Evidence of meeting #49 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offences.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Clerk of the Committee  Ms. Diane Diotte
David Bird  Senior Legal Counsel, Royal Canadian Mounted Police
Greg Yost  Counsel, Criminal Law Policy Section, Department of Justice

9:25 a.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Just to show that this is the will of the committee and to give it a little more teeth, I wouldn't mind if.... I would advise the committee that the department look at it, whatever the words are, and report back to the committee within...give a limit that Mr. Moore thinks is reasonable. I don't want to hold them to any constraints, but they should just report back to the committee within a particular timeframe.

9:25 a.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

That's a routine part of the Standing Orders. We just have to request it when we introduce our report.

9:25 a.m.

Conservative

The Chair Conservative Art Hanger

Okay. I think that's been looked after--I guess until Tuesday of next week.

9:25 a.m.

Conservative

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

Could we have a copy of the amendment, Mr. Chair?

9:25 a.m.

Conservative

The Chair Conservative Art Hanger

The motion is on the—

9:25 a.m.

The Clerk

I'll check the transcript to make sure I have it all and I'll send it to all of you. At the next meeting I'll bring copies, so that if there is something, you'll be able to vote on it. Is that okay?

9:25 a.m.

Conservative

The Chair Conservative Art Hanger

All right. Good.

I'm going to suspend for five minutes.

9:25 a.m.

Conservative

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

Mr. Chair, first I would like to ensure that the amendment that will be made will cover paragraphs 1, 2 and 3. That's what Mr. Lee said.

Have I correctly understood what Mr. Lee said?

9:25 a.m.

Conservative

The Chair Conservative Art Hanger

That's my understanding, yes.

9:25 a.m.

Conservative

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

Okay.

9:25 a.m.

Conservative

The Chair Conservative Art Hanger

I'm going to suspend now until the appearance of the minister.

9:30 a.m.

Conservative

The Chair Conservative Art Hanger

I would like to call the Standing Committee on Justice and Human Rights back to order.

To continue with our business of the day, we have the Honourable Rob Nicholson, Minister of Justice, to testify before the committee, as well as Department of Justice counsel, Greg Yost, and Royal Canadian Mounted Police senior legal counsel, Mr. David Bird.

Welcome, gentlemen.

I would like at this point to turn the floor over to Minister Nicholson on his discussion regarding DNA identification.

9:30 a.m.

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.

9:45 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you very much, Minister.

Ms. Jennings.

9:45 a.m.

Liberal

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

Thank you very much, Minister, for appearing. A slight confusion over times happens to everyone. We're pleased you're here, and in fact we're going to have half an hour more than you had originally thought you were going to be giving us, so thank you.

9:45 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

I had a duty, Madam Jennings. You know that.

9:45 a.m.

Liberal

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

As do I.

9:45 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

If you don't tell your whip, I won't tell mine. Is that it?

9:45 a.m.

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.

9:45 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Good. I'm delighted to hear that.

9:45 a.m.

Liberal

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

Now, there are two areas. One is the issue of the scope of judicial discretion with respect to making an order, and the second is the issue of international sharing.

If I look at the issue of international sharing, we would like to know what would actually be shared internationally and with which countries. Is there a limit to the countries with which Canada would share information from the DNA bank? Is there an actual signed agreement or covenant, or what have you, with countries with whom we would share DNA information?

And if there's a violation...? For instance, we have our scope, so that if this bill goes through—amended or not amended—there will be a clear framework or clear conditions under which DNA can be collected, under which the information can be used, and under which the information would be destroyed, for instance. First, would any international sharing be subject to exactly the same conditions under which DNA in Canada can be used or must be destroyed, etc.? If so, and there are violations of Canadian law the other country agreed to respect, what recourse would Canada have?

That's one series of questions, and you may have to use other time to respond.

On the question of judicial discretion, we already know that visible minorities and aboriginals are disproportionately represented in our correctional system. Longitudinal studies have shown very clearly that there's an element of racial profiling. I can remember very clearly a study done in Quebec regarding a certain number of offences—assault, assault causing bodily harm, etc.—in which researchers used actual police files. They were able to determine that, all factors being equal, if you were black and male and between the ages of 18 to 35, your chances of being charged were twice to three times—depending on the so-called infraction—those of a white with the same circumstances, or with everything else being the same. Therefore, we know from studies that visible minorities and aboriginals are disproportionately represented, and it's not because they're more criminalized, but because there is a certain amount of systemic discrimination that exists. The police admit it themselves—the Montreal police do—and they've instituted programs to try to deal with it.

