Proceedings of the Standing Senate Committee on
Issue 7 - Evidence
OTTAWA, Wednesday, December 15, 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 Identification
Act and the Criminal Code, met this day at 3:45 p.m. to consider the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Before we hear from our witnesses, I will certain documents into
the record. We have received another letter from the Solicitor General. We are
working on the French translation of the second paragraph of the original
letter. He has suggested, as we had agreed last week, to use the words "examen
des décisions judiciaires" as the translation. That should be
agreeable to the committee.
I also have a response to the letter I sent to the Privacy Commissioner. Last
Thursday I wrote to him about the committee's concerns regarding the Solicitor
General's proposed motions to amend Bill S-10. I will read the letter into the
record. The letter states:
Dear Senator Milne:
Thank you for your letter of December 9, 1999, asking for my comments on the
Government's proposed amendments to Bill S-10.
The Government is proposing that peace officers be authorized to take
fingerprints at the same time that they take DNA samples from people after
conviction. The intent, I gather, is to ensure that they are in fact taking the
DNA sample from the right person.
If the national forensic DNA data bank is to have any usefulness, the accuracy
and integrity of the information in it obviously has to be ensured. Matching a
person's fingerprints with those already on file is likely to ensure that the
right person's DNA ends up in the convicted offenders index.
But I can well appreciate the committee's concerns. Biometric identification
systems such as fingerprinting are always something of a double-edged sword.
There is little virtue in allowing one person to be confused with another,
particularly when, as with the criminal justice system, the stakes are high. On
the other hand, elaborate and accurate identification systems can be, and have
been historically, part and parcel of the construction of dossiers on citizens.
My reaction to these proposed amendments is that, in most cases, they will
contribute to the accurate and integrity of the DNA data bank without a
detrimental effect on privacy. If fingerprints have already been taken at the
time of arrest or charge, to take them again is unlikely to be considered an
invasion of privacy. The majority of the cases for which samples are or may be
taken after conviction are indictable offences, for which the person will have
already been fingerprinted. I have some concern about what is done with the
fingerprints -- I would not want to see a parallel system of dossiers built up
on convicted offenders, in addition to both CPIC and the DNA data bank -- but,
other than that, this aspect of the amendment does not seem to be problematic.
Where I do have a greater concern is with those convicted of designated offences
where the Crown has proceeded by way of summary conviction, rather than
indictment. In such cases, it is unlikely that fingerprints would have been
taken previously. (Only in hybrid cases will it have been done, and the
fingerprints are not always retained, depending on jurisdiction, after the Crown
elects to proceed by summary conviction.) In such cases, the proposed
amendments would permit fingerprints to be taken where no authority exists at
present under the Identification of Criminals Act. This strikes me as
particularly troubling since the stated reason for taking the fingerprints --
certifying identity -- cannot be realized when there are no existing
fingerprints on file against which to compare. Furthermore, the amendments are
silent on what happens to the fingerprints after they are taken. Is the
proposal to enter them into CPIC? If so, we will have added to CPIC, through the
back door, those convicted of summary conviction offences. If not, what will be
done with the fingerprints? Is the Government proposing a new system of
dossiers on citizens?
I should add that I have additional concerns about the seven "specifically
military" secondary designated offences under the proposed amendments to
the National Defence Act. As I understand it, there is currently no authority
to take fingerprints for these offences. The Government's proposed amendments
would introduce that authority where it did not exist before, although I am not
sure that such is the intention. Again, if there are no fingerprints to compare
with the convicted offender's, I do not see the usefulness of taking them at
the time of taking a DNA sample.
To summarize, it would seem self-evident that the Government's role of ensuring
the integrity of the national DNA data bank is in all our interests, and is not
per se damaging to privacy. I would like, however, to see some clarification
with respect to the above issues, and if necessary, some refinement of the
Once again I appreciate the opportunity to comment on the issues before your
We have also received correspondence from the Barreau du Québec, and I
believe you all have a copy of it. I will summarize it by saying that they do
not have any great problems with this, although they do have a few
reservations. They do not want to appear before the committee, although they
have been invited to do so.
