An Act to amend certain Acts in relation to DNA Identification

This bill was last introduced in the 38th Parliament, 1st Session, which ended in November 2005.

Sponsor

Irwin Cotler  Liberal

Status

Not active, as of Nov. 21, 2005
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code, the DNA Identification Act and the National Defence Act to facilitate the implementation of An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, S.C. 2005, c. 25. The enactment makes certain technical changes to those Acts. It also

(a) allows a court to require a person who is given notice of an application under subsection 487.055(1) of the Criminal Code and who wishes to participate in the hearing to appear by closed-circuit television or a similar means of communication;

(b) allows samples of bodily substances to be taken as soon as feasible after the time set by an order or a summons for the taking of the samples or, if no such time is set, as soon as feasible after the day on which an order is made or after an authorization is granted;

(c) requires the Commissioner of the Royal Canadian Mounted Police to destroy the bodily substances collected under an order or authorization and the information transmitted with it if, in the opinion of the Attorney General or the Director of Military Prosecutions, as the case may be, the offence to which the order or authorization relates is not a designated offence;

(d) enables the Commissioner to communicate internationally the information that may be communicated within Canada under subsection 6(1) of the DNA Identification Act; and

(e) allows the Commissioner to communicate information for the purpose of the investigation of criminal offences, and allows the subsequent communication of that information for the purpose of the investigation and prosecution of criminal offences.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

February 15th, 2007 / 10:10 a.m.
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Counsel, Criminal Law Policy Section, Department of Justice

Greg Yost

I'll take a shot at answering that. The original legislation required that the DNA be taken as soon as a sentence was pronounced, which rapidly turned out to be inefficient, ineffective, with police having to be around at all times. It simply could not be done.

Bill C-13 contains in it a provision to allow the judge to set a time and place for the hearing. One of the improvements that the committee of officials suggested, and which is now to be found in this bill--it was actually in Bill C-72 as well--is a right to issue a warrant for a person's arrest. We also have introduced a new provision in this Bill C-72, which will allow the police department that is authorized to do it to authorize any other police department to do it on their behalf. So if the Toronto police were authorized and the person was picked up in Vancouver, we don't have to bring him back to Ontario; they can authorize him over there. This, we think, will make it a lot easier to collect the DNA.

Normally the orders are made to peace officers of a province because that's where the provincial court judge has authority. Some have apparently been making it through just a specific police department, but this amendment will cover all of those problems.

February 15th, 2007 / 9:45 a.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

I have two areas where I have some concerns. I do understand that Bill C-18 is largely a reproduction of the previous Bill C-72, which had been presented by the previous Liberal government.

As you can understand, Liberals, in general, were supportive of this bill.

February 15th, 2007 / 9:30 a.m.
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Niagara Falls Ontario

Conservative

Rob Nicholson ConservativeMinister of Justice

Thank you very much, Mr. Chairman.

I apologize if there was a bit of a mix-up. I had this on my schedule for 10 o'clock; this actually works out better. I'm now subject to House duty. This is a function that I didn't have as House leader or whip. I was always impressing upon others the importance of House duty, and now I have it myself. So this will work out very well.

I'm glad to be joined here by two colleagues who are experts on this particular piece of legislation, and I'm glad to have them at the table with me.

It's a pleasure for me, Mr. Chairman, to appear before you today to discuss a bill that addresses concerns that we all share about how to make better use of DNA to assist law enforcement, a bill that has been supported at second reading, I'm pleased to say, by all parties within the House.

As members are aware, the last Parliament passed Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act. As introduced, Bill C-13 included an expansion of the retroactive scheme to include persons convicted of a single murder and also of a single sexual offence committed at different times. There were some additions to the list of primary offences, including robbery and break and enter of a dwelling, and some additions to the secondary offence list, including criminal harassment and uttering threats.

Bill C-13 was the first opportunity Parliament had to consider the DNA scheme since it had come into force in June 2000. It was always recognized that the DNA legislation, which was pioneering, would have to be revisited in light of experience with its provisions, judicial considerations of the legislation, and developments in the rapidly developing DNA science and technology. Indeed, the legislation itself required a parliamentary review within five years, and I will come back to that point in a minute.

Even though Bill C-13 was never intended to replace the review, the hearings were quite extensive. Major amendments were made to the bill in committee that greatly extended the reach of the DNA databank provisions, including creating a new category of offences where judges would have no discretion and including all offences that are prosecuted by indictment and are punishable by five years under the Criminal Code as secondary designated offences.

The fact is, Mr. Chairman, most of Bill C-13 is not in force. There are technical glitches that must be addressed before it comes into force to make its provisions more effective in carrying out Parliament's intention.

The previous government recognized the need to make changes and introduced Bill C-72 in November 2005. Bill C-72 died on the order paper, and we have now introduced Bill C-18 to make the changes proposed in Bill C-72, along with other technical improvements in the legislation that were identified by federal and provincial officials after Bill C-72 was introduced into the House.

Bill C-18 is complicated in its drafting because some sections amend the former Bill C-13, so that when Bill C-13 is proclaimed, the new provisions will work better. I'm pleased to have the officials here with me who will be able to answer any questions you may have on how these two bills will work together.

To assist the committee, my department has prepared an unofficial consolidation to show how the Criminal Code DNA provisions will read if Bill C-18 is passed and then Bill C-13 is proclaimed, and I have provided copies to the clerk. There's also an excellent summary of the bill, including its background, which has been prepared, I understand, by the parliamentary information and research service.

Colleagues, as members know, DNA has had an immense impact on our criminal justice system. It has exonerated many people who were innocent but were convicted on the basis of witness testimony and circumstantial evidence. It has led to thousands of convictions where accused, who might have been able to go undetected in the past, are identified through DNA matches to known persons, thereby giving police the lead they need.

Moreover, cases in the past that might have gone to trial with the defence casting doubt on the accuracy of the victims' and other witnesses' recollections of events now are resolved by a guilty plea because the defence knows it cannot explain away the DNA evidence or cast doubt on the reliability of the science.

In the late eighties and early nineties, prosecutors began to use DNA, but it was only in 1995 that the Criminal Code first allowed for a judge to compel a person to provide a sample for DNA analysis, a provision that was unanimously upheld as constitutional by the Supreme Court of Canada.

It was in 1998 that Parliament passed the legislation necessary to take DNA samples from convicted offenders and to create the national DNA data bank to compare those samples with DNA samples found at crime scenes. I understand that members of the committee were able to tour the national DNA data bank yesterday. I'm sure you were impressed by the facility, and especially by the dedication and professionalism of the staff. It is certainly a most cost-effective institution, of which all Canadians can justly be proud.

The effectiveness of the data bank depends on the number of profiles in the convicted offenders index and the number in the crime scene index. The passage of this bill, and the subsequent proclamation of Bill C-13, will increase the number of samples in the convicted offenders index in a number of ways.

Firstly, it will create a new category of 16 extremely serious offences for which a judge will have no discretion not to make the data bank order. There are cases where persons convicted of these offences have not been required to provide a DNA sample for analysis.

Secondly, this bill will move some offences—most importantly, break and enter into a dwelling place and all child pornography offences—from the secondary designated offence list to the primary designated offence list, so that there will be a far greater likelihood that an order will be made.

Thirdly, this bill will add many more offences to the secondary designated offence list, including offences under the Criminal Code and under the Controlled Drugs and Substances Act that are prosecuted by indictment and that have a maximum sentence of five years or more.

Fourthly, it will provide many procedural changes to make it more likely that an order will be executed, for example, by allowing a judge to set a time and place for a person to appear to provide a DNA sample rather than having to do it at the time of sentencing, and providing for a warrant to be issued for the person's arrest if the person fails to show.

Fifthly, persons who are found not criminally responsible on account of mental disorder will be brought within the scheme.

Sixthly, a new procedure will allow a judge to set a date for a hearing to consider whether to make a DNA order within 90 days of imposing a sentence. This is intended for the situations that inevitably occur in our busy courts, where a trial is concluded and a sentence is imposed but nobody remembered that a DNA order could be made in the particular case.

We cannot be certain how many more samples from convicted offenders will be submitted to the data bank for analysis and for uploading to the convicted offenders lists as a result of these changes. Much depends on the courts, prosecutors, and police. We trust they will use the new provisions to the fullest extent.

It seems certain, however, that these changes will at least double, and could triple, the number of samples coming in. I believe this legislation will have a similar effect on the number of samples being uploaded to the crime scene index. Certainly, the changes to the definitions of primary and secondary designated offences mean that samples from many more crimes could be uploaded, because the DNA data bank only uploads samples from those crime scenes involving a designated offence. For example, it will be possible, when the legislation comes into force, to upload samples from drug offences.

However, as I believe members are aware, the forensic DNA laboratories across Canada are struggling to meet the workload they now have. The advances in DNA technology mean that scientists can now extract DNA from small samples, such as the saliva that moistened glue on an envelope. Since police do not know which items found at a crime scene may have DNA, they may want dozens of items analyzed—chewing gum, beer cans, cigarette butts, clothing and sheets—in the hope of finding the one that has the offender's DNA.

Crime scene analysis is a labour-intensive process. Every step of the process has to be meticulously documented because the successful prosecution of an offence based on DNA evidence will require the police and the lab to show they did not mix up the samples or allow contamination of the sample. This is not work that can be done by untrained personnel or that lends itself to robotics. Accordingly, there is an almost insatiable demand by the police for DNA analysis and there is a limited supply of persons competent to do the crime scene analysis.

In conclusion, Mr. Chair, I would make two observations.

First, I believe it is urgent that Parliament pass Bill C-18 so that we can begin to feel its benefits. Certainly it may be possible that more extensive changes, then, are proposed in either Bill C-13 or Bill C-18 and can be made, particularly in light of the endorsement of the DNA legislation by the Supreme Court of Canada in the Rodgers case last April. However, such changes should be made after a full hearing of all the stakeholders and should not be grafted onto Bill C-18.

My second observation, Mr. Chairman, deals with how we might consider major changes to the DNA system. As members know, Parliament was supposed to have begun the parliamentary review no later than June 30, 2005. We are now more than 18 months past that date. Bill C-13 was intended to address the problems in the system identified in the first two years of the operation of the DNA data bank. It followed consultations undertaken in 2002, and at that time the consultation paper specifically stated that the consultations led by the Department of Justice in cooperation with the Department of the Solicitor General of Canada are part of the government's ongoing commitment to review and refine existing laws in response to evolving experience and stakeholder feedback. They are intended to support a parliamentary review scheduled for June 2005.

Many respondents to that consultation made it clear they wanted the whole system rethought and looked forward to the parliamentary review. The Canadian Association of Police Boards, for example, before answering the 12 questions in the consultation paper, stated:

The CAPB believes that at this juncture, the core issue is whether the incremental approach, such as is signalled in the consultation paper, remains appropriate, or whether legislators should instead be considering a much more comprehensive and wide scale use of DNA testing and collection.

How can we best advance the consideration of a comprehensive review that the CAPB and many others have been waiting for? Officials of the Department of Justice, the Department of Public Safety, the RCMP, and the national DNA data bank have all been ready for the beginning of the hearings since 2005. I understand they had prepared a discussion paper on the issues and a series of questions. Of course, Parliament was dissolved before the committee was able to conduct the review and the paper prepared by the officials has languished ever since. The paper could be quickly updated and form the basis of a consultation by the Department of Justice and the Department of Public Safety. The consultation could probably be completed by September, and the results of the consultation would form the basis for recommendations by government on how to change the legislation. Hearings on those recommendations would allow for a focused review on the use of DNA in the criminal justice system to begin late this year or early in 2008.

As always, I would appreciate the views of the committee on whether this would be an appropriate way to proceed.

Mr. Chairman, thank you very much for the opportunity to appear again before this committee.

An Act to amend certain acts in relation to DNA IdentificationGovernment Orders

October 4th, 2006 / 3:10 p.m.
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Liberal

Lloyd St. Amand Liberal Brant, ON

Mr. Speaker, I am pleased to have this opportunity to speak on Bill C-18, which is a bill to amend certain components of the law pertaining to the DNA Identification Act.

As has been mentioned by other speakers, Bill C-18 impacts the Criminal Code of Canada and the DNA Identification Act as well as the National Defence Act.

Allow me to say at the outset that I am in agreement with government members and other members that the bill should be directed to the justice committee for further scrutiny. It is actually refreshing to speak in favour of a bill that has been introduced by the government, perhaps because this bill is essentially a successor to Bill C-72, which had been introduced by the then minister of justice under the former Liberal government.

Bill C-18 is very similar to Bill C-72 which, as I have mentioned, was introduced by the Liberal government in the last Parliament, the 38th Parliament.

Certain other bills that have been introduced by the government reflect, if I may term it such, a rather simplistic view of the criminal justice system and, by extension, an overly simplistic view of human nature. Would that preventing wrongdoing be as simple as making punishments increasingly harsh for certain offences. Those who advocate such an approach to the criminal justice system, such as those who advocate something akin to “three strikes and you are out”, are creating a false expectation among citizens that the crime rate will automatically be reduced if the punishments for criminal activity are only increased substantially.

Regrettably, that conclusion is reflected to a large extent in the criminal justice system in our neighbour to the south, and the crime rate is actually higher in the United States than it is here in Canada.

When it comes to predicting human behaviour and to taking measures to reduce wrongdoing or criminal behaviour, it is not a simple task, certainly not as simple as imposing considerably harsher punishments in the hope or expectation that criminal activity will therefore decrease.

However much I have difficulty with certain bills which have been or will likely be introduced by the government, Bill C-18 is truly a step forward and, at a minimum, should be sent to committee.

I practised family and criminal law in the city of Brantford and in other centres for a period of some 25 years. In my practice, I had abundant opportunity to represent hundreds of individuals who had been charged with one or a series of criminal offences and, on occasion, had opportunities to prosecute accused persons as a part time crown attorney.

During my years practising law I had an opportunity to work with and to admire the skills of crown attorneys such as Don Angevine, Bob Kindon, George Orsini and others, and to learn a great deal from very distinguished defence counsel in the persons of Gerry Smits, John Renwick and others.

I also had the benefit of observing the balanced, fair approach that was customarily adopted by various judges in the country of Brant, including Justice James Kent, Justice Ken Lenz, Justice Gethin Edward, Justice Lawrence Thibideau and others.

I was and remain acutely aware of the maxim which must necessarily govern any criminal proceeding, that is, “if the criminal justice system renders it too easy to convict the guilty then the system renders it too difficult to acquit the innocent”. Simply put, it is important to ensure that individual rights are protected and that the potentially overwhelming crushing power of the state is harnessed and kept in check by rules of evidence and principles of sentencing that are eminently fair, reasonable and balanced.

As do many others, I well understand the concept of civil liberties, and I am always, through dint of experience, wary or leery of any measure which curtails individual liberties or allows the power of the state to interfere with an individual's rights of freedom and security of the person.

In my view, Bill C-18 strikes a proper balance and is not inappropriately intrusive of individual rights or freedoms. Rather, it strikes the appropriate balance between the maintaining of individual freedoms and the fundamental right of the state or society to take appropriate measures to ensure the safety of all citizens.

There are many offences in the Criminal Code which require an individual accused person to provide samples of his or her fingerprints to the police merely upon that individual having been charged with a criminal offence. In essence, the mere fact that an individual has been charged with a criminal offence, not convicted, allows the criminal justice system to procure his or her fingerprints. Failure on the part of the accused person to provide his fingerprints results in a further criminal charge being laid against him.

This particular section of the Criminal Code has been tested before courts in Canada, and courts have concluded that it is reasonable, in the best interests of all citizens and community safety, to obligate accused persons charged with certain offences to provide their fingerprints to the authorities. I would, and so many others would as individual citizens, be tremendously troubled by any bill which obligated all persons or citizens to provide their fingerprints to the police, as such a requirement would be unnecessarily interfering with the rights of citizens to be free from unreasonable search and seizure.

However, this government bill, Bill C-18, does no such thing, and again, I am in support of the bill being referred to the justice committee for further consideration.

As members in this chamber will know, the science of DNA has been advanced considerably over the last 10 or 12 years, and experts have concluded that the analysis of DNA has become a very exact science. Certainly the public has come to accept DNA evidence as very significant, representing proof beyond a reasonable doubt, for instance, in criminal proceedings.

Such was not always the case. I think back in particular to the case of O.J. Simpson in or around 1995. It is difficult to know what was in the minds of the jury that ultimately acquitted Mr. Simpson. Mr. Speaker will know that jurors in the United States are at liberty to comment on their deliberations and their verdicts, unlike the system in Canada as it pertains to our juries.

Many analysts at that time commented that the evidence against Mr. Simpson was quite overwhelming and that the DNA evidence in particular was compelling and persuasive. However, the jury ultimately acquitted Mr. Simpson, which caused legal commentators to state that the members of the jury in acquitting Mr. Simpson and in seemingly ignoring the DNA evidence was the equivalent of a jury a century ago acquitting an accused person even though a photograph of the accused person committing the crime had been introduced as evidence.

