamentarians, are informed, as are our colleagues in the other place, of the operation of the bank in conformity with the Charter and the privacy protection that is afforded under the legislation.

I am wondering if the wording in the report would include automatically a review of the cases that would have been decided or those that would be pending at that time. That information should be included in the report, so that we will have the operational details of the bank, how it operates, the difficulties, the achievements, how many requests there have been <#0107> the usual administrative details.

On the other hand, the attention of parliamentarians would be drawn to the issues that relate to the Charter of Rights and to the protection of privacy, issues that are a major concern of the Senate and of this committee in particular. Should the proposal that has been put forward by senators from both sides to have a Senate committee deal with human rights not materialize, at least the attention of everyone would be drawn to those fundamental issues that are of concern to everyone around the table, or whoever will sit around the table in the future. The operation of the DNA data bank will remain a recurring interest of future parliamentarians.

Ms Harymann: It certainly was our intention to include a review of relevant case law. At this time, we have identified a number of administrative details that we feel would be important to include in the annual report -- for example, the compliance with the privacy provisions.

Regarding your concerns about Charter and privacy issues, it is important to remember that the Privacy Commissioner will have a representative on the DNA data bank advisory committee. That committee will be required to provide its own report. We would like to reflect that report within the RCMP Commissioner's annual report.

Senator Joyal: That deals with the issue of privacy, but the fundamental Charters issues still exist. I am concerned that this is laid down as a matter of public interest. Should we deal with that issue in the regulations? Should the regulations be more specific? Should the bill be more specific in terms of what we need in that regard?

I raise those questions, but I have no specific proposals to put forward this morning.

If we are to do a follow-up -- and we raised the issue under your chairmanship in the last discussion we had here. We suggested a five year review. Under a five-year period, if a case has been to court with that period of time all appeals have been spinned out. We are then in a position to react in terms of legislative initiative. That is why I am concerned about the way we are approaching the issue of the report. As parliamentarians, our main work tool remains to follow up the operation and the impact of the legislation on human rights and fundamental rights. As such, I still have some questions about how we will deal with that issue and the way it is addressed in that bill <#0107> not that the bill is poor. The bill is a major advancement of our pre-occupation. However, I have concerns about how the institutionalized follow up, for whoever must sit around the table in future years, will be dealt with.

The Chairman: You are making a good point, senator. The five-year review is still part of this proposed legislation. The annual presentation of a report is in addition to that. It is a type of warning system; it has the potential to set up warning flags at yearly intervals as we go along.

Ms Harymann: The provision for the five-year review is the most comprehensive provision we could have drafted. It indicates that we will do a review of the provisions and operation of this proposed act, which includes any provision of the act as well as the operation of the regulations.

Senator Joyal: It is general without being specific. Sometimes it is better not to be precise, to leave it open. However, if you want to guarantee the end result, it is preferable sometimes to spell out some aspects of it: for example, "without limiting the aforesaid words it includes a review of the Charter."

I will leave the issue on the table. I would like to read the current law report and continue to reflect on that. I will take the opportunity to read the cases that our witnesses referred to this morning.

At a previous time, we discussed the cost of the implementation of the data bank. It seems that the cost is higher than one would have expected at the beginning. What happened to make the budget go over?

Mr. Fourney: First of all, I would like to think that we are on budget. You may ask what that means. It is important to realize that we dealt with an operational facility that was highly flexible in terms of the number of samples coming in. Marian Harymann has indicated that if we receive 10 per cent of the secondary offences it will give us 30,000 samples. In reality, we would get 20 or 30 per cent of the secondary offences.

I came into work one Monday morning and I noticed that what I had been working on over the last two years would be over budget. I could not figure out why it was over budget either. However, in the event that they had additional samples put in the data bank, they quoted that it would cost more -- and that is probably true. As well, when we went to the Treasury Board for initial funding, it did not include some of the implementation costs. The RCMP has found those costs within their own budget.