Senator Nolin: They are basically restating the position they took on Bill C-3.
The Chairman: That is correct. Their position has not changed.
Senator Nolin: They are concerned, however, about the list of seven infractions.
The Chairman: Yes, the seven secondary offences.
Senator Nolin: They were concerned about the length of the list in Bill C-3.
That is probably the reason for seven more.
The Chairman: That is correct.
With that, I will turn to our witnesses. Perhaps they could respond to the
Privacy Commissioner's concerns.
Mr. Michael Zigayer, Senior Legal Counsel, Criminal Law Policy Section,
Department of Justice: Madam chair, it is a pleasure to appear before your
committee again. Unfortunately, we could not be here last week since I was in
Vancouver on business and my colleague, Marion Harymann, was in Edmonton on
We have seen both the letter from the Privacy Commissioner and the letter from
the Barreau. We have had the opportunity to read the transcript of the evidence
that was given last week.
I propose to deal with certain issues and then pass the baton to my colleagues
at the RCMP and to the military so they might address some issues with which
they are much more familiar.
The first conclusion I drew from the Privacy Commissioner's comments was that
there was a need to explain the list of designated offences. Indeed, there are
three types of offences listed within the designated offence list. We would
call them "primary" and "secondary" designated offences. We
have listed indictable offences, hybrid offences, and only one purely summary
conviction offence. I have prepared for your information a document in French
and English that lists these offences. That is available for you this
In addition, it is important to realize that the Identification of Criminals Act
authorizes the taking of fingerprints from persons who are charged with an
indictable offence or a hybrid offence. We have provided a copy of the relevant
provisions of the Identification of Criminals Act in French and in English.
Another statute, the Interpretation Act, has a role in this discussion. It holds
or deems a hybrid offence to be an indictable offence. Therefore, when a person
is charged with a hybrid offence, up until the Crown has made an election, it
is deemed to be an indictable offence and the police may take the fingerprints
of the accused. The fingerprints having been taken, have been lawfully obtained
under statute. We have provided copies of the relevant provision in the
Interpretation Act as well.
The next item that I have provided is a copy of a judgment from the Supreme
Court of Canada last year. The Supreme Court, in its unanimous 1998 judgment in
Arp, accepted the general notion that the police are not constrained from using
bodily substances, lawfully obtained in one investigation, in a later
investigation which was not anticipated when the bodily substances were
obtained. I know that this may be stretching, but I would contend that this
judgment is authority for the proposal that, where law enforcement officials
have lawfully obtained fingerprints, they may be retained and used in
subsequent investigations. That is what I draw from the decision in Arp.
It is interesting, as well, that in Arp the Supreme Court referred to the Law
Reform Commission Working Paper No. 34 on Investigative Tests which was
released in 1984. Pages 68 to 69 sets out the policy justification for the
retention of fingerprints, regardless of the outcome of the prosecution.
I would refer to paragraphs 86 through 90 of Arp and read a few excerpts. I will
then read a paragraph from the Law Reform Commission document to which I have
referred. These are all provided in French and English.
I would read from page 24 to page 26 of Arp. The page number is at the bottom.
The Chairman: I have a page numbered 355.
Mr. Zigayer: I have a different version. The paragraph numbers are marked in the
margin. I would ask you to turn to paragraph 86.
The judges in this case are referring to an earlier decision of the Supreme
Court of Canada in Borden. In that case, the police had obtained a bodily
substance, a hair, from Mr. Borden -- this was in Nova Scotia -- telling him
that they were investigating case A and, indeed, they were; but they were also
investigating case B and they did not tell them about that. The Supreme Court of
Canada said that, because they had not told him about case B, this was not
quite an informed consent. Therefore, the evidence that flowed from that
seizure was inadmissible.
That was one of the judgements that led to the enactment of Bill C-104, the DNA
Senator Buchanan: What year ws that?
Mr. Zigayer: October of 1994.
Senator Buchanan: It was in New Glasgow.
Mr. Zigayer: Randall Josh Borden is the full name of the accused.
