Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 6 - Evidence
OTTAWA, Thursday, December 9, 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 11:15 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I see a quorum. Before we begin, I would like to read into the record the letter that I sent to the Solicitor General after our meeting last night.
Dear Minister:
May I take this opportunity to thank you for your letter of December 7, 1999 dealing with proposed amendments to Bill S-10, An Act to amend the National Defence Act, the DNA Identification Act and the Criminal Code, currently under consideration by this committee, as well as proposed draft regulations under the Bill. I particularly appreciated your kind words about the Committee's work.
After reading your letter into the committee's record, it was noted that a discrepancy exists in the second paragraph between the French and English versions. It is the impression of this committee that the English version reflects the points raised by members while your officials were before us.
I would greatly appreciate it if you could clarify the situation as expeditiously as possible.
Thank you once again for your continued interest in and support of the committee and its work.
We have already received a reply from the Solicitor General. It reads:
Dear Ms Milne:
Further to your request, I am transmitting to you a revised french letter concerning the government motions on Bill S-10.
I would, once again, like to thank you and the other members of the committee for your excellent work in promptly reviewing Bill S-10.
I would ask the clerk to read the revised second paragraph into the record because I am given to understand it now agrees completely with the English version.
[Translation]
Mr. Michel Patrice, Clerk of the Committee: The second paragraph of the French version reads as follows:
Je suis heureux d'accepter la recommandation du comité visant à modifier le projet de règlement afin qu'il précise que le rapport annuel du commissaire de la GRC doit contenir un examen de la jurisprudence des analyses génétiques menées au cours de l'année précédente.
[English]
The Chairman: Does everyone have a copy of that? I also have received a letter from the Privacy Commissioner of Canada. Rather than read it right now, I will let our first witness go ahead.
Senator Joyal: In the French version, there is a nuance. "La jurisprudence" means that it is a decision that is finished. The level of appeal has been exhausted. The preoccupation that we had is not only on those cases but on the pending cases as well. I prefer the English expression "case law" than the word "jurisprudence."
As a member of this committee, if next week I were to receive the report of the RCMP Commissioner, not only would I like to receive the decisions of the higher court of the land, if such is the case, but also those decisions that are pending as well. It is important that the members be aware of any proceeding involving important legal issues of which we would like to be aware.
Senator Beaudoin: The problem is that the expression "case law" is translated as "jurisprudence." "Case law" in English does not mean that the case is definitive.
Senator Moore: It is just a body of law.
Senator Ghitter: It can be under appeal.
Senator Beaudoin: "Jurisprudence" is the same.
[Translation]
Senator Joyal: It can be considered to be final.
[English]
There is a nuance there that is important.
The Chairman: Perhaps I could ask the French-speaking members of the committee to put their heads together later on and decide what should be the correct word in French to coincide with "case law" in English. If we have a suggestion to make to the Solicitor General, I will make it.
Senator Joyal: We will consult.
The Chairman: We have with us today Mr. Patrick McCann, who is a criminal lawyer.
Please proceed, Mr. McCann.
Mr. Patrick McCann, Criminal Lawyer, McCann and Giamberardino: I have not prepared any opening remarks because I was not quite sure just what issues the committee wanted me to address, given that Bill C-3 has already passed and is waiting to be proclaimed. All of the philosophical issues relating to this type of legislation have probably been addressed in dealing with Bill C-3.
I was not proposing at this point to launch into a discussion or offer you my views in terms of the issues relating to personal security, privacy, and those sorts of things, which underlie the philosophy behind the legislation in the first place. I am prepared to accept that this is now a done deal, as far as it relates to the Criminal Code provisions and the DNA Identification Act -- which is yet to be proclaimed but which has, as I understand it, passed all the various legislative steps. What I thought I could more usefully address is my perception of the legislation as it deals with issues of the necessity of adding to the powers that are already in place.
Now I recognize right away the necessity of making the post-conviction orders for DNA analysis for the purposes of the DNA bank in the military system. If there is to be a parallel justice system in the military, it makes sense that, once there has been a conviction, then the same provisions that exist in the Criminal Code should apply to convictions for similar types of offences under the military system.
What does perhaps concern me somewhat is the question of the necessity for adding in the extra warrant provisions under the National Defence Act. As far as I am aware, at this point there are no steps being taken to add provisions such as the general warrant provisions and the impression provisions that have been added to the Criminal Code.
There is a limited authority to apply to a commanding officer for a regular search warrant to search specific places that are within the jurisdiction or control of the commanding officer or the military in general. There is not anything beyond that. That is only resorted to when the troops are out of the country; in other words, deployed troops overseas or at sea. Therefore, I question whether there is a necessity to add in at this stage the warrant provisions.
There are a number of practical problems with the warrant provisions. It requires resort to the military trial judge to grant the warrant. There are only three military trial judges in the military. Obvious concerns arise that, once you utilize a military trial judge for the purpose of obtaining a warrant, that judge is virtually excluded, conflicted out of ever becoming involved in the case, once it comes to trial. If there is a necessity to go back for a second warrant because the first did not work out, you are down to one military trial judge to try the case. Therefore, I question the necessity of adding in the warrant provisions at this stage.
