Committees
 

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

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.

[English]

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 amendments.

Once again I appreciate the opportunity to comment on the issues before your committee.

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 personal business.

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 afternoon.

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 warrant scheme.

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 stated:

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 record.

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 the fingerprints.

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 the process.

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 these offences.

Does that mean that the military justice system or the military police do not take fingerprints?

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 singling out.

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 data base.

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 every case.

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 legislation.

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 that.

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 cases.

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 meeting.

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 raised.

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 robbery will.

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 made?

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 exceptions.

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 the CPIC?

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 Act.

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.