Mr. Speaker, I rise to speak to Bill C-3, the DNA identification act. As my learned friend in the New Democratic Party pointed out, I was a crown attorney in the province of Nova Scotia and had the opportunity to deal with a number of cases which featured DNA evidence.
Although this may give lawyers, both prosecutors and defenders, a unique perspective on the legislation, I would suggest that DNA evidence is something that has a tremendous effect and impact on the criminal justice system for all Canadians.
There has truly been a number of changes within our legal system and DNA type testing is certainly the next generation of fingerprinting.
Since 1988 trial judges have allowed DNA evidence from the accused to be identified in several criminal prosecutions throughout the land. Indeed forensic DNA analysis has been instrumental in securing convictions in hundreds of violent crimes, as well as resulting in the release of wrongfully convicted persons, as referenced by the Reform member. He mentioned the Morin case as well as the Milgaard case in his province. The key here is that both an inculpatory and exculpatory notion arise from the use of DNA evidence.
During the early years of DNA evidence there existed a vacuum in regulating the collection and use of DNA data. In a number of cases judges allowed DNA samples which were taken from individuals without their consent. This is something which is addressed within the proposed legislation. It is something which will certainly lead to more lively debate with respect to individual rights, as opposed to the rights of the victims and their families. Caution must always be exercised in the use of this type of technology.
Organizations such as the Canadian Police Association have warned the Liberal government that legislation would be needed to ensure proper and effective use of DNA evidence similar to the type of evidence that is introduced through the identification of criminal acts with photos and fingerprints and of the need to potentially purge the samples if a person was found not guilty.
In December 1993 the Canadian Police Association met with the then justice minister and in January 1994 met with the then solicitor general. The purpose of the meetings was to raise the urgent need for updating the evidence laws, including DNA technology. Despite the warnings from the country's top law enforcement personnel, the men and women who are on the front lines enforcing the laws, the Liberals decided to wait. They dragged their heels until the Supreme Court of Canada intervened in 1994, much the same way they continue to drag their heels on the faint hope clause, the Young Offenders Act, victims bills of rights and impaired driving legislation.
The supreme court ruled that in the absence of federal legislation the police did not have any lawful authority or means to obtain a search warrant for the seizure of bodily substances for the purposes of DNA typing. This lack of legislation led the Supreme Court of Canada to determine that DNA evidence obtained without the consent of the accused risked being excluded at trial. I did see this happen in a case that arose within my constituency of Pictou—Antigonish—Guysborough, the Queen vs. Borden.
The government finally took the step to provide a legal framework for DNA evidence in 1995 by passing Bill C-104. That bill gave the police the right to seek a warrant that, if approved by a provincial court judge, would authorize the collection of bodily substances for DNA analysis.
Bill C-104 also legislated the criteria for our judges to consider when reviewing DNA warrant applications. Police officers, lawyers and judges finally had some guidelines, albeit very broad guidelines, to govern the collection and use of DNA evidence.
With Bill C-104 in place the obvious question arose of what would the government do with the DNA samples once they were collected. The logical answer was the creation of a national DNA data bank in which the collected samples could be stored for future reference in the use of criminal investigations or trials. Even the justice minister at the time, when not preoccupied with cracking down on law abiding gun owners or launching politically motivated witch hunts, did concede that the importance of a national DNA bank existed. He felt that it was so important that when Bill C-104 was approved he promised complementary data bank legislation for the fall of 1995.
That promise bit the dust when the government decided to start consultation again in January 1996. A discussion paper entitled “Establishing a National DNA Data Bank” was tabled. Interestingly enough, the cover note on the news release which accompanied the discussion paper of the day stated that the government would bring in DNA legislation within the coming year. We all know what happens when these promises are made on justice issues. The coming year seems to be stretched into 16 months and the promised legislation was tabled in April this year just in time for its inclusion in the writing of the order paper. It was also introduced in time for inclusion in the red book.
Thankfully the Liberals did not use this as an election excuse to delay the potentially important piece of legislation before us today. With some minor exceptions, technical language that is, Bill C-3 is essentially the same bill that was introduced in April during the dying days of the last Parliament.
The solicitor general has outlined many of the positive elements of this bill, of which there are several. The national DNA data bank, to be managed by the RCMP, will consist of two main components, a crime scene index that will contain DNA profiles obtained from unsolved crime scenes, as well as a convicted offenders index which will contain DNA profiles of adult and young offenders convicted of designated Criminal Code offences.
Because police officers would be able to cross-reference these data from certain convicted offenders with unsolved crimes, the DNA identification act is a great improvement over the vacuum which previously existed in terms of storing the DNA data.
But will this national data bank established under Bill C-3 provide police officers with an effective tool to solve crimes and keep our streets and communities safe as referred to by the solicitor general?
Police officers, particularly those involved in the Canadian Police Association, do not feel it will. The Canadian Police Association, which has been at the forefront of lobbying the government to establish this DNA data bank, is concerned about the effectiveness of Bill C-3. In essence, it is opposed to the legislation in its current form.
The major concern of the Canadian Police Association is the timing of DNA collection. According to the CPA, a national DNA data bank will only be successful if the collection of DNA evidence from a person charged with an indictable offence is done at the time of arrest. Why is this the case? Because the only guaranteed opportunity to obtain DNA evidence from an individual charged with an indictable offence is when the police have actual custody and possession of this individual.
The proposed convicted offenders index, while somewhat useful, would not help police with unknown murderers and rapists. It might even encourage suspected offenders to skip bail. Most people charged with offences do receive release pending trial. Our criminal justice system grants bail in more than 95% of cases when individuals are charged. According to
Juristat
in 1995, 66,000 people broke bail or failed to appear as required.
Consider this example of what might happen if a person were arrested with respect to an offence related to juvenile prostitution, a designated offence for which the DNA collection would apply. If that person had also committed an offence such as a murder or a sexual offence in another part of the country from which the offender's unidentified DNA was to be collected, that person would know that if convicted for juvenile prostitution, an offence not as serious as the prior offences I have mentioned, the DNA analysis would be obtained, cross-referenced with the crime scene and then that person could potentially face a murder charge. It does not take a rocket scientist to figure out that under the bill in its current form the offender would certainly have an incentive to skip bail knowing that he was going to face more serious charges.
As it stands, this bill is a huge loophole that we do not need. We certainly do not need more unnecessary loopholes in our justice system. I understand the fears of individuals in Canada with respect to privacy but I believe there are ways to deal with this without compromising the collection of samples and the ability to solve serious unsolved crimes.
I respect the fact that many members in the opposition have posed serious questions that will be debated at the committee level. I also look forward to taking part in that rigorous debate and to seeing that this bill is brought forward in such a way that it will aid our law enforcement agents throughout Canada.