In the Arp case there is reference to Mr. Justice Iacobucci who wrote much of
the judgment in Borden. There is also reference to Chief Justice Lamer who
While I do not think it necessary or desirable to deal with the broader question
of what is required for a valid consent, I agree with Iacobucci J. that the
individual must be told about the anticipated purpose known to the police when
the consent is requested.
However, in agreeing, I would not wish to be taken as accepting the general
proposition that the consent, once validly given in the criminal law context,
constrains the uses that may be made of the sample or the results of analysis
thereof. Such an approach runs the risk of considering investigations and
consents to searches and seizures in watertight compartments.
In the Arp decision, we then see the following statement:
McLachlin J., in short concurring reasons, agreed with the Chief Justice that
the individual must be informed of the "anticipated purpose known to the
police when the consent is requested" (at p. 171), but confined that
observation to the facts of the Borden case. She noted, at p. 171, that there is
an important public interest in allowing the police to correlate evidence
obtained in one offence with other outstanding offences. In this regard, the
comments of the Law Reform Commission in its Working Paper No. 34 on
Investigative Tests (1984), at pp. 68-69, are apposite:
...we are inclined to believe that the destruction of some records...is more
likely to hamper the legitimate function of the police in the detection of
crime and the protection of society as a whole than to constitute a useful and
valuable safeguard for the privacy of innocent individuals. Fingerprint records
might be crucial in the investigation of serious offences committed by persons
who for one reason or another have escaped conviction for other offences of
which they were in fact guilty. Where they have been reasonably and lawfully
obtained, can it be said that their retention "unreasonably or arbitrarily
(interferes) with individual rights and freedoms..."?
That is a very strong policy statement. It seems to have been adopted in Arp.
The quotation is provided for you in the excerpt from the Law Reform
Commission. I will just leave that for you, rather than read it into the
I drew from the Privacy Commissioner's statements that he agreed with that, that
there was a firm and valid policy justification for the retention of the
fingerprints, regardless of the outcome of the prosecution. Therefore, if you
had a hybrid offence and subsequently the Crown elected to proceed summarily,
it would be valid to hold on to the fingerprints. Indeed, even if the individual
were acquitted, there would be a valid public purpose served by holding onto
My understanding is that that is the way the police operate. I will let the
police explain that. They have more intimate knowledge of the operation of
police work in the country and how hybrid offences are treated.
I also agree with the Privacy Commissioner that, if there are no fingerprints in
the CPIC fingerprint data bank that were obtained under the Identification of
Criminals Act, there is nothing to compare the ones that you will be taking
under the post-conviction designated offence provisions that we are talking
about. I certainly agree with that. My hope is that, as a general policy, police
do take fingerprints from individuals who are charged with hybrid offences.
There is one offence, and that comes under section 173, that is not covered.
Under the post-conviction scheme it would be covered. If a judge ever issued an
order in respect of that kind of a conviction, we could take a fingerprint, but
there would never be anything to compare it against. This person would not have
been fingerprinted at the time of the charge because it is a pure summary
conviction offence. As a matter of history, this particular provision was added
to Bill C-3 in the other place during committee study. As I remember, we were
not exactly keen on the amendment.
Senator Nolin: We will solve that problem.
Mr. Zigayer: I do not know if you can do that at this stage.
Senator Nolin: You are asking us for an amendment which would require anther act
to be amended.
Mr. Zigayer: In my personal view -- and this is my personal opinion -- I do not
think that judges are going to be issuing orders in respect of a section 173
offence on a regular basis. This is a secondary designated offence. Crown
counsel will have to make the application. Before they do, they will weigh the
pros and cons. Section 173 is pretty far down in terms of the seriousness of the
offence. They will be more inclined to seek an order with regard to other
offences. In the list there are secondary offences are hybrid offences.
Senator Beaudoin: I am surprised by what the court said at page 389 respecting
hybrid offences. However, I do have great respect for the Supreme Court. Can
you explain what they have said?
You said that you do not think they would make an order. I would like to know
more about that.
