House of Commons Hansard #103 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was farmers.
Dna Identification ActGovernment Orders
The Deputy Speaker
Pursuant to agreement made on Monday, May 4, 1998, the question on the motion in Group No. 4 is deemed put and a recorded division deemed demanded and deemed deferred.
The House will now proceed to debate on the motions in Group No. 5. Pursuant to agreement made on Monday, May 4, the motions in Group No. 5 are deemed moved and seconded. This group contains Motions Nos. 9 and 14.
Andy Scott LiberalSolicitor General of Canada
moved:
Motion No. 9
That Bill C-3, in Clause 15, be amended, in the French version only,
(a) by replacing line 2 on page 13 with the following:
«gereuse causant des lésions cor-»
(b) by replacing line 5 on page 13 with the following:
«façon dangereuse causant la»
(c) by replacing line 10 on page 13 with the following:
«capacité affaiblie causant des»
(d) by replacing line 13 on page 13 with the following:
«avec capacité affaiblie causant la»
Motion No. 14
That Bill C-3, in Clause 22, be amended, in the French version only, by replacing line 5 on page 25 with the following:
«électronique, rendus inaccessibles une fois pour toutes dès que»
Nick Discepola LiberalParliamentary Secretary to Solicitor General of Canada
Mr. Speaker, Motion Nos. 9 and 14 are essentially very technical amendments of minor nature.
Motion No. 9 will correct the French version description of our offences in the secondary designated offence list to ensure consistency with the French criminal code references for the same offences.
Motion No. 14 will amend the incorrect French translation for permanently removed in section 47.09, subsection (3), so that it reads:
“rendus inaccessibles une fois pour toutes”.
Therefore both motions will correct oversights in the French wording to ensure consistency in terminology throughout the bill with the Criminal Code.
Jack Ramsay Reform Crowfoot, AB
Mr. Speaker, we support this group of amendments, Motion Nos. 9 and 14. It is an oversight and the government has corrected it. I wish it would correct some of the major oversights that are coming up.
I hope the Parliamentary Secretary to the Solicitor General will take a serious look at the motions in Group No. 6 and perhaps have a change of heart. We consider them to be the crux of the debate on the bill. It is a very important grouping. The debate will determine whether or not some members of the House, including the Reform caucus, will be able to support the bill at final reading.
Dna Identification ActGovernment Orders
The Deputy Speaker
Is the House ready for the question?
Dna Identification ActGovernment Orders
The Deputy Speaker
Pursuant to the order made Monday, May 4, 1998, the motions in Group No. 5 are deemed to have been put and a recorded division deemed demanded and deferred.
The House will now proceed to the motions in Group No. 6.
Pursuant to the order made Monday, May 4, 1998, the motions in Group No. 6 are deemed to have been put and seconded. This group contains Motions Nos. 10 and 11.
Jack Ramsay Reform Crowfoot, AB
moved:
Motion No. 10
That Bill C-3, in Clause 17, be amended by adding after line 39 on page 15 the following:
“(4) Notwithstanding any other provision in this Act, if a person is charged with a designated offence and at the time of being charged has a previous conviction for a designated offence, a qualified peace officer is authorized to take samples of one or more bodily substances by means of the investigative procedures described in section 487.06.
(5) Samples taken pursuant to subsection (4) shall be retained in accordance with the regulations made under subsection (6) and not sent for analysis until either,
(a) the person is convicted of the offence charged, or
(b) the person fails to appear as requested by law in relation to the charge whereupon analysis shall be completed and, subject to section 9 of the DNA Identification Act, the results entered into the offender index.
(6) The Governor in Council shall make regulations respecting the retention of samples taken pursuant to subsection (4).”
Mark Muise Progressive Conservative West Nova, NS
moved:
Motion No. 11
That Bill C-3, in Clause 17, be amended by replacing lines 5 to 7 on page 17 with the following:
“subsection, had been convicted of a designated offence and on the date of the application was serving a sentence of two years or more for another designated offence, or”
Jack Ramsay Reform Crowfoot, AB
Mr. Speaker, I have 10 minutes to cover two very important areas of Group No. 6 which have a direct bearing upon the workability of the new DNA databank and the authority of the police to take DNA samples from individuals suspected or charged with a primary designated offence.
The bill does not provide authority for the police to take a DNA sample from anyone who is under arrest or from anyone who has been charged. We understand the procedure for taking a sample granted under Bill C-104 which has been operative for some time now. However that requires evidence of a DNA sample at the scene, reasonable and probable grounds to believe that an individual is responsible for leaving that DNA at the scene, and then a judge's warrant authorizing the taking of a sample from the individual.
This is very cumbersome. The witnesses who appeared before our standing committee, particularly the crown prosecutors and witnesses representing the Canadian Police Association and the chiefs of police, stated very clearly that if the bill were amended to allow them to take DNA samples at the time a person is charged it could save lives. It could identify individuals who have left their DNA at the scenes of rapes, murders, assaults and other primary offence scenes.
We also heard that there are literally hundreds, if not thousands, of unsolved crimes of murders, rapes, serious assaults, manslaughter cases or so on where DNA samples have been left at the scene. Individuals who have committed those offences have been undetected. The police want a mechanism whereby when a person commits one of the primary designated offences the police can take a sample of DNA from the individual. This was rejected at clause by clause consideration of the bill.
We have introduced in Motion No. 10 a somewhat watered down version but still a very important part of the bill that would allow police to take a DNA sample from anyone charged with a primary designated offence who has been convicted of a previous primary designated offence. They could take the sample, hold it and not have it analysed until after conviction or after the individual has failed to appear in court.
If the individual runs and does not appear in court, an analysis can be conducted to determine whether or not the person is responsible or at least left any of his or her DNA at the scene of unsolved crimes. This is extremely important because on a yearly basis I understand from the testimony we heard before the committee some 60,000 individuals do not respond to reconnaissance or to bail. They simply skip and do not appear.
The concern is that if we have to wait until after conviction before the sample is taken it means for the individual on bail, knowing full well if he is convicted of the offence for which he is charged, that the DNA sample taken from him may link him to a more serious offence or at least another offence where he has left his DNA at the scene. The individual simply may disappear and never honour the reconnaissance or honour the bail he has been granted. Therefore it will be a frustration for police. We have been told by police witnesses that this bill of all bills could begin to save lives immediately. That is why it is so important.
We have heard from the government side that this would not be constitutional. It would not survive a constitutional challenge based upon privacy and based upon the intrusivity of taking a DNA sample at the time of a charge without the authority of a warrant. The Canadian Police Association provided us with a legal opinion that refuted that.
