Justice Committee on Feb. 15th, 2007

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Freeman.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Good morning, minister. First of all, I want to congratulate you on your appointment. I haven't previously had the opportunity to do so.

I'd like to ask a question, mainly of Greg Yost or Mr. Bird.

As we know, the Canadian Criminal Code was introduced in order to protect Canadian citizens within their country. Naturally, under the bill that we have considered, we know that we have to communicate with foreign countries. At the risk of repeating myself in my question, you currently seem to have — at least I saw yesterday — “very nice and very efficient” laboratories. I think we can congratulate you on that. However, something intrigues me.

We know that we can send samples to one or more countries for comparison purposes. You said that the reverse was also done, but in accordance with very strict criteria. When a person, a refugee for example, enters Canadian territory, the country where he comes from has, in many cases, been completely destroyed. We don't know what's previously happened to him. Was he a drug dealer? Did he kill someone in his country? As a result of a change of government, did he switch from being an oppressor to being oppressed from one day to the next?

So this person enters our country, and we have extremely generous immigration laws. It would naturally be interesting to know whether he has committed an indictable offence in his country, if only to be able perhaps to monitor that person, without necessarily denying him entry.

I'd like to ask the question, but I don't know which of the two could answer it. Do you have a way of determining this problem? We're in an extremely welcoming country for refugees. These are all good people, but people who may have committed crimes are part of these groups of people. If their country had not been destroyed, and if we had had agreements, perhaps it would be possible to trace them. Do you have something so that we can have what we can call a firewall?

[Rob Nicholson, Conservative, Niagara Falls, ON]

First of all, Monsieur Petit, this particular bill doesn't apply to refugees. This is strictly with respect to people caught up in the criminal justice system.

I don't know if I can enlarge much more on what Mr. Bird had to say in terms of the safeguards that are in place through Interpol, but you're quite correct with respect to your comments about Canada being a welcoming place. A bill like this is not intended, nor do I think it should be, to get into other realms of identification. It's confined to what I think most people understand DNA can and should be used for, and that is for the detection of crime and the solving of crime, and that's basically what it does.

As I say, Mr. Bird can add anything he likes in terms of what we do in the international sphere, but there are the usual protocols and safeguards in place. But as one of our colleagues here said, no matter what safeguards are in place, we must continue to be very, very careful to protect people's civil rights and to be fair to those individuals who are counting on Canada. Sometimes the system doesn't always work, as you know we have experienced. Nonetheless, we must strive to do better.

I don't know if you had any further comment on that, Mr. Bird, or not.

[David Bird]

My only comment would be that it would be illegal under the DNA Identification Act for the officials in the DNA data bank to send or communicate information from the data bank except as permitted by the DNA Identification Act, and those cases are very restricted, so that the only thing they could unilaterally send abroad as a profile for comparison would be from a crime scene. So unless the refugee left their DNA at the crime scene of a designated offence in Canada, that would be the only profile that could be sent abroad. And it would normally be anonymous, because they would not know who it was.

So it's really unlikely that your scenario could take place.

[Greg Yost]

I'll take the liberty of adding a comment.

It is extremely important that you know that we never send samples; we send profiles. I know that really troubles my colleagues who work at Canada's National DNA Data Bank. They set bodily substances aside; we don't touch them. We do nothing with those substances, because we'd be breaking the law if we analyzed them for any other reason. We analyze them only to determine a profile.

As Mr. Bird said earlier, we really send them 26 figures by computer. We never send the bodily substances outside or even within the country.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

I have two questions and a comment to the minister.

As I see it, this bill is simply remedial and technical. We ought to try to get it through committee here as quickly as we can and get it back to the House for a disposition there.

Ms. Freeman raised the issue of exchange of information from the DNA data bank with countries outside of Canada. As my first question, I want to clarify that what we're sending is a DNA identification profile only. It allows someone to make an identification of a person, but it doesn't provide other genetic indicators that might convey personal information related to the person's genetics. Or that's how you were able to describe that to me yesterday; I'd just like confirmation on that, for the record.

Secondly, our research shows that the data bank, not the forensic labs but the data bank itself, is operating well within capacity, as you've said, but that the frequency of the taking of DNA samples for the data bank is operating at about one-half. In other words, in terms of the primary offences that would allow the taking of DNA for the bank, we're only getting to about one-half of those.

I'm inquiring of the Department of Justice, what, if anything, would you be doing to enhance the proportion of cases, primary offences, where the sampling was taken to beef up the data bank, as is intended in the public interest?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You've covered a good bit of ground here, Mr. Lee. The first part was very good news to my ears, that you want to get this bill through as quickly as possible, that it's remedial, and that generally you're favourably disposed to that. I'm very pleased.

As well, you were asking for confirmation about the information being delivered outside of the country. In terms of its scope, I thought Mr. Yost indicated the very narrow grounds or the narrow band of information that's being transferred.

Perhaps I'll let Mr. Bird speak on what we provide. I think it'll give you some comfort on that one.

