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.