I have my own concerns with the breadth of some of the designated offences and some of the items that are in there, but they parallel the Criminal Code provisions so, as I say, I take that as being a fait accompli at this point.
Senator Beaudoin: Yesterday, we had the advantage of addressing the question of warrants to three witnesses. They all agreed that it is exactly the same situation in the military justice system as it is in the RCMP and the civil system of criminal law. Do you confirm that?
Mr. McCann: Yes. Yesterday, I spent some time comparing the Criminal Code legislation and these provisions. With the exception of obvious minor adjustments to take account of the specific nature of the military system, they are identical.
Senator Beaudoin: In your experience as a defence lawyer, have you come to the conclusion that we have nothing to change in that area?
Mr. McCann: As a defence lawyer, there are changes that I would like to see. There are changes that I would like to have seen to Bill C-3 as well, and its predecessor, the amendment that gave rise to the DNA warrants in the first place -- which was passed in 1995, I believe.
I have some concerns with the breadth of the legislation with respect to some of the offences. They include some things that are strictly summary conviction offences -- for example, an indecent act under section 173. It is a pure summary conviction offence. The Crown cannot proceed by indictment. It carries a maximum sentence of six months. It seems that that sort of thing is overreaching. However, as I say, that has already been passed into law, and I am a bit too late at this point to start raising concerns.
Senator Beaudoin: Our duty here is to see whether things comply with the Charter of Rights principles and the jurisprudence of the Supreme Court. If in your opinion something does not comply with the Charter of Rights, sections 7 to 14, this is a good time to raise that matter.
Mr. McCann: A number of offences that are included in the designated offences may well run into Charter problems. The warrant provisions that have been created under the Criminal Code permit essentially a violation of one's bodily integrity. They go beyond anything that has previously been available, with the exception of the drinking and driving legislation, which permits the taking of blood samples in very limited circumstances. To include offences that are really relatively minor -- and some are extremely minor offences -- in the list of offences for which a DNA warrant may be issued is a grave concern.
The courts have talked about -- in dealing with the validity of legislation concerning the Charter -- a balancing process that must be engaged. At what point do the concerns of society in protecting themselves from criminal activity outweigh the individual interests of an accused person or suspect respecting their right to security of the person and bodily integrity?
The difference between the warrant provisions and the post-conviction orders is that there is a discretion in the trial judge at the end of the trial whether to make that post-conviction order, based on the circumstances of the case and based on the person's background and so forth. There is no jurisdiction in the judge issuing a warrant to take those factors into consideration. The factors to be considered there are whether the DNA warrant will effectively assist in solving the crime.
It seems to me that under this proposed legislation the police may now obtain a warrant to conduct what are arguably very invasive procedures in an individual for extremely minor offences without anyone having any discretion to say, "No, you cannot do that."
Senator Ghitter: Are you recommending that we take out proposed section 196.12 to the National Defence Act? That proposed section allows the military judge to give an ex parte warrant.
Mr. McCann: It could be left there, but it should be restricted to exigent situations, where the troops are abroad or at sea, where there would not be jurisdiction in a civilian provincial court judge to issue the warrants.
Senator Ghitter: Is your concern related to who is issuing the warrant or to the actual fact of the giving of the warrant?
Mr. McCann: My understanding of the practice that is currently followed by the military police -- and I stand corrected on this -- is that, if in Canada they require a DNA warrant or a general warrant, they will apply to the local justice of the peace or provincial court judge -- or a search warrant, for that matter, that goes to the issues of searching outside of military premises. They are peace officers and, as such, can apply under the terms of the Criminal Code the same way a city police officer can.
Senator Ghitter: So is your recommendation that, rather than referring to a military judge in the section, we should be speaking in terms of a magistrate or justice of the peace?
Mr. McCann: No. My recommendation is that the provision should be restricted so that it would apply only to warrants that are necessary to obtain the substance while the individual is outside the country. In other words, if the individual is in Canada, there is no need to go to the military trial judge. The police can then proceed; they are peace officers. They can apply under the terms of the Criminal Code to a provincial court judge who has jurisdiction in the area where the individual is.
Senator Fraser: I was also interested in this question of warrants. We were told last night that the military police have twice applied for DNA warrants under the existing scheme, without having Bill S-10. Nonetheless, I wonder whether it is not likely to prove preferable to have an unrestricted provision for military judges in here.
I take your point about there being only three of them. However, it strikes me that, because military people move around, it would not be an unlikely scenario for a court martial, say, that is taking place in Bosnia to have at its centre an individual who has been posted back to Canada. If so, there will be many jurisdictional problems.
Mr. McCann: If the person from whom you wish to obtain the DNA sample is in Canada, even though the alleged offence took place out of the country --
Senator Fraser: And the legal proceeding is taking place out of the country.
Mr. McCann: The fact that the legal proceeding is taking place outside of the country should not make any difference. The fact that the offence is alleged to have occurred outside the country may be a problem.
Senator Fraser: That would not be an uncommon event in the Armed Forces.
Mr. McCann: There might be a problem, in that the provincial judge might say that he does not have jurisdiction because it deals with an incident that occurred outside the country.
The usual practice in Canada where there are cross-provincial issues is that the warrant is obtained in the province in which the investigation is being conducted, and it is backed by a judge of the province in which the warrant is to be executed.