A testimony submitted by Mr. Scott Newark, director of the Canadian Police Association, stated very clearly that they were willing to pay the cost of a reference to the Supreme Court of Canada before this bill goes forward any further to determine whether the government's hesitancy and timidity in this area is grounded, to determine whether the legal opinion submitted before the court would be acceptable and that these tests could be taken at the time of arrest or at the time of charge.
The government has refused this. After the fact it obtained three legal opinions. I suspect the government went shopping for legal opinions. It has now submitted legal opinions to members of the committee and members of the House in support of its viewpoint.
Now members can look at four legal opinions, three saying it would not be constitutional and one saying it would be constitutional. We never had an opportunity to question the retired justices on their deliberations, considerations, recommendations and conclusions. We never had an opportunity to have constitutional experts testify before the committee as to the veracity of the conclusions that are now part of the record. This is very unfortunate.
These legal opinions should have been placed before the committee at the time the bill entered committee. We would have been able to examine them carefully. We would have had the time to look at the opinions and perhaps obtain other legal opinions from those with a different viewpoint on the constitutionality of taking samples from the accused at the time of arrest or charge.
The police have the authority to take breath samples. They have the authority to take blood samples in cases of suspected impaired driving. What is the difference? If they can take one bodily sample already and the authority exists under the Criminal Code to do so, what in the world is wrong with doing it under the auspices of this bill? Why not allow the police to take a DNA sample from an individual who has been charged with a designated offence and who has one previous conviction to show that person is a repeat offender in this area? What is wrong with taking a sample and holding that sample until the individual has been convicted or fails to appear in court before it is analysed and placed in the bank? Once it is in the bank it can be compared with the samples and the profiles of other DNA left at the scenes of rapes, murders, serious assaults and manslaughters.
I urge all hon. members to carefully examine this motion. We think it is a balanced motion that draws a healthy balance between the concerns expressed by the justice officials and the requests and demands of police officers across this country and others in law enforcement. I urge all hon. members to give this motion their support when the vote comes.
John McKay Liberal Scarborough East, ON
Mr. Speaker, it is a privilege to rise in the House to speak on this legislation. I have been privileged to sit on the justice committee throughout the deliberations and to examine the legislation as it has made its way through the committee stage.
I do support the bill. It is an excellent piece of legislation. I also support my friend's motion which I consider to be a point of philosophical divergence.
There are three points at which a DNA sample could be taken, point of arrest, point of charge, point of conviction. The purpose of this legislation is to give the police access to DNA profiles for the purposes of identifying individuals so they can be linked or not linked as the case may be to crime scenes. It is not conclusive proof but taken with other evidence adds to the weight of evidence against an accused. It also works the other way to eliminate suspects.
We were told at committee stage that a properly gathered sample creates a 1 in 94 billion probability sample. Notwithstanding this high level probability, it is not in and of itself conclusive as to the issue of guilt beyond a reasonable doubt. The crown would still have to adduce evidence beyond a reasonable doubt that the accused is guilty of the offence charged. Defence counsel will still attack reliability, credibility, means of gathering the sample, the integrity of the sample, the errors in collection, et cetera. Nevertheless, it is of significant use to police investigation. Canadians have only to witness the Morin inquiry to understand the powerful input of DNA evidence.
If this is such a great tool, then why can the Parliament of Canada not make it readily available to the police? What could be the possible justification for withholding a tool that is readily accessible, surrounded by safeguards for abuse and would be of great assistance in solving outstanding crimes? The issues revolve around the point at which the sample is taken and the means by which the sample is taken. There are three points at which a sample of blood, hair or saliva could be taken, at arrest, charge or conviction.
It was not seriously argued before us that samples should be taken a point of arrest. This would simply create a fishing expedition on the part of the police and imperil the liberty of the citizen. The argument came down to a choice between point of charge and point of conviction. If truth were known many if not all members of the committee would have been content with a charge regime. To lay the charge the police must have reasonable and probable grounds that a crime has been committed. At that time, as a matter of routine, fingerprints and mugshots are taken; similarly, so could DNA samples. The police want to be able to take DNA samples at that point and enter the results in a DNA bank for cross-reference purposes and for identification.
The technology has become so advanced that the taking of a sample is minimally intrusive. Logically if the taking of DNA samples is less intrusive than fingerprinting why should the justice system be deprived of that tool? If it is constitutionally okay to take a fingerprint and a mugshot, why is it not constitutionally okay to take DNA?
Here is where legal theory becomes so arcane and obscure as to lose even the most diligent of students. The core of the argument is that the state is absolutely prohibited from intruding on the sanctity of the person without consent. The person has an absolute right to the integrity of his or her personhood. Therefore the taking of a cell by any means, however intrusive or non-intrusive, is a breach of that person's privacy. The state is absolutely forbidden from doing it.
In addition, the depth and range of material revealed by DNA samples provides to the state a marker of that individual which is not only a complete profile but could be used for other purposes. In other words, the legal wall between the person and the state has been breached and the state knows far more about that individual than it has any right to know.
The argument is of dubious merit for two reasons. The first is the fear of using the profile for purposes other than identification. I believe the committee was not concerned about that issue as the procedures and safeguards were such a series of Chinese walls that it would be virtually impossible to breach those walls.
The second is the issue of invading the privacy of a person. The charter gives protection to the undue invasion of privacy. However, it can be statutorily sanctioned as it is with fingerprinting. If one can invade privacy by statute on fingerprinting, one can also surely do it by DNA sample simultaneously. We are after all legislators and our business is that of creating law. If statute sanctions fingerprinting as not unduly invasive, why cannot DNA sampling by statute, such as this this bill, also be considered to be not unduly invasive? Nice question with no neat answer. The advice of justice lawyers was that if we move the sample from point of conviction down to point of charge the bill would not withstand a charter challenge.
I have been in and around law for about 28 years and consider the views of justice lawyers to be excellent. When you retain lawyers you do not stand up and contradict them easily.
When the matter came to a clause by clause stage the minister and his lawyers from the justice department were quite adamant that the charge regime would not survive a charter challenge. To their credit, their arguments were strong. If we go to a charge regime the bill would not survive a charter challenge.
One week after the bill was taken back to the House justice lawyers were quoted, however, in the front pages of The Globe and Mail as saying every time they go to the supreme court they do not have a clue what will happen. Flip a coin. The supreme court is adrift in a sea of confusion.
The additions of Justices Binnie and Bastarach do not help in predicting the outcome. When this was brought to the attention of the justice minister she stated in committee that she was obtaining three more outside opinions from retired justices. To no one's great surprise, the opinions support the government's position.
This resembles the theatre of the absurd. The Parliament of Canada stands on the sidelines while justice lawyers and their surrogates argue out a position based on established precedent; hardly the point. The motion says in effect we have read your opinions, we have heard your arguments and we are not persuaded.