Mr. Zigayer: If are you asking me to comment on the Supreme Court's judgment in
Arp, I would say that I find it to be a great judgment. It validates the
keeping of fingerprint or DNA data banks by law enforcement bodies. Being able
to retain evidence or information obtained in an earlier case to use in a
future case is important.
I do not want to leave the impression that it is absolutely impossible to have
fingerprints removed from the data bank. My colleagues from the RCMP can speak
to that. Where an individual is charged with either an indictable offence or a
hybrid offence, the fingerprints are taken and transmitted immediately to
Ottawa. There is a valid reason for that, and that is they are compared against
the data bank to determine if the person who is charged is who he says he is.
As a Crown prosecutor, I want to know who he is, because it will influence my
decision on whether I oppose judicial interim release bail. It will have an
influence on whether I proceed summarily or by indictment. It will influence
whether I seek or tender notice of greater punishment. It will influence all the
procedures that we have to follow.
These are important factors for the prosecutor to know right at the beginning.
Suppose the individual is acquitted, for whatever reason, and his fingerprints
are in the data bank. He may, if his counsel is fast enough on his toes at the
time of the acquittal, ask the judge to order the return of those fingerprints.
That is one way of doing that.
Senator Beaudoin: Must he do that at that moment?
Mr. Zigayer: That is only one way of doing it. That order would be presented to
the police, and the local police who had taken the fingerprints would start the
process. The RCMP can explain this further, but I understand that the originals
are then returned.
If, in the excitement of the victory, the lawyer did not make that request, it
is open to the individual to then approach the police and ask them to initiate
I understand that, if the person goes to the RCMP -- if it happens to be in the
jurisdiction of the RCMP -- there is no charge. I have also heard that, in
other jurisdictions, some municipal police forces do charge a fee for
processing. However, you can get your originals back and copies are removed
from the fingerprint data bank.
Senator Beaudoin: If an accused is found not guilty, that should be the end of
the matter. Why would the fingerprints be retained?
Mr. Zigayer: It may be in the interest of solving future cases. Perhaps the RCMP
could talk about that.
Ms Ghyslaine Clément, Inspector, Officer in Charge, Canadian Criminal
Records Information Services, Information and Identification Services
Directorate, Royal Canadian Mounted Police: My services look after management
of the criminal records information. My colleague, Superintendent Fraser, is
responsible for the fingerprint data bank.
The two of them are intimately linked. In the central repository there is not
one set of criminal record information that is not supported by a set of
fingerprints. Those fingerprints, as explained by Mr. Zigayer, are taken under
the authority of the Identification of Criminals Act when we are dealing with
indictable or hybrid offences.
There is a lot of legislation that governs the manner in which we manage the
criminal record information, including the Young Offenders Act, the Criminal
Code, the Criminal Records Act, and so on.
When an individual is acquitted, or charges are stayed, or charges are
withdrawn, there are few recourses. An order of the court can be made right at
that moment to have the fingerprints returned. Alternatively, the individual
can go to the police force that dealt with or laid the charges against the
individual and request to have his or her fingerprints returned.
We maintain that information on behalf of all law enforcement agencies in
Canada. Therefore, when the police of jurisdiction request the return of that
information, as a policy, we return that information. The information is
removed from all data banks and is returned to the police jurisdiction who then
turn it over to the individual.
In cases where the individual does not request the return of this information,
there is no legislation other than that found in the Criminal Records Act or in
the Young Offenders Act that dictates the removal of that information.
Therefore, that information is retained in our data bank.
Senator Beaudoin: Is an accused person who is found not guilty told that that
information can be returned to him?
Ms Clément: Our Web site includes Canadian criminal records information.
That information is public. An individual may ask his or her defence counsel or
their police force to have their fingerprints and criminal records information
expunged from our central repository.
Senator Beaudoin: In other words, if it is obtained lawfully, it is there for
eternity unless the person who was accused or his lawyer ask for its return.
Ms Clément: With certain exceptions to "eternity."
Senator Beaudoin: "Eternity" is an exaggeration on my part.