Senator Fraser: It is a muddy area.
Mr. McCann: I can see that those are the kinds of situations where it might properly apply.
I am not suggesting for a moment that the military trial judges are not perfectly capable of dealing with the issues here. I would be concerned, if I were administering this system, about what happens when we conflict out two thirds of the judges or even the entire bench. That is the heart of my concern.
Senator Poy: I do not quite understand your concern as to who issues the warrant. Can you explain your concern about who should issue the warrant for the DNA sample -- and maybe the act was done in Canada or outside?
Mr. McCann: The military police are peace officers. Thus, under the provisions of the Criminal Code, they have the right to apply for a DNA warrant, even though they are investigating a service-related offence.
Senator Poy: Within the country?
Mr. McCann: Within the country, yes.
If they are investigating what is strictly a service offence as opposed to a service offence that adopts the Criminal Code provisions, we may be into a different area; I will leave that aside for a moment.
Let us assume that we are investigating an offence such as sexual assault, which is an offence under the Criminal Code, which is adopted into the Code of Service Discipline. If that is being investigated in Canada and all of the participants are in Canada -- the accused is in Canada and the incident is alleged to have happened in Canada -- they can go to a provincial court judge, which is provided for in the Criminal Code, to obtain a DNA warrant. I understand that that is what they do presently.
Senator Poy: When you say "they," do you mean the military police?
Mr. McCann: The military police, yes. If, however, these provisions are applied, then the application is brought to a military trial judge, and he issues the warrant. Then you get into problems in terms of the available personnel in a judicial role. That problem need not exist.
I have been on record before arguing that the military justice system is perhaps a little over-broad at times, in that perhaps they try to completely duplicate the criminal system to a point that is not necessary. I have not been very successful in making that point, but it may be another example of overreaching and being a little overboard on the part of the military justice system.
Senator Poy: So your concern is that there are not enough military judges to be doing this?
Mr. McCann: Yes. If they are doing it all the time, and if the same case involves more than one application, you very quickly run out of available people.
Senator Joyal: Are you saying that the opportunity for a military judge to issue a warrant should be restricted to those cases where the alleged offence would have taken place abroad? If you say that normally they would apply to a provincial jurisdiction judge, of course in the context that the incidents are alleged to have happened abroad, Somalia or Kosovo or wherever the military armed forces are involved these days, taking into account the problem of not being able to apply to the local justice, then it must come from somewhere. There is no other choice than to have a military judge issue the warrant. Do you see another alternative?
Mr. McCann: I agree. If the incident is alleged to have occurred outside of Canada, arguably the justice of the peace or the provincial court judge who would otherwise issue that warrant would not have jurisdiction in that situation.
I have discussed this issue with some members of the defence counsel services of the military. My understanding at present is that, if the incident is alleged to have happened while the troops are posted in, say, Germany, application will be made to the local authorities in Germany for the appropriate warrants, under the local law. I am told that that does happen. I am not sure that it is an ideal situation.
Ideally, provisions should exist so that the whole investigation can be conducted under the auspices of the National Defence Act while the troops are abroad. I do not disagree with that.
Senator Joyal: You gave a classical example. Let us look, however, at a situation where the Canadian troops are involved in a war zone. I submitted to you Somalia and Kosovo. Let us look at difficult circumstances of insurrections and war. It is not easy to go to a local judge to try to receive an authorization or a warrant in those circumstances. It is a different context if the Canadian forces are posted permanently, as they were before, in Germany, where they are totally integrated.
However, the example I present is the extreme; for instance, Somalia, where you are faced with an almost impossible situation of applying for a warrant and receiving a decision quickly. This is the extreme case, but the one that usually makes a story.
Mr. McCann: I agree completely. That is the classic situation where there is a need to apply to a military trial judge. I cannot see any other way of doing it.
What I am suggesting is that the legislation perhaps has some restrictions respecting those sorts of situations, even in the situation where the troops are in Germany, where they are integrated into the local fabric of society there. I do not disagree philosophically with the idea that the National Defence Act should have the provisions to enable, if the prosecution is taking place in the military system, the whole investigation to be conducted under the military system as well.
Senator Ghitter: Is your position that under the law a military judge who issues a warrant is then prohibited from hearing the trial?
Mr. McCann: Not prohibited. However, the judge would be in a difficult situation vis-à-vis the perception of bias. One of the things the judge would have to consider in issuing the warrant is a lot of information about the case, the background of the investigation, which might inadmissible evidence at trial.
The usual practice in civilian courts -- and I would hope it is the same in the military courts -- is that once a judge has been involved in the investigative process, by issuing warrants or issuing authorizations for wiretaps and this sort of thing, that judge would not hear the trial.
Senator Ghitter: On an ex parte application that is prima facie.
Mr. McCann: Prima facie, they have been compromised by the ex parte application, which has included information that goes beyond what would be proper evidence at a trial.
Senator Ghitter: He would be unwise to hear the trial or he should not as a matter of law hear the trial?
Mr. McCann: As a matter the law, the judge should not. That is a generally accepted position in the legal community.
The Chairman: I have one question, which has to do with the letter to us from the Privacy Commissioner. On the second paragraph of the second page, he say:
One aspect of the Bill does cause me some concern. Under the proposed amendments to the National Defence Act, secondary designated offences --
Which you were speaking of Mr. McCann.