We believe there are adequate safeguards to protect privacy and sanctity of the person and that search and seizure is warranted in this instance. The tabling of the opinions could amount to the subtle use of a notwithstanding clause.
The bill has a huge hole in it. If Paul Bernardo were sitting in a police station this morning charged with a sexual offence he would not be DNA banked until he was convicted and if not convicted he would never be banked. The police could say to themselves with legitimacy they do not have the resources to do this. He is a blond, blue eyed boy with a job and a home in beautiful downtown Guildwood, which happens to be my riding. They could also state they have a lot more pressing problems than to get a justice warrant. The police in Fredericton who are conducting other investigations would never know about it. Nor would the police in Edmonton. So this is quite a large gap in the legislation.
Members may have detected a bit of skepticism on my part with respect to the efficacy of the bill but I am ultimately persuaded that the good qualities in the bill might be lost to charter challenge. However, I do support this motion and I do wish that the government had exercised a more subtle approach in excising out a charge regime be it on one conviction or on two convictions so that the bill could have a charter challenge at the point where we could try to advance the law in this area.
This brings me to my final point, the doctrine of supremacy of parliament. I was greatly intrigued by the comments of Mr. Justice Cory in the Brin decision. He said that courts use the charter to dialogue with the legislature. Dialogue as experienced by this legislator is more like a monologue. We speak, you listen.
Courts develop legal theory, charter theory about trees and branches and living documents to arrive at conclusions which look suspiciously like ex post facto reasoning, you legislators sit down.
I have been in and around the justice system in Ontario for quite a number of years and consider it to be one of the finest in the world. Ultimately, however, it is a very crude means of resolving disputes. Lawsuits have winners and losers, unevenly resourced litigants and narrow views of relevance materiality.
Legislation such as this is a product of years of analysis, drafting, study and witnesses. The committee spent months looking at this legislation and it went through an extensive consultation process prior to being introduced.
The members of the committee represent in excess of one million people who come from a variety of backgrounds, both philosophical and political. I would argue with little fear of contradiction that if we as a committee had our choice absent charter arguments that we would be presenting a regime based on charge.
In my view judicial attitudes are not consistent with Canadian values on this issue and judges need to know that after extensive debate and analysis parliamentarians are only presenting this bill due to limited and narrow thinking by judicial activists.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Mr. Speaker, my hat goes off to the previous speaker. I think he gave a very compelling address to this parliament. I have the greatest respect for him, his legal background and his input on the justice committee. He obviously has substantial experience which is of benefit to us at that committee.
We have before us, in the form of amendments, Motions Nos. 10 and 11. This is perhaps our last chance to right a potential wrong because we are not going to have the opportunity to do it again for some time.
The motion put forward by the hon. member for Crowfoot is aimed specifically at allowing for the collection of DNA evidence at the time of charge. It has an additional safeguard, which was put in I suggest as a compromise to entice members of the government to take a second look at this amendment. This amendment would allow a person who has previously been convicted of a schedule of offences that have been deemed heinous enough or serious enough to suggest that therefore the prevention element should take precedence over that particular convicted person's right to be free from this intrusive taking of a DNA sample.
I will speak to that issue of intrusiveness later in my remarks, but the important point to be made here is that what we are talking about is the taking of a DNA sample which would allow for the prevention of the further commission of an offence, potentially, because the police with the DNA in their possession at that point in time could then take that sample and match it with crime scene samples that are connected to outstanding crimes.
Figures were discussed at the justice committee. In the province of British Columbia alone there are 600 unsolved murders. If we calculate that in terms of the population across the country, in terms of sexual assaults, serious assaults and unsolved crimes, what greater benefit could there be than for the use of such an innovative police investigative tool to address and solve these crimes? We should keep in mind that the perpetrators of these crimes are still out there. They have not been caught. They are not accountable. They have not been brought to justice. They are ready, I would suggest, to do it again.
This amendment would allow the police to make that match, to make that connection, to go out there armed with that evidence and hopefully complete an investigation that might prevent the perpetration of another crime.
I have the greatest respect for the hon. member who spoke previously. He has a great deal of confidence in the justice lawyers. I do not share the same degree of confidence. We have seen in the past that the Department of Justice has gone outside of its own lawyers' cadre to get a practising lawyer to represent the government in court. We have seen that in the current firearms challenge in Alberta. Similarly what we saw here was an opinion at the eleventh hour from three very respected jurists. There is no question they are very respected, but I would suggest that the question that was put to them was put to them in very narrow terms, coupled with the fact that we already knew the position of the government. Mr. Speaker, you will have to excuse my scepticism on the response that we received.
That is of course not the only opinion that the justice committee had the benefit of. We had the benefit of a similarly respected and decorated criminal lawyer, Mr. Danson, who gave the opinion in a very straightforward way that in fact the sampling at the time of charge, and that is without this added designation of having a previous conviction, would withstand a charter challenge.
I embrace some of the comments with respect to the supremacy of this parliament and the responsibility that we have here to make laws in the area of criminal law.
The remarks of the hon. member I think reflect, in many ways, the opinions of a lot of the non-partisanship that must go into the criminal field. The members of the committee voiced very similar opinions regarding the fact that we are being supreme court driven. That is a dangerous area in which to find ourselves.
Criminal law, first and foremost, has to be accountable and responsible to the people. The people have elected members of parliament. They have entrusted them and placed in them their hope and desire that we will make laws which reflect the protection of the public and the accountability we must find in our criminal justice system.
When there is a supreme court paranoia or a supreme court constipation about criminal law it is a very dangerous position to be in.
The hon. member gave the very apt example of Paul Bernardo. He said that under the current legislation we would not be able to use his DNA in future investigations. The very premise of this motion is that we should be taking a very proactive as opposed to reactive role in the use of DNA in the criminal justice system.
The important example made and emphasized by the Canadian Police Association was that an individual taken into custody for a designated offence, who was previously charged and convicted of a designated offence, has the benefit of due process.
If the police cannot take a DNA sample and use it in the course of a trial, use it as a sample against other outstanding, unsolved offences, it is a lost opportunity. It will slip through our fingers.
The Canadian Police Association emphasized the fact—and there are statistics to support this position—that individuals who are released on bail are simply not going to return. If criminals have in the back of their minds that if they return and are convicted of an offence they must face the possibility that they will have their DNA matched with a crime they knew they committed in another part of the country, they will not return for trial.
They are certainly not going to return if they are charged with a break and enter offence and they know they were involved in an offence of a much more serious personal nature, such as murder or sexual assault. If that opportunity is lost because of the way the current legislation is drafted it would be an absolute tragedy.
This motion, in a very straightforward way, would address that. It would allow police to use DNA to a much greater degree. That is the intention here. There is no hidden agenda. I would suggest that this motion is put forward in a very constructive, straightforward and practical way. I am surprised there is not more support for it.
