Debates of May 4th, 1998

Dna Identification Act

[Jack Ramsay, Reform, Crowfoot, AB]

Madam Speaker, I too urge and recommend support for this motion. I put forward a recommendation in committee that we strike the summary conviction portion of this section and leave it at a two year indictable maximum penalty. Of course that was struck down but we will see what happens when we come to the vote on this increasing of the penalty.

What are we doing here? We are safeguarding privacy, yet we are expressing a fear and an apprehension that is inconsistent in many ways. When I give my doctor a blood sample, he can do whatever he wants with it. I can volunteer a blood sample to a police officer and he can put my sample into the DNA bank together with the profile. According to the bill, if he misuses it, he can be charged and sentenced to jail for a maximum of five years, but not my doctor. He can use my blood sample in any way he wants. He will not face a charge let alone a five year jail sentence. There is an inconsistency in what we are doing, yet we are doing it. Why are we doing it? Because of the apprehension. By way of examination that apprehension is mythical.

We looked at all of the privacy concerns and the misuse of the profile and the samples. I saw no basis for the concern. Yet we have this here. This kind of apprehension is real. We saw it in the justice officials who appeared before our committee. They were so apprehensive of what the supreme court could do if we went all the way with DNA and allowed the taking of samples at the time of arrest or at least at the time of being charged for one of the primary designated offences. There is an enormous apprehension so I suppose the House will recognize that apprehension whether it has a basis or not and we will proceed cautiously in the shadow of the Supreme Court of Canada.

That is why we are saying if anyone dares to do what anyone else in charge of databanks, blood banks or whatever can do with immunity, we are going to sentence them to a possible maximum penalty of five years. The underlying motivation for it is that apprehension which we recognize as members of parliament, and we have to. Yet at the same time the law enforcement agencies tell us what they need to solve the unsolved crimes.

I will touch on something mentioned by my NDP colleague about the rights of the accused, and he is right. This bill deals with more than just the accused. It also deals with those who have been convicted of one of the designated offences and who is in custody as a result. It will allow for the taking of DNA samples from some of those individuals. It goes beyond just the recognition of the rights of the accused to defend themselves and to not self incriminate.

When we examine what this bill will do, there is no justification for our not going all the way. The reason is that if we examine even what the three former judges have said, we already have the means and the right to take a blood sample if a police officer believes a person is impaired by way of alcohol or drugs while operating a motor vehicle or a vessel. I think it is under section 254. We have that authority now.

When I rushed through the three constitutional legal opinions on this bill, I found only one to be a realistic examination of the inconsistencies that arise. What did Mr. Taylor say about it? He said that it was allowed because it was an offence in progress and that the evidence can dissipate from the system of the individual over a period of time.

Nevertheless, I think it is a very weak argument to suggest that to take a blood sample from that individual under those conditions is constitutional but that it is not constitutional to take a sample from someone who is under arrest and charged with a designated offence, whether it is murder, rape, manslaughter, aggravated assault or one of the other designated offences. I see an enormous inconsistency which is based on apprehension.

The real testimony we should be adhering to and listening to is the testimony that comes from the forensic scientists themselves. They know whether or not there is a privacy danger. They know whether or not there is a possibility of misuse and whether we should guard against that. They know all of these things.

When we listened to the witnesses who appeared before the committee, with the greatest respect to them, we were hearing an apprehension and in most cases a baseless apprehension. We will guard this right of the police to take samples. We will set up hoops for them to jump through. I predict at the end of the day we will deny them the right to take a sample from an individual under charge who has a previous conviction for a designated offence. Perhaps I am speaking ahead of my time but that motion is coming up and we will see how members vote on it.

I simply say that the apprehension contained within this motion where we are going to make it a possible five year jail term for someone who improperly uses a DNA sample is enacted within this legislation. Other databanks do not have that kind of legislation governing the use or misuse of the samples that are taken from babies and individuals every day and which are certainly lodged with their names attached.

I support the motion. I understand the reason for it very clearly. It is simply an expression of the apprehension that surrounds this whole area. Apprehension of what? It is the apprehension of the Supreme Court of Canada. Individuals on that court will examine this from their viewpoint and say either yes or no, that we have gone too far or that it is okay. So far they say it is okay. We can take samples now under certain conditions. All they are really saying is that we can take samples not by statutory authority but by judicial authority. We need judicial authority. A judge must issue a warrant in order to take a sample under bill 104.

It seems that statutory authority is not sufficient. Reasonable and probable grounds to believe someone has committed a designated offence is not enough. Even charging them and having them appear before a judicial official and swearing out an information based upon reasonable and probable grounds is insufficient. Judicial authority is needed through the issuance of a warrant. That is the way it seems to be.

Perhaps we need to move in this slow and cautious way and open it up as years go on until we see that the apprehension and fear is simply a myth and does not really exist.

