Bill C-240 (Historical)

An Act to amend the DNA Identification Act (establishment of indexes)

DNA Identification Act

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, although this is a private member's bill, the NDP supports it going to committee. We have some reservations. We hope they can be resolved at committee or perhaps even before it gets to committee.

I want to follow up on some of the comments made by my colleague from the Bloc, who made a number of points about the frustration he and I have both shared with regard to this legislation. I know it is certainly a frustration shared by the mover of the bill and the Minister of Natural Resources, who had authored a similar bill, I believe Bill C-240, in the last Parliament.

In spite of the fact that we had reasonable support for the concept from certain individual members of the Liberal Party, it was frustrating. When the Liberal Party was in government, it would not address this issue, which was unfortunate. At the time, two pieces of legislation were before the justice committee. One was kind of a last minute thing. This concept could have easily been included at that time. If not then, it could have been addressed in the mandatory review of the DNA system established under the code almost five years ago now. That review was supposed to have been completed over a year ago and still has not been.

There is a need for this type of system where family members can assist in identifying another family member, whether it is a sibling or a child, who has been killed or died as a result of other trauma. This would be a major step forward in giving the surviving family relief by knowing what happened to a loved one. There is no question we need to do this.

My colleague from the Bloc has raised the constitutional issue. It is quite clear, and I think all of us agree, that there is a problem. In the last Parliament, the current Minister of Natural Resources went out of his way to get correspondence from all of the provinces, indicating they wanted to have the system put in place.

Unfortunately, that is not the end of it. The system could still be challenged if it were established, as suggested in this bill, as purely a federal system. It could be challenged by individuals who are being followed as a result of this. I will come back to this in a minute. It is not simply good enough to say we have an agreement between the provinces and the federal government. How that agreement is put into play is very crucial because it could be challenged under the Constitution.

I believe there are answers to that question and hopefully we will be able to resolve it at committee. For that reason, the NDP supports it going to committee, perhaps with some significant amendments at that point to address the constitutional problem.

In addition to that, there are some other problems with the legislation. I do not believe it goes far enough in dealing with privacy issues that could come up. Although the bill is very clearly intended to only deal with DNA samples of deceased individuals, it is not the end of it. The bill does not prohibit, as extensively as it needs to, getting at the DNA sample and comparing it to another sample of a person who is still alive and may be the subject of some investigation by the police. That is clearly not what it is intended to do, but it is open to that kind of use by the state. We have to build some additional amendments into the bill to prevent that from happening.

My final concern is the privacy issue. We have the potential scenario of sexually abusive parents attempting to trace their offspring, who has run from the home because of the abuse, and is using it as a methodology to do so. Under the bill as it is presently composed, they can offer their sample. If the sample is then compared to one that is found at a crime scene or if it gets into the hands of police officers in some other fashion, that would be an indirect methodology of tracing that person.

In the previous bill and again in this bill there have been specific attempts to thwart that from ever happening. I do not think it goes quite far enough and I will be proposing some amendments to deal with that more specifically when it gets to committee, assuming the House see it appropriate to do so. Those amendments would shut the door on any invasion of privacy in that regard. I believe it can be done with further amendments to the bill and perhaps amendments to our Evidence Act, which would prevent that from occurring and prohibit police forces from ever using it in that way.

There is one additional problem, about which we learned when we went to the laboratory in Ottawa. There is a problem with destroying DNA samples. The way we collected samples in the current system, a number of them are put on one sheet. If we destroy one of them, we almost inevitably destroy the whole sheet or a great number of them. The people in the lab were still working on that problem about a year ago. I do not believe they resolved it. It is a problem under the current system because we have outstanding court orders that DNA samples that were taken improperly are to be destroyed and they cannot do it. The system does not allow for it.

It may be possible to create and store the samples in a different fashion, but right now that is not possible. That is a concern under the legislation. The final part of the legislation that is being proposed speaks specifically about the need to destroy samples in proper circumstances. That is the final point that needs to be addressed.

I expect most of my caucus will be supporting the bill. However, we have concerns around the constitutional and privacy issues. We also have concerns about its potential abuse and the ability of the system to be able to destroy samples. All those issues, with the exception of perhaps the last one, can be resolved at committee. We will have to hear additional evidence on the issue of whether the samples can be destroyed.

In summary, the bill is long past due. I will be critical of the former government because it was not dealt with in the last Parliament, and it should have and could have been. I hope we will be able to get this through. I hope the government will come on side and make it a government bill rather than a private member's bill.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, to begin with, like the previous speaker, I think this is an excellent idea that should be implemented. My objections have to do with the method chosen: a private member's bill. This is quite often a long process and one that is rarely successful. I think this idea deserves better. I hope that this law will be in effect in about a year.

This bill does raise constitutional problems. The mover thinks that there is a way to solve them, but we still have to know how, which he has not gone into much. I have some suggestions.

First, what is the constitutional problem? This House justified the DNA Identification Act as being an exercise of the authority granted it by subsection 91(27) of the British North America Act. I have an opinion issued by the Library of Parliament in 2005. It has therefore been known for some time. It reads: “Unlike the already-established National DNA Data Bank, the indices created by Bill C-240 would not be created for criminal identification purposes”.

This goes without saying. Obviously, we want more than that.

The opinion continues: “As such, they would not come under the criminal law power accorded to Parliament by section 91(27)”.