Luckily we will have the opportunity to vote. I am still holding out hope and optimism that common sense will prevail and we will find that this amendment will be accepted.
The safeguards we have in place in the rest of the bill, that is to say, the provisions that would make it criminal if a person was to misuse the DNA technology, I suggest would protect individual rights. They would protect individuals from the fear of misuse; the Orwellian thought that somehow, some way, a person might misuse this DNA and therefore create a miscarriage of justice.
We cannot succumb to that fear, given the public interest and the importance of optimizing the use of DNA technology. It will happen. Mark my words. If Canada does not seize the opportunity to be on the cutting edge, to be a country prepared to move forward, making the most of this DNA legislation, we will be left behind. Other countries will be looking at our country, shaking their heads and saying “Why didn't they do it when they had the opportunity?”
In conclusion, I want to suggest that both of the amendments found in Group No. 10 could gain the support and the confidence of all members of this House. When the vote is before us, I am encouraging and hoping that all members on both sides of this House will put partisanship aside and put common sense and good, right-minded thinking first.
Derek Lee Liberal Scarborough—Rouge River, ON
Mr. Speaker, I am pleased to speak to this particular amendment. It is one of a number of amendments that have been proposed to this bill governing the establishment of a DNA databank.
It is important to note that the amendment that is proposed at this point is directed at a mechanism which would take a DNA sample, analyze it for a DNA profile and put it into a DNA databank where it would, for practical purposes, be stored and kept indefinitely.
There are other ways in which the state can obtain a DNA sample and do an analysis. It can do it by warrant.
With respect to this particular motion, it is the desire of the mover and those supporting it to see a DNA sample taken when an individual is charged with a serious offence, the individual having been previously convicted of a serious offence, perhaps even a related offence.
It is important to keep that in mind. Just because one would not be able to take a sample at the point of charge does not mean the state could not move by warrant to obtain a sample from the individual at the time of charge for the purposes of investigating the offence at hand.
In this case the sample being taken, as proposed under this amendment, is not for the purpose of investigating the offence at hand, it is for the purpose of obtaining a DNA profile of the individual and putting it into the DNA databank for future reference and for the protection of society that would come from that.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
No, it could be used for both.
Derek Lee Liberal Scarborough—Rouge River, ON
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.
Chuck Cadman Reform Surrey North, BC
Mr. Speaker, I will be supporting both of the motions known as Group No. 6.
In Motion No. 10 the member for Crowfoot appears to be taking the biblical role of Solomon. We have heard much comment on the need of our police to take DNA samples at the time of arrest. We have heard much comment concerning the invasion of privacy and the constitutional rights of the accused. This amendment proposes to take DNA samples at the time of charge but they will not be analysed until the time of conviction.
This would satisfy our police who have been concerned about offenders skipping out through the loopholes presented by Bill C-3 without such an amendment.
During the committee review the government cited finances as a primary reason for not taking and analysing samples at the time of charge. I will not comment on the government's concern over finances as compared to the safety of its citizens because I do not need to do so under these circumstances.
This motion gets around the financial question in that the expense only occurs once a conviction is registered.
There has also been much discussion over the constitutionality of taking DNA samples from those charged. This amendment limits the application to only those charged with a designated offence and those who have previously been convicted of a designated offence.
Parliament will be indicating to our courts that we see a public policy requirement to treat these types of individuals in a much stricter fashion.
Motion No. 11 permits the taking of DNA samples from incarcerated offenders who have been convicted of a designated offence and are serving sentences of two years or more for another designated offence. This amendment broadens the scope of Bill C-3 in that it is not just limited to the offence of murder. The amendment will do much for victims. It will solve and put closure to many unsolved cases.
Why should only incarcerated murderers and sexual offenders be subject to DNA sampling? For example, if someone has been convicted of manslaughter and is serving a sentence of two or more years for another conviction of manslaughter, should we not be taking DNA to determine what other serious crimes they may have committed?
Should the victims of these other crimes not be informed that the offender has been discovered through the comparison of DNA from the sample taken with the DNA profile in the crime scene index? In that way the victim can put some sort of closure on the matter and have some peace of mind that the offender is securely incarcerated and not apt to attack again in the near future.
That concludes my comments. I urge my colleagues in this place to support this important amendment.
Nick Discepola LiberalParliamentary Secretary to Solicitor General of Canada
Mr. Speaker, I begin by thanking the member for Scarborough—Rouge River and the member for Scarborough East who have worked with me over the past several months to try, after I believe three attempts, to come up with a modification to the amendment ourselves but were unable to do so.
Motions Nos. 10 and 11 are essentially the crux of the legislation and the most contentious. Motions Nos. 10 and 11 would do two things. First, they would allow a police officer to take DNA samples for the DNA databank from a person charged with a designated offence who has a previous conviction for a designated offence. Second, they would expand the retroactive scheme of the bill to capture offenders serving a penitentiary sentence for one of those offences previously designated offence convictions. Both proposals, in my opinion and in the government's opinion, pose a very serious charter risk as has been debated in the House.
With regard to the timing of taking samples, I would also like to point out to hon. members that the Criminal Code already has a provision which allows police to take samples at any time from a person they suspect of having committed a serious offence, with one proviso, as long as they first obtain a warrant. That provision is in there.
The Standing Committee on Justice and Human Rights considered many of the proposals and amendments that are being debated today. To allow the police to take samples of the DNA at time of charge was rejected at that committee. Another recommendation was to expand the retroactive scheme. To that end some changes were implemented by the committee.
We have heard from expert witnesses. The members for Crowfoot and Pictou—Antigonish—Guysborough referred to various opinions. I point out for the benefit of the House, as committee members will remember, that officials from the Department of Justice gave us opinions on the charter challenge possibilities. We also heard officials from the ministries of justice and the attorney general of Ontario and the solicitor general of Ontario as well as officials from New Brunswick.
Members have claimed that they did not have ample time to question these officials. On the contrary, all these people testified before the committee on justice. Members had plenty of time to ask all their questions. They may not always have liked the answers or the opinions but they did have time to consult them. It was only after the justice committee presented its report to the Minister of Justice and the Solicitor General of Canada that the opinions of three highly respected judges were sought.
At that time the Reform Party and the chiefs of police decided they would exploit this stance on the part of the government and do everything in their power to make sure the government listened. For the second time in my political career I will be subjected to another billboard campaign. Again, for the second time in my career, I will explain to the citizens of my constituency who I am confident will understand that the federal government has acted with a very balanced approach.