To fit the time frame of our plans for being operational in June, we have put an awful lot of effort into this. Anyone who has done any planning or worked on a project knows that, if you do not have an end date, anything is possible over a long period of time. We only had 18 months, and we had to develop a lot of technology, implementation. We moved into a brand new building, we are hiring 31 people. Some of those costs have been absorbed by the RCMP.

We are still looking at an operational cost in the range of $5 million to $6 million per year. That is operational cost. To actually get there, we have had to put in additional funds for implementation.

I have a dedicated team of consultants working on this, experts in the field. Approximately $2 million has been put into the implementation cost to make this happen on the June date -- that was an RCMP cost -- and there is some operational equipment that is a one-time purchase that was also obtained at that time. I am confident that we will be running an operational facility on budget.

Also, we have looked at and reprocessed the entire way data banks are done. We have come up with an efficient and effective means. By so doing, there will be reduction in operational cost over time. At this point, my project managers tell me that we are 50 per cent completed and we are about 50 per cent expended. So unless someone tells me differently, I will tell you that we are on budget at this time.

Mr. Zigayer: I would like to complete a response to Senator Joyal. We have already completed one of the reports that were requested of us under the legislation. That report did include a review of the case law up to that time. That was filed about a year ago.

Suppose a court rules that the ex parte process is inappropriate in respect of the retroactive scheme -- those people who are the dangerous offenders, the double murderers, the double sexual offenders, who are in custody in federal penitentiaries. If the court decides that a particular individual does not fall within the normal scope and thus requires us to have the person represented at our application, that would be a significant judgment. It would be taken up on appeal. However, the point is that we would report that to you.

The Chairman: Do you have copies of that report?

Mr. Zigayer: It was tabled in Parliament in 1997.

The Chairman: We will obtain copies for the members of the committee.

Mr. Zigayer: It was the committee in the other place that put forward the request that we report three times, once immediately, once prior to the end of this Parliament, and once at five years. We reported in 1997. That document is a public document. I believe it was on the Web site for a time.

The Chairman: If you let us know where and when, we will get copies for members of the committee.

Mr. Zigayer: Senator Joyal, I also wish to add that we would be pleased to provide you with copies of all the judgments that have touched on this legislation so far. It is only the warrant scheme that has been open to discussion. We could also provide you with a copy of a paper I delivered at Osgoode Hall Law School in October. That paper essentially walks you through all this litigation, with the exception of two or three recent cases.

Senator Beaudoin: You referred to the Stillman case, where Mr. Justice Cory made remarks of a very general application. He went so far as to say that the disposition of the Criminal Code on DNA does respect the Charter of Rights and Freedom -- which is a very good start. It is still arbiter dictum.

The Feeney case is the first decision to deal directly with DNA as respectful of the Charter of Rights and Freedoms. That case was ordered by the Supreme Court -- a 5-4 decision -- and then there was a trial. In that case they stated that the test of DNA respects the Charter of Rights and Freedoms.

Senator Fraser yesterday referred to the case of a doctor who twice altered a blood sample. What kind of protection can we have?

Mr. Fourney: I have with me some news reports that refer to this. The information was on the Internet. The first one here is from the National Post. I have them from several newspapers. They describe what this doctor admitted to doing in the course of the trial. I will distribute it to anyone who wants.

There are three news reports there. The first refers to the evidence, and the doctor talks about how he did it.

Senator Beaudoin: Are we duly protected for a case like that?

Mr. Zigayer: This case illustrates the necessity of maintaining the three types of bodily substances you may obtain. This doctor anticipated that the police would come asking for blood for a DNA analysis. He took the blood himself. He said, "I do not trust the person you have brought because I have seen what that person does in terms of taking a sample. I will do it myself." Therefore, the doctor took the blood sample and gave it to the police. When the DNA analysis was done, the doctor was excluded because he did not match with the seminal fluid found on the clothes worn by the victim at the time of the crime.

Ultimately, the police obtained other evidence that had been derived from this suspect. It did not match the first blood. Therefore, the police went back to court to ask for a new warrant for hair, so that they would not be fooled again. What I have here is an application for that warrant.