A hypothetical jury of a century ago was suspicious of evidence which had been obtained by the use of, at that time, a newfangled device called a camera. One can only presume that the jury which found Mr. Simpson not guilty was suspicious of the DNA evidence which had been gathered and suspicious of the science behind the DNA.

We know differently now. DNA has come to be accepted as a very valuable tool in fighting crime and in determining the real wrongdoer or culprit.

Arguably, but for DNA evidence which was ultimately used to exonerate them, David Milgaard's name would never have been cleared, and Guy Paul Morin, wrongfully convicted of murdering Christine Jessop some years ago, would still be languishing in a penitentiary. DNA was used in those cases, and in many others, to exonerate an individual who had been, as it turned out, wrongfully convicted of a serious crime.

In that sense, DNA evidence assists each citizen of Canada as it can be used to eliminate innocent persons as well as potential suspects. For that reason, I have no difficulty, either personally or professionally, with Bill C-18.

As has been noted by others in their comments on the DNA Identification Act, “this Act is to establish a national DNA 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”.

Certainly, the National Data Bank follows strict guidelines, as specified in the DNA Identification Act, and the biological samples collected from convicted offenders and the resulting DNA profiles can only be used for law enforcement purposes.

I believe it is beyond dispute that the National DNA Data Bank assists law enforcement agencies in various ways to solve crimes by, first, helping to identify suspects, second, eliminating suspects when there is no match between the DNA found at the crime scene and a DNA profile in the national data bank, and third, linking crimes together when there are no suspects.

Simply put, we on this side believe that this legislation is a vital tool to protect the safety of Canadians. It is for that precise reason--

An Act to amend certain Acts in relation to DNA IdentificationGovernment Orders

October 3rd, 2006 / 5:25 p.m.
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Liberal

John Maloney Liberal Welland, ON

Mr. Speaker, perhaps the intrusiveness was not in the method of taking the sample. It is a pin prick, which many diabetics do daily, or the plucking of a piece of hair.

What information an analysis of a sample can reveal could be of concern in years to come, but I agree with the member that this is mirror duplication of Bill C-72. I certainly will be pleased to support it. It is good legislation. It is needed legislation. It will improve enforcement when used as an enforcement tool and assist our law enforcement agencies.

An Act to amend certain Acts in relation to DNA IdentificationGovernment Orders

October 3rd, 2006 / 5:10 p.m.
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Liberal

John Maloney Liberal Welland, ON

Mr. Speaker, I am pleased this evening to speak to Bill C-18 which introduces a series of technical amendments to strengthen Canada's DNA databank laws. Canada is one of only a few number of countries in the world to have a National DNA Data Bank.

The legislation is similar to Bill C-72 introduced in the 38th Parliament. That Parliament came to an abrupt end when the current Conservative government collaborated with the other opposition parties to prematurely bring down the Liberal minority government.

These new legislative changes will allow for the implementation of Bill C-13, the former Liberal government's original DNA databank legislation. At the urging of the Canadian Association of Chiefs of Police and police organizations across the country, the former Liberal government undertook a wide range of consultations with government agencies, privacy groups, and forensic and genetic organizations which led to the introduction and passage of Bill C-13. Bill C-13 is acknowledged as a key law enforcement tool.

Forensic DNA analysis has been instrumental not only in securing convictions but also in exonerating wrongly convicted individuals as some recent high profile cases have shown. Mr. Milgaard and Mr. Guy Paul Morin were just mentioned a few minutes ago.

As one of the most accurate methods of obtaining solid evidence in criminal investigations, deoxyribonucleic acid, DNA as it is commonly known, is found within the chromosomes of every living organism. Except for identical twins, it is believed that no two people have the same DNA. Based on that premise, DNA from bodily substances found at a crime scene may be compared with the DNA obtained from a suspect in order to determine whether both samples came from the same person.

The benefits of using such a system are numerous. Police are able to identify and arrest repeat offenders by comparing DNA information from a crime scene to the convicted offender's index. They are also able to determine whether a series of offences was committed by the same offender or whether more than one perpetrator was involved. Police are able to cross reference and link DNA profiles to other cases within and across jurisdictions.

Using DNA profiles help focus police investigations by more quickly eliminating suspects whose DNA is already in the databank in a case where no match from crime scene evidence is found.

Finally, the knowledge of DNA testing to solve crimes may also deter offenders from committing further crimes.

The National DNA Data Bank is maintained by the Royal Canadian Mounted Police and is used to assist Canada's law enforcement agencies in the investigation of a serious crime. The databank has two indices or data indicators. The crime scene index would contain DNA profiles from bodily substance found at the scene of a designated offence or within the body of a victim or any other person or thing associated with the commission of a designated offence.

The convicted offenders index contains DNA profiles taken from offenders either on their consent or following an order by the courts. It applies to offenders convicted of designated Criminal Code offences as well as people who are subject to the military code of service discipline and convicted of a designated offence under the National Defence Act.

We are keenly aware of the significant privacy concerns, particularly in relation to the retention of biological samples. Strong arguments have been advanced by the scientific community indicating that in its view the retention of biological samples is essential for the DNA databank to be able to adapt to technological changes in the future.

We are aware that the field of forensic DNA analysis is developing rapidly and forensic scientists have told us that as the technology evolves the DNA profiles of today are likely to become obsolete later on. Samples retained can be reanalyzed using new technology thereby insuring that Canada's databank is able to keep pace with technological advances.

Bill C-13, the DNA Identification Act, will authorize police to collect DNA samples from offenders convicted of designated criminal offences. The 38 primary designated offences were selected because of the nature of the offence, the seriousness of the offence, and the likelihood that some biological evidence would be left at the crime scene by the perpetrator. These include the most serious personal injury crimes including homicide and sexual offences. The legislation also provided for the inclusion of DNA to be collected from offenders of designated offences committed before the DNA Identification Act came into force.

The DNA databank is of little or no use for identifying serious offenders unless it already contains their DNA profile. There are criminological studies which suggest that offenders who commit serious offences have previously committed less serious ones. Some have advocated expanding the primary designated offence to include less serious offences.

In Canada, any broadening of the category of designated offences to provide for mandatory DNA sampling would be subjected to the charter of rights scrutiny. The taking of bodily substances from individuals is considered an intrusive process constituting a search. The challenge is to seek a reasonable balance between the rights of an individual and the desired protection of society.

Bill C-18 would add attempted murder and conspiracy to commit murder or to cause another person to be murdered to the offences covered by the retroactive provisions which would apply to offenders convicted of a single murder, sexual offence or manslaughter prior to June 30, 2002, when the legislation establishing a DNA databank came into effect.

During the course of the original hearings on the DNA databank, consultations indicated strong support for the creation of a National DNA Data Bank, but there were also concerns regarding Canadian values of privacy, public protection and individual rights guaranteed by the charter.

Various interest groups, including the Privacy Commissioner and the Barreau du Québec, suggested the bill did not contain sufficient safeguards to protect the use of DNA profiles from the samples of victims, cleared suspects, and people who volunteered samples to help police in their investigations.

As a consequence, the former government brought a motion to clarify that access to the information contained in the crime scene index shall be permanently removed if it relates to a victim or person who has been eliminated as a suspect in a criminal investigation.

The current legislation also proposed a change permitting the destruction of samples when the provincial attorney general certifies that the order was made for an offence not intended to be included in the DNA databank. This simpler approach would eliminate the expense of having the attorney general make an application to a court to have the order quashed.

In certain circumstances, the legislation would also allow a court to require a person, who wishes to participate in a hearing relating to an order for the taking of samples of bodily substances for forensic DNA analysis, to appear by video links, such as a closed-circuit television or a similar means of communication, for the retroactive hearings. This would significantly reduce the costs and security associated with transporting the offenders eligible for retroactive sampling.

As we all know, crime and criminal activity knows no borders. Offenders must be apprehended and prosecuted whenever they are found and law enforcement agencies must have the tools to do so. This legislation would allow a foreign law enforcement agency, for the purpose of the investigation or prosecution of a criminal offence, to submit a DNA profile for analysis and would allow the results thereof to be communicated to the foreign government by the commissioner.

The series of technical amendments set out in Bill C-18 would strengthen our country's DNA databank law and would improve law enforcement, not only within this country but beyond our borders as well.

An Act to Amend Certain Acts in Relation to DNA IdentificationGovernment Orders

October 3rd, 2006 / 4:10 p.m.
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Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, thank you for giving me this opportunity to speak about Bill C-18.

I was just thinking two thoughts by way of introduction. The member for Wild Rose is right. The viewing public might think with the numbers C-18, C-72 and C-13 that this is just a well-dressed bingo game that we are playing, but it is actually very serious material.

The combination of these bills will culminate in a better method and tool for police officers and the police forces to do their jobs both in inculpating, finding the people who have done crimes, but also as my speech will indicate, exculpating people when they are actually not guilty.

I also might give my friend from Fundy Royal compliments on his good speech. I think that people in our community, he and I share an undefended border between Westmorland County and Albert County, share the same belief system and the same community values.

The people in Albert and Westmorland counties might think that the member for Fundy Royal and I are dominating the debate. I think it is just because we are on the committee together and we work on these subjects, not always together but certainly with the same view. That view is to make the laws of Canada better and more effective.

With that I am pleased to have this opportunity to speak to Bill C-18, a law designed to help implement the DNA databank legislative reforms. It does, however, and it must be said, build on the good Liberal Bill C-72. This was an excellent effort of the previous government to clean up some of these outdated and, frankly, awkward and lugubrious anomalies that exist in the current system.

The success of the DNA databank is impressive. It has provided critical evidence leading to convictions in nearly 2,300 serious crimes. It has been crucial in helping police solve over 300 armed robberies, 1,200 break and enters, 200 murders, and the member for Wild Rose might want this statistic, and 400 sexual assault cases in Canadian communities from coast to coast to coast. These are impressive numbers.

It is an extraordinary success. In addition, the national DNA data bank is one of the most powerful tools available to the country's police forces and courts. Even more importantly, the national DNA data bank makes it possible to exonerate innocent people and punish the real criminals.

We forget too often in the law and order rhetoric of the other side that there are people who have been falsely accused and falsely convicted of crimes. One of those falsely accused and falsely convicted cases is one too many. Not only is the DNA databank a great success story, it is an amazing example of technological use in the betterment of our justice system by providing indisputable evidence.

That is why I am pleased to see that the Conservative minority government introduced Bill C-18 and this is largely, as I indicated, based on former BillC-72 presented by the Liberal government.

The new modifications proposed by Bill C-18, and as they were in Bill C-72, will enable a number of modifications and ameliorations to the DNA databank in accordance with the proposed Liberal reform of the DNA databank included in Bill C-13 which received royal assent in May 2005. These improvements are eagerly awaited for by the police departments, the provinces and territories, and they cannot come too soon.

I must echo at this time two comments made by the hon. member for Windsor—Tecumseh. One of them is that the Criminal Code of Canada, a large document that is roughly incoherent notwithstanding that it was created by a Conservative justice minister in the late 1800s, has been added to like a big overgrown shrub that needs pruning and frankly needs to be completely redone. Those sentiments are not just those of the member for Windsor—Tecumseh. The hon. members for Fundy Royal and for Wild Rose will know that the esteemed professor from the University of Ottawa, David Paciocco, suggested that to us just recently at the standing committee.

In the beautiful province of Quebec, respected professor Daniel Grégoire has also called for these reforms.

The second point about the need to pass the bill, which is why we are in favour of it, is that the justice committee is bogged down with so many justice bills right now that we have to be sure the government is sincere. I have heard the expressions of sincerity from the hon. members of the committee, whom I know well. I take it that the committee is sincere in passing the bill, in getting it through committee and back to the House and into effect. Since we all agree on its raw and innate goodness, let us get it through the committee quickly and get it passed into law.

Once again, the current minority government is trying to show, however, that its great legislative agenda is its own. In fact, any bill that comes before us that has more than three pages was probably one that was introduced by the Liberal government and died on the order paper, not one of the new bills produced by the Conservative department of haste in bills. I call it the hasty bill writing department that the government must have over there.

For those keeping score, this is one of the good bills. This was a Liberal bill that a new number has been attached to. We will happily call it a Conservative bill for now, if we can just get it through committee. That being said, the DNA data bank, just as any other governmental program or legislative measure, raises concerns about privacy.

As many examples have shown in the past, personal information can travel fast over the legal borders that exist and over all the limitations that we think exist as well. This is why I stress the need to strike a balance between all citizens' rights to privacy, including suspects, and the need to protect our society as a whole from crime and criminality.

The respect of privacy has been so far protected in the DNA data bank by ensuring that the identity of all suspects is kept confidential to ensure fair treatment. We must ensure that the proposed changes do respect the boundaries of the current privacy provisions in the law of Canada.

The technology used in DNA identification has proven itself on many occasions over the years. DNA identification can play a vital role in convicting or exonerating people suspected of major crimes including murder, as well as other crimes that caused the death of innocent victims.

The changes currently proposed by Bill C-18 will allow even more law-abiding citizens to be exonerated of charges and will strengthen the current legislation on DNA sampling.

In fact, attempting to escape or avoid having a DNA sample taken seems to me to be sufficient reason for doubt about the motivations and motives of a suspect.

There is certainly reason to wonder why a potential suspect would do everything possible to avoid having a DNA sample taken when, in fact, the sample could lift all suspicion from that person, if he is innocent, of course.

Since the DNA data bank is a fairly recent tool, it is understandable that it needs to be tweaked and bettered to ensure that it reaches its maximum potential.

This is why adding attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions makes sense. The law is organic and it must grow with what is occurring out there in our communities.

Those added offences are serious. They are important. Those individuals, dangerous as they may be, should contribute a DNA sample to the DNA data bank to ensure that other crimes they might have committed in the past, or could commit in the future, will be linked to them and their DNA.

It is important for us on this side of the House to underline that we are a party, and I think all parliamentarians would agree, that respects and wants a rule of law in this country. We are a party--and I think as parliamentarians as well we could join in this statement--that wants a safer community. If the DNA data bank, improved as it would be by this bill, helps us catch more criminals who have done harm or who will do harm, this is a good thing.

Furthermore, I do believe that law-abiding citizens' rights to live peacefully should always be the first objective of all proposed legislation. It would not make sense to actually protect criminals from other criminal offences, and this is why it simply and clearly makes sense to ensure that information provided by the DNA data bank should be used, and needs to be, to investigate all criminal offences. Canadians will in the end benefit from criminals being better investigated, and perhaps having them linked to accusations and criminal offences as alleged would be a good thing as well.

Of course, these measures have to work both ways. Although law enforcement agencies should be able to use the DNA data bank information to investigate all criminal offences of certain individuals, it should not create some sort of tightly secured DNA data bank from which no information can be deleted. There is, in fact, a time limit to the efficacy of the DNA data bank.

Accessing and destroying specific information from the DNA data bank is essential to ensure errors can be corrected and true justice can be served. This is why simplifying the procedure for destroying samples also makes sense and is a very important part of an efficient DNA data bank.

As the DNA bank continues to grow with each sample taken, the usefulness of this extraordinary tool also continues to grow. It will make Canada a place where Canadian justice—as well as our police forces and investigators—is as fair and equitable as it can be.

The National DNA Data Bank is an impressive and wonderful resource. It is one of the most powerful investigative tools the justice system has ever had. Bill C-18 would make it even more efficient.

It is very important to underline for us on this side of the House that none of these bills being proposed by the government will work unless there are adequate resources to back them up. The only program statements that have been made with respect to justice in the past couple of weeks have been cuts.

Whether they are cuts to the judicial contestation program or cuts in the RCMP budget for a trial method of catching people at the roadside who are committing violations of our Criminal Code while impaired from drug abuse, these are the actions that back up the words of the government with respect to its law and order agenda.

I can only hope that through discussions such as these and the discussions that might happen at committee the government can see the folly of pronouncing grand statements about how the Conservatives are the stewards of law and order when they do not back that up with the allocation of resources necessary to put in effect the laws the Conservatives so proudly pronounce from every church steeple, city hall and mall encounter.

In short, and in conclusion, the Liberal Party and I, as a member of the justice committee, will in good faith give our word to support this bill in principle, to work diligently at committee to improve it and, more important, to move it along to put it into law, because after all, it is just Bill C-72 in new clothing. It was our idea. We put it together. Perhaps once, in a non-partisan way, I can say we do not care if the government gets the credit for it, because we know in our hearts that we put it into place.

An Act to Amend Certain Acts in Relation to DNA IdentificationGovernment Orders

October 3rd, 2006 / 3:45 p.m.
See context

Fundy Royal New Brunswick

Conservative

Rob Moore ConservativeParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I have the great pleasure today of speaking in favour of Bill C-18 and in favour of sending Bill C-18 to the committee for further study.