I will respond to the member for Crowfoot because he quoted extensively from the comments of Mr. Newark who suggested that we had asked the wrong question of the three former justices. In actual fact the three former justices were asked to provide an appreciation of the risk of a successful charter challenge pertaining to the taking of DNA samples at the time of charge without prior judicial authorization. They were asked whether the legislation would likely be found to offend one or other charter provisions. They were also asked if it could be saved under section 1 of the charter. It seems to me those questions were very clear.
The Canadian Police Association is now advocating the creation of a new police power to take bodily samples from an accused person who has previously been convicted of a designated offence simply on the basis of a police officer's belief that the person has committed another designated offence, without first going before a judge to seek the authority to do so.
The claim that the judiciary of Canada impinges on the powers of parliament is not justified in fact or in law. The courts perform their constitutional responsibility in reviewing the legislation to ensure the constitutional requirements are respected and to supervise the actions of the police in the enforcement of the criminal law and in the collection of evidence.
Bill C-3 reflects clear statements from our highest court that the invasive nature of bodily searches which are an interference with bodily integrity and undermine human dignity demands high standards of justification. Taking a sample on the off chance that a sample might link a suspect to another offence and the mere speculation that the accused may abscond do not meet these standards.
The notion of recidivism must be respected especially with retroactive sampling. The notion of recidivism can be used for the purpose of justifying to some extent the retroactive scheme. However, where used, the taking of samples for crimes committed before the coming into force of the bill is always on the basis of prior judicial authorization. Possible recidivism is not a justification for excluding judicial supervision prior to the taking of the sample. On the basis of the authorities it is of fundamental importance that the seizure of bodily substances be judicially approved before it takes place.
Where there is an elevated risk of recidivism such as with dangerous offenders, repeat sex offenders and serial killers, the need for special measures to protect the public is justified. To go further and take DNA samples from individuals who pose a low risk of recidivism or may not even be suspected of having committed another offence would place the constitutionality of the scheme in serious jeopardy.
I would also like to state that in Motion No. 10 there seemed to be very little justification for taking the sample at the time of the charge because according to the motion it would only be analysed once the conviction were to take place. The rationale for taking the sample would seem to be one for mere administrative convenience as opposed to what some members have been speaking on, to solve outstanding crimes. It is my understanding that the sample would be taken and only when the person is convicted would it be analysed. Therefore I do not see how outstanding crimes would be solved unless the person was convicted. It is likely that a rationale of administrative convenience would not meet the court test of the highest standards of justification.
Let us look at the consequences if this motion were adopted. Let us say we did support the motion. It is virtually guaranteed that notwithstanding the opinions we have had here, if we did approve the motion the challenge to the constitutionality of this provision would ultimately be heard by the Supreme Court of Canada. Most members have spoken to that end. The difference between our approach and their approach is they are willing to let it go to the supreme court. Such a final hearing on the contrary would take several years. During that time the police would take samples and subsequently have them analysed and if consequential amendments were made would have the results placed in the convicted offenders index.
If the supreme court were ultimately to determine that the provision was contrary to the charter and could not be saved under section 1, it would logically follow that all samples taken pursuant to the provisions would be found to be illegal seizures. The major consequence of such a finding would be that the evidence resulting from such seizures would be found inadmissible in court also. This would mean that many individuals would have been wrongfully convicted. As well numerous prosecutions would have to be halted.
In addition the profiles in the convicted offenders index of the people whose samples were taken pursuant to this provision would have to be removed from the data bank.
Finally if the government were to adopt this motion notwithstanding that it has received overwhelming advice from the Department of Justice and eminent private sector counsel that it would be found to be contrary to the charter, such a fact could make the provision even less defensible in the eyes of the Supreme Court of Canada.
In conclusion I have given various reasons why we cannot support the motion. Members have mentioned that we should try to take into account the examples of Bernardo and Clifford Olson. I believe that laws should be made for the benefit of all Canadians and not to circumvent or to try to trap one particular individual. We had that experience in the section 745 hearings when the Bloc Quebecois members voted against that provision and allowed Clifford Olson to have a hearing.
If we try to enact all legislation in that respect we will never get anywhere. I believe that the government has come up with a very balanced approach which I ask all hon. members to approve.
Peter Mancini NDP Sydney—Victoria, NS
Mr. Speaker, I rise to speak to Motion No. 10 and Motion No. 11 in Group No. 6.
I begin with Motion No. 11 because it is the less complex of the two. I indicate that I would speak in favour of Motion No. 11. It broadens and expands the provisions for the taking of DNA. The current legislation provides that a “provincial court judge may on an ex parte application take from a person who has been convicted of murder”. The motion broadens that and I would support it.
I now turn to Motion No. 10 which as the Parliamentary Secretary to the Solicitor General has indicated is a more complex and difficult piece to analyse. I commend the hon. member for Crowfoot for bringing the amendment forward. From sitting on the justice committee with him, I know it is one which he struggled with. He has attempted to meet the criteria as set out in the objections that were raised to it. That being said, let us ask exactly what this motion does. I think the hon. member has two concerns.
The motion provides for the police to take a DNA sample at the time of charging an individual who has a prior conviction. To take that DNA sample, two things have to happen. There has to be a charge laid against the person and the person has to have a prior conviction for one of the designated offences.
In order to charge an individual, the police have to have reasonable and probable grounds to believe that the individual has committed the offence for which he or she is charged. That is a safeguard in our system to stop the police who have tremendous power in this country from charging anyone willy-nilly. The law is clear. The common law as it has evolved says that in order to arrest and charge an individual, there has to be reasonable and probable grounds.
The bill that allows the police to take a DNA sample with a warrant says that there has to be reasonable and probable grounds to take the warrant. They have to go to a judge and ask the judge if they can take a sample of any individual's DNA and to take that sample there has to be reasonable and probable grounds.
If we look at the purpose of this amendment, if the person has already been charged, then presumably the police already have done the necessary groundwork to take a DNA sample. With great respect to my colleague from Crowfoot, I think the purpose is to say what happens when the offender is charged with an offence and he may escape bail. That was mentioned by one of my colleagues in the House.
Clearly the Criminal Code bail provisions under section 515(10) provide for a bail hearing. Most people should know this. When someone is charged with an offence, they are to be released pending their trial unless the court has reasonable grounds to believe that the offender will escape so that they will not be dealt with according to law. There is a built-in protection to stop someone from leaving the jurisdiction under section 515 of the code to ensure that they do not escape.
In the scenario contemplated by my friend from Crowfoot in good faith, if the crown prosecutor has reasonable grounds to believe that the individual will escape custody so that his DNA sample will not be taken, then the prosecutor can raise that at the bail hearing to ensure that the judge remands that individual pending the trial. There is a mechanism to ensure that the individual does not escape.
There are some other aspects of this piece of legislation and some other comments on this amendment which need to be addressed. The member for Crowfoot asked what the difference is in terms of taking a blood sample, in that we allow that intrusion to happen so why can we not do it with DNA. There is an answer to that.