[David Bird]

I can confirm that all they are permitted to send abroad is the DNA profile, not the sample. The sample is separated and kept and stored, and can only be reused under very exceptional circumstances, where new technology is required to analyze those profiles under a new system.

So they're kept there really for two reasons. One is to ensure quality assurance of the sample they have. If they have a failure, they can go back and re-sample that. Two, if there's a change in technology and another band or something is required to be re-analyzed in the data bank, then they would have to use those for that purpose.

The DNA profiles that are sent abroad are right now, as I said, only for crime scenes. These would be anonymous profiles that relate to what we call junk DNA, non-identifying or non-discriminating for any known traits that we know of--except for the sex of the person, the X or Y chromosome, the only identifying feature in the DNA profiles sent abroad.

The rest of it, we have no idea what it codes for. It can't tell you any distinguishing features such as race, eye colour, hair. That's the international standard that has been adopted through a scientific working group. Almost all international DNA data banks use similar profiles, although we don't use the same. It's designed to ensure that the only information is identification. It's really a series of numbers that identify people differently but tell them nothing other than the fact that this person's DNA belongs to that person and not someone else.

[Greg Yost]

If I may address the second part of your question, which is what we are doing to try to get a higher percentage of orders, if I can put it that way, the bill will have more samples coming in simply by expanding the number.

With respect to getting more orders where a primary designated offence has been committed, or a secondary for that matter, there are maybe three things.

First, there is this new category, where it's mandatory for the judge to eliminate any discretion in those 16 very serious offences. There will be some transfers into the primary, so we should get some more opportunities there.

Secondly, though--and I think this is perhaps more important--the bill in front of you has a new provision that will allow the judge to set a hearing up to 90 days after imposing sentence. We've been told by prosecutors, “We missed it. We're sorry. We can't go back to the judge; he's functus.” We're willing to give this 90-day window. It's our hope that prosecutors across the country will develop a system to look at their files and make an application when they have missed that so we'll get many more orders.

There is a third way we will get more into the data bank. There is slippage between the number of orders made and the number of orders executed. That has to do with people who don't show up. The judge makes an order--even these days they're making it a condition of probation or whatever--but they seem to disappear into the system and finding them gets to be difficult. That process we talked about earlier, where one police force can authorize another police force, should simplify the way...so when we find these people, we will get more of them in.

Those are the ways we believe this will increase the percentage of orders that are made.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Minister, I believe you're still under a time constraint.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I have to get in there to challenge Ms. Jennings on our duty day motion.

Did you have another question, Mr. Chairman?

[The Chair, Conservative, Art Hanger]

Can you handle one more question?

[Rob Nicholson, Conservative, Niagara Falls, ON]

By all means, yes.

[The Chair, Conservative, Art Hanger]

We will have one more questioner.

Mr. Thompson is next on our list.

I might ask, Minister, if you have to leave, could the department officials stay behind?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, they might be a little less comfortable being here without—

[The Chair, Conservative, Art Hanger]

Understood.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let's take whatever questions you have and then I'll be on my way.

[The Chair, Conservative, Art Hanger]

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Okay, I'll be brief.

Congratulations, Mr. Minister, on your appointment. We appreciate having you here today.

I probably should direct my question to Mr. Comartin, because he made a comment to me a while back about the Criminal Code and the need to revamp that entire package.

When I see what we're trying to do with the DNA bank, and then I look at the definitions throughout.... You see, I'm not a lawyer. I don't have a legal mind. I'm just an old school teacher who likes to clearly understand things. I see a whole lot of confusion when we get into definitions and other things pertaining to DNA.

My main question is whether I can be absolutely certain that an individual who committed a crime, say, 20 years ago, and that crime doesn't exist in the Criminal Code today--I'm thinking specifically of rape. Rape was referred to in the Criminal Code once upon a time; it no longer is. I'm thinking of statutory rape. Once upon a time it was in the Criminal Code; it no longer is. Those are just a couple of examples of what I'm driving at. How confusing is it for people who work in the DNA system to operate under a Criminal Code that, for whatever reason...?

I still don't know the reason that rape and statutory rape were taken out. I don't even remember when that happened. It used to be quite clear in the minds of people what that meant. Today it's all encompassed in “sexual assault”. Everybody wanted to know what “sexual assault” meant, so they came up with a list of definitions--everything from sexual interference, sexual touching, to rape. With regard to having sex with somebody under the age of 14, that person is guilty of having sex with someone who is 13 years old and 11 months, but if they are 14 years old and one month, they're not guilty.

It's difficult to explain myself. You talk about being confused. As an ordinary person who's trying to get into the Criminal Code from time to time and not understanding three-quarters of the stuff, is this a hindrance to the department, particularly the DNA people, in any way, or am I living in an imaginary world?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Chairman, many times with the changes named to some of these offences--and there have been some alterations and modifications over the years--there are provisions within the Criminal Code that include those previous offences, so somebody's not getting off.

With respect to your comments about changes to the Criminal Code, and that it sometimes seems complicated, I can tell you that from time to time proposals have been made to completely revamp it. I'm sure Mr. Lee was around when people were saying we should just take the whole Criminal Code and start all over again.