You can see that it tells the whole history of the investigation. It tells us that the doctor assaulted the victim in the hospital. The victim came to the hospital because she was had emotional upset. The doctor gave her a tranquillizer and put her into a room. The victim was not unconscious, but she was unable to feel, to respond to even speak, and that is when the doctor sexually assaulted her. The first time he voluntarily provided the blood. The policemen were suspicious.

Mr. Fourney: First of all, I do not understand the legal parameters. As a scientist, I normally work with facts. You must realize the circumstances of the case. The gentleman involved here actually put what is called a Penrose drip, a 15 centimetre tube, into his arm. To do that, he to make a cut and insert a tube. He had to draw blood from another patient and then put the blood into the tube. There are many technicalities here. I would suggest that it would be difficult for the average person on the street to do this.

Today, we do a finger prick, similar to what diabetics do to check their blood sugar. They prick their finger and put the blood directly on the paper for a reading. One of the reasons we like this method is that it is a direct demonstration that the blood from your finger is going on to the paper. It is a visual demonstration; the continuity is well intact. That is the preferred sample for us in the national data bank and in most law enforcement agencies in Canada, for a number of reasons.

In my presentation last year, I mentioned that that was the type of control sample that was used in Swissair to make identification on many of the victims. We identified them by collecting samples from many of their relatives. It was very fast and very effective. Not much blood is needed, and the paper it is placed on is specially processed, one that protects the sample. The paper acts as an archival agent. More important, the chemicals actually neutralize bacterial and viral agents, so the police officer taking the sample is protected.

Let me say, however, that we do not want to take a venous blood sample. As well, in samples we have taken in the past -- I am not particularly partial to having my hair yanked out. On the other hand, buccal swabs can be a problem. It involves scraping the inside of the mouth. Generally, it works; however, the DNA data bank in the forensic scientist services encountered situations where inmates swapped saliva.

The most effective sample for us is a blood sample. We need an amount that would fit on the head of a pencil. It is archivally stable and a very secure process. The situation that occurred in Saskatchewan is unique.

Senator Fraser: There is obviously no limit to human ingenuity. A variety of avenues seems to me to be a good idea.

The reference to Ms Homolka made me wonder what would happen in cases -- and whether there would be many cases -- where people who committed offences that would normally place them into the DNA data bank engaged in some kind of plea bargaining. They may find themselves being charged, and in due course convicted, only of offences that would not place them in the data bank. What happens? We know they did it. The police presumably know they did it, but they agree to drop it.

Mr. Zigayer: This is an important question. It is a question that a group of prosecutors and a group of us from Ottawa are discussing. A working group has been established under the federal-provincial heads of prosecution. I chair it that group. We are looking at implementation issues. This has to do with plea bargaining policy, or plea negotiation policy, as opposed to what would be the appropriate situation in which to make an application for a secondary designated offence.

This will be a factor for provincial attorneys-general on which to consider providing assistance or guidance to their prosecutors. Suppose you are offered a guilty plea by an offender, the effect of which is to move them from the primary designated offence list to the secondary one. Do you take it? Or do you say: "I will accept that if you undertake not to oppose the application for a DNA order because it is appropriate to do it." There may be a reason that this plea bargain is offered. Maybe that is it. It is important for prosecutors to be open to this, and not to look a gift horse in the mouth. You do want to accept guilty pleas because in the administration of justice it will save money and jury time; it is more cost-effective. On the other hand, it is not every case where it will be appropriate.

Senator Fraser: Second, on the reporting of cases affecting human rights or, indeed, other cases, you have the ability to provide such reports. Would it be appropriate for the regulations to say that the commissioner's annual report shall include a report on the preceding years' case law or cases in progress? I am not talking about building an entire encyclopedia, so that after 10 years we will have a law library arriving at our desks; I am referring to just what happened this year.

