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.