The National DNA Data Bank is a great Canadian success story. It has assisted the police in their investigations of thousands of serious crimes. It is making an invaluable contribution to the safety of all Canadians. This bill can only increase that success.

Much of what I will say will be familiar to those who were involved in the debate on former bill C-13 in the last Parliament, and in particular, to members who were on the standing committee during its hearings into the bill because, as the minister stated, this bill paves the way for the proclamation of former Bill C-13. Nevertheless, it is important to outline for all members the way the legislation and the DNA system work.

The National DNA Data Bank carries out four principal functions and assists law enforcement agencies in solving crimes by one, linking crimes together where there are no suspects. The DNA data bank would advise the police forces involved so that they can compare notes on their respective investigations.

Two, it helps to identify suspects. When the DNA data bank provides a match between a crime scene profile and a convicted offender profile, the police agency is advised and it can focus its investigations on that identified offender.

Three, it assists by in fact eliminating suspects where there is no match between crime scene DNA and a profile in the data bank. This is often overlooked in debate about the DNA registry or amendments to the legislation impacting on the DNA registry, but a DNA registry has been used to eliminate suspects and in fact exonerate people. A lack of a match tells the police that none of the 100,000 convicted offenders whose DNA is in the data bank was involved.

Last, the DNA data bank is used to determine whether a serial offender is involved. The DNA bank would advise the police force that several crimes appear to have been committed by the same person. This is a very important fact indeed when police are assessing a certain criminal act as it is certainly helpful in their investigation to know whether it is someone who is acting in a repetitive or serial way.

As David Griffin, an executive officer of the Canadian Police Association, told the standing committee during hearings on former Bill C-13:

DNA analysis has proven to be a breakthrough technology in policing and the administration of justice. It is a science that assists in detecting and convicting offenders and acquitting the innocent. In serious police investigations, the cost savings in reducing the time spent on investigations and in identifying and confirming or eliminating suspects can be extraordinary. This is particularly important in crimes such as child abductions by strangers, where precious hours can be critical to finding the victim alive.

DNA orders can only be made against an offender for a limited number of offences. Judges retain a discretion to refuse to make an order in all but the most serious cases. The use of the information is strictly limited to the investigation of criminal offences. That again is an important fact that is often overlooked by those who would criticize the national DNA data bank, that it is only used for the investigation of criminal offences.

Bill C-18 does not change the fundamentals of the Criminal Code DNA provisions and the DNA Identification Act. The five year parliamentary review that is yet to begin is the proper form for considering more far-reaching changes. This bill is limited to technical improvements to the existing system.

The minister has already spoken of the ringing endorsement of the present legislation by the Supreme Court in the Rodgers case. Members can be assured that this bill is consistent with the charter. Moreover, the strong protections for privacy which are built into the scheme are also unchanged.

Canada has probably the strongest protections against the misuse of our DNA profiles, stronger in fact than any other country. In particular, the legislation provides that bodily samples collected pursuant to a DNA data bank authorization for inclusion in the National DNA Data Bank may only be used for forensic DNA analysis. Unused portions of bodily samples are required to be safely stored at the National DNA Data Bank.

Further, it is a criminal offence to use bodily samples or results of forensic DNA analysis obtained under a DNA data bank authorization other than for the transmission to the National DNA Data Bank. A breach of that provision is a hybrid offence that is subject to a maximum penalty of two years' imprisonment when prosecuted by indictment.

Use of DNA profiles and bodily samples at the National DNA Data Bank is strictly limited to the narrow purposes of comparing offender profiles with crime scene profiles. Any use of stored information or bodily samples or communication of information that they may contain is strictly limited to the narrow identification purposes of the act. Again, this is something that is often lost on those who are critical of the data bank. In fact, any breach of those provisions is a criminal offence subject to a maximum of two years' imprisonment.

Communication of information as to whether a person's DNA profile is contained in the offenders index may only be made to appropriate law enforcement agencies or laboratories for investigative purposes or to authorized users of the RCMP automated conviction records retrieval system.

Although the seized bodily samples are retained for safekeeping in the DNA data bank after analysis, they may only be used for further forensic DNA analysis where significant technological advances have been made since the time the original DNA profile was derived. The results of such subsequent DNA analysis and any residue of the bodily sample are subject to the same rigid controls as the original profile and the original sample.

The sharing of DNA profiles with foreign governments and international organizations is only allowed for legitimate law enforcement purposes and only pursuant to specific agreements that must include safeguards to protect the privacy of the personal information disclosed.

I repeat that these legal protections are untouched by Bill C-18. All of those protections that protect the rights of Canadians against any possible misuse of the DNA data bank or any use outside of aiding our police in the protection of Canadians and society as a whole is unchanged and untouched by Bill C-18. In practice, they are buttressed by the procedural safeguards developed by the National DNA Data Bank.

By international agreement the DNA analysis process used by the data bank and other data banks in the world examines only a small segment of the entire human DNA blueprint. Scientists internationally have chosen 13 loci to analyze because there is a wide variation in those among the world's population. The DNA that is analyzed is often called anonymous DNA because apart from the ability to identify gender, there is no link to physical or medical attributes. Therefore, the profile generated by the DNA data bank will not reveal a person's hair, skin or eye colour.

The variations mean that except for identical twins, every person's DNA is unique. It is this power to identify a person beyond a shadow of a doubt that makes the DNA data bank and data collection such a valuable tool for law enforcement. It can identify an individual beyond a doubt.

The RCMP has developed internal procedures to ensure that there is no manipulation of the data. Upon receipt of a kit, the data bank separates the genetic material from the personal data. The biological sample and the identifying information are given the same unique bar code. The data bank keeps the biological sample and analyzes it. The personal information and full set of fingerprints of convicted offenders are sent to the Canadian Criminal Records Information Services, which retains them under strict security provisions. Therefore, the data bank has no idea whose sample it is analyzing or, in the case of a match, which convicted offender is linked to the crime scene.

It is important to emphasize that we have gone to great lengths to separate the information contained in the DNA sample and the information attributed to the person to whom that DNA belongs. It simply advises Canadian Criminal Records Information Services of the bar code and the service retrieves the identifying information and sends it to the laboratory that uploaded the profile to the crime scene index. It is of course not possible for unauthorized persons to enter the data bank or the Criminal Records Information Services to view or retrieve data.

The National DNA Data Bank's website has a wealth of information about how it actually operates and about the history and science behind it. I also hope that the members of the standing committee who have not had the opportunity to tour the National DNA Data Bank will arrange to do so. I know the staff would be most happy to show them how the system works and to answer all their questions. Certainly a tour of the data bank made it much easier for members who were considering former Bill C-13 to understand the submissions of the witnesses and to formulate their recommendations for amendments.

Finally, I remind the House that a National DNA Data Bank Advisory Committee has been established by regulation. Its membership includes eminent scientists, specialists in privacy and human rights law, and a former justice of the Supreme Court. The committee's duties encompass any matter related to the establishment and operation of the DNA data bank.

Members will find much wisdom in the reports that the advisory committee has made over the years. Members of the advisory committee will, I trust, be witnesses when the parliamentary review of the legislation gets under way.

I now wish to turn to some of the specifics of Bill C-18. Fundamentally, the effectiveness of the National DNA Data Bank depends on three factors: one, the number of profiles from crime scenes; two, the number of profiles from convicted offenders; and three, the resources of the police to pursue leads generated by the data bank.

Upon passage of Bill C-18 and the proclamation of former Bill C-13, there will be many more offenders eligible for a DNA data bank order and the police will be able to upload many more crime scene profiles to the National DNA Data Bank. This will undoubtedly lead to more matches between crime scene samples and the convicted offender samples and more matches between crime scenes. That is ultimately the goal of the DNA data bank, to provide those matches.

As for the resources of the police, we earmarked $15 million over two years to increase the capacity of the National DNA Data Bank to process convicted offender samples and the capacity of the regional laboratories to process crime scene samples. Without these additional resources and without the changes proposed in Bill C-18, the proclamation of former Bill C-13 would be largely ineffective in achieving Parliament's purpose.

Former Bill C-13, however, contained flaws that required correction. The previous government introduced former Bill C-72 to correct problems in Bill C-13. That bill would have one, re-enacted the definition so as to make the various amendments fit together in a logical order; two, changed the forms to reflect the changes made in the procedures for obtaining an order in retroactive proceedings; three, ensured that the commissioner provided further information regarding a possible match only at the request of the laboratory or police; and finally, corrected a difference in the French and English versions of the section authorized in the international sharing of DNA profiles.

Former Bill C-72 contained many other changes to the drafting of Bill C-13 and two procedural changes requested by the provinces to reduce cost: a provision to permit retroactive hearings by video; and a simpler defective order procedure that would have eliminated the application to a court of appeal for the order to be quashed and substituted certification by the attorney general. These changes are reintroduced in Bill C-18 which is before us today. It contains, as the minister has said, many further clarifications and improvements that have been suggested by officials since former Bill C-72 was tabled.

Members should be aware that it will take several months for the provinces to be ready. They have to train their prosecutors, police, court administrators and clerical staff in the new procedures. Understandably, they will not begin that process until the bill has received royal assent.

We believe the House should move swiftly to send Bill C-18 to committee and it is therefore with pleasure that I urge the House to give Bill C-18 second reading.

An Act to Amend Certain Acts in Relation to DNA IdentificationGovernment Orders

October 3rd, 2006 / 3:35 p.m.
See context

Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, as the member pointed out in his comments, we have seen many justice bills, and I would like to thank him for his participation in them.

This bill is a reintroduction of a bill from the last Parliament, Bill C-72, technical amendments to the DNA database. The member may want to refresh our memory about the general mood of the House with regard to the importance of the DNA database as a tool to assist authorities in the resolution of matters of a criminal or judicial nature.

I would conclude that if they are technical amendments, the member has raised some interesting points and there may be a good basis for having the bill go to committee to complete the work that was started in the last Parliament.

The member raised one question, and I ask him for some clarification. He shared some concern about the number of justice bills raised and whether there was some ulterior motive or some concern about the volume in that it was affecting the ability of Parliament to function.

An Act to amend Certain Acts in relation to DNA IdentificationGovernment Orders

October 3rd, 2006 / 1:15 p.m.
See context

Liberal

Sue Barnes Liberal London West, ON

Mr. Speaker, I rise today on Bill C-18, An Act to amend certain Acts in relation to DNA identification. Bill C-18 impacts the Criminal Code, the DNA Identification Act and the National Defence Act.

I, along with many in this chamber, was a member of the House when the DNA Identification Act was created in 1998. The act came into force on June 30, 2000.

Section 13 specifically provides that within five years of the coming into force of the act a review of the provisions and operations should be undertaken by a committee of the House, the Senate, or by both. This review has not yet taken place and the current Minister of Justice by letter earlier this year states that the review “should begin as soon as possible after this bill receives royal assent”.

I believe for many reasons that the review should happen as soon as possible. I would like to know from the minister if his assurance for the mandated review really means only after more of his so-called law and order bills come before the House or if the review can take place within the next year in a reasonable amount of time. Where exactly is the review on the list of priorities of the minority government?

In a letter which I believe was sent to all members of the justice committee, the minister identified various issues he wished to be discussed and they are important areas for discussion. Among them are: having only one list of designated offences; the scope of judicial discretion with respect to making an order; taking DNA under the Identification of Criminals Act; international sharing; the one I just mentioned moments ago, kinship analysis; volunteer samples; victim samples; and exoneration.

The current Minister of Justice whom we have just heard from has urged that the amendments in Bill C-18 are needed to give the benefits of changes made under the former government's Bill C-13 passed recently. Former Bill C-13 was adopted on May 19, 2005 and only some parts of Bill C-13 are currently in force.

For people who may have not been part of that legislative process, it may be useful to set out the purpose of the DNA Identification Act. Section 3 states:

The purpose of this Act is to establish a national DNA 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.

The principles of the act are contained in section 4 and include:

(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;

(b) 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 this Act, and not for any unauthorized purpose; and

(c) 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.

The use of DNA analysis in solving crime has emerged as one of the most powerful tools that is currently available to law enforcement agencies for the administration of justice in our land. This has taken place in just over a decade. Actually it is remarkable. Its impact is akin to the introduction of fingerprint evidence in court over 100 years ago.

In the science of police investigation, DNA evidence is a major enhancement for the safety of Canadians. What is the value of DNA to public investigations? We should know that biological samples collected from a crime scene can either link a suspect to the scene or rule the suspect out as a donor of the DNA. Evidence from different crime scenes can be compared to link the same perpetrator to multiple offences, whether they occurred next door, across the country, or halfway around the world. It can also identify a victim through DNA from close relatives.

DNA is referred to often as the blueprint of life. It is a fundamental building block of a person's complete and entire genetic makeup. DNA is found in virtually every tissue in the human body. Experts tell us that the DNA in a person's blood is the same in the skin cells, the saliva, the hair and other bodily parts. Highly discriminating other than with respect to identical twins, it is a powerful tool for identification. Every person's DNA is unique to them, again with the exception of identical twins.

The DNA molecule itself can last significant environmental challenges. It is very stable. This enables the forensic experts to obtain new information from very old biological evidence, or establish important data from very badly degraded samples, which can occur when say a body is found or a crime scene is unearthed long after the fact of incidence.

The stability of the molecule and the fact we have very discriminating features of individual DNA and the accuracy of the analysis techniques that the current DNA people use make this a very efficient and strong human identification technology. It is a most vital component of most of our police investigations today of a very serious nature.

I should state that the national data bank respects the considerations, as it should, of the genetic privacy of individuals and follows strict guidelines as specified in the DNA Identification Act. The biological samples that are collected from convicted offenders and the resulting DNA profiles can only be used for law enforcement purposes. Thus, the National DNA Data Bank assists the law enforcement communities in solving crimes by linking crimes together where there are no suspects, by helping to identify suspects or conversely by eliminating suspects where there is no match between the crime scene DNA and the DNA profile in the national data bank. Further, it assists in determining whether a serial offender is involved.

By statute, the national data bank, which is located here in Ottawa, is responsible for two principal indices. The first is a convicted offenders index, which is an electronic index that has been developed from DNA profiles, collected from offenders convicted by designated primary and secondary offences identified in section 487.04 of the Criminal Code. I believe, as of mid-May 2006, the convicted offender index had nearly 100,000 entries.

The second is the crime scene index, which is a separate electronic index composed of DNA profiles obtained from crime scene investigations of the same designated offences addressed under the act. Thus we have several thousands, as the minister said, of the DNA samples from convicted offenders, which are included in the National DNA Data Bank along with the samples from various crime scenes across the country.

Large numbers of police officers from every province and territory jurisdiction in Canada have been the recipients of specific and proper training on how to collect and forward the DNA samples, which are then sent to the data bank in Ottawa for the proper analysis.

We know that the National DNA Data Bank has recorded over 5,200 crime scene to offender matches and more than 750 crime scene to crime scene matches. As everyone should appreciate, this developing science has to be managed very appropriately and properly to safeguard people's constitutional rights.

We have had, though, over the last number of years continuous consultations with provinces and territories and the public at large. They all have been instrumental in developing the amending legislation over the last couple of bills. Again, under the former Liberal government in Bill C-13, changes were made to improve the public safety and the approach of the bill continued to respect the constitutionally protected rights of individuals and their privacy interests. This is the problematic challenge area of concern for many.

When the bill was before committee the last time, the Privacy Commissioner was there expressing some concerns. It is right that these types of debates happen. That is why it is totally necessary we have the overall review and, hopefully, that will not be delayed.

Under the act, we currently have both primary and secondary designated offences. The primary designated offences are considered the most serious criminal offences. They are, for example, sexual offences, murder and manslaughter. The significant but relatively less serious offences would come under the threshold of secondary designated offences in the act. Two examples that have been shown would be assault and arson.

For people to understand the practical difference, a judge who convicts a person of a primary designated offence is required to make an order for the collection of the DNA sample from the offender, unless the offender can convince the court otherwise, under a specific section, subsection 487.051(2) of the Criminal Code. It is usually mandatory unless there are strict criteria.

With a secondary designated offence, and this is the difference, a DNA sample collection order may be granted if the court, upon application of the Crown, is satisfied that it is in the best interests of justice to do so. It should be noted that if a person was convicted or discharged of any designated offence after June 30 of the year 2000, but the act was committed before that date, then the same criteria for granting an order under the secondary designated offence would apply.

Bill C-13 moved a number of previously listed secondary designated offences and the new offence of Internet luring of a child to the primary list. Also Bill C-13 proposed additions to the list of secondary designated offences. Examples of certain offences that moved to the primary list included child pornography and robbery.

Bill C-13 also made changes to the National Defence Act to ensure that the military justice system would remain consistent with the civilian justice system.

The former Liberal government also introduced Bill C-72 in November 2005, less than a year ago. That bill had a series of amendments to help implement the DNA data bank references that were endorsed by Parliament under Bill C-13, which I have just discussed. These technical amendments were to clarify definitions and procedures for obtaining a DNA data bank order and for sharing information. There was a provision to help DNA data bank orders to be carried out, even when, for logistical reasons, it may not have been possible to take the sample at the precise time as set out in the original order.