Mr. Zigayer: In the normal course, we will be monitoring the implementation of the legislation and watching these cases, so we will be able to include that in our report. Whether or not you ask the Commissioner of the RCMP and the Solicitor General to modify their regulations to specify it, we will be keeping track of these cases. My colleagues in our regional offices will be involved in defending the constitutionality of the legislation. We do not intervene in every case, but we do, certainly, to defend its constitutionality.

Senator Fraser: That might be helpful. For people who come fresh to the this table, the subject matter is terribly complicated. It would be helpful to have that written into the regulations.

Ms Harymann: That is an amendment we could make to the draft regulations.


Senator Nolin: Mr. Maguire, in the enforcement of military justice, are there, as in civil criminal law, verdicts of not guilty by reason of mental disorder?


Does this verdict of not guilty by mental disorder exist in military justice?

Mr. Maguire: Yes.

Senator Nolin: Why is there no parallel section in Bill S-10 to that which is in the Criminal Code?

Mr. Zigayer: Under Bill C-3, the civilian scheme, there is no allowance, no provision for a post-conviction order or post found-not-guilty-by-reason-of-mental-disorder order, so that individual will not be included in the data bank. That issue is being reviewed. We are consulting with our provincial colleagues on that. It may be the subject of review at the five-year review or at some point between now and then.

In fact, there was a resolution on this point adopted at the Uniform Law Conference last summer. The vast majority of the delegates voted in favour of an amendment that would allow for the taking of DNA samples from these persons who have not been convicted. First, you would have to change the name of the convicted offender index or say it could also contain the DNA profiles of these individuals -- found not guilty or not convicted.

That is an issue that we are alive to, and we are discussing it with our provincial colleagues and our colleagues here in Ottawa.

Senator Cools: I want to thank the witnesses for their excellent testimony, especially that of the forensic individual. In one of my previous incarnations, I was a lab technician at university when I was studying biochemistry, so I understand the difficulties of proving things forensically.

The Chairman: You missed the short course we had in biochemistry with the last bill.

Senator Cools: Earlier in the testimony, Ms Harymann, said that 1,700 to 2,400 of these kinds of offenders have been identified. Is this across the country, or is this within the military justice system?

Ms Harymann: That would be across the country. There are no retroactive offenders from the military justice system. The 28,000 cases that we anticipate from across the country for the prospective scheme does not include military offenders that would be convicted under their system.

Senator Cools: How many individuals or offenders are actually processed annually by the military justice system?

Mr. Maguire: Our numbers are comparatively small, which is probably expected, given that we only have 60,000 members in the Canadian Forces. By the end of 1999, we will have prosecuted 50 individuals by courts martial. Of those individuals, using the dichotomy that is in this bill for designated offences, we estimate that approximately six of those would have resulted in post-conviction DNA sampling.

The number of 50 in 1999 is actually high compared to the last three or four years. In 1998, there were 44 courts martial. In 1997, there were 39. In the previous three years, the average was 25 to 40. At an average of six per year, I do not expect that that would even double. Keeping in mind that we now have jurisdiction over sexual assault convictions, we do not expect that number to double.

Between August 3, 1998 and August 30, 1999, there were 965 summary trial cases. Those involve a lower threshold of offences, a threshold that would be below that for designated offences. These are disciplinary-type offences -- conduct-related. An example would be an individual who did not show up for work on time and who was charged for being absent without leave. Those types of offences would not influence the numbers. We do not expect the numbers to be high, but we wanted to be part of the process because occasionally we do have serious cases, as the Somalia circumstances suggest.

Senator Cools: Are most of these prosecutions here in Canada, or are some of them across the world?

Mr. Maguire: This is across Canada. It is a fully portable system. This would include cases dealt with outside Canada. We have had courts martial overseas in the last year.

Senator Cools: If a military person had committed an offence in another country, the military used to go to that country and obtain the ability to prosecute that individual themselves. Does that still occur?

Mr. Maguire: We have agreements with most of our NATO allies. We also negotiate status-of-forces agreements with other countries where we are deployed. We did that during the Gulf War.