Ms Clément: Within the legislation that governs it, normally until age 80
the information is retained in the repository.
Senator Beaudoin: That is fingerprints.
The Chairman: We are only talking about fingerprints now. Under the previous
bill and under this bill, if a suspect is found not guilty, his or her DNA is
not kept. That DNA is destroyed at that point.
Ms Clément: Yes, in accordance with legislation the DNA would be
destroyed then, but fingerprints that were taken lawfully under the authority
of the Identification of Criminals Act at the time of the arrest, remain. The
other set of fingerprints would be destroyed, along with the DNA information.
Senator Fraser: I want to make a comment similar to the ones I made last week
about the Privacy Commissioner's concerns regarding fingerprints being taken
after someone who has been convicted of summary conviction offences. I take the
point that our experts think that orders will not be made very often in those
cases, but I assume that, on occasion, depending on the nature of the act and
the circumstances, an order would be granted.
The taking of fingerprints, in conjunction a DNA sample, offers protection to a
person who has been convicted. It is just one more guarantee that the DNA in
question cannot be tampered with in any way. For eternity, it will be clear
that a certain DNA sample belongs a certain set of fingerprints, and if ever
any question should arise, for any reason -- computer breakdowns or whatever --
all you have to do is take the fingerprints again and you know where you stand.
It seems to me that that would be a useful protection, not just for the Crown,
but for the person who has been convicted.
I would like to ask Commander Harrigan about the paragraph of the Privacy
Commissioner's letter where he says he has concerns about the "`specifically
military' secondary designated offences." He writes:
As I understand it, there is currently no authority to take fingerprints for
Does that mean that the military justice system or the military police do not
Ms Jane Harrigan, Commander, Director, Pension and Finance Legal Services,
Office of the Legal Advisor, Department of National Defence: He talked about
the seven specifically military secondary designated offences. In effect, all
of the primary designated and secondary designated offences that are also
Criminal Code offences fall under the National Defence Act, so the comment
applies equally across the board to all of them, not just the seven that he is
Mr. John Maguire, Commander, Director of Law/Military Justice Policy and
Research, Office of the Judge Advocate General, Department of National Defence:
Mr. Zigayer said earlier that it was unlikely you would have an order for the
secondary designated offences. I would go even a step further and say it is
even more unlikely that you would have an order for the seven military secondary
designated offences, given the nature of those offences.
In a military context, in the instance of, say, striking a subordinate, you
generally have a good idea of the identity of the person who struck the
subordinate. There is a work relationship.
However, the point you made, senator, is well taken, that there would be those
cases where it would be appropriate to take a DNA sample.
You made an excellent point in saying that these protections on fingerprints
exist to protect the identity of the accused for all time. That is not to say
that they would not have a systemic use in crime detection and prevention. In
some cases we do fingerprint individuals on arrest. However, those fingerprints
do not get into the CPIC data bank. Currently, the taking of fingerprints
generally occurs in the investigation of a crime scene. You have a suspect,
fingerprints are found at the scene, and you want to compare them. As I
understand it, the police have a common-law right to take those fingerprints as
part of the identification of a suspect in a crime investigation.
However, just because these fingerprints, if they are taken -- and they are not
in every case -- do not end up on the CPIC data base in relation to that
offence does not mean that there will not already be fingerprints on the CPIC
To reiterate what I said when I was here on an earlier occasion, we have
concurrent jurisdiction, not exclusive jurisdiction. In a number of cases --
and I am thinking particularly of the 130 Criminal Code type offences that we
deal with under the National Defence Act -- a particular individual may well
have been arrested prior to enrolment in the Canadian Forces and dealt with by
the federal authorities while a member. He could certainly be arrested and
dealt with after his release from the Canadian Forces if, in fact, he retires
or is otherwise released. There may well be something to compare it with.
The other point we ought not to lose sight of is that we are talking about small
numbers. We are talking about six or ten. We must also remember that the
purpose of fingerprinting is only to establish identity in those cases where
identity is an issue in relation to a DNA sample.
