Moved second reading of Bill S-236, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.

He said: Honourable senators, I stand today at second reading of Bill S-236, the short title of which is Increasing the Identification of Criminals Through the Use of DNA Act.

This bill proposes to amend criminal law statutes relating to taking DNA samples from living persons to solve police investigations. The legislation in this area of law is technical. That’s why I would like to begin my speech by explaining certain basic concepts of the existing legislation. That will allow you to better understand, later in my speech, the main amendments proposed and their necessity.

The taking of DNA samples under criminal law is based on several federal statutes, the main ones being the Criminal Code and the DNA Identification Act.

The Criminal Code allows a judge to issue a warrant to obtain DNA samples from a person suspected or accused of having committed certain offences, which are called “designated offences.” It also authorizes a judge to order the taking of DNA samples from a person who’s been convicted of a designated offence. These Criminal Code provisions apply to both adults and adolescents, and their constitutionality has been confirmed by several rulings of the appellate courts, which I drew on heavily in developing this bill.

They are R. v. S.A.B. from 2003, the 2006 Supreme Court ruling in R. v. Rodgers, the 2019 Alberta Court of Queen’s Bench ruling in R. v. TT, and the 2011 Ontario Court of Appeal ruling in R. v. K.M.

The list of designated offences set out in the Criminal Code is long and complicated, and it doesn’t include all criminal offences. The bill proposes to remedy that situation by simplifying the text of the legislation and ensuring that nearly all Criminal Code offences are henceforth considered designated offences.

Furthermore, under the Criminal Code and the DNA Identification Act, the DNA of people who are convicted of a designated offence will be stored in the national DNA data bank.

The national DNA data bank is a very reliable tool that helps the police to determine whether a suspect has committed an offence. They can use this data bank to check whether the DNA collected from a crime scene corresponds with that of an offender with a previous conviction whose DNA is already in the data bank.

The Ontario Court of Appeal rendered a significant ruling that describes the importance of the data bank. The court indicated in paragraph 22 of its 2001 ruling in R. v. Briggs, that, when it comes to taking DNA samples, the state’s interest, and I quote:

 . . . is not simply one of law enforcement vis-à-vis an individual — it has a much broader purpose. The DNA data bank will: (1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).

I would stress that the DNA Identification Act and the Criminal Code currently provide that the data bank must operate in accordance with important privacy safeguards for offenders required to provide their DNA to the bank, including strict rules governing the use of information derived from their DNA. These protections are all maintained in the bill.

Here is how the current law is implemented. Police officers have no access to DNA samples taken from the offender once they’re entered into the data bank. The DNA and the name of the offender are separated in the bank. In fact, the employees have a digital bar code for each DNA sample, but don’t know the name of the offender it belongs to. What’s more, the DNA profiles present in the bank’s files are produced only from non-coding strands of DNA, or parts of DNA that differentiate each person, but that don’t reveal any information of a medical or personal nature about the donor.

Also in the interest of protecting the privacy of the offenders whose DNA is filed in the national DNA data bank, the Criminal Code sets out criminal offences for public servants or police officers who use the DNA samples for purposes other than those permitted by law.

The Criminal Code also requires that DNA sample be taken using techniques that are minimally physically invasive to the offender, such as a cheek swab or taking a hair or a drop of blood.

As we can see, the existing legislation significantly reduces the impact on the privacy of offenders who are required to provide their DNA upon conviction, and the bill does not change these important privacy safeguards.

In fact, the bill would make DNA collection in criminal cases more common and more efficient. This will benefit society, since there are advantages to this investigation technique, which makes it possible to quickly and reliably solve crimes by incriminating or exonerating people who are suspected or charged with a criminal offence.

To that end, the bill proposes seven important measures.

First, it significantly increases the number of criminal offences for which the court is authorized to order an offender to provide a DNA sample upon conviction. More specifically, it would require that DNA automatically be collected from all adult or adolescent offenders who are convicted of offences set out in the Criminal Code or other federal laws, including the Cannabis Act, for which the maximum sentence is imprisonment for five years or more. The bill would therefore require that every person convicted of a violent or sexual offence, without exception, submit their DNA to the data bank, since these offences all carry a maximum sentence equal to or greater than five years, pursuant to the Criminal Code.