Bill C-72, which also died when the government fell last year, would have also simplified the procedure to destroy samples taken from those convicted of an offence not intended to be included in the DNA data bank. This is a whole specialized area. There is a lot of concern about whether samples ever really get destroyed or whether we just do not do the matching any more and we lose the ability to match properly.

Among other issues, Bill C-72 was to allow for hearings by video to reduce costs and security associated with two party and greater numbers of offenders eligible for a retroactive sampling as a result of Bill C-13. Therefore, Bill C-72 essentially picked up on some of the issues identified by the stakeholders during the consultations on the implementation of Bill C-13 and also from the committee debate. It was intended to have the technical amendment made under Bill C-72 come into force before the coming into force of the unproclaimed provision of Bill C-13 in order to increase the efficiency of the data bank system and reduce costs.

This has been a somewhat dry and truncated history of the legislation, but it puts us where we are today with the sections.

Bill C-18, introduced by the government based on the work of the former government, is supposed to represent a reincarnation of Bill C-72. Upon looking at the bill, amended forms, which were not ready for Bill C-72, have now been included in Bill C-18. As mentioned previously, we are now further behind the overall review of the legislation. We are again being asked by the Minister of Justice to do the technical amendments before the broader policy and review.

Bill C-18 has some substantive provisions also. I am not going to go through all of them today, that is what we have committee for, but I will give an example. It will make it an offence to fail to appear for DNA sampling. This is similar to the situation in the code where we have an offence for failing to show up for fingerprinting. This seems entirely logical to me. It also proposes to add attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions.

Also, there are simple, or not so simple, procedural changes in Bill C-18. Examples of these amendments include allowing a DNA order to be made within 90 days after the sentence is pronounced and allowing the law enforcement agency authorized to take a DNA sample to authorize another law enforcement agency to do it on its behalf when the offender has moved or been incarcerated outside of the jurisdiction. This would save time and money. As opposed to moving the offender back and forth, we would do the sampling in another jurisdiction, as long as all the orders had been properly made.

These are practical amendments that would assist in an efficient process and rectify some of the on the ground problems that are being experienced by people who have to deal with the various systems, from the justice system courthouse, all the way to the analysis here at the data bank.

For the most part, Bill C-18 is an enhanced version of previous government bills. Since we have last had the occasion to discuss DNA legislation, the Supreme Court of Canada, in R. v. Rogers, has held, among other things, that the collection of DNA samples for data bank purposes from designated class of offenders is reasonable, reasonable as an infringement in our constitutional sense of the word.

In conclusion, I believe it is very appropriate to send the bill to committee for careful consideration. I will restate that I also think it is very appropriate that the House, our Parliament and some of the committees consider a full review so we can have a proper discussion about further emerging areas that need to be addressed, not only those outlined in the Minister of Justice's letters, but maybe some of the concerns of some of the other stakeholders. I think that would be a useful thing to do.

An Act to amend Certain Acts in relation to DNA IdentificationGovernment Orders

October 3rd, 2006 / 12:50 p.m.
See context

Provencher Manitoba

Conservative

Vic Toews ConservativeMinister of Justice and Attorney General of Canada

moved that Bill C-18, An Act to amend certain Acts in relation to DNA identification, be read the second time and referred to a committee.

Mr. Speaker, I am pleased to rise today to speak on Bill C-18, An Act to amend certain Acts in relation to DNA identification, and to recommend to the House that this bill be given second reading and referred to committee.

This bill is highly technical. It is necessary, however, to make these technical changes so that we can proclaim former Bill C-13, which was passed in the last Parliament with all party support.

Many members are familiar with the background of this bill because they were here when Bill C-13 was passed, but I will provide a brief background for the benefit of new members.

The National DNA Data Bank, which is operated by the Royal Canadian Mounted Police, began operating on June 30, 2000. Basically, it compares DNA profiles of convicted offenders with DNA profiles found at crime scenes. It now contains almost 100,000 profiles from convicted offenders and about 30,000 profiles from crime scenes. The data bank has assisted almost 6,500 police investigations.

In 2001, federal and provincial prosecutors and officials identified a number of deficiencies in the legislation. The Uniform Law Conference, which includes representatives of the defence bar, passed resolutions calling for high priority to be given to remedying seven problems.

The government launched public consultations in the fall of 2002. It was only in May 2004 that former Bill C-35 was introduced to correct the problems that had been identified. The bill died on the order paper when the election was called and was reintroduced as former Bill C-13 in October 2004.

I believe it would be fair to say that while all parties supported the DNA data bank and the changes proposed in the former Bill C-13, many members wanted to make more extensive changes.

There were negotiations among the parties to develop a package of changes that could secure unanimous support for the bill. In May 2005, three key amendments to the bill were adopted.

First was extending the retroactive scheme to cover persons convicted of one murder, manslaughter or sexual assault. I recall that our party, in opposition, was particularly keen in bringing that issue forward.

Second was creating a category of very violent offences where the court would have no discretion to refuse to make the DNA order. Again, this was another initiative of the party that I am in, which made that recommendation in the last Parliament.

Third was extending the definition of secondary designated offences to cover all offences under the Criminal Code or the Controlled Drugs and Substances Act that are punishable on indictment by five years or more.

The bill then moved with lightning speed and with all party support through the House and the Senate because of an impending confidence vote on the budget.

The provisions of former Bill C-13 that came into force upon receiving royal assent were those dealing with the expansion of the retroactive scheme, which makes about 4,400 more offenders eligible to be sampled, the procedure for dealing with DNA orders that appear on their face to have been improperly made, and the procedures for dealing with moderate DNA matches.

The major amendments that have not yet been brought into force are the following.

First is allowing courts to make DNA data bank orders against a person who has been found “not criminally responsible on account of mental disorder”.

Second is adding Internet luring of a child, uttering threats, criminal harassment, and “criminal organization” offences to the list of designated offences.

Third is moving “robbery” and “break and enter into a dwelling house” and child pornography related offences from the list of secondary designated offences to the list of primary designated offences.

Fourth is creating a new sub-category of the primary designated offence list of 16 extremely violent offences for which the courts will have no discretion whatsoever and must make the order.

Fifth is expanding the definition of secondary designated offences to include all offences that are punishable by imprisonment for five years or more.

Most members will agree that these are significant changes that will enhance the ability of the police to use the data bank and to protect Canadians from criminals.

Why, then, are they not yet in force? Federal, provincial and territorial officials, who were preparing for the proclamation of the remaining provisions of Bill C-13, identified a number of serious technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase efficiency and reduce costs. The former government, therefore, introduced Bill C-72 in November 2005 to make the necessary changes. However, that bill died when the election was called.

Officials have continued their work and they have identified more changes that would clarify Parliament's intent in passing former Bill C-13 and the procedures that should be modified to make the DNA legislation more effective.

As a former provincial crown prosecutor, I know how important it is to have clear procedures set out in the Criminal Code if legislation is to be effective. I am pleased that my department took the initiative of holding a two day meeting with prosecutors, police, forensic scientists and correctional personnel to go over Bill C-13 with a fine tooth comb.

Bill C-18, the present bill, proposes about a dozen changes that were not in the former Bill C-72, and those changes flowed directly from that meeting. Bill C-18 proposes no changes in the underlying policies or procedures already adopted by Parliament. It contains mainly drafting changes, such as the creation of 10 new forms. These changes are not dramatic and they will not grab the headlines, but they will be welcomed by the people in the field who need to make what Parliament passes work.

Bill C-18 also contains some substantive changes that I believe will be supported by all members of the House. In particular, it would add attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions. These are very serious offences that indicate an elevated risk of reoffending and are punishable by life imprisonment, a higher punishment than for the sexual offences that are already included in the retroactive scheme.

It would also permit the Crown to apply for retroactive DNA data bank order where the offender was convicted prior to June 30, 2000 of one of the listed offences and is still under sentence for that offence, rather than requiring that the person be serving a sentence of two years or more.

There are a few cases of persons who, prior to June 30, 2000, received multiple consecutive sentences for various offences, including some of the offences that make an offender eligible for retroactive sampling and who are still under sentence. Although the court clearly considered them to be serious offenders, it did not impose a sentence of two years or more for any one of the relevant offences. It would also allow a DNA order to be made within 90 days after the sentence is pronounced.

It is believed that the main reason orders are not being made in many cases where they are already authorized is that prosecutors are extremely busy and are forgetting to remind the court to consider the issue. This would give both the prosecutor and the judge the time to review the files and, if the matter was simply missed, to have a hearing where the prosecution and the offender can present their arguments to the judge, who will decide whether to make the order.

It would also make it an offence to fail to appear for DNA sampling. It is expected that having a specific offence will better emphasize to the offender the necessity of appearing for sampling and so increase compliance with DNA data bank orders. It would authorize any police force that arrests the person for failing to appear for a DNA sample to take the sample.

It would be very expensive if offenders arrested in one province had to be sent back to the province where the order was made to have the sample taken. It would permit a police agency that has been authorized to take a DNA sample to authorize another police agency to take the sample if that would be less expensive. The police have been hampered in their efforts to execute the orders where the offender has been incarcerated outside its jurisdiction or been conditionally released but resides outside its jurisdiction.

The procedure to have the order transferred to a court having jurisdiction and obtaining another order are time consuming and use up resources unnecessarily.

There are also some changes being made to ensure that the National DNA Data Bank can communicate with the forensic laboratories and with its international partners more effectively.

Parliament certainly wanted to encourage these exchanges, but the amendment, as passed in Bill C-13, is not as clear as it should be. As well, the National Defence Act is being amended so that the DNA regime applicable to the military continues to mirror the civilian regime.

There are many other technical changes of this nature in the bill and I am sure that when the bill gets to committee for detailed consideration, officials will explain them all. I trust this is sufficient, however, for members to realize that the changes proposed by this bill will be very helpful to law enforcement, prosecutors and judges who have to use the legislation on a daily basis.

Passage of this bill will allow for the proclamation of the rest of former Bill C-13 and should ensure that it is implemented smoothly.

It is, of course, not the end of the changes to the DNA legislation. As members are aware, the five year parliamentary review of the DNA legislation should have begun by June 30, 2005. Officials of my department, the Department of Public Safety, the RCMP and the National DNA Data Bank are ready to assist the committee as soon as it is mandated to commence the review.

The delay in beginning the review is not entirely unfortunate. The committee will be able to consider such issues as making the taking of a DNA sample automatic upon conviction, or even more variations in light of the strong endorsement of the existing legislation by the Supreme Court in R. v. Rogers, which was decided in April of this year.

Rogers was primarily a case involving the ex parte nature of retroactive hearings, but Rogers also challenged the constitutionality of the scheme.

It is useful to consider the Supreme Court's detailed reasons upholding the constitutionality of the legislation. I want to quote from this because it is important for our discussions. The Supreme Court stated:

There is no question that DNA evidence has revolutionized the way many crimes are investigated and prosecuted. The use of this new technology has not only led to the successful identification and prosecution of many dangerous criminals, it has served to exonerate many persons who were wrongfully suspected or convicted. The importance of this forensic development to the administration of justice can hardly be overstated. At the same time, the profound implications of government seizure and use of DNA samples on the privacy and security of the person cannot be ignored. A proper balance between these competing interests must be achieved within our constitutional framework.

The court continues to state:

For reasons that follow, I have concluded that the collection of DNA samples for data bank purposes from designated classes of convicted offenders is reasonable within the meaning of s. 8 of the Charter.

That is the section of the charter dealing with the protection against unreasonable search and seizure.

The court continues to state:

Society’s interest in using this powerful new technology to assist law enforcement agencies in the identification of offenders is beyond dispute. The resulting impact on the physical integrity of the targeted offenders is minimal. The potential invasive impact on the right to privacy has carefully been circumscribed by legislative safeguards that restrict the use of the DNA data bank as an identification tool only.

The Supreme Court continues to state:

Unlike the warrant provisions, the DNA data bank provisions do not target suspected offenders in respect of particular offences. Rather, they target offenders who have been convicted of different categories of offences. They do not provide for the gathering of evidence for use in a specific prosecution. Rather, they provide for the collection of samples solely for the purpose of creating DNA profiles for inclusion in the data bank. In any future investigation, a comparison between DNA evidence obtained at a crime scene and the data bank DNA profile will either serve to exonerate or identify a suspect. However, if a crime scene DNA profile matches an existing profile in the data bank, the sample is not released. Usual investigative methods, including DNA warrants, must be resorted to in order to gather evidence in pursuit of the investigation.

The court continues to state:

In my view, in considering the purpose of the DNA data bank provisions, the appropriate analogy is to fingerprinting and other identification measures taken for law enforcement purposes. The purpose of the legislative scheme is expressly set out in s. 3 of the DNA Identification Act, “...to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.”

The court continues to state:

The DNA data bank provisions contained in the DNA Identification Act and the Criminal Code are intended to put modern DNA technology to use in the identification of potential and known offenders. The DNA Identification Act is a modern supplement to the Identification of Criminals Act.

I am sure the committee will undertake a full review of the DNA legislation and it will want to consider carefully the implications of this judgment. I hope all parties on the committee will be able to come to an agreement as to the best way to proceed so as to protect Canadians while continuing to respect their charter and privacy rights.

However, we do not know when the committee will be struck, start its hearings or make its recommendations. I am speaking of the committee that will do the entire review that Parliament mandated a committee to do. We should not wait for this longer and broader process to implement changes that are generally acknowledged to be needed right now.

Therefore, I am pleased to recommend that Bill C-18 be given a second reading and sent to the standing committee for its review.

Business of the HouseOral Questions

November 24th, 2005 / 3 p.m.
See context

Hamilton East—Stoney Creek Ontario

Liberal

Tony Valeri LiberalLeader of the Government in the House of Commons

Mr. Speaker, I see the hon. member across the way is displaying his charm once more.

I also think the hon. member understands clearly that the call for the election and, ultimately, if there is an election caused, it will be the opposition members who will have to take responsibility since they will be voting to dissolve Parliament and we will be voting to sustain Parliament in order to continue the work that I will now lay out.

This afternoon we will continue with the opposition motion.

On Friday we will call consideration of the Senate amendments to Bill C-37, the do not call bill; report stage and third reading of Bill S-36 respecting rough diamonds; report stage and third reading of Bill C-63, respecting the Canada Elections Act; and second reading of Bill C-44, the transport legislation.

We will return to this work on Monday, adding to the list the reference before second reading of Bill C-76, the citizenship and adoption bill; and second reading of Bill C-75, the public health agency legislation.

Tuesday and Thursday of next week shall be allotted days. There are some three dozen bills before the House or in committee on which the House I am sure will want to make progress in the next period of time. They will include the bill introduced yesterday to implement the 2005 tax cuts announced on November 14; Bill C-68, the Pacific gateway bill; Bill C-67, the surplus legislation; Bill C-61, the marine bill; Bill C-72, the DNA legislation; Bill C-46, the correctional services bill; Bill C-77, the citizenship prohibitions bill; Bill C-60, the copyright legislation; Bill C-73, the Telecom bill; Bill C-60 respecting drug impaired driving; Bill C-19, the competition legislation; Bill C-50 respecting cruelty to animals; Bill C-51, the judges legislation; Bill C-52, the fisheries bill; Bill C-59 respecting Investment Canada; Bills C-64 and C-65 amending the Criminal Code.

In addition, there are the supplementary estimates introduced in October that provide spending authority for a wide variety of services to the Canadian public and we the government would certainly like to see this passed.

Criminal CodeGovernment Orders

November 21st, 2005 / 4:50 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, I have turned it off for the member.

We have built up a number of samples in our database that should not have been taken or were mistakenly taken by our police forces across the country, which I suppose is inevitable when introducing new technology. Some of the crimes with which the accused persons were charged did not fall within the scope of the legislation and some crimes were of a more minor nature and the samples should not have been taken. However we have the samples and there is no provision within the legislation, either in 2000 or 2005, to dispose of them.

I have to add that there is a serious problem with our technology as to whether we are actually capable of disposing of those samples without damaging other samples that we are entitled to have within the data bank. It becomes a little complex but it is a problem and I will use it as one of the examples. It is one that we should be addressing when we eventually get around to reviewing the 2000 legislation.

However, to confirm for my friend from Mississauga South, this is very much a technical bill to correct a few errors that were made in the last legislation in the spring. I do not see any charter issues in any of the amendments that are being proposed in Bill C-72.

Criminal CodeGovernment Orders

November 21st, 2005 / 4:50 p.m.
See context

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, I am comfortable in assuring the member for Mississauga South that Bill C-72, in my opinion, does not raise any charter issues. My reference to the charter issues still outstanding are as a result of the 2000 legislation and some argument with regard to the 2005 legislation that we passed in the spring. I certainly had a couple of concerns about the 2005 legislation and there were several other issues raised. I will give an example of one of the issues that was raised.