The taking of a blood sample at the time someone is charged is a crucial piece of evidence because the blood sample will change as time goes on. A person who is impaired at six o'clock in the evening and is charged with impaired driving may not be impaired at 12 o'clock the next day. The taking of the sample for a blood alcohol reading is crucial at that point in time.
The DNA sample does not change. If we wait six hours to take someone's DNA sample, the reading of that sample is not going to change. The reading of a blood alcohol level will change. When people ask what the difference is between taking blood at a particular time and taking the DNA sample, it is because the nature of the evidence is different.
We have been provided with four decisions which have been referred to by members in this House. One was solicited by the Canadian Police Association and three were solicited by the Minister of Justice.
Some of my colleagues have said that they know the three obtained by the solicitor general or the Minister of Justice reflect the government's concern and they question whether or not they come totally unbiased. To be fair, we have to say that the opinion solicited by the Canadian Police Association was also directed and purchased by a particular organization to reflect its point of view and its argument.
It is similar to two parties going into court. One lawyer will put forward the argument for the client he represents and the other lawyer will put forward the argument for the client she represents. We can always ask whether the arguments are tilted one way or the other. Our job is to sift through those arguments and come to the truth.
This is not an easy motion to sift through. Every member in this House has struggled with this, in part because of the lobbying of the police association. I spoke with Mr. Newark just before addressing this motion today.
We have to look at those opinions for what they are. Three of them say that this motion, the taking of DNA at the time of arrest or charge will not withstand the charter. What does that mean? It means that the taking of the DNA sample at that point in time violates the freedoms of the individuals of this country. It means that the state is operating in a most intrusive manner. The courts have said, and it is our job as parliamentarians to say, that the individual cannot be impeded upon by the state all the time without reasonable limits.
Some colleagues in this House have taken umbrage at the fact that the supreme court is dictating to parliament. The supreme court has an important role and that is to interpret legislation that is passed in this House.
Let us be absolutely realistic about the way things happen in this parliament. I accept some of the arguments that say the supreme court is perhaps intrusive and perhaps invades some of the responsibilities of this House, but the supreme court is one of the very necessary checks in a checks and balance system for the Parliament of Canada.
Without substantial reforms to this House of Commons, and I say this without fear of contradiction in this House, the supreme court is the only check in this country on the power not of the government, but of the cabinet. If we look at the way law is made in this country, the cabinet introduces legislation to a majority party in this House of Commons and it passes it. We have seen that happen in the hepatitis C issue.
The Senate is supposed to be a check. We know what the Senate is. The governor general is an archaic check. The only check to the supreme power of the cabinet is the supreme court of this country. Until we reform this House, that check has to stay to protect the privacy of individuals.
Some members have referred to Paul Bernardo. If Mr. Bernardo were arrested and charged, the police would have the power needed to collect his DNA.
I have great respect for the mover of this motion. I understand why he wishes it to pass. We have to look at the best interests of Canadians and stop the state from interfering in their individual rights.
Myron Thompson Reform Wild Rose, AB
Mr. Speaker, I believe that if there is one comment from the last speaker that disturbs me a great deal it is that concerning our duty to Canadians.
Our real duty to Canadians regarding legislation in a judicial system is to provide legislation that will give them the utmost of safety and the utmost of protection for them to live a life in Canada without having to look over their shoulders, for them to be able to look forward to the future. I believe that this bill will be a major step in that direction, provided that Motions No. 10 and 11 pass.
Motion 10 will allow for the taking of samples at the time of charge from offenders with one previous conviction and retained for analysis on conviction. Our original amendment introduced during clause by clause review was to allow for the taking of samples from all persons charged. Since this amendment was defeated we have put forward an amended version which addresses the concerns raised by the government members of the committee.
Government members cited finance and privacy concerns as the primary reasons why they would not expand the DNA bank and allow for samples to be taken and analysed at the time of charge rather than conviction. Reform's amendment specifically addresses the issue of cost, proposing that samples be taken on charge but not analysed until conviction, therefore reducing the cost associated with the testing of samples.
As well it addresses privacy concerns and concerns regarding individuals incriminating themselves. It also satisfies the Canadian Police Association's concerns regarding offenders released on bail pending trial, i.e. skipping out. A previous speaker said that through a councillor going to a judge and pointing this out to him, bail could be denied but that is no assurance. I have seen in the last five years some very unusual cases of individuals being bailed when there was really no reason that the courts should take the chance doing so.
The police believe that if an offender is guilty of a previous offence for which they have not been charged they may not appear for their trial if they realize that on conviction their DNA sample may be compared to DNA evidence left at the scene of an unsolved crime. This amendment was recommended and thus fully supported by the Canadian Police Association.
The amendment specifies that the offender must have been convicted of one previous offence. Again this is to satisfy concerns regarding privacy and self-incriminating evidence. Government members of the committee said they would be more apt to support the taking of DNA from possible repeat offenders.
This motion goes a long way in correcting the massive flaw in Bill C-3 which is that it does not allow DNA to be taken on arrest except with a warrant. I still cannot understand why these samples cannot be taken just as fingerprints are now or as blood and urine samples are taken in suspected cases of impaired driving. I think public safety concerns are a lot more important than pure civil libertarian concerns.
I had the pleasure of playing an instrumental role back in 1995 when the first phase of the government DNA testing plan was passed. Bill C-104 allowed police to take samples without consent from individuals suspected of criminal offences, generally those involving serious violence.
The sample taken from the suspect would be matched with samples from the crime scene to determine whether the suspect had committed the specific offence being investigated. The legislation did not deal with the storage of the information or samples derived from testing. It provided a reasonable scheme to ensure that DNA samples were not taken from suspects unnecessarily.
I know the results that first phase of legislation had for Tara Manning's family. I will never forget June 20, 1995 when the justice minister said that he was prepared to introduce legislation by the end of the week for the purpose of adding DNA testing to the Criminal Code. This was a great day for victims because it provided a mechanism to answer many questions and for the police in solving crime.
Yet here we are working on phase two of the legislation and we hear arguments that a DNA sample is unduly intrusive compared to fingerprinting. I have to agree with the words of Tim Danson from the Globe and Mail :
The high court has ruled that taking DNA samples as already allowed by law is not unduly intrusive. The method of sampling consists of cutting a piece of a person's hair, rubbing a Q-tip swab inside the mouth, or taking blood by a simple pin device similar to that used by diabetics.
Further, the court has made it clear that privacy is far more affected when an individual is arrested, taken to court and forced to face the public and personal shame and humiliation that inevitably follow. Privacy interests protected by the charter of rights and freedoms relate to a reasonable expectation of privacy and not privacy at large. People who engage in criminal activity should expect some loss of privacy. Their victims certainly have. Perhaps the armchair constitutional academics should join us in the real world.