-- (that is, offences for which DNA samples may be ordered, at the judge's discretion) include those identified as such under the Criminal Code, and an additional seven offences under the National Defence Act. These latter include mutiny with violence, striking a superior officer, and striking a subordinate. I have in the past questioned the necessity of requiring samples in connection with crimes where DNA evidence is unlikely to be of significant use. My position has been that samples after conviction should be taken only when the conviction was for a violent offence with more than a minimal rate of recidivism, and where the offender was reasonably likely to leave a genetic sample if he or she committed a subsequent offence. While Parliament, in my opinion, went farther than that in the amendments to the Criminal Code, I continue to have reservations."
Since this seems to fall within some of your earlier remarks, what is your comment on that?
Mr. McCann: That is essentially the same position that I was suggesting to you earlier. Given what is in the Criminal Code in terms of secondary designated offences, and even some of the primary designated offences, such as assault with a weapon, for example -- which could be as minor as throwing a coffee cup or a book at someone. As I said earlier, some of the other matters that are listed under the secondary designated offence, including simple assault -- which as you know can be as simple as a push. These are extremely minor offences.
I am confident that the way the legislation is set up -- it gives the judge the discretion not to make a post-conviction order -- the judge can and will apply the proper principles and that, as a result, a body of case law or jurisprudence, whatever you want to call it, will evolve to direct the lower-level courts to not obtain or not order these samples in minor situations.
When you compare what is in the Criminal Code to the offences that are added under this provision, I see them to be comparable. I agree with the Privacy Commissioner that the whole issue around warrants should be reviewed at some time. My concern is not so much the post-conviction orders. I am confident that the judiciary will eventually do the right thing, However, I am concerned with respect to the warrant aspect of it, the issuing of the warrants for extremely minor offences.
The Chairman: Mr. McCann, you have put on the record something that I wanted to be there.
I would ask our next witnesses to come forward to the table. Perhaps we could begin by asking you, Mr. Roy, to address Senator Joyal's concern about the translation of the word "case law."
[Translation]
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy Section: Madam Chair, I believe wording that would meet Senator Joyal's concerns could be suggested to this committee. I would have a suggestion to make with respect to the current wording of the second paragraph of the letter, which reads as follows:
[...] que le rapport annuel du commissaire de la GRC doit contenir un examen de la jurisprudence [...]
So, if you feel it is appropriate, we would replace the words "de la jurisprudence" with the following:
[...] contenir un examen des décisions judiciaires relatives à la question des analyses génétiques menées au cours de l'année précédente.
[English]
Senator Joyal: As the Minister of Justice would say, I concur because that is what I have here.
The Chairman: Since we are all agreed, then I will reword my note to the Solicitor General. I am sure we will receive a response almost immediately.
Mr. Kenneth W. Moreau, Executive Assistant, Office of the Senior Assistant Deputy Solicitor General, Policing and Security Branch, Solicitor General of Canada: Madam chair, we can simply amend the letter that we sent this morning, thereby saving you the trouble of having to write again.
The Chairman: I would appreciate that.
I understand there are some amendments you wish to be made to this bill already. Perhaps you can present those to us with a rationale for them.
Mr. Moreau: We will ask Mr. Roy to speak to those proposed amendments, which arose from a working group chaired by the Department of Justice.
Mr. Roy: Two amendments are being proposed on the government side. They deal with a very practical situation. Following discussions with the provinces -- those discussions were with a group we call the heads of prosecution -- it was suggested that we amend Bill S-10 to make it clear that law enforcement agencies, when they are executing warrants or when they are taking samples for the purpose of DNA, should also be entitled to take the individual's fingerprints.
The reason for this is obvious. It has been suggested that at the same time we are taking a blood sample or a buccal swab we also take the individual's fingerprints. Getting the DNA and the fingerprints at the same time will make it a lot easier to ensure that they have the right person.
Therefore, the two amendments that are before you are for that purpose alone.
It was suggested, as part of the discussions, that perhaps the Identification of Criminals Act could do the trick. On further analysis, however, we do not think it does. In the circumstances, our opinion is that a small and rather technical change will help considerably in the enforcement of the provisions that are before you.
Senator Beaudoin: You say that the purpose of the fingerprints is to make sure that we have the right person. However, if we already have the DNA -- and I am told DNA cannot be wrong, that there is no possibility of mistake -- then the fingerprints are being used as a confirmation.
I have always believed, however -- and you can correct me if I am wrong -- that with DNA there is no possibility of error.
Mr. Roy: As to no possibility of error, I am sure a scientist would tell you that there is no such thing. However, the probabilities are such that, if your numbers are in the one in ten million range, you will not have a mistake.
The problem lies in the possibility that an individual who identifies himself as so and so will give DNA when in fact he is not the person he says he is. He is someone giving DNA for someone else. Therefore, obtaining fingerprints at the same time will help to ensure proper identification.
Our DNA bank is and will continue to be rather limited. It will grow over time. The fingerprint bank is more comprehensive, and fingerprint analysis is a lot faster. Therefore, we can match the DNA with the fingerprints, and eventually the name of someone, instead of having a mistake in the identity of the person who has given the DNA.