Criminal CodeGovernment Orders

November 21st, 2005 / 4:40 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, it is important that the House understand the history of our DNA legislation and how it applies as an investigative tool for our police forces across the country.

Approximately five years ago, after quite a long investigation by various parliamentary committees, we finally had legislation with regard to taking DNA samples. The justice committee spent a good deal of time during the spring and fall of 2004 analyzing a new bill, which passed in the spring of 2005. This issue is back before the House because a number of points were missed in that legislation. This may be the Irish in me coming out, but I want to say “I told you so” because we rammed the initial bill through too quickly.

When we went to implement that law, it became apparent that a number of points needed to be corrected. That has now been done in Bill C-72. A good deal of these points concern forms that have to be updated to comply with the new legislation. Most came to the attention of the government as a result of a federal-provincial conference of attorneys general and solicitors general that was held in the late spring. There really is nothing in this bill that would not have been in it in the spring. We are going to support these changes because they are badly needed.

It is hard to say how effective this technology has been without pointing to specific cases. Another case was broken this week concerning a murder that happened about 21 years ago in one of the western provinces. Officials were able to make a positive match as a result of a DNA sample that was made available as a result of the legislation we passed in the spring. The person, who is in custody in Ontario for other crimes, has been charged with that murder because of the DNA evidence. That is being repeated many times.

It is really important that this legislation be in an effective format so that it can be used efficiently by our police forces across the country. For all these reasons, we will be supporting Bill C-72.

Criminal CodeGovernment Orders

November 21st, 2005 / 4:30 p.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Mirabel, QC

Mr. Speaker, it is a pleasure for me to speak, on behalf of the Bloc Québécois, on Bill C-72. I will not read the entire bill, but, for the benefit of those listening, I want to read the bill summary:

This enactment amends the Criminal Code, the DNA Identification Act and the National Defence Act to facilitate the implementation of An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act—

This act corresponds to Bill C-13, which is currently being considered by the Senate. So, Bill C-72 seeks to amend Bill C-13, or to apply that bill, which is currently before the Senate.

It makes technical changes to those acts and addresses five points:

(a) allows a court to require a person who is given notice of an application under subsection 487.055(1) of the Criminal Code and who wishes to participate in the hearing to appear by closed-circuit television or a similar means of communication;

(b) allows samples of bodily substances to be taken as soon as feasible after the time set by an order or a summons for the taking of the samples or, if no such time is set, as soon as feasible after the day on which an order is made or after an authorization is granted;

(c) requires the Commissioner of the Royal Canadian Mounted Police to destroy the bodily substances collected under an order or authorization and the information transmitted with it if, in the opinion of the Attorney General or the Director of Military Prosecutions, as the case may be, the offence to which the order or authorization relates is not a designated offence;

(d) enables the Commissioner to communicate internationally the information that may be communicated within Canada under subsection 6(1) of the DNA Identification Act; and

(e) allows the Commissioner to communicate information for the purpose of the investigation of criminal offences, and allows the subsequent communication of that information for the purpose of the investigation and prosecution of criminal offences.

Bill C-72, which seeks to clarify Bill C-13, mainly focuses on the taking of samples of bodily substances. Bill C-13 was passed as a result of negotiations among all the parties in this House, including the Bloc Québécois. It was a compromise that was passed unanimously in order to give ensure the taking of samples of bodily substances after certain crimes.

Bill C-13, which received the unanimous consent of the House, is currently being considered by the Senate at first reading stage.

What does Bill C-13 have to add? That is an important question. I will explain how DNA samples could be taken before we had this bill. Previously, an order authorizing the taking of DNA could be issued when the offender was convicted of a designated offence. These designated offences were divided in two categories: primary offences and secondary offences. As long as Bill C-13 is not in effect—I mentioned earlier that is under consideration by the Senate—the list of primary offences will be limited and will include serious personal injury offences such as murder, aggravated assault or sexual assault, while the list of secondary offences will include crimes against persons as well as crimes against property causing danger to human life such as robbery, break and enter, assault or arson.

In the case of primary offences, that is the most serious cases, the collection order is virtually automatic. The judge is required to make an order for the collection of a DNA sample from the offender, unless the offender can convince the court that this would have an effect on his privacy and safety markedly out of proportion with the protection of society. On the other hand, for secondary offences, the sample will be ordered on request from the Crown provided it can convince the judge that this is necessary in the interest of justice. That is the way things are at present.

Put more succinctly, in serious crimes such as murders, aggravated assaults and sex crimes, the order has been virtually automatic until now, unless the accused has been able to prove that his privacy and safety were affected. For secondary offences, the order was made in response to a request from the Crown.

When Bill C-13 comes into effect, these rules will be substantially changed.

Bill C-72 applies Bill C-13. For better understanding, we need to know that Bill C-13 divides offences into two categories: primary and secondary, and provides lists for each. These are, therefore, list A and list B, and DNA samples are handled differently for each. The A list contains the most violent offences. Under Bill C-13, the judge is obliged to order that a sample be taken as soon as the individual is found guilty of one of the offences in list A. There will be no discretion. I will read that list of offences. It is important for those listening to us to hear them.

These offences are: living on the avails of prostitution of a person under 18; murder, manslaughter; attempted murder; assault with a weapon or causing bodily harm with intent; discharge of compressed air gun with intent to endanger life; administering a noxious thing with intent to endanger life or to cause bodily harm; overcoming resistance to the commission of an offence; aggravated assault; unlawfully causing bodily harm; sexual assault with a weapon, threats to a third party or causing bodily harm; aggravated sexual assault; kidnapping; robbery and extortion.

Therefore, in the context of C-13, these 16 offences will become primary designated offences for which a judge will be required to order a sample be taken following an individual's conviction.

Bill C-72 adds something. Under C-13, the judge must order a sample on conviction, while under C-72, bodily substances may be taken as soon as feasible after the time set by an order or a summons for the taking of the samples or, if no such time is set, as soon as feasible after the day on which an order is made or after an authorization is granted. That clarifies matters. Once an individual is convicted, a number of steps follow in a process. So this clarifies things and tells us that the sample will be taken as soon as it is feasible after the moment set by an order. Accordingly, once a charge has been laid, the sample may be taken. It will be mandatory in the case of the 16 offences I listed, the primary designated offences contained in list A.

In list B of the primary designated offences, the sampling order is almost automatic, unlike in the case of list A, where it is automatic. The judge is obliged to order DNA sampling, unless the offender can show that the sample would have an impact on his personal life or safety that would far outweigh any protection it would afford society.

List B includes some 20 offences for which the judge must authorize the sample unless the accused convinces him otherwise. The list includes sexual assault—except for aggravated sexual assault; hostage taking; breaking and entering a dwelling-house; intimidation of a justice system participant or journalist; attack on premises, residence or transport of an internationally protected person; attack on premises, accommodation or transport of United Nations or associated personnel; explosive or other lethal device; participation in activities of a criminal organization; commission of offence for a criminal organization; instructing commission of offence for a criminal organization; luring a child; child pornography; sexual exploitation of a person with disability; procuring; and offences historically of a sexual nature, in other words offences that have been replaced by modern crimes, including indecent assault.

For the primary offences mentioned in list A there will be an automatic requirement to take a sample. For the offences in list B, unless the accused manages to prove that this infringes upon his privacy, a sample will be taken. Furthermore, some secondary offences that are non designated offences in the primary categories are punishable by a maximum of imprisonment for five years.

Under the secondary offence system, the judge can authorize the taking of a DNA sample if the Crown proves it is in the interest of justice.

That means in 200 offences where a DNA sample is taken a series of 16 will be mandatory, as will a series of 20, unless the accused manages to prove that this infringes on his privacy and safety. As for the secondary offences, if ever the Crown proves it is in the interest of justice to proceed, DNA tests will be mandatory.

Clearly, the Bloc Québécois is in favour of Bill C-72. It clarifies Bill C-13 and allows, once and for all, for criminals not only to be able but to be required to give DNA samples, samples of bodily substances, so that we can confront them with their crimes.

Criminal CodeGovernment Orders

November 21st, 2005 / 4:20 p.m.
See context

Conservative

Vic Toews Conservative Provencher, MB

Mr. Speaker, I am pleased to rise today address Bill C-72, an act to amend certain acts in relation to DNA identification.

While I support this legislation, I want to place on the record some of my concerns generally with respect to DNA legislation. It has been a great source of frustration for many Canadians and particularly for law enforcement that the Liberal government has been dragging its feet on much needed DNA data bank legislation that would help safeguard our communities.

The use of forensic DNA analysis in solving crime is proving to be revolutionary. Biological samples collected from a crime scene can either help link to or eliminate a suspect from the crime scene. DNA donor suspects can help prove their innocence. Evidence from multiple crime scenes can be compared to link the same perpetrator to different offences in different locations. It can also identify a victim through DNA from close relatives.

Therefore, it is essential to have effective legislation in place so that our men and women in uniform can best serve to protect Canadian citizens.

Canadian police have for some time called for the creation of an effective DNA data bank to assist police investigations. The government was slow to respond, but finally assented to the DNA Identification Act on December 10 1998. The legislation allowed a DNA data bank to be created and amended the Criminal Code to provide for justices to order persons convicted of DNA offences to provide DNA samples. However, the legislation only came into effect in June 2000 and unfortunately included many loopholes.

Bill C-13 ultimately received unanimous support by all parties because it expanded and altered the offences and the offenders on the secondary and primary designation list who could be compelled to provide samples both retroactively and concurrently and after sentencing. It also permitted the destruction of samples taken, and judicial discretion was curtailed.

As I stated at the time of the royal assent to Bill C-13:

The success of this bill is a shining example of how a minority Parliament can work positively in the best interests of Canada. While everyone made compromises, I think we have a solid piece of legislation that will go a long way to address concerns about loopholes in our DNA law.

Bill C-13 still falls far short of the Conservative Party's expectations for appropriate legislation. Although DNA samples in Great Britain, and as is the case for fingerprinting in Canada, are taken at the time of charge, at a minimum all indictable offences should be deemed designated offences for DNA data banking and there should be no discretion for judges to decline to order a sample upon conviction.

The British experience shows that criminals who commit property offences are also involved in more serious indictable offences such as sexual assault and murder. There is no justification for excluding indictable offences such as break and enter from the mandatory taking of DNA samples, especially if there has been a conviction.

Moreover, the legislation has not yet been proclaimed into effect. The government has continued to delay this much needed piece of legislation because of allegedly necessary amendments to technical errors and omissions.

This excuse is weakened by the fact that Bill C-72 comes sandwiched between Bill C-13 and a review of the DNA act, mandated in the legislation and reiterated in a justice department press release, which was to have been undertaken in 2005. Technical errors and omissions should be dealt with in that review. What is needed now is not further delay but rather leadership from the government to help facilitate the apprehension of criminals by using DNA evidence.

On November 2, 2005, the government introduced Bill C-72 to deal with these technical omissions and errors in Bill C-13. Numbers of amendments were made, which I will not detail.

There was, however, one provision that caused me some concern. That was to provide discretionary powers to the attorney general or the director of military prosecutions; if in their opinion the bodily substance collected was for a non-designated offence then the Commissioner of the Royal Canadian Mounted Police must destroy the substance collected. I have in fact reviewed that amendment. I have received assurances that the discretion afforded to the attorney general and the director of military prosecutions is appropriate and that it is also supported by police and provincial attorneys general. Therefore, I am consenting to that amendment as well.

Although these amendments in the bill are in fact an improvement on the status quo, they do not address many of the concerns raised by police and by provincial attorneys general.

Police have asked for the ability to collect a DNA sample at the time of charge, as is done with fingerprints, instead of upon conviction. There is no evidence or jurisprudence suggesting that such provisions would be in violation of the Constitution. Indeed, my position is that, at a minimum, all indictable offences upon conviction should be subject to the mandatory taking of DNA. There clearly is no constitutional basis for suggesting that such a provision after a conviction could in any way be unconstitutional.

Indeed, in other western democracies such as Great Britain, DNA samples are taken at the time of charge, as opposed to conviction. That has proven to be highly successful, not only in deterring crime and capturing criminals but in ensuring that innocent people are not convicted.

I also want to point out that our DNA testing system is so backlogged that until sufficient resources are provided, any legislated changes made will not be significantly meaningful. They will not improve the operation of the system.

This legislation still does not address the issue of timely production of DNA results to bring dangerous offenders to justice and to ensure the safety of our communities.

The government has insisted that DNA legislation is of the utmost importance and that we must expedite the passing of Bill C-72. However, if this is the case, why has the government waited five months to table new legislation in order to enforce Bill C-13? These rectifications are, as the parliamentary secretary has said, technical amendments and omissions and in fact simply delay the actual implementation of Bill C-13.

If the Minister of Justice wanted to add amendments, these could have been dealt with in the requisite review of the DNA Identification Act set to occur this year. However, that DNA review never took place.

Let me say in conclusion that the national DNA data bank is an important example of the increasing significance of science and technology in modern law enforcement. To stay ahead of the criminals, we must make better use of cutting edge science such as forensic DNA.

Data as of November 14, 2005, shows that over 4,000 cases have successfully linked crime scene DNA to offenders. It is imperative that the government create the legislative framework and provide the resources necessary to use this great crime-fighting tool.

To date the government has put forward legislation that takes steps in the right direction, but clearly, in view of the success enjoyed in other jurisdictions, these steps do not go far enough. The government's slow approach in implementing this needed legislation is disheartening.

I can assure members that a Conservative government will stand up for more effective DNA data bank legislation. A Conservative government will increase the number of cases where a mandatory sample upon conviction will be included for DNA sampling. Also, a Conservative government will stand up for the tools needed by our law enforcement officers to fight crime by providing them with the resources in order to make legislative tools effective.

Criminal CodeGovernment Orders

November 21st, 2005 / 4:05 p.m.
See context

Northumberland—Quinte West Ontario

Liberal

Paul MacKlin LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, as members are aware, Bill C-13, an act to amend the Criminal Code, DNA Identification Act and the National Defence Act was passed, one might say, with some haste by the House and the Senate last May.

Major amendments were adopted by the House standing committee, including amendments to effect a compromise among the parties, that expanded the definition of “designated offence” and the scope of the retroactive DNA data bank order provisions which were aimed at collecting DNA from offenders convicted of serious crimes prior to June 30, 2000. The bill, as amended, received the support of all parties.

The bill provided for a limited number of amendments to come into force on royal assent and the rest to come into force on proclamation. The important amendments in force are those that expand the retroactive DNA collection scheme in the Criminal Code and those that simplify communication of DNA profiles between laboratories to determine whether a crime scene profile matches another profile in the national DNA data bank.

The major amendments in Bill C-13 that have not yet been brought into force include the changes to the definitions of designated offences which will allow for the making of many more DNA data bank orders and will allow the police to apply for a DNA warrant in many more cases and the provisions allowing a judge to fix a time and place for taking a DNA sample from a convicted offender and authorizing the issuing of a warrant for the arrest of that offender if he does not show up as required.

Officials from Justice Canada, Public Safety and Emergency Preparedness Canada, Correctional Service Canada, the RCMP, the national DNA data bank and the provinces have been preparing for the proclamation of the remaining provisions. They have identified certain technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase the efficiency and reduce costs.

Because it is urgent to adopt this bill before the budget may be defeated, the changes were drafted and passed, even though their thorough examination, the review of the necessary consequential amendments and the identification of all the consequences and of the changes required, which took place at report stage, at third reading or in the other place, were not available.

I will not list all the technical problems in Bill C-13 that the officials have requested to be fixed and which have led to the amendments that have been incorporated in Bill C-72. However Bill C-72 includes provisions to amend the legislation to address the following problems.

First, the amendments to the definitions of primary designated offence and secondary designated offence do not fit together.

Second, the forms were not changed to reflect the changes made in the procedures for obtaining an order in retroactive proceedings and in the definition of secondary designated offence.

Third, the French and English versions of the clause in the DNA Identification Act authorizing the commissioner to provide further information in a moderate match case are different.

Fourth, the French and English versions of the section authorizing the international sharing of DNA profiles set out different information the commissioner can provide. The English version forbids the sending of profiles internationally, which could hamper Canada assisting its international partners through Interpol.

Bill C-72 also proposes changes requested by the provinces to streamline procedures and reduce costs.

The decision to amend Bill C-13 so that those convicted of murder, sexual offence or manslaughter are targeted by the provisions on the taking of DNA samples resulted in an additional 4,000 individuals being targeted by these provisions.

The Criminal Code provides that, in these cases, hearings are held ex parte. However, the Ontario Court of Appeal ruled that an offender has the right to get a notice of the order for retroactive application and to appear during the hearing for that application, unless there is a risk that the individual might flee.