So by removing judicial discretion, are you not worried that the data bank will then reflect the same kind of systemic discrimination?

9:50 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Actually, you've raised a very good point about racial profiling. I'm glad that one of the points you made is there are programs within the Montreal police department dealing with this. The question is not confined to Montreal; it's a problem that I think we as a society have become much more aware of in the last number of years, and I'm encouraged when police departments and others working with our judicial system are aware of it and take steps to do this.

It seems to me that we are relying on the judges. And we're talking about people who have been convicted after all protections within Canadian law have been exercised. Again, where there is judicial discretion, I'm sure it'll be exercised in a proper manner. For the most part, when we're talking about individuals who are submitting their DNA, it's after they have received the benefits of the Canadian judicial system and have been convicted.

Now with respect to the middle part of your question, I'm going to ask Mr. Bird if he could please address some of those comments and concerns.

9:50 a.m.

David Bird Senior Legal Counsel, Royal Canadian Mounted Police

Thank you.

It may be useful to simply go back to the fact that the power to share DNA profiles internationally, through the national DNA data bank, is now in the legislation of the DNA Identification Act. It provides that the data bank can, on receiving a request from a foreign country, search the national DNA data bank for any profile that's submitted to it and then report on whether or not there is a match in the DNA data bank, and any other information, except the profile itself.

One of the amendments that we're hoping Bill C-18 will improve is the ability to actually share DNA profiles, where we're not certain that we have an exact match or not. All that would be shared would be a similar or close match, and that would mean that after discussion between the national DNA data bank and the foreign country officials...whether or not they agree that they do have a match. After that, the new amendments would then permit, as we do now, the sharing of the personal information, the identification information.

Yesterday, during your tour, you may have noted that the personal information is separated from the DNA information at receipt of the DNA kits into the national DNA data bank, which ensures that the people at the national DNA data bank do not know the personal information that relates to any profile they have. So this discussion would take place anonymously between the national DNA data bank people and the officials in a foreign country as to whether or not they have a match. Once they conclude they have a match, then the information would be sent to the criminal history people, who would not get the DNA profile but who could then say, yes, we have a match with this person in a foreign country, and then decide how much information they would share internationally with the foreign country about the identity of that person, without sending any further DNA information. The safeguard is that there would be no ability for a random assortment of DNA profiles and personal information to be kept abroad. There would be that separation taking place.

The protection is also statutorily imposed that we have to have an international agreement that meets paragraph 8(2)(f) of the Privacy Act. These international agreements are all done through an Interpol-covering agreement--where all our DNA information is sent through Interpol--that the receiving country would agree to abide by the conditions we impose. The conditions we impose are that this personal information they receive would only be used for the prosecution or investigation of a criminal offence in that country. This would be a requirement bound through their charter agreements through Interpol that they would only use it for that purpose. These would be the caveats and conditions imposed on all exchanges of DNA information now and in the future, unless we amend our legislation.

9:55 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Bird.

Monsieur Ménard.

9:55 a.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Thank you, Mr. Chair.

I would like to welcome the minister. I find you quite a bit more appealing when you talk about DNA than when you talk about judges. Please be assured, I'll be asking you no questions about judges today.

My first question is this: how is the rationale concerning the distinction between primary and secondary offences shared?

In the first place, we get the impression that primary offences are slightly more serious than secondary offences. Similarly, when you go over the list that was submitted to us, you realize that Internet luring, for example, is a primary offence, but that assault, which, in certain respects, is an act that may seem to have more serious consequences, is a secondary offence.

So my first question concerns the rationale and how many offences would now be considered primary offences in the bill.

Second, did the minister say that drug offences were primary offences? In the document I read, I got the impression that they were still secondary offences.

As legislators, it is important that we understand the sequence of events once this order goes into effect. I'd like you to tell us about that as well.

I'm in favour of short questions and intense answers.