Senator Beaudoin: It is a perfect proof.
Mr. Roy: It will be a great assistance.
Mr. Moreau: It certainly helps us in those situations where persons are using various names or various aliases -- which is often the case.
Senator Joyal: By accepting this, we are doing something very important. Police records are full of fingerprints. We would be providing the key to linking fingerprint to a DNA sample. There are crimes whereby an individual does not leave any fingerprints but leaves some other bodily substance and, as such, the police cannot arrive at a definitive conclusion.
What we are doing here is providing the possibility for the police to reconnect with all the stock of fingerprints in the records. It is not just a matter of what will happen in the future. We are doing a link with the past records. Am I right in interpreting that?
Mr. Roy: I would agree with you. However, I would point out that, for almost all the offences we are talking about here, upon the person being arrested or brought before the courts, the fingerprints already would have been taken from the person who is at that moment thought to be the culprit. Fingerprints are not being taken for the time at this stage. The purpose behind what we are doing is to ensure that we are not missing a link in the chain, thereby ensuring that we have the right person.
But you are correct, Senator Joyal; I agree with you.
Mr. Moreau: This particular measure also protects persons who have the same name. Hence, it offers additional support. If there are two John Smiths, for example, the proposed legislation also protects them.
Mr. Roy: I am painfully aware of that.
The Chairman: It also would eliminate the mistaken identity that we had quoted to us at the very beginning of our deliberations about the gentleman who gave a vial of someone else's blood.
Senator Ghitter: At what stage are you asking to take the fingerprints -- at the time of the ex parte application?
Mr. Roy: What is being contemplated is to take the fingerprint at the same time as the DNA sample. Those two pieces of information will be together.
Senator Ghitter: Thus, the ex parte application would be not only to take the DNA sample but also the fingerprints?
Mr. Roy: If these amendments are accepted by your committee and eventually by Parliament, once you have the power to obtain the bodily substance, whatever that might be, you will have the right to take fingerprints at the same time.
Senator Ghitter: Without the warrant?
Mr. Roy: Without the warrant.
Right now, if you arrest someone, without a warrant you can take fingerprints.
Senator Ghitter: We have not arrested anyone at this point.
Hypothetically, you are conducting an investigation. You come to the point where you go before a judge to get the fingerprints and the DNA. Without this proposed legislation, you cannot do that; correct? Without this proposed amendment, you would not be able to do that by the operation of law?
Mr. Roy: To obtain the fingerprints? No.
Senator Ghitter: So you are trying to do something in this legislation indirectly that you cannot do otherwise?
Mr. Roy: The purpose here is to ensure that you have identified the right person; no more, no less. I am not sure that I would agree with you that you are doing here indirectly what you cannot do directly. That is not the purpose of the amendment.
Senator Ghitter: It may be the effect of the amendment.
Mr. Roy: As you are speaking, I am trying to think this matter through.
Mr. Moreau: I stand to be corrected, but I believe that fingerprints are taken when a person is in lawful custody. This amendment will allow fingerprints to be taken simultaneously with the taking of DNA.
Senator Ghitter: We have a process with respect to fingerprints. However, we are now using DNA legislation to come in and do something that really is not in the context of the legislation we are dealing with. Hence, I am suggesting that you may be trying to do something indirectly that you cannot do directly.
I question whether you are coming before us with the right legislation to do that.
Mr. Roy: I am reading motion 38(a), which moves an amendment to proposed section 487.06(1) of the Criminal Code. That provision allows for the taking of those bodily substances for the purpose of analysis following the issuance of a warrant.
The motion adds a new paragraph, a subsection (3), which provides the peace officer with the authority to take the sample --
Senator Ghitter: To take the fingerprints?
Mr. Roy: Yes, according to this amendment here.
Senator Ghitter: That opens up a whole new area. You cannot do that normally in law. An officer cannot get a warrant to take my fingerprints on the basis of a suspicion. He or she can only get a warrant after charges are laid. Why would we allow it here when elsewhere in criminal law it is not allowed?
Mr. Roy: You are drawing the distinction between doing this only after the person has been convicted, and doing this both when the person has been convicted and at the stage where you are only investigating.
Senator Moore: Charged.
Senator Nolin: After the issuance of a warrant, period.
Senator Ghitter: We are only in investigation right now.
Mr. Roy: That is right. If I understand Senator Ghitter's line of reasoning, he is saying that if a warrant is being sought to take fingerprints as part of the investigation, then we are broadening the scope of the law, we are providing the state more powers, whereas if it is being done only on conviction of the individual, for the purpose I explained, which is to ensure that we have the right link, then perhaps the concerns are less significant.
Senator Beaudoin: If you propose an amendment it is because you want more power.
Senator Nolin: Is it possible that Senator Ghitter has raised a concern that was not thought of by the department?
Mr. Roy: That is exactly what I am thinking.
Senator Nolin: Do you want a few days to think about it and come back next week?
Mr. Moreau: I think it is a valid question. We undertake to come back to this committee with an answer.
[Translation]
Senator Nolin: I was reading the excellent report prepared by Mr. Zigayer on the entire system put in place in 1995. As I was reading it, I remembered that we had asked officials why, when the police take samples of bodily substances, they are not required to allow the individual whose bodily substances are being taken to have access to legal counsel. This is only done in cases where young people are involved, but not in any other case.