The point I would make here is that the identity of military offenders can be
proven in other ways, and it is not always an issue. In a military context we
generally know who our accused persons are. The commanding officer will know
who they are. Everyone in the unit will know who they are. At the time the
fingerprint is taken, there could be other safeguards at an administrative level
put in place to ensure the accuracy of it. For example, there may be a
statutory declaration from a commanding officer to the effect that he witness
the taking of the DNA sample. He may have looked at the identification card of
the accused which bears his name and photograph, and made a visual comparison.
Other mechanisms could be used.
I do not know if other questions arise out of that.
Senator Fraser: I am trying to figure out the core of the Privacy Commissioner's
difficulty. I am not quite sure I understand what he is driving at. I was
looking for some assistance.
Mr. Maguire: His assumption was that there would be nothing to compare it with.
On a factual basis, I am not sure that that assumption is entirely correct in
Senator Poy: According to Bill S-10, if someone who is charged has been found
not guilty, the DNA sample will be automatically destroyed, without anybody
requesting the discharge. Is that correct?
Mr. Zigayer: If the person is charged with an offence and acquitted, the
legislation requires that the sample be destroyed. That is found in the warrant
scheme provisions that were enacted in Bill C-104. It is automatic under the
Senator Poy: You said that a person who has been acquitted must request that his
or her fingerprint record be destroyed. Do the general public know about that?
How many people would ask to have their fingerprints removed?
Ms Clément: The information is available. It can be found on the RCMP Web
site and the index of the Canadian Criminal Records Information Services.
Senator Poy: Are people normally told verbally by the police?
Ms Clément: I am not aware if the police tell each accused person.
However, my understanding is that lawyers, if I can use the term, are "fast
on their toes", they can make that request. They should be aware of that.
Senator Poy: I have another question for Mr. Zigayer in reference to the letter
from Denis Jacques to the committee in which he says that making psychological
profiles based on DNA analysis or using data for purposes that are strictly for
general information must be prohibited.
Isn't one reason for taking DNA samples to run psychological profiles?
Mr. Zigayer: No, absolutely not. It is important to recognize and to underline
that that is absolutely not contemplated in this legislation. The purposes of
the DNA data bank legislation are set out in two provisions in the act. We
could all agree with what the Barreau has said here.
The sole purpose of keeping the DNA profiles of convicted offenders is to allow
us to identify persons who have committed a crime in the past that has not been
solved or to help us solve crimes in the future.
Senator Poy: I do not know whether it is written in the act that forbids the use
for psychological profile.
Mr. Zigayer: The specific words are not there, but the statute is being opened
up to make it even tighter with the passage of Bill S-10. In Bill C-3, now
Chapter 37 of the Statutes of Canada, 1998 at sections 3 and 4, there is a
statement of purpose.
The purpose of this Act to establish a national data bank to help law
enforcement agencies identify persons alleged to have committed designated
offences, including those committed before the coming into force of this Act.
It then states some principles as follows:
It is recognized and declared that.
(a) the protection of society and the administration of justice are well served
by the early detection, arrest and conviction of offenders, which can be
facilitated by the use of DNA profiles; and
(b) to protect the privacy of individuals with respect to personal information
about themselves, safeguards must be placed on
(i) the use and communication of, and access to, DNA profiles and other
information contained in the national DNA data bank, and
(ii) the use of, and access to, bodily substances that are transmitted to the
Commissioner for the purposes of this Act.
That is being amended.
Ms Marian Harymann, Senior Policy Analyst, Law Enforcement Division, Department
of the Solicitor General of Canada: In order to address this specific concern,
which was raised by senators when we addressed Bill C-3, we added a new
principle to the act in order to ensure that the DNA profiles, as well as
samples of bodily substances from which the profiles are derived, may be used
only for law enforcement purposes in accordance with the act and not for any
unauthorized purpose. You could not derive any other information from the
profile, such as psychological, medical or physical characteristics.
Senator Poy: From a practical point of view, that could happen very easily.
