The member points out that it could be used for both. I accept that the amendment is proposing that it be used for both. However, I am not so sure the amendment is drafted in a way that I would accept is suited to both.
In any event, I wanted to take note of the reasons that some members of the House, including myself, view this amendment as having some potential difficulty.
I agree with the member for Scarborough East and other members that if I were king I would implement a measure which would allow a sample to be taken at the time of charge, such as is proposed by this amendment. However, there are several areas of difficulty. I want to put them on the record because I never want it to be said that the reason the House did not adopt this, and the reason the committee that studied the bill did not adopt a similar type of amendment, was because we knew it would not be legally acceptable. I would not want that to be taken from the procedure here today, or previously, or from what may evolve in the House.
I believe that in the next while there will be a procedure which will allow DNA data to be taken at the time of charge in appropriate circumstances and not just when one is investigating the particular case at hand.
The reasons the government is sensitive to this are based on a series of charter decisions by the Supreme Court of Canada.
In each case we have a snapshot, a photograph, a freeze frame decision by the supreme court about a particular aspect of our civil rights, about a particular perspective on our charter rights. When we add up all the snapshots the court, as it is supposed to do, cautioned the state about certain aspects of the freedoms of Canadians. By the time they are all added up, which is what the justice department did, we have a significant body of caution directed at actions of the state which would remove a sample from an individual's body. In order to do that in our society the state has to have justification. That is a search and seizure. There must be a reasonable ground to do it. There has to be a reasonable basis even to do it under a warrant. One may be able to construct a reasonable justification for doing it at charge.
One threshold, one snapshot provided us by the supreme court of which we take note is the view that taking something from the human body is actually quite an intrusive act. In the case of DNA data sampling now it can be a rough of some of the skin, a swab from the inside of the mouth or a hair taken from the head. In each case it involves the taking from the body of something that is a part of the body. The court has defined and construed that as quite intrusive, and I accept that at this point in time.
It is true that under warrant or under reasonable circumstances in other parts of the Criminal Code peace officers or other authorized persons can take breath samples, blood samples with a warrant, and DNA samples with a warrant. We must remember that this amendment deals with taking a DNA sample for profile at the time a person is innocent of the charge because he or she has not yet been convicted. At that point in time is when this amendment would cause the sample to be taken.
It is pretty clear to most of us who sat on the justice committee that within a few months or a few years the obtaining of a sample of DNA will be obtainable technologically by much less than taking something from the body. Technology involving a scan, a brush by, something very much less intrusive than the taking of a piece of the body however minute it might be such as a hair follicle or hair root, does not exist right now.
That snapshot of the intrusiveness of DNA sampling was a caution light which has caused, at least in part, justice officials, the government and some of us in the House to accept that it is an area of caution. In my view it is an area of caution that we will be able to dispense with in the future because the intrusiveness of the sample taking will be much less than it is now.
Members have mentioned the Bernardo case. That is either an easy case or a difficult case depending on how we look at it. If we had had good effective DNA sampling at that time history might well have turned out differently. I wish we could have done it. Maybe in the future with the new technology we will be able to make these kinds of changes and come out with better outcomes in the criminal justice system.
The flip side of the Bernardo scenario, because if the Bernardo case is easy there is another case that is harder, is simply the case where a Canadian who is innocent of the offence charged has a criminal record and is under this amendment asked or required to give up a small piece of his or her body so that the state may analyse and put it in a databank for public safety purposes.
At this point because of the relative intrusiveness of it I believe there was a developing consensus in the Department of Justice that we would be reasonably well served by proceeding to construct a databank, a process, get the thing up and running, have it begin to work for Canadians, get the bugs out of it, ensure it is charter safe and make it work for Canadians.
I would be disappointed as a parliamentarian if within the next two to four years we were unable to increase the frequency or amount of data sampling available under the Criminal Code perhaps in a manner that is suggested by this amendment today. Were we able to do that I think it would enhance the safety of all Canadians in the future.