This measure in the bill is intended to respond to a recommendation made in three separate reports issued by various House of Commons and Senate committees.

The House of Commons Standing Committee on Public Safety and National Security published a report in 2009 following its statutory review of the DNA Identification Act and the DNA provisions of the Criminal Code. The report recommended that DNA samples be taken for all designated offences.

The Standing Senate Committee on Legal and Constitutional Affairs also studied these provisions and released its report in June 2010. The report recommended the immediate and automatic taking of a DNA sample from any adult convicted of a designated offence. That recommendation was reiterated by the same committee in 2017, seven years later, in its report on delays in the criminal justice system.

It is worth noting that this recommendation was made in a context where the National DNA Data Bank of Canada contains fewer DNA profiles per capita than the DNA banks of other countries.

Canada’s data bank is small, and it is growing at a snail’s pace. At the end of 2019-20, the data bank had 401,546 profiles in the convicted offenders index, or about one profile for every 94 Canadians.

In comparison, the United Kingdom has 6.6 million profiles, or approximately one profile for every 10 people. The FBI has 18.4 million profiles, or about one for every 18 Americans. New Zealand, with a population of just 5 million, has more than 200,000 profiles, or one profile for every 25 people.

Solving crimes by using a national DNA data bank depends on the number of DNA profiles in the bank, which come from crime scenes or convicted offenders. A person who commits a crime is identified by the bank when their DNA, which was obtained upon conviction for a crime, is matched to DNA contained in the crime scene index. That means there are fewer chances of finding a match between the DNA in the crime scene index and the DNA in the convicted offenders index in our National DNA Data Bank than in the banks of other countries. This is not a new problem, and the solution is obvious. We must add more profiles to the convicted offenders index, because the more criminal profiles we have in our National DNA Data Bank, the easier it will be for police to identify perpetrators or exonerate suspects.

The second important measure in this bill, like the first, will have the benefit of increasing the number of DNA profiles of convicted offenders in the bank.

This measure will reduce the court’s discretion to refuse to order an offender to provide a DNA sample after being convicted of an offence for which the maximum sentence is less than five years. The existing legislation provides for two types of offences that require a convicted offender to provide a DNA sample, known as primary offences and secondary offences. In the case of some primary offences, the judge currently has very limited discretion to refuse to order a DNA sample.

For secondary offences, the judge has more leeway to refuse to give an order, and the Crown has the power to not request one.

By reducing the number of convicted offenders who are not ordered to provide a DNA sample, this bill would address a problem that police officers have observed in real life. Someone who commits a sexual or violent crime can also commit other types of crimes. Therefore, they can be stopped through their DNA, which would have been collected when they were convicted of more minor offences, such violating an interim release order or committing theft under $5,000, which are two offences that carry a maximum prison sentence of less than five years.

However, I want to make it clear that the bill does not allow a court to order a DNA sample in cases involving two categories of offences for which the punishment is less than five years, because the act deems these to be less serious.

The first category is all criminal offences considered “purely summary,” that is, offences that can be prosecuted solely as summary offences. In other words, purely summary offences are not so-called “hybrid” offences that can be prosecuted as either indictable offences or summary offences. Failure to comply with a condition of a sentence imposed on an adolescent is a very common example of that type of purely summary offence. The second category is violations of the Cannabis Act in cases where prosecution can result only in a ticketing option, which would be a small fine. That is the kind of less serious offence that adolescents and young adults might commit.

By curtailing the judge’s freedom to refuse to order a DNA sample for other offences likely to result in a sentence of less than five years, the bill acts on the fourth and fifth recommendations of the 2010 Senate committee report on adolescent offenders, which I talked about earlier.

This report recommended the automatic collection of a DNA sample from any young offender convicted of a primary designated offence and the narrowing of the judge’s discretion to refuse to order a DNA sample in the case of secondary designated offences.