Senator Nolin: It could not happen easily, but we still want to be convinced of
Mr. Zigayer: The police do use psychological profiling in solving crimes. The
RCMP know more about this than I do, but I do not think it is based on DNA.
They learn about an individual's behaviour. Those behaviour patterns reveal
some kind of psychological profile which helps the police predict future
actions. They may discover, for example, that he only does certain things when
there is a full moon.
Senator Fraser: Did we not hear in earlier testimony that, in Quebec, the
fingerprint records of people who are acquitted are automatically destroyed
without permission being sought? That was 25 per cent, presumably, of all
Senator Joyal: It was mentioned by Mr. Roy earlier this year.
Ms Clément: That information is correct. In Quebec, the individual does
not make the request. Because of internal provincial policies, the police
jurisdiction automatically makes the request to our services to remove the
information and return the fingerprints.
Senator Joyal: I would thank you for submitting the amendments to the Privacy
Commissioner. His letter is very enlightening.
I would draw the attention of the witnesses to the end of the first paragraph on
page 2, which reads:
Furthermore, the amendments are silent on what happens to the fingerprints after
they are taken. Is the proposal to enter them into CPIC? If so, we will have
added to CPIC, through the back door, those convicted of summary conviction
offences. If not, what will be done with the fingerprints? Is the Government
proposing a new system of dossiers on citizens?
In the second last paragraph he says:
I would like, however, to see some clarification with respect to the above
issues, and if necessary, some refinement of the amendments.
We do not have to report the bill with amendments which is, of course, the
system under which we work. Once a bill has been adopted by the other place, we
are, at this stage, studying something which we believe should have all the
guarantees of satisfaction that we try to achieve before voting on the bill.
The letter is dated December 14. Have the witnesses had time to review the
letter by the commissioner?
The Chairman: I read the letter into the record at the very beginning of the
Senator Joyal: These are complex issues. I do not want to proceed without our
witnesses having had the opportunity to review each aspect of the letter of the
commissioner and perhaps return with answers to all the points that were
The Chairman: I would hope that we need not ask these witnesses to return
because, in effect, we did know what the content of the letter would be before
the date of the letter.
Mr. Zigayer: My colleagues from the RCMP are able to respond fully.
Mr. Fraser: The integrity of the whole system is paramount, as the Privacy
Commissioner said. We will not be using those fingerprints for any purpose
other than the integrity of the DNA data bank. That is the purpose for taking
them. They will not be added to the fingerprint data base. That is what the
legislation says. The information will not be used for anything else other than
the integrity of the system.
Senator Joyal: How do you respond to the point raised by the commissioner
respecting fingerprints that were taken in summary conviction offences? Where
will they end up? He raised the question:
Is the proposal to enter them into CPIC? If so, we will have added to CPIC,
through the back door, those convicted of summary conviction offences.
This is a key point in the commissioner's letter.
Mr. Zigayer: In my initial intervention I said that this may be an erroneous
assumption on his part. I tried to make the point that the legislation allows
the taking of fingerprints from persons charged with hybrid offences. They are
already in the data bank when we get to the stage where there is a
post-conviction DNA order and, if this amendment is included, the authority to
take another fingerprint. That fingerprint, under the Identification of
Criminals Act, is already in the data bank. There is a new fingerprint with the
DNA sample to compare. You are not adding something to the fingerprint data
bank; it is already there.
The only exception, or where there is a question mark, is in respect of section
173, the indecent act. That is a pure summary conviction offence. I do not
anticipate Crown prosecutors seeking orders in respect of those convictions on
a regular basis.
If you look at the list of offences, and we understand that they cannot process
everyone, the prosecutors are going to focus on the primary designated
offences, people convicted of those offences, and also some of the secondary
designated offences, the indictable secondary designated offences -- for
example, causing death by criminal negligence, causing bodily harm by criminal
negligence, and those types of offences. Torture will not be included often, but
With the exception of that one offence, there will always be a fingerprint in
the AFIS, automatic fingerprint identification system, to have something to
compare against. In that one exception found under, section 173, there would be
nothing to compare it against, but I do not anticipate many orders being made
in respect of that.