I certainly agree with that individual's statement.
With regard to Motion No. 11, which I support, it amends clause 117 regarding who samples may be taken from. It allows for the taking of DNA samples from incarcerated offenders who are serving sentences of two or more years.
During clause by clause review we proposed that samples be taken from all incarcerated offenders who had been convicted of one or more primary designated offences, serious or violent offenders. Our amendment was defeated.
Currently the bill allows the taking of DNA samples only from multiple murderers, sex offenders and designated dangerous offenders.
Given that a very small percentage of offenders commit the majority of crimes and there remains a number of unsolved crimes in this country, there is a great probability that a number of persons currently incarcerated for one offence may be responsible for many more offences. Without this amendment, the police will have many cases which remain unsolved.
I fully support this motion. However, it makes no sense to me why we have a databank that does not include samples from all convicted violent offenders. The bill as drafted now allows for samples only from multiple murderers, sex offenders and dangerous offenders. Two people who are exempt from this classification would be Clifford Olsen and Allan Legere.
I think all killers should be obliged to provide the DNA databank with samples even though they were convicted years before the bank was ever imagined. This is why this motion is so necessary and I hope government members will agree.
It is not as if we are suggesting they adopt a proposal like that from New Brunswick which has been the first to publicly press for the use of DNA samples in cases of property damage over $5,000. That day may come, but as of now I think the least we can do is test those who are serving sentences for two or more years.
Another reason for the necessity to test everyone serving two years or more is that a disproportionately small number of offenders are responsible for a disproportionately large number of crimes.
Stats Canada reports that of the approximately 23,000 offenders, 20% had served a previous federal sentence, 11% had served two previous federal sentences, 18% had served more than two federal sentences and 80% had previously been incarcerated.
The truth in these statistics is that the recidivism rate of a small number of offenders means that by taking steps to deal with this group alone would be effective in protection of the public. A recent CSC report confirms that those offenders detained for their entire sentence are less likely to recommit crimes than those released early.
By taking samples of those serving two or more years, it would not only solve many unanswered crimes, it would also send a signal that if you commit more crimes, you will get caught and you will be punished.
That is a deterrent we need to get out to the probable or possible offenders of the future. Do not do it. We will open up wide the use of DNA sampling and you will get caught and you will pay the price.
How can we refuse to accept that kind of legislation which would mean so much better safety for all Canadians throughout the land? Please support this amendment. Without it, the bill is not very good.
Ted White Reform North Vancouver, BC
Mr. Speaker, I did warn you that you would probably hear from me twice today.
The government has argued it is far too costly to take DNA samples at the time of the arrest of somebody who has been previously convicted.
It amazes me. It has indicated it will not support this amendment which would enable the police to take these samples at the time of arresting someone with a previous conviction.
It says it is too costly and yet it is prepared to spend perhaps hundreds of millions of dollars on registering the guns of law-abiding people like farmers who will never do anything wrong. It will not spend money on building a DNA bank which would solve crimes and therefore save enormous amounts of money in terms of property damage and personal harm done by criminals.
Where is the sense in wasting all that money on law-abiding citizens when there is absolutely no reason to do it and not spending the money where it is required in crime control?
This government is happy to give the Minister of Canadian Heritage millions of dollars to blow away on a flag program and millions of dollars to throw away on a heritage calendar which mentions every ethnic religious holiday one can think of except for Christmas and New Year, but it will not spend the money to help build a DNA databank which would help us solve crimes.
The government will spend hundreds of millions of dollars on the Social Sciences and Humanities Research Council which gives grants to professors which appear to be awfully like vacations but it will not give money to build a DNA bank that would help solve crimes for ordinary Canadians.
I was looking at some of the grants of the Social Sciences and Humanities Research Council. There was one for a woman to go to a little island just west of Fiji, a tax haven island. She was going for three years to study housing on this island. It is an absolutely ridiculous waste of money for a person to be given money to do that under the Social Sciences and Humanities Research Council grants.
These organizations give away money to study the make-up of blueberry jam. The member for Langley—Abbotsford has mentioned that one before. What a lot of rubbish. This is money just poured down the drain on useless, idiotic projects when we have here an opportunity to build a DNA bank that would actually make a difference. It would actually provide a deterrent, would enable the police to actually solve crimes and would relieve the suffering of many law-abiding Canadians.
The Liberals absolutely love spending money on all sorts of social engineering but they hate spending money on crime control or solving crimes. They are completely out of step with the public.
On another aspect of this bill, the government constantly talks about the court test of the legislation. It is so terrified of the court and what the court might do that it has become hog tied. It is unable to produce reasonable legislation because it is so afraid of the supreme court.
There was a clause put into the charter of rights called the notwithstanding clause and it was put there for a reason. It was put there so that notwithstanding the rulings of the courts, if the government felt that a ruling had been made out of step with the will of parliament and the will of the people the notwithstanding clause could be used to correct that problem.
Instead of being so afraid of these judges who defy the will of parliament and the will of the people and spending enormous amounts of money on preparing bills to be charter safe, why not use the notwithstanding clause a few times and show the judges what we expect of them?
We can have the public confirm the decision of the government by putting it to a binding referendum on the public will so that the government then cannot act in a tyrannical manner. If it does use the notwithstanding clause it will be endorsed by the public.
If we continue down this road of constantly talking about making bills charter safe, we surely know from our own experience in life that for every lawyer who says they drew up a document free of challenge and there is no way anyone can challenge this, there is another lawyer across the street who says it is full of loopholes and can be challenged from every direction.
We can have all the experts in committee who can make these suggestions on how we can make bills charter safe, but there is always going to be a lawyer out there who will study that bill and find some loophole or some clause where he can take it to challenge and with perseverance will mock it down. It happens all the time.
It is time we made it clear that we will no longer tolerate that as a society, that we need some crime control, and that if the judges will not help us with that project we will use the notwithstanding clause to ensure they carry out the public will and begin to reflect a little of what society wants instead of what lawyers want.
Notwithstanding the comments of the member for Scarborough—Rouge River when he spoke earlier that there is nothing to stop the taking of DNA samples under warrant, when we look at the amendment being proposed by Reform we could have this amendment and still have the taking of samples by warrant if necessary. This motion gives an opportunity to begin building a DNA bank for repeat offenders so that we can solve some of the crimes they commit. I cannot understand why anyone would oppose that.
The member mentioned again that they are worried about charter challenges. Everything in this place is done worrying about what the courts might do to it. It is just completely crippling us, preventing us from doing our job.
Let us pass this motion. Let us add it into the bill and let us worry about what the court does with it a little later.