As I was reading Mr. Zigayer's report, I realized that even though it is not a requirement under the law, you still do this. In other words, the instructions given to the various police forces and the people taking these samples are to advise individuals from whom the samples are being taken, even if they are not young people, that they can retain a lawyer, even though there is no requirement that they be advised.
The Supreme Court requires that you comply with Section 10 of the Charter. Various rulings by the Supreme Court require you to do that. In light of the amendment you have brought forward this morning, would it not be a good idea to extend the protection given young people to all individuals who are the subject of such warrants?
Mr. Roy: The protection you are referring to under the Young Offenders Act, if memory serves me well, came about as a result of legislation that passed well before the Charter of Rights and Freedoms was put in place. Parliament decided, with good reason we can assume, that there was no need to withdraw this wording from the Young Offenders Act or subsequent legislation, because it would also serve as a reminder. As a general rule, the State's obligation to provide counsel is even broader than what is provided for under the Constitution. So, there were two main reasons for keeping this in the legislation: this was already the case previously and the protection is broader. As far as DNA is concerned, it is clear to me that someone who is forced by the State to do something undergoes some form of detention.
In the Therens case, the Supreme Court ruled almost fifteen years ago that the detention referred to in Section 10 had to be of a psychological nature. If someone has the impression that he cannot go anywhere, then he is effectively detained. The Constitution provides that in cases of detention, you have an obligation to provide the right to counsel. I believe that what we now have in the Criminal Code already specifically provides for that right through an individual's ability to exercise his right to legal counsel under the Constitution. I wonder whether it is wise for Parliament to set that out in one provision but not specify it elsewhere, which could leave the impression that the duty of the State could differ from one place to another. My preference would be to allow the law, as it is currently written, to apply in such cases and not specify this right in the Criminal Code, in order not to give someone the impression that if this is specified in the Criminal Code, that means no such obligation exists elsewhere. If we had to completely revise the Criminal Code to include this in every appropriate place, I am wondering whether that would really be useful, and whether we would not be just opening ourselves up to similar action for other kinds of provisions. In other words, the law seems clear on this point, the State is fully aware of its obligation in this regard, and if the Sate does not comply with that obligation, it is sanctioned via the Constitution, without there being any need to specify that in legislation. After all, it is the supreme law of the land and if the State does not know that, then we have a problem. And ultimately if such a problem does arise, it will be sanctioned via Section 24.
Senator Nolin: In the amendments we passed in 1995, we specifically amended the Criminal Code to ensure that such an obligation exists where young people are concerned. We are not just talking about the Young Offenders Act, but actually the Criminal Code. Thus legal counsel will be offered to a young person who has had to provide samples of bodily substances.
Do you not think it is time that we specified, once and for all, that this will apply not only to young people but to everyone, especially if we are also talking about DNA samples?
Mr. Roy: I would simply remind you that under Section 487.07, there is recognition not only of the individual's right to counsel but also the parents' right to be present. That's the reason why it was written that way. In a way, it is the counterpart to the Young Offenders Act.
Senator Nolin: The legislation has to be effective, otherwise we will have to bring you back a year from now to correct the things that should have been done in the first place.
[English]
The Chairman: Our Library of Parliament person has just pointed out to me that these sections that the amendments refer to and apply to are all in the post-conviction part of the bill.
Mr. Moreau: They are not part of the DNA warrant.
The Chairman: It is not in the warrant section. It is not in the investigation time. It is post-conviction.
Senator Fraser: When we were all sitting here thinking that what we were talking about was the investigative phase, it struck me that the use of fingerprints as an identifier of that sample might be a very useful protection for the person. There have been cases in this country, although fortunately not many, where the police have cooked up evidence. One can perceive of a case where the police, to protect one of their own, might substitute an innocent person's DNA sample. If the fingerprints are attached, that is a protection for the person.
It struck me that the real concern was not whether fingerprints were taken but what happens to those fingerprints afterwards, particularly in the case of someone who ended up not even being arrested, let alone charged. If we were to use fingerprints as a label at the investigative phase -- and I realize that I am opening a whole new area here -- would it be a protection to specify in the law that those fingerprints must never be inserted in any permanent record? Should it be specified that those fingerprints must be destroyed at the same time that the DNA sample is destroyed -- because investigative DNA samples are destroyed when the investigation and trial are complete, as we have been assured by everyone who has come before us.
I was struck by the thought that this could be an actual protection for the citizen.
Mr. Roy: Using your hypothetical, you would have to add into the mix the requirement that the state not use the fingerprints for any other purpose other than to identify the your DNA sample. Some of the concerns from the other side were that the police would then be in a position to use the sample for investigative purposes; in other words, to run those fingerprints against the bank for whatever purpose they have.
That is something that Senator Ghitter, among others, would like us to think about more.
The order we are talking about in the motion is an order under sections 487.051 and 487.052 of the Criminal Code. With respect to the military justice context, it would be orders under 196.14 and 196.15. I take it from Senator Ghitter's last intervention that these deal exclusively with post-conviction orders to peace officers for the purpose of taking those bodily samples?