Because a decision of the Supreme Court of Canada is not expected for more than a year, the other provinces have decided, as a precaution against an adverse judgment, to serve notice on all persons against whom they are seeking an authorization to take a DNA sample, including incarcerated offenders. Many offenders are incarcerated in a province other than the one where they committed the offence. The police and the Crown in the jurisdiction where the offence took place are best placed to make the application for the order.

There is concern that many of these offenders will seek to be represented. Transporting these incarcerated offenders around the country for hearings would be very expensive for Correctional Services Canada and could present serious risk of flight by offenders who are serving lengthy sentences with little prospect of being released. The officials have therefore proposed that the DNA legislation permit retroactive hearings by video link, and this change is proposed in Bill C-72.

Another procedural change that will simplify procedures and reduce costs is the amendment proposed by Bill C-72 with respect to the procedure respecting those cases where the national DNA data bank has received, for inclusion in the convicted offenders' index, a sample taken pursuant to an order that on its face does not refer to a conviction for a designated offence. As members know, the Criminal Code only authorizes the making of a DNA data bank order where the person has been convicted of a designated offence. Nevertheless, the data bank has now received more than 700 such orders and accompanying seized samples of body substances.

Section 5.1 of the DNA Identification Act, as enacted by the former bill, Bill C-13, provides that the commissioner of the RCMP is to return such orders to the attorney general for the province where the conviction was obtained or to the director of military prosecutions. They are to investigate the matter and if they conclude that the making of an order was, indeed, not authorized by the Criminal Code or the National Defence Act because the person had not been convicted of a designated offence, they are to seek from a judge of the appellate court an order quashing the authorization.

Last August, Ontario proposed a resolution in the criminal law section of the Uniform Law Conference that this procedure be changed so that:

where the Attorney General agrees that the order was taken for a non-designated offence, the Attorney General confirms this in writing to the Commissioner of the National Databank who would then be authorized to destroy the sample.

This resolution was adopted and, having reviewed this matter in light of the discussions at the Uniform Law Conference, the government has concluded that it is not necessary to revoke the DNA data bank orders as they have been carried out precisely as the court had ordered.

The commissioner of the RCMP is not, however, blindly to process the bodily sample and enter the profile in accordance with the order that is received. He has an independent duty to decide whether the order meets the requirements of the DNA Identification Act.

The proposed amendment in Bill C-72 would simplify the procedure for the attorney general or the director of military prosecutions, setting out what they are to follow where the order should not have been made. Instead of having to make an application with its attendant costs and delays, the attorney general can confirm that the person was not convicted of a designated offence.

I believe members will agree that this procedure is appropriate as the question involves no legal issues to be decided by the appeal court but simply the question of fact of whether the offender was convicted of the designated offence, which can be answered simply by reviewing the file.

I believe Bill C-72 is an important bill which, if adopted, will greatly facilitate the implementation of Bill C-13. Accordingly, I would urge all parties of this House to adopt the bill as quickly as possible.

Criminal CodeGovernment Orders

November 21st, 2005 / 4:05 p.m.
See context

Vancouver Kingsway B.C.

Liberal

David Emerson Liberalfor the Minister of Justice

Mr. Speaker, I move

That Bill C-72, an act to amend certain acts in relation to DNA identification, be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

Export and Import of Rough Diamonds ActGovernment Orders

November 21st, 2005 / 4:05 p.m.
See context

The Acting Speaker (Mr. Marcel Proulx)

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Foreign Affairs and International Trade.

(Motion agreed to, bill read the second time and referred to a committee)

(Bill C-72. On the Order: Government Orders:)

November 2, 2005--The Minister of Justice--Second reading and reference to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness of Bill C-72, an act to amend certain acts in relation to DNA Identification.

Business of the HouseOral Questions

November 17th, 2005 / 3:05 p.m.
See context

Hamilton East—Stoney Creek Ontario

Liberal

Tony Valeri LiberalLeader of the Government in the House of Commons

Mr. Speaker, we will continue this afternoon with the opposition motion.

On Tuesday, November 22 and Thursday, November 24, we will have allotted days. The opposition House leaders are in fact considering a special House order to expedite Bill C-53, Bill C-54, Bill C-55 and Bill C-66 through all stages with a recorded vote at third reading. I hope we can come to an agreement on that special House order and proceed in that fashion.

If we cannot agree on that special order, then tomorrow we will begin with reference before second reading of Bill C-71, the first nations commercial bill; report stage of Bill S-37, respecting the Hague convention; second reading of Bill S-36, the rough diamonds bill; and reference before second reading of Bill C-72, the bill amending the DNA legislation. We will continue with this business next week, adding the report stage of Bill C-57, the financial governance bill, and other unfinished items.

With respect to the comment about the Chamber of Commerce, it is very clear, and I said this earlier, that Bill C-66 and the ways and means motion are in fact confidence motions. Although I am not sure I should do this, I am taking at the hon. member's word the public statements that in fact those members do support Bill C-66 and the ways and means motion with respect to taxes. Given his comment, I guess I should reconsider and speak to him once again since his party has flip-flopped on a number of occasions.

With respect to prorogation, I have to say that this rumour created by the Conservative Party was merely to keep the NDP in line with its confidence motion that it will put forward in the coming weeks.

Criminal CodeRoutine Proceedings

November 2nd, 2005 / 3:10 p.m.
See context

Mount Royal Québec

Liberal

Irwin Cotler LiberalMinister of Justice and Attorney General of Canada

moved for leave to introduce Bill C-72, An Act to amend certain Acts in relation to DNA Identification.

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

Civil Marriage ActGovernment Orders

May 2nd, 2005 / 1:45 p.m.
See context

Conservative

Jeremy Harrison Conservative Churchill River, SK

Madam Speaker, it is an honour to rise today on behalf of my constituents of Desnethé—Missinippi—Churchill River to speak to Bill C-38, the same sex marriage bill, the very subject upon which I wrote my thesis in law school.

I, like most of my colleagues on this side of the House, the vast majority of my constituents in northern Saskatchewan and many on the other side as well, believe in the traditional definition of marriage as the union of one man and one woman to the exclusion of all others.

However in the course of this debate those of us who support marriage have been told that to amend the bill to reflect a traditional definition of marriage would be a violation of human rights and an unconstitutional violation of the Canadian Charter of Rights and Freedoms.

I believe this is an attempt by the government to shift the grounds of the debate. The Liberals do not want to debate the question of traditional marriage versus same sex marriage, so they would rather focus on attacking their opponents as opposing human rights and the charter.

However this debate is not about human rights. It is a political social policy decision and should be treated in that light. Let me present several reasons why the issue of same sex marriage is not a human rights issue and why defining the traditional definition of marriage would not violate the charter or require the use of the notwithstanding clause.

First, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. For example, in the Universal Declaration of Human Rights, the foundational United Nations human rights charter, almost all of the rights listed are worded as purely individual rights, rights which everyone shall have or no one shall be denied, but when it comes to marriage the declaration says:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

The use of the term “men and women” here rather than “everyone” suggests that only traditional opposite sex marriage is contemplated. The subsequent International Covenant on Civil and Political Rights contains similar language.

Attempts to pursue same sex marriage as an international human rights issue have failed. In 1998 the European Court of Justice held that “Stable relationships between two persons of the same sex are not regarded as equivalent to marriages”.

In 1996 the New Zealand Court of Appeal rejected the recognition of same sex marriages, despite the fact that New Zealand's bill of rights explicitly listed sexual orientation as prohibited grounds of discrimination. When the New Zealand decision was challenged before the United Nations Human Rights Commission as a violation of the International Covenant on Civil and Political Rights, the UNHRC ruled in 2002 that there was no case for discrimination simply on the basis of refusing to marry homosexual couples.

In fact, to this date, no international human rights body and no national supreme court has ever found that there is a human right to same sex marriage. The only courts that have found in favour of a right to same sex marriage are provincial or state level courts in Canada and the United States.

If same sex marriage is not a basic human right in the sense of internationally recognized human rights law, is it a violation of Canadian charter rights? While several provincial courts of appeal have said that it is, we still have not heard from the highest court in the land.

In the same sex reference case, the Supreme Court declined to rule on the constitutionality of a traditional definition of marriage, despite a clear request from the government to answer this question.

Furthermore, all of the lower court decisions in favour of same sex marriage were dealing with common law, judge made law from over a century ago, not a recent statute passed by a democratically elected legislature. It is quite possible that those lower courts may have found differently if there was a marriage act passed by Parliament defining marriage as the union of a man and a woman.

The whole discussion of the notwithstanding clause is an irrelevant distraction to this debate. There is simply no reason to use or discuss the use of the notwithstanding clause in the absence of a Supreme Court decision which indicates that the traditional definition of marriage is unconstitutional, and the Supreme Court has not done so.

The Supreme Court has also said in various cases that statute law requires greater deference than common law. Should legislation upholding the traditional definition of marriage be passed, a good argument can be made that the Supreme Court would give it considerable deference.

There are several examples of Parliament having passed statutes without using the notwithstanding clause that effectively reversed judicial decisions, including Supreme Court decisions, under common law. The courts have accepted these exercises of parliamentary sovereignty.

In 1995 Parliament passed Bill C-72 reversing the Supreme Court's decision in Daviault, which allowed extreme intoxication as a criminal defence.

When this new law was challenged in the subsequent Mills case, the Supreme Court wisely ruled, in a decision by Justices McLachlin and Iacobucci:

It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament's law is unconstitutional. Parliament may build on the Court's decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court's rulings, so the Court must respect Parliament's determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy....

There is good reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage combined with a full and equal recognition of legal rights and benefits for same sex couples, might well accept it.

The Conservative position that the use of the notwithstanding clause is not required to legislate a traditional definition of marriage is supported by law professor Alan Brudner of the University of Toronto, who recently wrote in the Globe and Mail :

--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.

Citing the case of Regina v. Swain, where the Supreme Court ruled that it did not have to subject a charter decision on common law to the same “reasonable limits” test as it would for a statute, Professor Brudner writes:

For all we know, therefore, courts may uphold opposition sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body.

Professor Brudner argues against those who have argued that a pre-emptive use of the notwithstanding clause is the only way to uphold the traditional definition of marriage. He stated that:

These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Certainly, that role cannot be to protect laws suspected of being unconstitutional against judicial scrutiny....Rather, the legitimate role of a notwithstanding clause in a constitutional state is to provide a democratic veto over a judicial declaration of invalidity, where the court's reasoning discloses a failure to defer to the parliamentary body on a question of political discretion...the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled on the constitutionality of a law.

As yet there has been no such law for the Supreme Court to consider, so there is no need to use the notwithstanding clause.

There is every reason to believe that if the House moved to bring in a reasonable, democratic, compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of unions and which fully protected freedom of religion to the extent possible under federal law, the Supreme Court of Canada would honour such a decision of Parliament.

Civil Marriage ActGovernment Orders

May 2nd, 2005 / 12:05 p.m.
See context

Conservative

David Tilson Conservative Dufferin—Caledon, ON

Mr. Speaker, I, like most of my colleagues on this side of the House and many on the other side as well, believe in the traditional definition of marriage as the union of one man and one woman to the exclusion of all others.

However, in the course of this debate those of us who support the traditional form of marriage have been told that to oppose Bill C-38 would be a violation of human rights and an unconstitutional violation of the Canadian Charter of Rights and Freedoms. This is an attempt by the government to shift the grounds of this debate. The government does not want to debate the question of traditional marriage versus same sex marriage. It would rather focus on attacking its opponents as opposing human rights and the charter. This debate is not about human rights. It is a political, social policy decision and should be treated in that light.

Let me present several reasons why the issue of same sex marriage is not a human rights issue, and why defining the traditional definition of marriage would probably not violate the charter or require the use of the notwithstanding clause.

First of all, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. For example, in the universal declaration of human rights, the foundational United Nations human rights charter, almost all the rights listed are worded as purely individual rights, rights which everyone shall have or no one shall be denied. When it comes to marriage, the declaration says:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

The use of the term “men and women” rather than “everyone” suggests that only traditional opposite sex marriage is contemplated. The subsequent international covenant on civil and political rights contains similar language. Attempts to pursue same sex marriage as an international human rights issue have failed.

In 1998 the European Court of Justice held that “stable relationships between two persons of the same sex are not regarded as equivalent to marriages.” In 1996 the New Zealand Court of Appeal rejected the recognition of same sex marriages despite the fact that New Zealand's bill of rights explicitly listed sexual orientation as a prohibited grounds of discrimination.

When the New Zealand decision was challenged before the United Nations Human Rights Commission as a violation of the international covenant on civil and political rights, the United Nations Human Rights Commission ruled in 2002 that there was no case for discrimination simply on the basis of refusing to marry homosexual couples.

In fact, to this date no international human rights body and no national supreme court has ever found that there is a human right to same sex marriage. The only courts that have found in favour of a right to same sex marriage are provincial courts in this country or state level courts in the United States.

If same sex marriage is not a basic human right in the sense of internationally recognized human rights law, is it a violation of Canadian charter rights? Several provincial Courts of Appeal such as the Court of Appeal in my province of Ontario have said that it is, and we still have not heard from the highest court in the land.

In the same sex reference case the Supreme Court of Canada declined to rule on the constitutionality of the traditional definition of marriage despite a clear request from the Liberal government to answer that question. All of the lower court decisions in favour of same sex marriage were dealing with common law, judge made law from over a century ago, not a recent statute passed by a democratically elected legislature.

It is quite possible that those lower courts may have found differently if there was a marriage act passed by this Parliament defining marriage as the union of a man and a woman. So the whole discussion of the notwithstanding clause is an irrelevant distraction in this debate. There is simply no reason to use or discuss the use of the notwithstanding clause in the absence of a Supreme Court decision which indicates the traditional definition of marriage as unconstitutional. The Supreme Court of Canada has not done so. The Supreme Court has also said in various cases that statute law requires greater deference than common law.

Should legislation upholding the traditional definition of marriage be passed, a good argument can be made that the Supreme Court would give it considerable deference.

There are several examples of Parliament having passed statutes without using the notwithstanding clause that effectively reversed judicial decisions, including Supreme Court of Canada decisions, under common law. The courts have accepted these exercises of parliamentary sovereignty.

In 1995, Parliament passed Bill C-72 reversing the Supreme Court's decision in Daviault, which allowed extreme intoxication in a criminal defence.

In 1996, Parliament passed Bill C-46 reversing the Supreme Court of Canada's decision in O'Connor, which allowed the accused to access medical records of the victims in sexual assault cases. When this new law was challenged in a subsequent case, Mills, the Supreme Court wisely ruled, in a decision by Justices McLachlin and Iaccobucci, that:

It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament's law is unconstitutional. Parliament may build on the Court's decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court's rulings, so the Court must respect Parliament's determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy....

There is good reason to believe that the Supreme Court of Canada, if it were eventually asked to rule on a new statutory definition of marriage combined with a full and equal recognition of legal rights and benefits for same sex couples, might well accept it.

The Conservative Party of Canada's position that the use of the notwithstanding clause is not required to legislate a traditional definition of marriage is supported by law professor Alan Brudner of the University of Toronto who recently wrote in the

Globe and Mail:

For all we know, therefore, courts may uphold opposite sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body.

The notwithstanding clause should be invoked by Parliament only after the Supreme Court of Canada has ruled on the constitutionality of a law. As yet, there has been no such law for the Supreme Court to consider, so there is no need to use the notwithstanding clause.

My leader has undertaken to bring in a reasonable, democratic compromise solution, one which is defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of unions, and which fully protected freedom of religion to the extent possible under federal law. I believe that the Supreme Court of Canada would honour such a decision by Parliament and therefore I will be supporting the traditional definition of marriage.

Civil Marriage ActGovernment Orders

April 21st, 2005 / 3:35 p.m.
See context

Conservative

Gary Goodyear Conservative Cambridge, ON

Mr. Speaker, I, like most of my colleagues on this side of the House and many others on the other side as well, believe that the traditional definition of marriage is the union of one man and one woman to the exclusion of all others. However, in the course of this debate those of us who support marriage have been told that to amend the bill to reflect the traditional definition of marriage, we would be in violation of human rights and committing an unconstitutional violation of the Canadian Charter of Rights and Freedoms.

I believe this is an attempt by the government to shift the grounds of the debate. It is another famous Liberal distraction. Liberals do not want to debate the question of traditional marriage versus same sex marriage so they would rather focus on attacking their opponents as opposing human rights and the charter.

May I remind the members of the House that if not for the Conservative Party, we would not have a Charter of Rights and no other party in the House has a better record of success in fighting tooth and nail for human rights. This debate is not about human rights. It is a political, social policy decision and it should be treated in that light.

Let me present several reasons why the issue of same sex marriage is not a human rights issue and why defining the traditional definition of marriage would not violate the charter or require the use of the notwithstanding clause.

First, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. I have searched high and low and I challenge the government to produce such a document. For example, in the universal declaration of human rights, the foundational United Nations human rights charter, almost all the rights listed are worded purely as individual rights, rights which “everyone” shall have or “no one” shall be denied. When it comes to marriage the declaration says, “Men and women of full age without any limitation due to race, nationality or religion have the right to marry and to found a family”.