It says too: “A question has arisen, therefore, as to whether C-240 [this was the predecessor of the current bill] is ultra vires the powers of Parliament as it would deal with a matter of local concern.”

So that is what is in subsection 92(16).

Nevertheless, it says: “Missing persons investigations in Canada are led by local police [this too, is an argument akin to what the previous speaker said] and provincial coroners have jurisdiction over unidentified human remains. Barring an inter-provincial or international element to the disappearance of the person found, the matter would be one of local concern and, therefore, be within provincial jurisdiction.”

Attractive as I find this very commendable and worthwhile idea, I remember that the researcher submitted several options. I do not know which are preferred by the person who introduced the bill we are dealing with today. I do know, though, which one Quebec prefers.

In one of the first options, it says: “The jurisdictional problem arises, however, in the creation of a new human remains databank, the data for which would be furnished by local police officers and coroners. Local police officers and coroners are subject to provincial jurisdiction and to legally require them to forward DNA remains anywhere would require provincial cooperation.”

I know that this is not Quebec’s preferred option. However, one option would be, namely: “Another possibility for establishing a national missing persons index is for the Department of Justice to work with its provincial and territorial counterparts to develop uniform legislation to govern the operations of such a database and to facilitate the establishment of provincial and territorial indices linked in a network. This would be somewhat similar to the American approach in which each state has its own data bank and is connected to a virtual national DNA data bank.”

In the United States, criminal law is a state jurisdiction, in contrast to our federation where it is under the federal Parliament. If they have managed in the United States to create 50 networked databanks, I cannot see why, with all the goodwill that has apparently been expressed, we could not create 10 or 12 networked databanks here—if the Yukon and Northwest Territories are included.

I see too that many other problems have been raised in connection with this bill.

Very optimistically, the mover of this bill says that we could easily introduce several amendments that would resolve all these problems. I do not believe that would be the best way to proceed. In my opinion, if the bill were to become a government bill, the government could send it to its own research service.

Government officials could propose a bill in which all the amendments that should be included were presented in a much more coherent context. Moreover, if we were to insert amendments here and there in the bill, we would risk losing consistency. If, from the beginning, officials drafted a bill based on consultations with the provinces to ensure that all the provinces would adopt laws that could be harmonized, we would have a much more effective bill. In addition, the process would not take as long.

This bill is a successor to Bill C-240 which was introduced by the current Minister of Natural Resources. The path is now a great deal shorter for the minister to convince his cabinet colleague, the Minister of Justice, to raise this matter.

Moreover, there is an institution in Canada that meets every year to examine the possibility of harmonizing our laws. At one time, there was even talk of standardizing provincial laws in appropriate cases. In French, this group is known as la Conférence pour l'harmonisation des lois au Canada, and in English it is the Uniform Law Conference of Canada. There are meetings every summer and I, personally, have attended many times, often as an adviser to the Quebec government when I was in private practice. I have also attended as the Quebec Minister of Justice.

In my view, this is the proper forum to discuss this subject. Perhaps these were the discussions that the mover referred to earlier. If that is the case, there first have to be discussions in order to draft a bill that would be acceptable to all the provinces, and finally to present the bill to Parliament.

It seems to me that if we followed that approach, we would see results a great deal more quickly. It would be surprising if the number of private member’s bills that are adopted amounted to more than a few percentage points. I am not sure if anyone has ever published statistics on that topic.

However, if the Minister of Natural Resources—who was in favour of it—were to sell the idea to the Minister of Justice, if his staff were to submit a bill jointly and if they could get the consent of the provinces, we could have such a bill a year from now. But I doubt that we get such results so quickly if this remains a simple member’s bill.

The members of the public who support this bill, and who are fed up with constitutional quarrels, do not see that these are objections that we are raising. Basically it is a reality that we must deal with and that I am very familiar with, and that is why I made an effort to find a way that was faster, more efficient and surer of achieving results in much shorter times than are proposed here.

We live in a federation and, as members know, this is not my first choice of system of government for Canada. I prefer a true confederation. Moreover, they must have known this when they gave me my first office in the Confederation Building. In any case, that is not the reason. In a federation, there are more obstacles than in a unitary system and this case is proof of this. In my opinion, the solution that I submit to the mover is the best one. This is why I cannot support the bill as it is drafted and as it will be submitted.

[Gary Lunn, Conservative, Saanich—Gulf Islands, BC]

moved for leave to introduce Bill C-240, an act to amend the DNA Identification Act (establishment of indexes).

Mr. Speaker, I am pleased to rise today to reintroduce my private member's bill to amend the DNA Identification Act. My bill is inspired by one of my constituents, Judy Peterson, and her quest to find answers on what happened to her 14-year-old daughter, Lindsey Nicholls, who disappeared in 1993.

This bill would create a DNA database for missing persons and link that database to the crime scene index and the DNA from unidentified bodies in Canada's morgues. A DNA sample costs as little as $100 to take and could bring closure for many grieving families.

I have heard much talk about the merits of this bill over the last year, but I have not seen a lot of action. I hope that the reintroduction of the bill, which I call “Lindsey's law”, will remind MPs of their commitment to finding missing persons and move this issue forward.

As I close, I would like to express my heartfelt appreciation for the former solicitor general and member for Malpeque who fully supported this issue when he was the solicitor general. He has offered his assistance in moving this private member's bill forward.

(Motions deemed adopted, bill read the first time and printed)