Mr. Moreau: That is correct. It reads very specifically: "...if a person is found guilty of a designated offence." Post-conviction only.
Senator Fraser: So, post-conviction only.
Mr. Roy: What threw me off is that is an amendment to section 487.06 of the Criminal Code. It is my mistake to have thought that this would apply to both the investigative stage and the post-conviction stage. Having read this section more carefully while we were talking, I can vouch for the fact that it is post-conviction. My apologies.
Senator Pearson: I was interested in the same thing as Senator Fraser; however, I am not sure that we should be opening this can of worms.
Mr. Bill Clancy, Policy Analyst, Policing and Law Enforcement Directorate, Solicitor General of Canada: With respect to the fingerprints and the DNA warrant, under the current regime the peace officer could take a DNA sample but would not be authorized to take the fingerprints. All this does is clarify that fingerprints can be taken at the same time as the DNA sample is taken, after conviction.
Senator Joyal: I am trying to reconcile in my mind whether we are short-circuiting the procedure that is normally followed to receive authorization to take fingerprints by in fact legislating another procedure to receive fingerprints once we have the authorization to receive the DNA sample. Are the two procedures totally parallel? Are we not in fact allowing the taking of fingerprints in a different pattern than the one we follow normally when they are not linked to DNA?
Mr. Roy: Right now, when a person is charged with an indictable offence, you can get his fingerprints.
In some provinces, Quebec, in particular, once the person has been acquitted of the offence, there is an application made for the destruction of those fingerprints. In other jurisdictions, and in the United States, once you have the fingerprints that is the end of the matter; you can keep them unless you make a very special application. That varies from jurisdiction to jurisdiction.
The taking of fingerprints is done by operation of law. The Supreme Court ruled that to be perfectly constitutional more than 10 years ago in Higgins and Beare. The decision was rendered by Mr. Justice La Forest, who has been one of the best defenders of privacy rights of Canadians.
What this is proposing is to say that, by operation of the law, once the person has been convicted and you can receive the DNA sample, you can get at that same time the fingerprints of the person. My view is that these run parallel, and I do not see a conflict between the two, subject to hearing others disagree and that would change my mind.
When I read these motions for the first time this morning, my view was that the purpose of it was purely and simply to make it more efficient, that there was no infringement on the rights of people. Indeed, in a large number of those cases, the fingerprints will already have been taken from someone at the time of arrest or at the time of charging. Thus, it is only a link, from the DNA to the fingerprints, to make sure that we have the same person all the way through. It is good protection for the state, for the accused, and for ordinary Canadians. It is not an infringement.
Senator Joyal: This has not been submitted to the Privacy Commissioner; correct?
Mr. Roy: I do not think so.
Senator Joyal: Madam chair, perhaps we should submit the amendments to the Privacy Commissioner. We already have a letter from him on the basis of one text. In all fairness, if we are adding something substantive in the legislation, we should submit it to him, too.
Second, in the case of Quebec, when somebody applies to have fingerprints destroyed, how would it cope with this?
Mr. Roy: The circumstances I was discussing are cases where there has been an acquittal. By definition, it is after conviction. If there is an appeal and the person is acquitted, everything is destroyed, including the fingerprints. In this case, that is completely clear. Destruction would have to be complete.
In Quebec, they started with decisions from the superior court in a number of cases. One that comes to mind by Mr. Justice Rothman is now in the Court of Appeal. In Quebec, the case law is clear. This is a matter of law and a matter of fact.
In other jurisdictions, they have taken a different view, and the matter has not reached the Supreme Court of Canada yet.
Senator Beaudoin: There are a lot of cases dealing with fingerprints. As you said, Mr. Justice La Forest has been very good in that area. However, from the Supreme Court, there is very little concerning DNA. There is only obiter dictum. This worries me because this amendment refers both to fingerprints, where we have a huge jurisprudence, and to DNA, which is only starting. I want to be quite sure that we are not violating any decision of the Supreme Court on fingerprints. That is my concern.
I am not saying that what we are doing is wrong. However, since we are dealing with two things at the same time -- DNA, which is just starting and we have obiter dictum; and the other one, fingerprints, has been there for years and years. We must be careful.
Why have you not brought that amendment previously, when we studied fingerprints?
Mr. Roy: This matter has emerged recently. It goes back to the end of November where the heads of prosecution suggested that this would be a good idea, to ensure that we are not making mistakes. Upon taking a closer look, we thought that the amendment would not add to constitutional problems that we may or may not have. The case law right now respecting the schemes that have been in our law for some time have all been successful, in that this is seen as being constitutional. A leading case is now before the Ontario Court of Appeal, as I am sure Mr. Zigayer pointed out to you.
Senator Beaudoin: In other words, you are sure that the amendment you are bringing to the table is in accordance with the jurisprudence of the Supreme Court?
Mr. Roy: With respect to fingerprints, I have no doubt.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
Senator Moore: You referred to a situation where a hybrid charge is laid, fingerprints are taken, and the Crown subsequently may decide to proceed via summary conviction. In that situation, are those fingerprints destroyed?
Mr. Roy: It depends on lawyers' view of what the law is in those circumstances. In a number of provinces, those fingerprints are destroyed because they take the view that this is not an indictable offence anymore. In other jurisdictions, in other provinces, they feel that once they have taken those fingerprints it is a matter for them to keep, and there is no more thought given to it.