We will try to assume jurisdiction over any member of the forces or anyone else who will become subject to the Code of Service Discipline. There is a rationale for that, which is that they are dealt with under Canadian law, the Charter applies.

I was overseas during the Gulf War, and this was certainly a concern in certain countries.

Senator Cools: Mr. Zigayer, in describing a particular case earlier, you talked about the extraordinary difficulties the prosecution had to go through to receive a new warrant. When you spoke, you sounded as though those difficulties were enormous. Could you give us a short summary of why it is so difficult for the prosecution to do their job?

Mr. Zigayer: The system is such that a police officer appears in front of a justice of the peace or, in this case, a provincial court judge and briefly summarizes the circumstances. The warrant is issued.

Today, we are required to provide full disclosure of what has happened in the course of the investigation. A shortcut often is to provide copies of the entire police file. That is what this is: handwritten notes from the police file, with a summary, which is essentially a narrative to assist the judicial officer who is issuing the warrant. It is not extraordinary. It is part of the job. The judge then is in a much better position to exercise his judicial discretion whether to issue the warrant.

There have been other cases where a first warrant was obtained and the bodily substances were taken from the individual. At the preliminary inquiry, the Crown then discovered that, in executing that warrant, the police failed to respect some of the provisions that exist in the Criminal Code that deal with protection of privacy. The code is very clear. It stipulates that a police officer must inform the accused of several things.

This happened to be a police officer who had many years experience and who did not pay any attention to that. The Crown, at the preliminary inquiry, appreciated that this evidence would not be admissible at trial, so the Crown instructed the police officers to obtain a new warrant and do it right.

To convince the judge to issue a second warrant, the whole of the circumstances must be outlined. For example, why are you intruding on this individual's privacy rights a second time? All the circumstances can to be outlined. A second warrant was issued in that case. At trial, the judge commented that it was a good thing to have applied for the second warrant because he would have excluded the evidence. This information is included in R. vs. Kyllo et al, which is referred to in the materials there where I refer to multiple warrants. It is a multiple sampling of the individual to satisfy the judge as to why it is that you will obtain a bodily substance from an individual who voluntarily provided it to you the first time. You must explain it. That is part of the police responsibility today. The judges want to exercise their discretion appropriately.

Senator Fraser: My recollection is that if a major offence, murder or something very serious, is committed by a member of the Armed Forces in Canada, it is handed over to the civilian justice system for investigation and prosecution. Is that true?

Mr. Maguire: Your recollection is correct. In Canada, the Canadian Forces would have no jurisdiction over certain offences, and that would include murder, manslaughter, and child abduction. In those cases, jurisdiction would be handed over. In other offences, jurisdiction in Canada is concurrent, which means we might assume jurisdiction if there were a significant connection with the military, but we may not. The matter may be dealt with in a civilian court system.

Senator Fraser: So the statistics you cited earlier included only those people who have military trials?

Mr. Maguire: Yes. Any individual dealt with in a civilian court context would be reflected in the statistics in the processing of matters.

Senator Fraser: We do not need this bill to cover them.

Mr. Maguire: There is a distinction between inside and outside of Canada. Outside Canada, we do have jurisdiction over murder and the other categories of offences I referred to.

The Chairman: Mr. Cohen, on page 19 of this bill, they have removed the bit about a person being able to state his preference as to the bodily substance being taken. We have talked about that today. I can understand the reasons behind it.

Do you have any human rights concerns about that?

Mr. Cohen: I am aware of that issue. I do not believe that there is anything in the criminal law. Once you look at the case I referred to earlier, it seems to indicate that there is nothing in the jurisprudence as well that exists that would give a person a preference over the procedure to be used to take a sample.

I do not believe that there is anything in there that would offend the Charter, provided that there is appropriate respect for privacy and appropriate respect for human and bodily dignity.

Any case can present its own facts. If there is some manner of execution that does offend, that can raise a Charter application. It is all about the way in which the sample is obtained.

The Chairman: Thank you for joining us today.

The committee adjourned.