The use of the term “men” and “women”, rather than “everyone”, suggests that only traditional opposite sex marriage is contemplated. The subsequent international covenant on civil and political rights contains similar language. As well, attempts to pursue same sex marriage as an international human right has failed.

In 1998 the European court of justice held that “stable relationships between two persons of the same sex are not regarded as equivalent to marriages”.

In 1996 the New Zealand court of appeal rejected the recognition of same sex marriage despite the fact that New Zealand's bill of rights prohibited discrimination based on sexual orientation. When the New Zealand decision was challenged before the United Nations Human Rights Commission, the UN ruled that there was no case for discrimination simply on the basis of refusing to marry homosexual couples.

In fact, to this date, no international human rights body and no national supreme court has ever found that there is a human right to same sex marriage. The only courts that have found in favour of a right to same sex marriage are provincial or state level courts in Canada and the United States.

If same sex is not a basic human right in the sense of internationally recognized human rights, is it a violation of Canadian charter rights? It is true that several provincial courts of appeal have said that it is. What is also true is we still have not heard from the highest court in the land.

In the same sex reference case the Supreme Court declined to rule on the constitutionality of the traditional definition of marriage, despite a clear request from the government to answer that particular question. No matter how the government twists and reorganizes the wording, the truth is that the court did not rule on it.

Furthermore, all the lower court decisions in favour of same sex marriage dealt with common law, judge made laws from over a century ago, not a recent statute passed by a democratically elected legislator. It is quite possible then that those lower courts may have found differently if there had in fact been a marriage act passed by Parliament defining marriage as the union of a man and a woman.

The whole discussion of the notwithstanding clause is completely irrelevant and is a distraction to this debate. There is simply no reason to use or discuss the use of the notwithstanding clause in the absence of a Supreme Court decision that would indicate that the traditional definition of marriage is somehow unconstitutional, and the Supreme Court has not done that. It is rhetoric and a cheap misinformation tactic by a desperate, self-interested Prime Minister.

Further, the Supreme Court has also said in various cases that state law requires greater deference than common law. Should legislation upholding the traditional definition of marriage be passed, there is a good argument that could be made that the Supreme Court would give it considerable deference.

I just happen to know that there are several examples of Parliament having passed statutes without using the notwithstanding clause that effectively reversed judicial decisions, including those of the Supreme Court.

The courts have accepted in the past parliamentary sovereignty. The Supreme Court's decision in the Daviault case, which allowed extreme intoxication to be used as a defence, was reversed when Parliament passed Bill C-72. I might add that was when the Liberal government was in power.

In 1996 Parliament passed Bill C-46 reversing another Supreme Court decision in O'Connor, which allowed the accused to access medical records of victims under sexual abuse. When this new law was challenged in a subsequent case, the Supreme Court wisely ruled in favour of Parliament. In a decision by Justices McLachlin and Iaccobucci, they said:

It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament’s law is unconstitutional. Parliament may build on the Court’s decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court’s rulings, so the Court must respect Parliament’s determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.

Therefore there is good reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage, might well accept it.

The Conservative position that the use of the notwithstanding clause is not required to legislate a traditional definition is also supported by law professor, Alan Brudner, of the University of Toronto, who, by the way, is not a Conservative Party supporter. He says:

--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.

Citing the case of R. v. Swain, where the Supreme Court ruled that it did not have to subject a charter decision on common law to the same reasonable limits test as it would have to for a statute, Professor Brudner states:

For all we know, therefore, courts may uphold opposite sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body.

Professor Brudner argues against those who say that the notwithstanding clause is the only way to uphold the traditional definition.

He further states:

These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Rather, the legitimate role of a notwithstanding clause in a constitutional state is to provide a democratic veto over a judicial declaration of invalidity, where the court's reasoning discloses a failure to defer to the parliamentary body on a question of political discretion.

In closing, I would like to say that the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled the constitutionality of a law. As yet there has been no such law for the Supreme Court to consider.

There is every reason to believe that if the House moved to bring a reasonable democratic compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of relationships and which fully protected freedom--

Civil Marriage ActGovernment Orders

February 16th, 2005 / 3:45 p.m.
See context

Conservative

Stephen Harper Conservative Calgary Southwest, AB

Do you remember when the Prime Minister was a leadership candidate and wanted a democratic and respectful debate on this issue. On this side of the House, we hope that he and the members of his party will keep that promise during the course of this debate.

In August 2003, the Prime Minister, then a candidate for the Liberal leadership, who seemed very concerned with democracy and parliamentary reform, said that, “The courts having spoken, I believe that it's very important that Parliament speaks and that Parliament speaks through the voices of its representatives: members of Parliament. And what that essentially means is that this has got to be a debate that is civil, not a debate on which either side ascribes motivation, questions the motivation or ascribes blame, that in fact that the debate really deal with the fundamental social values of the country. And I think that that is what's going to happen”.

“There are going to be people who are going to raise other ways of looking at this. There are going to be people who will deal, for instance, who are going to raise the issue of civil union. And it may well be that they will raise solutions to the impediment that civil unions might provide. And I think that's an essential role of Parliament. And I think it's the kind of thing we should listen to”.

The Prime Minister had it right then, back in his democratic deficit fighting days as a leadership candidate. I hope he will remember his words of a year and a half ago and will not resort to the questioning of motives that he, his justice minister and others have increasingly resorted to in recent weeks when we propose the very policy on this issue that the Prime Minister used to win the leadership of the Liberal Party of Canada.

As the Prime Minister invited us to do, I do want to engage in this debate about fundamental social values. I do want to discuss how compromise proposals like civil unions may be able to resolve some of the impediments the Prime Minister noted. I hope the Prime Minister will extend to me and roughly half the members of the House and roughly two-thirds of the country who support the traditional definition of marriage, the courtesy of an open debate without facing spurious charges of bigotry or bad faith from the Prime Minister, his spin doctors or his media allies.

My position on the definition of marriage is well known, because it is quite clear. It is not derived from personal prejudice or political tactics, as some Liberal MPs would have us believe with their usual air of moral superiority. My position, and that of most of the members of my party, is based on a very solid foundation and time tested values.

I also want to point out that the members of my party, including those in our shadow cabinet, are perfectly free to vote according to their conscience without my interference.

It will come as no surprise to anybody to know that I support the traditional definition of marriage as a union of one man and one woman to the exclusion of all others, as expressed in our traditional common law. I believe this definition of marriage has served society well, has stood the test of time and is in fact a foundational institution of society. In my view the onus is on those who want to overturn such a fundamental social institution to prove that it is absolutely necessary, that there is no other compromise that can respect the rights of same sex couples while still preserving one of the cornerstones of our society and its many cultures.

Up until a few years ago, even within the modern era of the charter, Canadian law and Canadian society took for granted that marriage was intrinsic, by definition, an opposite sex institution. So obvious was this that until now a formal marriage statute has never been adopted by Parliament. This view was not even restricted to the numerous faces and cultures that have populated our great country from all corners of the earth, though it has been a universal view among them.

It has been a widespread view beyond religion as well. For example, the renowned McGill medical and legal ethicist, Dr. Margaret Somerville, a secular scholar operating in a public university without confessional or religious orientation, has argued that marriage is inherently an opposite sex institution. She points out that while social institutions can and should change in some of their accidental trappings, there are also inherent features that cannot change. As she writes:

Institutions have both inherent and collateral features. Inherent features define the institution and cannot be changed without destroying the institution. Collateral features can be changed without such impact. We rightly recognized that women must be treated as equal partners with men within marriage. While that changed the power of husbands over their wives, it simply changed a collateral feature of marriage. Recognizing same-sex marriage would change its inherent nature.

In a similar vein, former Supreme Court Justice Gérard La Forest, speaking on behalf of four judges in the majority in the Egan decision, the last case by the way where the Supreme Court addressed the definition of marriage directly, famously said the following:

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.

I point out again, this is what the Supreme Court of Canada actually said, not, as the Prime Minister emphasizes, mere speculation about what it may say in the future. The statement was also written in 1995, over a decade after adoption of the Charter of Rights and Freedoms, and it remains the only commentary on the fundamental definition of marriage in any Supreme Court decision.

Even years after Justice La Forest's statements, members of the Liberal government still denied any hidden agenda to change the definition of marriage. In fact, the Deputy Minister stood in the House in 1999 and said the following on behalf of the government:

We on this side agree that the institution of marriage is a central and important institution in the lives of many Canadians. It plays an important part in all societies worldwide, second only to the fundamental importance of family to all of us.

The institution of marriage is of great importance to large numbers of Canadians, and the definition of marriage as found in the hon. member's motion is clear in law.

As stated in the motion, the definition of marriage is already clear in law. It is not found in a statute, but then not all law exists in statutes, and the law is no less binding and no less the law because it is found in the common law instead of in a statute.

The definition of marriage, which has been consistently applied in Canada, comes from an 1866 British case which holds that marriage is “the union of one man and one woman to the exclusion of all others”. That case and that definition are considered clear law by ordinary Canadians, by academics and by the courts. The courts have upheld the constitutionality of that definition.

The Ontario Court, General Division, recently upheld in Layland and Beaulne the definition of marriage. In that decision a majority of the court stated the following:

—unions of persons of the same sex are not “marriages”, because of the definition of marriage. The applicants are, in effect, seeking to use s. 15 of the Charter to bring about a change in the definition of marriage. I do not think the Charter has that effect.

I am aware, as are other ministers, that recent court decisions and resulting media coverage have raised concern around the issue of same sex partners. It appears that the hon. member believes that the motion is both necessary and effective as a means to keep the Government of Canada from suddenly legislating the legalization of same sex marriages. That kind of misunderstanding of the intention of the government should be corrected.

Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same sex marriages.

I fundamentally do not believe that it is necessary to change the definition of marriage in order to accommodate the equality issues around same sex partners which now face us as Canadians. The courts have ruled that some recognition must be given to the realities of unmarried cohabitation in terms of both opposite sex and same sex partners. I strongly believe that the message to the government and to all Canadian governments from the Canadian public is a message of tolerance, fairness and respect for others.

Marriage has fundamental value and importance to Canadians and we do not believe on this side of the House that importance and value is in any way threatened or undermined by others seeking to have their long term relationships recognized. I support the motion for maintaining the clear legal definition of marriage in Canada as the union of one man and one woman to the exclusion of all others.

Thus spoke at great length the Deputy Prime Minister of Canada, then justice minister, in this chamber less than six years ago.

Today, for making statements that are identical and for identical reasons, members of the government side resort to terms like bigot, reactionary and human rights violators. The hypocrisy and intellectual dishonesty of the government and some of its members at this point is frankly staggering.

Fundamentally, what has changed since the government, including the Prime Minister, voted for the traditional definition of marriage in 1999?

On this side, we do not believe that merely on the basis of lower court decisions, upheld only because the government refused to appeal, them that a fundamental social institution must be abolished or irretrievably altered. Only a free vote of the Parliament of Canada is an appropriate way to resolve such fundamental social issues.

As I say, I have made it clear that I and most of the members on this side of the House will vote against the bill as it now stands. We will vote to uphold the traditional definition of marriage. Those in this party, even in my shadow cabinet who consciously feel different, who believe that the definition of marriage should change, will have the full rights to express and vote their position on this subject.

My party wanted to adopt a reasonable position respectful of every social group. We also think our position represents the feelings and convictions of the majority of Canadians.

As the official opposition in a minority Parliament, we feel it is insufficient to oppose. We must also put forward a constructive alternative. We have discussed this issue and wrestled with this issue in our own caucus, as have Canadians in living rooms, kitchens, coffee shops and church basements across the country.

I know and we all know and understand that this is difficult. The issue involves all kinds of aspects of life that are very close to personal identity, to sexual identity which for many people has been a difficult path, cultural tradition and ethnic identity and of course personal faith in one's relationship to their God.

However, while there is no perfect answer, and there is no perfect answer that will satisfy everyone, we believe we can and should offer a compromise that would win the support of the vast majority of Canadians who seek some middle ground on the issue.

In our discussion with Canadians we find there are three groups in public opinion.

At the one end there is a significant body of opinion, led today by the Prime Minister, which believes that the equality rights of gays and lesbians trump all other considerations, trumping any rights to religious faith, any religious expression or any multicultural diversity, and that any restriction on the right to same sex marriage is unjustifiable discrimination and a denial of human rights.

At the other end, there is an equally significant body that thinks that marriage is such a fundamental social institution, not only recognized by law but sanctified by faith throughout the world and throughout history, that any compromise in terms of recognizing homosexual relationships is unacceptable.

However, we believe that the vast majority of Canadians believe in some aspects of both and they are somewhere in the middle. They believe that marriage is a fundamental distinct institution, but that same sex couples can have equivalent rights and benefits and should be recognized and protected.

We believe that our proposals speak to the majority of Canadians who stand in this middle ground and frankly, who seek such a middle ground. Our proposal is that the law should continue to recognize the traditional definition of marriage as the union of one man and one woman to the exclusion of all others, but at the same time we would propose that other forms of union, however structured, by appropriate provincial legislation, whether called registered partnerships, domestic partnerships, civil unions or whatever, should be entitled to the same legal rights, privileges and obligations as marriage.

Many of these types of unions are already subject to provincial jurisdiction under their responsibility for civil law. However, there are issues affecting rights and benefits within the federal domain, and our party would ensure that for all federal purposes those Canadians living in other forms of union would be recognized as having equal rights and benefits under federal law as well.

What we put forward, in my judgment, is the real Canadian way. The Canadian way is not the blindly, ideological interpretation of the charter put forward by the Prime Minister. It is not a case where one side utterly vanquishes the other in a difficult debate on social issues. It is a constructive way, and as debate in other jurisdictions has shown, and I draw this to the attention of the House, this debate will not reach a conclusion or social peace until equal rights, multicultural diversity and religious freedom are balanced.

We also oppose the government's bill because it is a clear threat to religious freedom. We are proposing amendments that will prevent any religious discrimination within the sphere of federal authority.

This bill, by failing to find a reasonable compromise, a reasonable middle ground on the central question of marriage, is fundamentally flawed.

There is a second major flaw. The so-called protection that the government has offered for even basic religious freedom is, frankly, laughably inadequate. It is totally dishonest to suggest that it provides real protection.

The government has only proposed one meagre clause to protect religious freedom, a clause which states that religious officials will not be forced to solemnize marriages, but the Supreme Court of Canada has already ruled that this clause is ultra vires. It falls within the provincial responsibility for the solemnization of marriage. Frankly, this section of the bill illustrates the depth of the government's hypocrisy and intellectual dishonesty in this legislation.

On the one hand, the government and its allies claim that any attempt to retain the traditional definition of marriage is unconstitutional on the basis of a decision the Supreme Court has not made and has refused to make. On the other hand, it is happy to insert into its bill a clause which the Supreme Court has already ruled is unconstitutional and outside of federal jurisdiction.

The government's constitutionally useless clause purports to protect churches and religious officials from being forced to solemnize same sex marriages against their beliefs, but this threat has always been only one of many possibilities. We note the Prime Minister did not choose to address a single other possibility. What churches, temples, synagogues and mosques fear today is not immediately the future threat of forced solemnization, but dozens of other threats to religious freedom, some of which have already begun to arrive and some of which will arrive more quickly in the wake of this bill.

As Catholic priest and writer, Father Raymond de Souza wrote last year in the prestigious religious journal First Things :

That is the worst-case scenario of state expansion. But state expansion will likely pass other milestones on its way there, eroding religious liberty on questions related to marriage. First it will be churches forced to rent out their halls and basements for a same-sex couple’s wedding reception. Then it will be religious charities forced to recognize employees in same-sex relationships as legally married. Then it will be religious schools not being allowed to fire a teacher in a same-sex marriage. Then it will be a hierarchical or synodal church not being allowed to discipline an errant priest or minister who performs a civilly legal but canonically illicit same-sex marriage. All of this can happen short of the worst-case scenario specifically exempted in the federal government’s proposed law.

We have already seen some of these things come to pass since this article was written in human rights tribunals and lower courts across the country. We have already seen a Catholic Knights of Columbus hall challenged before the B.C. Human Rights Commission for refusing to grant permission for a same sex wedding reception on church owned property.

We have seen civil marriage commissioners in British Columbia, Saskatchewan and Manitoba, who have religious or philosophical objections to same sex marriage, removed or threatened to be removed from positions by their government. We have heard the federal Minister responsible for Democratic Reform saying such employees should be punished or fired.

We have seen the Minister of International Trade saying that churches, including the Catholic Church in Quebec, have no right to be involved in any such debate. These may only be the beginning of a chilling effect on religious freedom for those groups and individuals who continue not to believe in same sex marriage.

Indeed, given the ferocity of the Prime Minister's new position, given the refusal to compromise, given the belief that any opposition to same sex marriage is akin to racial discrimination, the attack on religious freedom will inevitably continue on any aspect of religion that interfaces in any way with public life.