Third, the bill considerably increases the number of criminal offences for which a judge can issue a warrant for a DNA sample from a suspect or accused person. I think this is an essential measures because DNA identification is a very reliable form of evidence for incriminating or exonerating an alleged offender. It is much more reliable than eyewitness identification evidence, which has led to many well-documented wrongful convictions. Although the bill increases the number of designated offences for which a judge can issue a warrant for a DNA sample, it does not amend the stringent conditions set out in section 487.05 of the Criminal Code that the police must meet to obtain a warrant from the judge. The bill does not amend the conditions set out in section 487.05 because they were deemed constitutional and important by the Supreme Court of Canada in R. v. S.A.B. in 2003.

I would like to add that there is no reason not to increase the number of offences for which a warrant for a DNA sample can be issued, given that the police can obtain a warrant to search a home for any offence under any act of Parliament.

Fourth, the bill authorizes, under certain circumstances, the use of a DNA investigative technique that can solve serious crimes in an emergency or when other investigative methods fail to identify or exonerate a suspect. This technique, known as familial searching, can identify a suspect by comparing the DNA they leave at a crime scene to the DNA of a biological relative who had to provide their DNA to a bank following a conviction. This technique essentially involves the same type of analysis carried out in DNA tests to establish paternity or kinship.

First used in the United Kingdom, familial searching is used in many countries around the world, but not in Canada, who’s lagged behind.

This technique helped solve the case of the rapist who kept the stilettos of the women he raped during the 1980s as trophies. James Lloyd was arrested in 2006 after familial searching linked him to these crimes. He pleaded guilty to four counts of rape and two counts of attempted rape, and was sentenced to 15 years in prison.

Interestingly, the profile in the British data bank that helped identify him was his sister’s, who had been convicted of driving under the influence, an offence that, in practice, never warrants taking a DNA sample in Canada. This bill, however, would ensure that people convicted of this driving offence would have to provide a DNA sample to the data bank, without exception, since the offence is punishable by a maximum penalty of more than five years.

Los Angeles had the “Grim Sleeper,” who earned the moniker because, after murdering several women prior to 1988, the murderer appeared to stop committing crimes for 14 years, only to resume his gruesome activities in 2002. Lonnie David Franklin Jr. was arrested in July 2010 and ultimately convicted of killing nine women and a teenage girl. He was also suspected of killing several other women whose bodies were never found.

His arrest was the result of familial searching that linked him to his son, who was profiled in the data bank for a firearm-related offence. Without that familial search, we can only assume that he would likely still be at large and able to continue committing heinous crimes.

I’m convinced that there are serious cases in Canada that are just waiting for authorization to conduct a familial search. I assume, for example, that there’s DNA evidence related to the unsolved murders of many Indigenous women. We certainly owe it to the families to use all the tools at our disposal to find those who killed their loved ones.

I would add that the National DNA Data Bank Advisory Committee recommended amending the Canadian law to allow familial searching, which is exactly what the bill proposes to do. We can assuredly trust its recommendation because of the vast legal and scientific expertise of its members. In fact, in accordance with a regulation of the DNA Identification Act, the role of the committee is to study any question related to the data bank.

The committee’s recommendation to authorize familial searching is well explained in the following excerpt of its annual report, and I quote:

In 2015, the . . . Advisory Committee once again reviewed this matter and concluded that the value of familial searching to solve challenging, serious cases and protect Canadians outweighs the inherent risks associated to its use. The humanitarian aspect of not doing what is possible to protect the public must also be considered since the public remains at risk when violent criminals remain at large. Additionally, familial searching has been used to exonerate the innocent.

As a result, the Advisory Committee wrote to the Commissioner of the RCMP in December 2015 recommending that the value of familial searching be pursued with the Minister of Public Safety for serious, violent, and serial crimes for open cases where all other investigative avenues have been exhausted. The NDDB Advisory Committee recognizes that the current DNA Identification Act legislation effectively prevents familial searching as the [National DNA Data Bank] can only report exact matches and partial matches where the profile cannot be excluded as a candidate. It would therefore be necessary to pursue legislative amendments to make it possible to report similar matches to family members.