Keith Martin Reform Esquimalt—Juan de Fuca, BC
Mr. Speaker, it is a pleasure to speak to Group No. 6. I compliment my colleague from Crowfoot on the hard work he has done on Bill C-3.
Essentially it deals with the timing of DNA samples, the taking of samples at the time of charging the offender and retaining them for analysis upon conviction. It needs to be toughened up a lot. Members from the other side have mentioned a number of times that it is expensive to do these tests. What is the cost of not doing these tests?
I could not find any evidence in Canada, but let us look at the evidence in the United States. The United States has been much more aggressive than we have been in utilizing DNA sampling and DNA as a scientific tool in the fight against crime.
Recent FBI statistics state that less than half of all rapes were solved by police and less than 10% took samples at the scene of the crime for use by the laboratories. In only 6% of 250,000 rape cases was DNA was actually recovered and tested. That points to a significant flaw.
If we look at all the rapes convictions and take it as 100%, of those convictions only 48% or less than half was DNA collected and only in 27% was the DNA typed. Less than a quarter of all the DNA that was collected, which is about 12%, was from those convicted. That is a very small amount.
What are our costs, society's costs, the police costs and the judicial costs in not utilizing DNA as an effective tool against crime? We could think of all the time that would be saved if we could take samples from all those charged, charter challenges notwithstanding.
If one is innocent one has nothing to fear. If one is innocent the DNA can be used to exonerate. An enormous body of work, again from the United States and from the United Kingdom which has been even more aggressive than the States in utilizing the DNA databank, shows very clearly that DNA can be used as an effective tool to exonerate the innocent. It is a double edged sword. DNA can be used as an effective tool to convict the guilty and to make sure the innocent are not convicted. We have had both cases.
We had the case of Paul Bernardo where lives could have been saved if the samples that were taken from Mr. Bernardo were analysed in a timely fashion. Instead they were laid to languish in a laboratory and as a result at least two young innocent women were murdered and countless others were raped. We have also seen cases where the innocent would not have spent time in jail were DNA used as a tool to exonerate them.
If we are interested in justice we will pass Group No. 6. We will pass Motion No. 10 of my colleague from Crowfoot and will use it to make Bill C-3 a stronger bill.
There are other opportunities and other flaws that we can point to in using DNA. The United Kingdom has been particularly active in the DNA database and in employing DNA science. It is using something called STRs, short tandem strands of DNA that are more specific than the tools we are using today. If we use STRs, the short tandem strands of DNA, it is a much more effective tool in making a stronger more specific analysis of the DNA at the site of a crime.
We need to look at other flaws with respect to using DNA. Usually, as I mentioned before, not enough DNA is collected. It is not collected in a timely fashion. It is not collected at the scene of the crime and it is not processed in a timely fashion.
All those can be taken and used. If they are used can we imagine the savings in money and in time in police investigations? In the building and construction of a DNA databank we could have a mass of information that could be used to expeditiously convict a person guilty in the commission of a crime.
We need to learn not only from our experience in Canada which is in its infancy. We also need to look at the United States and in particular at the United Kingdom which have led the way in using DNA as a scientific tool against the war on crime.
It is important for us to look at the motions in Group No. 6, to utilize them and to adopt them to build upon Bill C-3. It is also useful for us to look at Bill C-3 to make sure that DNA can be taken from all those who are charged for the reasons I mentioned before.
Again, collect at the crime scene, use better specimen collection and preservation, and apply it not only to violent offenders. Why do we not apply it to non-violent offences too? What is the problem? If we are interested in the pursuit of justice, if we are interested in the pursuit of truth and if we are interested in making sure that the guilty are convicted and that the innocent are released, why do we not use the DNA databank for those individuals too?
The cost of crime within our society is estimated at roughly $48 billion a year. What is the cost for us of not convicting the guilty? What is the cost of having the guilty released and running amok? All those things are important for us to take into consideration when we are trying to build Bill C-3 into a better bill for all individuals concerned.
I would also like to deal with the charter issue. It is important for us to look at the charter to make sure, when it comes time to revisit it, that the charter can be utilized and changed to ensure that good bills like a modified Bill C-3 are allowed to go through and that charter challenges do not get in the way of the pursuit of justice.
Too many times we have seen situations where individuals who were charged with crimes, who were patently guilty, got off scot-free because of a charter challenge, a loophole that prevents the guilty from being convicted and put in a situation where they will not prey upon innocent civilians.
In closing, I hope the government takes it upon itself to pass the motions in Group No. 6 to build a better Bill C-3. We look forward to its responses in the near future.
Sheila Finestone Liberal Mount Royal, QC
Mr. Speaker, it has been a very interesting debate on DNA. A lot of issues around DNA have caused us some concern with respect to privacy rights and issues that relate to catching very serious offenders and not allowing a repeat of the offence.
Many members who participated in this debate have serious concerns. I share those concerns, but I believe the departments of justice and the solicitor general have done a very good job in listening to members, in particular members of the Reform Party, some of whom gave very well formulated and sound opinions and some of whom were off the wall.
That being said, I know there is a serious intent to ensure greater safety and security for citizens of the country by enabling us to target people who have the potential for repeated offences of the worst kinds.
The member for Wild Rose often brings into the House examples of serious offences which need to be addressed. It is very important to ensure in some way that multiple offenders never get out there again to continue those kinds of offences.
There are people who have demonstrated patterns of recidivism which are of serious concern to all of us. The legislation and the changes that have been made to it answer the concerns placed before us in a most efficient and effective way.
We had a conversation around the amendments found in Motion No. 11. I am sure members of the Reform Party recall the discussion around designated offences. The issue of a designated offence is a very broad term. Any designated offence is an even broader term.
I recall for those people who feel we are avoiding the issues in any way, shape or form by buying into the amendment that has been suggested that if we were to suggest an acceptance of Motion No. 11 we would be bringing into the prison system and into the taking of personal DNA, which is the most precious definition of who we are as a people, something that once out there in the public can never be recovered. It is vital information. If one has committed a B and E, has stolen a car or has broken into a shop, should we in those circumstances consider taking DNA? I am not in agreement. We were not in agreement in committee.
I see the member who did a very good job in defending his position in committee. He is talking with the Parliamentary Secretary to Solicitor General. I am sure they would both agree that this is not such a great idea. All three of us would agree that the best move is the move that will support the bill before us. It is a good bill. It contains the kinds of protection for society we need. Therefore I move:
That the House continue to sit beyond the ordinary hour of daily adjournment for the purpose of consideration of Bill C-3.
Dna Identification ActGovernment Orders
The Deputy Speaker
The House has heard the terms of the motion. Will all those opposed to the motion please rise?
And fewer than 15 members having risen:
Dna Identification ActGovernment Orders
The Deputy Speaker
I declare the motion carried.
(Motion agreed to)