Basically, what we have here is an adaptation of the English Criminal Code from the 19th century, and it must be continuously updated. The bill you have before you is one of the updates.

On the subject of changing public attitudes, you mentioned the age of protection. If you go back to the 1870s, it was very common and accepted that people at age 14 got married, and they were adults. Today we look at that and say, just because the law in the 1870s had prohibitions with respect to 14-year-olds doesn't mean the law shouldn't be changed to 16. And that's the challenge you have.

We find this all time. Twenty years ago in this country, if you or somebody set fire to your car, that was not arson, but if somebody set fire to a stack of vegetables, that was arson. You say, how could that possibly be? Well, it's because the arson provisions of the Criminal Code 20 years ago in this country were written before there were cars, and the included property offences didn't include somebody setting fire to a vehicle.

So it seems to me that's the challenge we have. We must be continuously looking at these things.

With respect to this legislation, you raise an interesting point. It is somewhat complicated by reason of the fact that the bill you have before you is a stand-alone bill, but there are provisions so that under Bill C-13, which was passed in a previous Parliament, those could be enacted. So it's very challenging, I'm sure, even for lawyers to try to follow this, and you indicate you're not a lawyer. Nonetheless, it's the results that we want, that we're looking for, and certainly this is a step forward in the right direction.

With respect to your other comments, I hear what you're saying, but again, the Criminal Code has to be continuously updated on a regular basis.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

Mr. Murphy, I think you have a question you want to put to the minister quickly.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Yes, and I will be quick.

Thank you, Mr. Minister, for appearing again.

I'd like to ask a question. I, too, am in support of this bill. Our mantra over here is that we want to make sure we have legislation that will work. This may be more of a question for the legal people here, but, Mr. Minister, you glossed over R. v. Rodgers, the decision of the Supreme Court of Canada, as being supportive. On the face of it, it is. I actually took the time to read it and then became a little more uncertain about how helpful it will be.

Here's my brief question. That decision came out in April of last year, 2006. Bill C-13, presumably, was drafted and tabled and commenced. I wasn't here, but the train started for Bill C-13 in advance of that. Bill C-18 ratchets up Bill C-13 in a number of areas we've talked about.

Let's review Rodgers for a moment: the person in question was convicted and sentenced to four years for sexual assault, and he committed that offence while he was on probation for a conviction of sexual interference. I know this case happened before the act, and there were a lot of complications, but the bottom line is if anybody should have been subject to a DNA identification order, it was this individual. Yet, it was a four to three decision at the Supreme Court of Canada. It was tight, and that was before Bill C-13 hit the road, because it actually never got passed. And it was before Bill C-18, which ratchets this up a little bit, and which is presumably going to sail through the committee.

I don't want to segue into picking the proclivities of your judges on the Supreme Court, because we're not going to talk about judicial nominations and what they think, but when you have Chief Justice McLachlin, who has been critical of the government, in support of this legislation--by reference to Rodgers, I suggest--as well as having Justices Bastarache, Abella, and Charron--not exactly the right wing of the Supreme Court-- support it, I guess my question is how secure you feel, if the only case you have is Rodgers, that Bill C-18 will pass muster with respect to the discussion of ex parte hearings, and the presumptions, the taking away of judicial discretion implied in all of these issues, and section 8 of the charter? There's a mouthful for you to answer.

[Rob Nicholson, Conservative, Niagara Falls, ON]

First of all, there was no attempt to gloss over the Rodgers decision by the Supreme Court of Canada, but we believe the rationale in that particular case is consistent with the legislation you have before you. In any case, our analysis of this doesn't rest on one particular case. It's an overall analysis of this particular area of the law and what we believe, in our analysis, is going to withstand any particular challenge.

So I am quite confident that the bill you have before you is constitutional and will stand scrutiny, and quite frankly is an improvement that I think most people will agree with. It does two things: as you indicated, it clears up the Bill C-13 provisions that weren't or couldn't be enacted for a number of reasons, and I think it brings some other technical clarity to this bill that will withstand a challenge.

Mr. Yost has indicated to me that he would like to add some comments.

[Greg Yost]

You can well imagine that we went over that decision with great interest.

First of all, it was a four to three decision, but that was on the ex parte procedural issues. The majority ringingly endorsed the constitutionality of the DNA retroactive scheme and made very fine comments about the protections of privacy and all the other things that were in place.

Interestingly, the minority never disagreed with any of that. They just said the issue was the ex parte on the retroactive, and that's where they split four to three. We have yet to see a judge at any appellate level, I believe even at trial level, who has found anything unconstitutional in what we have done. There have been some issues about ex parte procedures, etc., but the constitutionality of this bill here, because it's building on what we have already, I would suspect is unchallengeable. Certainly we're highly confident that it isn't going to cause any difficulties.

The issue of Rodgers is coming up in April. If we ever get around to the parliamentary review, I'm sure it will be commented on by just about everybody who will come before whatever committee it is on the implications they see it has for the evolution of the system.