There are things, of course, that are within the federal sphere that can protect religious freedom. Parliament can ensure that no religious body will have its charitable status challenged because of its beliefs or practices regarding them. Parliament could ensure that beliefs and practices regarding marriage will not affect the eligibility of a church, synagogue, temple or religious organization to receive federal funds, for example, federal funds for seniors' housing or for immigration projects run by a church.

Parliament could ensure that the Canadian Human Rights Act or the Broadcasting Act are not interpreted in a way that would prevent the expression of religious beliefs regarding marriage.

Should the bill survive second reading, we will propose amendments in areas like these to ensure that in all areas subject to federal jurisdiction nobody will be discriminated against on the basis of their religious beliefs or practices regarding marriage.

The Prime Minister and several of his ministers have dishonestly claimed that the use of the notwithstanding clause was inevitable in order to preserve the traditional definition of marriage. That is not true, and such arguments are unworthy of a conscientious parliamentarian, especially someone who is a lawyer.

In fact, this Parliament can protect the institution of traditional marriage very well and respect the rights and privileges of those who chose another form of union, without departing from the Charter of Rights and Freedoms in our Constitution.

Some people have suggested that we cannot do what we propose to do; that is, preserve marriage as the union of one man and one woman while extending equal rights and other forms of union without invoking the notwithstanding clause of the Constitution.

I am going to take a little time on this. It is red herring argument, but we might as well spell it out. The attack is dishonest on several levels. First of all, and this is important when we start talking about the notwithstanding clause, the Liberal Party and this Prime Minister have no leg to stand on when it comes to preaching about protecting human rights and the notwithstanding clause. It was none other than Prime Minister Pierre Trudeau, the author of the charter, who accepted the notwithstanding clause. Far from believing it to be a necessary evil to win support for the charter, he promised to use it. Specifically, he promised the late Cardinal Gerald Emmett Carter that he would use the notwithstanding clause to uphold Canada's legislation on abortion if it were struck down by a future Supreme Court.

In the more recent debate over same sex marriage, in an earlier phase of it, this Prime Minister promised that he would use the notwithstanding clause should a court ever infringe on religious freedom, although of course no one takes his commitments to religion seriously any more.

In fact, this Prime Minister was a member of Parliament from Quebec in 1989 when the provincial government in his province used the notwithstanding clause to ban English on commercial signs. He had next to nothing to say about it then and in the subsequent Liberal leadership race in less than a year he supported the notwithstanding clause.

I have said I would not use section 33 to preserve the traditional definition of marriage because quite simply it is not necessary in this case. The Supreme Court of Canada has not ruled on the constitutionality of the traditional definition of marriage. The court pointedly declined to do so in the recent same sex reference case, despite a clear request from the Prime Minister that it do so. In fact, the court openly speculated on the possibility that it could uphold the traditional definition. Therefore, there is simply no reason to use or discuss the notwithstanding clause in the absence of a Supreme Court decision, especially when it involves precedent based only on common law judgments.

Many legal experts, many of them coincidentally people who have been activists involved in these cases or who are close to the Liberal government, have said that the courts are likely to rule that the traditional definition of marriage is unconstitutional, but these same legal experts said that the Supreme Court would find the traditional definition of marriage unconstitutional in the reference case and they were wrong.

We have no reason to believe that the crystal balls in the justice department or in the law faculties are operating any better after the reference case than they did before it. Furthermore, up until now the courts have largely been interpreting a common law definition of marriage; in other words, previous court judgments not statutes reflecting the democratic will of Parliament. The courts have indicated clearly that statute law requires greater deference than common law.

In the case of R. v. Swain in 1991 then Chief Justice Lamer wrote in the majority the following:

Parliament, because of judicial deference, need not always choose the absolutely least intrusive means to attain its objectives but must come within a range of means which impair Charter rights as little as is reasonably possible. There is no room for judicial deference, however, where a common law, judge-made rule is challenged under the Charter.

There are several precedents of Parliament passing statutes without using the notwithstanding clause to reverse decisions made by the courts including the Supreme Court under common law and the courts have accepted these exercises of parliamentary sovereignty.

For instance, in 1995 Parliament passed Bill C-72 reversing the Supreme Court's decision in Daviault, a decision which allowed extreme intoxication as a criminal defence.

In 1996 Parliament passed Bill C-46 reversing the Supreme Court's decision in O'Connor, which allowed the accused to access medical records of the victims in sexual assault cases. When this new law was challenged in the subsequent Mills case, the Supreme Court ruled in a decision by Justices McLachlin and Iacobucci:

It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament's law is unconstitutional. Parliament may build on the Court's decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court's rulings, so the Court must respect Parliament's determination that the judicial scheme be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.

We have every reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage combined with full and equal recognition of legal rights and benefits for same sex couples might well choose to act in a much more deferential manner toward the Canadian Parliament than lower courts showed toward ancient, British made, common law definitions.

I should point out that I am far from alone in saying this. Law Professor Alan Brudner at the University of Toronto wrote in the Globe and Mail :

--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.

He cited R. v. Swain and wrote, “For all we know, therefore, courts may uphold opposite sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body”.

To those in government, in academia and the media who have argued that a pre-emptive use of the notwithstanding clause is the only way to uphold the traditional definition of marriage, he said the following:

These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Certainly, that role cannot be to protect laws suspected of being unconstitutional against judicial scrutiny....Rather, the legitimate role of a notwithstanding clause in a constitutional state is to provide a democratic veto over a judicial declaration of invalidity, where the court's reasoning discloses a failure to defer to the parliamentary body on a question of political discretion....But if that is true, then the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled on the constitutionality of a law. And neither it, nor any provincial court outside Quebec has yet ruled on whether democratic legislation restricting marriage to heterosexual couples is valid.

I would add, and this is important, that Professor Brudner is neither a supporter of my party nor even a supporter of my position on the marriage issue. He was not even an adviser to my leadership campaign, unlike the principal organizer of a recent letter from a group of law professors backing the minister's decision.

In short, we have every reason to believe if the House moved to bring in a reasonable, democratic, compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of unions, and which fully protected freedom of religion to the extent possible under federal law, that the Supreme Court of Canada would honour such a decision by Parliament.

The courts refused to answer the Prime Minister's question on the constitutional validity of the common law opposite sex definition of marriage because they did not want to pre-empt the work of Parliament. That suggests to me that they would be even more likely to defer to the judgment of Parliament when faced with a recently passed statute.

The members of the House, starting with the Minister of Justice, should actually read the same sex reference decision. I ask, if the Supreme Court actually believed that the traditional definition of marriage was a fundamental violation of human rights as, say, restricting aboriginal Canadians or non-Caucasian immigrants from voting, do we really think the Supreme Court would have engaged in an analysis of the possibility that it could uphold such a law even hypothetically? The answer is, of course not.

The government has also claimed and is still claiming that marriage between persons of the same sex is a fundamental right. That is another erroneous opinion and a totally specious argument the government wants to spread. Government spokespersons bring disgrace on themselves, however, when they wrongly try to invoke the Charter of Rights and Freedoms to cover up their threadbare arguments.

I want to address an even more fundamental question. That is the question of the issue of human rights as it pertains to same sex marriage and the use and the abuse of the term “human rights” in this debate which has been almost without precedent.

Fundamental human rights are not a magician's hat from which new rabbits can constantly be pulled out. The basic human rights we hold dear: freedom of speech, freedom of religion, freedom of association, and equality before the law, the kind of rights that are routinely violated by the Prime Minister's good friends in states such as Libya and China, are well understood and recognized around the world. These rights do not depend on Liberal bromides or media spinners for their defence.

The Prime Minister cannot through grand rhetoric turn his political decision to change the definition of marriage into a basic human right because it is not. It is simply a political judgment. It is a valid political option if one wants to argue for it; it is a mistaken one in my view, but it is only a political judgment. Same sex marriage is not a human right. This is not my personal opinion. It is not the opinion of some legal adviser. This reality has already been recognized by such international bodies as the United Nations Commission on Human Rights.

Mr. Speaker, I refer you to New Zealand's Quilter case. In 1997 the New Zealand court of appeal was asked to rule on the validity of the common law definition of marriage in light of the New Zealand bill of rights which, unlike our charter, explicitly prohibits discrimination based on sexual orientation. New Zealand's court ruled that the opposite sex requirement of marriage was not discriminatory. So the plaintiffs in this case made a complaint to the United Nations Commission on Human Rights that the New Zealand court violated the international covenant for the protection of rights to which New Zealand, like Canada, is a signator. But the UNCHR rejected this complaint in 2002, in effect upholding that same sex marriage is not a basic universal human right.

If same sex marriage were a fundamental human right, we have to think about the implications. If same sex marriage were a fundamental right, then countries as diverse as the United Kingdom, France, Denmark and Sweden are human rights violators. These countries, largely under left wing governments, have upheld the traditional definition of marriage while bringing in equal rights and benefits regimes for same sex couples, precisely the policy that I and the majority of the Conservative caucus propose.

Even those few countries that have brought in same sex marriage at the national level, currently only the Netherlands and Belgium, did not do so because their own courts or international bodies had defined this as a matter of human rights. They did so simply as the honest public policy choice of their legislatures. In fact, both the Netherlands and Belgium legislated some differences in same sex marriage as opposed to opposite sex marriage in many areas but particularly in areas like adoption.

In other words, no national or international court, or human rights tribunal at the national or international level, has ever ruled that same sex marriage is a human right.

The Minister of Justice, when he was an academic and not a politician, would have appreciated the distinction between a legal right conferred by positive law and a fundamental human right which all people should enjoy throughout the world. Today he is trying to conflate these two together, comparing a newly invented Liberal policy to the basic and inalienable rights and freedoms of humanity.

I have to say the government appears incapable of making these distinctions. On the one hand the Liberals are friends of dictatorships that routinely violate human rights to whom they look for photo ops or corporate profits. On the other hand they condemn those who disagree with their political decisions as deniers of human rights, even though they held the same positions themselves a few years, or even a few months ago.

Quite frankly the Liberal Party, which drapes itself in the charter like it drapes itself in the flag, is in a poor position to boast about its human rights record. Let us not forget it was the Liberal Party that said none is too many when it came to Jews fleeing from Hitler. It was the Liberal Party that interned Japanese Canadians in camps on Canada's west coast, an act which Pierre Trudeau refused to apologize or make restitution for, leaving it to Brian Mulroney to see justice done. Just as it was Mr. Mulroney and Mr. Diefenbaker who took the great initiatives against apartheid, Mr. Diefenbaker with his Bill of Rights, and I did not see a notwithstanding clause in that. It was the Liberal Party that imposed the War Measures Act.

Today it is the Liberal Party that often puts its business interests ahead of the cause of democracy and human rights in places like China. Recently in China it was the member for Calgary Southeast who had to act on human rights while the Prime Minister went through the diplomatic moves.

The Liberal Party has spent years repressing free speech rights of independent political organizations from Greenpeace to the Canadian Taxpayers Federation that might want to speak out at election time. It has consistently violated property rights and has put the rights of criminals ahead of those of law abiding gun owners. The Liberal government has ignored the equality rights of members of minority religious groups in education in the province of Ontario even after international tribunals have demanded action.

I am not here to say that this party's or this country's record on human rights is perfect. It is far from perfect; we can read about it in any number of places. However, the Liberal Party of Canada is simply in no position, either past or present, to lecture anyone about charter rights or human rights.

In this debate the government has resorted at times to demagoguery, attacking our position with equal intellectual dishonesty. The government has demonstrated its fundamental disregard for the opinions of a majority of Canadian men and women of good will.

In particular, it has been unforgiveably insensitive with regard to all cultural communities in this country for which marriage is a most deeply rooted value.

Nowhere have the Liberals been more vociferous in their attempts to link same sex marriage to minority rights than among Canada's ethnic and cultural minority communities. Yet at the same time, they have clearly wanted these communities excluded from this debate. Why? Because, to their embarrassment, the vast majority of Canada's cultural communities, setting aside those groups dependent on Liberal funding, see through the Liberals' attempt to link basic human rights to the government's opposition to their traditional practices of marriage.

Many new Canadians chose this country, fleeing regimes that did and do persecute religious, ethnic and political minorities. They know what real human rights abuses are. They know that recognizing traditional marriage in law while granting equal benefits to same sex couples is not a human rights abuse akin to what they may have seen in Rwanda or China or Iran.

What these new Canadians also understand, and what this government does not, is that there are some things more fundamental than the state and its latest fad. New Canadians know that marriage and family are not the creature of the state but pre-exist the state and that the state has some responsibility to uphold and defend these institutions.

New Canadians know that their deeply held cultural traditions and religious belief in the sanctity of marriage as a union of one man and one woman will be jeopardized by a law which declares them unconstitutional and brands their supporters as human rights violators.

New Canadians know that their cultural values are likely to come under attack if this law is passed. They know that we are likely to see disputes in the future over charitable status for religious or cultural organizations that oppose same sex marriage, or over school curriculum and hiring standards in both public and private religious and cultural minority schools.

New Canadians, many of whom have chosen Canada as a place where they can practise their religion and raise their family in accordance with their beliefs and without interference from the state, know that these legal fights will limit and restrict their freedom to honour their faith and their cultural practices.

Of course, in all of these cases, courts and human rights commissions will attempt to balance the basic human rights of freedom of religion and expression with the newly created legal right to same sex marriage, but as our justice critic has remarked, we have a pattern: wherever courts and tribunals are faced with a clash between equality rights and religious rights, equality rights seem to trump.

The Liberals may blather about protecting cultural minorities, but the fact is that undermining the traditional definition of marriage is an assault on multiculturalism and the practices in those communities.

All religious faiths traditionally have upheld the belief that marriage is a child-centred union of a man and a woman, whether Catholic, Protestant, Jewish, Hindu, Sikh or Muslim. All of these cultural communities, rooted in those faiths, will find their position in society marginalized.

I believe the Liberal vision of multiculturalism is really just a folkloristic one. The Liberals invite Canadians from cultural communities to perform folk dances and wear colourful costumes, but they are not interested in the values, beliefs and traditions of new Canadians unless they conform to the latest fashions of Liberalism. All races, colours and creeds are welcome in Liberal Canada as long as they check their faith and conscience at the door.

That may be the Liberal vision for Canada in the 21st century, but it is not ours. In our Canada, vibrant cultural communities will be allowed to share not only their food and their dress but their beliefs and aspirations for themselves and their families.

The conscience of all members of this House is involved in the decision we must reach. I urge all the men and women sitting here today to set aside all partisan considerations and all personal ambitions, in this extraordinary situation, and to listen to the voice of their conscience and the voice of their duty, as representatives of the people of Canada. Yes, this decision may have repercussions in a day or in a month, but we must make it while thinking of past and future generations.

The decision that we are being asked to make on this bill is a difficult one. For many, the decision we make on the bill will be one of the most difficult decisions they will be called upon to make as members of Parliament, but before we all do so, let us remember one thing clearly, because this is where I object most strongly to what the Prime Minister said.

Regardless of what the Prime Minister says, we all do have a choice in the position we take here. We all know that the House is closely divided. I think we all know that if it were a truly free vote, if the ministers like the Minister of Citizenship and Immigration, the government House leader, the Minister of Natural Resources, the associate Minister of National Defence, the Minister of State for Northern Ontario, and many others, were free to vote their consciences, we know this bill would fail.

This bill is too important to be decided on the basis of a whipped vote, whether the formal whip that is being applied to a minister, or the informal carrots and sticks that are being applied to other members. I appeal to the consciences of those on the government side.

I know that many of the government members in their hearts believe in the traditional definition of marriage and know that we are talking about this today only because the Prime Minister has literally no other legislation for Parliament.

I ask them to join with us to defeat the bill and urge the adoption of another which reflects the practice in other advanced democracies and which reflects our own honourable traditions of compromise.

There are fundamental questions here. Will this society be one which respects the longstanding basic social institution of marriage or will it be one that believes even our most basic structures can be reinvented overnight for the sake of political correctness?

Will this society be one which respects and honours the religious and cultural minorities or one which gradually whittles away their freedoms and their ability to practise their beliefs?

Will this be a country in which Parliament will rule on behalf of the people or one where a self-selected group of lawyers or experts will define the parameters of right and wrong?

All of these questions are in our hands to answer. It is up to all of our consciences. It is not what the Prime Minister and the PMO advisers tell us is most expedient; it should be based on our consciences and what our constituents tell us to do.

Mr. Speaker, before I leave the floor, I would like to move an amendment. I move:

That the motion be amended by deleting all the words after the word “that” and substituting the following:

This House declines to give second reading to Bill C-38, an act respecting certain aspects of legal capacity for marriage for civil purposes, since the principle of the bill fails to define marriage as the union of one man and one woman to the exclusion of all others and fails to recognize and extend to other civil unions established under the laws of a province, the same rights, benefits and obligations as married persons.