Senator Beaudoin: Why is that so?
Mr. Zigayer: Why is it included, or why is it that I do not think the order is
Senator Beaudoin: Why is there only one in such an accepted category?
Mr. Zigayer: When we designed the designated offence list, our objective was to
target the most serious offences. We included mostly crimes that involved an
aspect of physical violence.
There were two exceptions to that. One was break and enter because we recognized
that there is a possibility that an individual may cut himself while breaking
into a building or on the way out, or do something in the building that leaves
a trace of that person. There is also break and enter and commit sexual
assault. That is a separate offence from sexual assault. Those types of offences
do not automatically imply violence, but there is that possibility.
The person who breaks into a dwelling house may in the future break into a
dwelling house that is occupied and there might be a violent confrontation.
The other offence was leaving the scene of the accident. Many questions have
been raised about that one. A person could be involved in a motor vehicle
accident with the driver of one of the vehicles being impaired at the time. If
the impaired driver survives, but was injured in the accident and then he runs
away, there could be blood on the steering wheel or on the seat. If, in the
other car that was involved someone was killed or seriously injured, the only
way to put the perpetrator of the offence at the scene of the crime is to link
him with that blood left at the scene of the crime. Those were the two
The other offences, essentially, are violent offences -- everything from
terrorist offences such as hijacking and endangering the safety of aircraft at
airports to simple assaults.
The Chairman: With the exception of this offence, this indecent act.
Mr. Zigayer: This was added during the study of Bill C-3. In fact, there was a
series of additions. Most of the hybrid secondary designated offences that you
see here were added at committee stage in the other place when Bill C-3 was
going through. Beastiality in the presence of a child and child pornography
were added in committee.
The Chairman: I would point out that section 173 relating to indecent acts has
already been passed as part of Bill C-3.
Mr. Zigayer: Yes, and we are not amending that.
Senator Fraser: I want to be sure that I understood what Mr. Fraser said. You
said, did you not, that no fingerprints attached to DNA samples will be sent to
Ms Clément: Perhaps I can clarify the concerns raised by the Privacy
Commissioner and the comments by Senator Joyal.
With respect to summary convictions, when there is no authority under the
Identification of Criminals Act for a police officer or an arresting police
officer to take fingerprints, the fingerprints, upon the warrant issued to
obtain a DNA sample, will be taken. These fingerprints, in very rare occasions,
may not be matched to a known criminal offender. I am referring to someone who
has been charged and convicted previously of criminal offences. We would have
those fingerprints legally taken again under the Identification of Criminals
In these extreme cases, the information will be retained only in our in-house
data base that is controlled by our services. We have what we refer to as a "fingerprint
system number", and "FPS" number, and that will be assigned to
that individual or that information. It will be imaged to the information that
we have. It is associated with a unique number and with the offender information
on which he was convicted. That information will not be made available on CPIC,
the Canadian Police Information Centre, which is available to the entire law
enforcement community. They would get no response if they were to query the
name. The only instance that we would get the name is if, in-house, we made the
inquiry and we used the FPS number. However, the file would not be available to
every operator. It would be available only to certain privileged operators who
manage our pardoned criminal records information.
These individuals would deal with that information in the same manner with which
we deal on the pardon records. The information is in safe storage. It is not
available to the police community. It is in-house information. That only
relates to summary conviction offences because those fingerprints were not
taken under the Identification of Criminals Act. They were taken only for the
purposes of the DNA sampling.
Mr. Fraser: Those fingerprints would not be added to the fingerprint data base
and could not be searched for and retrieved.
Senator Nolin: That cannot be done under the act.
Mr. Fraser: That is correct.
Ms Harrigan: The government motion is clear in stating that fingerprints may be
taken for the purpose of the DNA Identification Act. That was added for the
express purpose that those fingerprints could not be then entered into the
general automated system and used for criminal investigation purposes. It is
just for verifying the identity of the person who has a data bank order.
Senator Joyal: The only exception being section 173.
The Chairman: If there are no further questions, I would thank the witnesses for
meeting with us again.
The committee adjourned.