Senator Moore: If it is a summary matter, why would they be entitled to keep someone's fingerprints?
Mr. Roy: Originally, when the prints were taken, it was an indictable offence, as per the application of the Interpretation Act. There is no uniformity across the land on this issue.
Senator Moore: Do you think there should be? That could be pretty sweeping stuff. You could charge everybody, take their fingerprints, and then proceed by way of summary but keep all the fingerprints. I have a problem with that.
Mr. Roy: This is the state of the law right now. It does not come under the purview of Bill S-10.
Senator Ghitter: I have the same concern. I do not understand why you need the amendment. If it is a matter of on conviction, the operation of law today would allows you to have those fingerprints. The only area where there is doubt is what Senator Moore has raised, in that if it starts as an indictable offence and ends up in a summary situation, then you still have the fingerprints, but you may not be able to get them any other way.
The more I hear of this, the more I see it as a grab for additional power, power that you cannot get in other legislation that you are trying to get indirectly here. I do not understand why you need the amendment.
Mr. Roy: If we are all in agreement that this applies only after conviction --
Senator Moore: Of an indictable offence.
Senator Fraser: In a primary or secondary offence.
Mr. Roy: If a person has been found guilty, if it is a primary offence, the judge must order, subject to a discretion, not to. With respect to secondary offences, the judge may order that samples be taken. At that stage, the judge, by operation of law, is also allowing the state to take fingerprints. I do not know that I would qualify this as a power grab on the part of the state.
Its purpose is to ensure that you have the right person; that the person who presents himself as, say, Yvan Roy, is actually Yvan Roy. We will have the fingerprints and, as such, we will be able to make that connection. That is the purpose of this amendment.
Senator Ghitter: The person has already been convicted?
Mr. Roy: Yes.
Senator Ghitter: So you want to make sure after the conviction that the conviction was right?
Mr. Roy: No, that the sample taken is from the right person.
Senator Joyal: Indictable offences, which are always the trickiest ones, almost represent the largest number of offences in the Criminal Code. What would happen in a case where the Crown decided to charge a person under indictment? The person is convicted, the person appeals. The decision is quashed on appeal. What if that person should have been prosecuted on a summary conviction? What has happened with your DNA samples?
Mr. Roy: Could you run that by me again?
Senator Joyal: If we take your proposed amendments, it is ex poste judgment. It is restricted to an indictable offence or to a set of offences that have been added to the National Defence Act.
Mr. Roy: Some of the offences that are in the list of designated offences are hybrid. These amendments apply after conviction, but there is no specification in there that they must have been prosecuted on indictment or on summary conviction. Let us be clear about this.
Mr. Moreau: Originally, when this was envisaged with the working group, there was an assumption that the prints could be taken under the Identification of Criminals Act. One of the issues that came up -- and again this is all post-conviction that we are talking about -- was that the act allows the prints to be taken when someone is in lawful custody or if they are charged or convicted of an indictable offence. One of the finer points here is that, if the person is not in lawful custody -- perhaps they are serving a sentence at a halfway house -- there is no provision. It was a technical question that they could not have their prints taken under the new DNA. There was always a provision there to take the prints of a post-conviction person when they are in lawful custody. There was an assumption made that it could be done as well under the new regime.
That is what we are attempting to address with the motion as well.
The Deputy Chairman: It is ex poste conviction. Is it not too late to discover whether we have the right person before us?
Senator Pearson: Its purpose is to make sure the DNA is of the right person.
Mr. Roy: Senator Pearson has got it right. It is only for the purpose of making sure that the DNA you are receiving is from the right person, so you will have that identification. It is like saying: "We have the name, we have the fingerprints, we have the DNA, and it is the same person." If not, then down the line there must be a way to identify that discrepancy. The best way is through fingerprints. That is the purpose of this amendment.
The Deputy Chairman: It is a legitimate concern because we want to be sure.
Senator Joyal: Since you will be verifying some additional information for us, could you check on my perception that we will be able to connect with previous stocks of fingerprints -- how it could work both ways, for people who might have been convicted wrongly and for people who may not have been accused because a link was missing to connect that person to the crime. Could you check that for us?
Mr. Roy: There are a number of concerns that are emerging around the table. What may be helpful is if we came back with a number of scenarios to say whether this amendment would apply to those circumstances. I read those amendments for the first time at 9:30 this morning. I see where a lot of you are moving. It would be in the best interest of all of us if we came back with that kind of analysis. We would like to come back to clear up any misunderstandings.
If we find out that too much can be done with this, perhaps the government would be interested in withdrawing those amendments.
Senator Joyal: We should submit them to the Privacy Commissioner, also, because they will be part of the main body of legislation. If we are adding something substantial to the legislation, we should provide this information to the Privacy Commissioner as well.
The Deputy Chairman: I understand, Mr. Roy, you are coming back next Wednesday. If we finish, we finish, but there is no urgency I am told. We agreed that you may come back next week on Wednesday.
Mr. Roy: With pleasure, Mr. Deputy Chairman.
The Deputy Chairman: Thank you for your very interesting input this morning.
The committee adjourned.