The National DNA Data Bank Advisory Committee isn’t the only organization to have made this recommendation. In fact, the RCMP also recommended amending the DNA Identification Act to authorize the bank to do kinship analysis and familial searching, as indicated on pages 61, 62 and 63 of the English version of the Senate committee’s 2010 report on DNA. As evidence of the RCMP’s keen interest in kinship analysis, in 2018, this organization prepared a substantial discussion paper on the use of this investigative technique in other democratic countries. It is a paper that my team and I studied in great detail when we were drafting the bill to authorize kinship analysis or familial searching.

Let’s move on to the fifth important measure in the bill. It will eliminate administrative irritants for police officers and bank employees by facilitating information management following collection of a DNA sample without affecting privacy protection measures. Here’s an example. Currently, when a judge issues a DNA collection order to an offender or authorizes collection from a suspect or an accused, the police officer collecting bodily substances containing DNA must then write a report to the judge detailing the date and time of the collection and the substances collected.

The bill would eliminate that requirement because, in practice, these reports serve no real purpose in a context where collection can be performed only under judicial authorization.

Sixth, the bill requires the Minister of Public Safety to produce a report within two years of the bill receiving Royal Assent. The report would seek to determine whether DNA can be taken from persons arrested or charged with an offence in Canada without the need for a warrant from a judge. In other words, this report will consider whether it is in the public interest to change the law to allow for the collection of DNA from a person presumed innocent in the same way that the Identification of Criminals Act currently allows for the collection of fingerprints, measurements and photographs.

I believe that a report is needed promptly to explore this issue. First of all, for several years now, many democratic countries, including the United Kingdom, have been taking DNA samples upon arrest. In the United States, for instance, the Supreme Court upheld the validity of taking a DNA sample at the time of arrest in Maryland v. King in 2013.

I would also like to remind senators that the Supreme Court of Canada ruled in Rodgers in 2006 that, given the protections set out in the Criminal Code and the DNA Identification Act, the potential impact of DNA sampling on the privacy of the individual is comparable to that of fingerprinting. Perhaps that will convince senators that DNA sampling is an investigation technique that is widely accepted by the courts, and that it could be very useful to use this technique as soon as a suspect is arrested, just as suspects can be fingerprinted upon their arrest under Canadian law. I would like to quote paragraph 38 of R. v. Rodgers, which states the following:

It is beyond dispute that DNA sampling is a far more powerful identification tool than fingerprinting. Therein lies the heightened societal interest in adding this modern technology to the arsenal of identification tools.

Seventh, the bill amends the text of the Criminal Code that has to do with DNA sampling by simplifying the list of designated offences for which DNA sampling is authorized, as I mentioned earlier.

To summarize, Bill S-236 would enhance public safety by helping police solve crimes using DNA identification. Since DNA evidence is highly reliable, more cases would result in guilty pleas rather than trials, which would reduce delays in the criminal justice system. This bill would also prevent wrongful convictions by quickly exonerating suspects, given that DNA evidence is reliable.

I would like to conclude my speech by thanking two people whose assistance was invaluable in drafting this bill. The first is David Bird, an RCMP lawyer who dealt with issues concerning genetic material for almost 20 years before retiring in 2013. The second is Greg Yost, who was a lawyer specializing in DNA at the Department of Justice for 20 years.

These two men appeared as expert witnesses during the Senate committee’s deliberations, which led to the committee’s report on DNA in 2010. It is not very common for a senator to have access to experts like them when drafting legislation.

Furthermore, I encourage everyone, including citizens, parliamentarians, police officers, lawyers, judges, scientists, university researchers and representatives of public or civil society organizations, to contact my office while the Senate is adjourned this summer in order to share their thoughts and suggestions about Bill S-236, so that both its wording and its effectiveness can be improved.

Thank you for your attention, and I urge you to adopt this important bill at second reading. Thank you.