[Nick Discepola, Liberal, Parliamentary Secretary to Solicitor General of Canada]

Madam Speaker, I would like to point out that many witnesses were heard. Also, as has been pointed out, we heard a lot of testimony.

I may have missed one of the meetings. Unless I stand to be corrected, I do not recall any of those witnesses asking to increase the penalty for the misuse of any information from two to five years. As I said, we heard a lot on privacy issue concerns that were generally raised, but not once did I hear any testimony from any witness asking what this motion calls for.

As a government we have been very concerned about any potential misuse. That is why from the onset we entrusted the administration, the establishment and the co-ordination of the DNA databank with one of the world's most respected police agencies, the RCMP through its commissioner. They will be entrusted with the administration and the set up of the databank. We have tried to find the proper balance between making sure that there would be no potential misuse of any information provided and to show Canadians that we are serious about DNA.

As has been pointed out, the profile can disclose much more than a fingerprint. As the member for Sydney—Victoria pointed out during committee hearings, we have a tendency to compare DNA profiles with fingerprinting. As he so aptly put it, a fingerprint is an impression of me whereas DNA is a part of me. There is a substantial fundamental difference between the two yet we often confuse the two.

I would like to caution hon. members. This amendment refers to subsections 6(6) and (7). These subsections refer to the misuse or disclosure of the contents of a profile. We are not talking about the identification of the individual to whom the profile may belong. It is similar for samples.

We are saying that if it is misused it is a very serious offence. We have tried to strike a balance. We did not consult the supreme court on everything as the critic from the Reform Party might lead us to believe. We simply said that there here is a crime. Here is the message we want to get across to Canadians, that it is serious to misuse any of this information. We simply tried to be consistent with similar offences that are established already in the criminal code.

We believe that if the government were to extend the penalty from two years to five years it would be inconsistent with similar offences in the criminal code and very excessive. To that end I ask that the hon. members vote against it for those reasons.

[Philip Mayfield, Reform, Cariboo—Chilcotin, BC]

Madam Speaker, it was interesting to hear the hon. parliamentary secretary make the comment that no committee witness had advocated this kind of penalty. I would ask him to note that while it may not have happened in committee there have been at least four witnesses in the House of Commons who are advocating that.

I encourage the member not to base his judgments on the legislation simply on the committee and on the witnesses. I encourage him to remember that the members of the House come here with a point of view that represents many other people as well as their own. We represent positions to the House and to the government so that they may be aware that in this instance people are very concerned about the inadequacy of the justice system in apprehending serious violent offenders who are doing great harm and great damage to individuals, to our communities and to the structure of our communities.

There is no question that the issue of the DNA testing is a very serious one. The parliamentary secretary is quite correct when he says that these profiles provide an enormous amount of very personal information.

It is extremely important that everyone realizes that within the legislation it is necessary that this information be used only for what it was intended, that is for the identification of people who have been apprehended and to help in the determination of their innocence or guilt by the evidence provided there.

There are some interesting paradoxes in the government's point of view. As I consider this issue I see how important privacy is. I would not want to diminish that importance in any way. I could also point out other instances where the importance of privacy is not nearly so important.

For example, I received a letter from a constituent who is a financial counsellor. He is concerned about information he has received from StatsCan. Now StatsCan is promoting a purchase of information from individual tax returns, about the financial situation of communities, districts and right down to the individual.

This is all based upon postal code. How could a profile be developed from a postal code? In one instance a postal code might be a large apartment building. It would not be too difficult to determine to which individuals, from the profile that StatsCan provides, it would apply in a very personal way. As members are aware, the information that comes out of a person's income tax return is pretty personal.

I want to tell of another instance of a profile based upon a postal code. When my family and I lived in Calgary we had a house on a corner of a block in that city where we had an individual postal code for that house in that city.

I did not realize at the time that by postal code profiles StatsCan could open my income tax return to financial institutions, financial advisers and anyone who cared to pay them money for the information.

My point is that there are some instances where personal privacy is very important to the government. In other instances it is not nearly so important.

I believe that Motion No. 7 is drawing attention to the importance of the private nature of this information. If it must be used for a specific purpose only and beyond that there is a heavy penalty, it draws attention to the importance of this personal information. It must be used in an appropriate way. If it is not used in an appropriate way then there are serious consequences.

I congratulate the member for Sydney—Victoria for presenting the motion. I think it is timely. I think it draws attention to a very important aspect of the bill. I notice my colleague from the Conservative Party mentioned that he is a defence attorney. Now that we have had both the prosecution and the defence speak on this issue, as well as a number of lay people like myself, we have our bases covered.

Strengthening this section to make it a more serious offence by increasing the maximum sentence for indictable offences may serve as more of a deterrent for those who may entertain some thoughts of misusing this information.

[Garry Breitkreuz, Reform, Yorkton—Melville, SK]

Madam Speaker, I just want to respond for a moment to the comments that were made by the government representative across the way.

He said that “a fingerprint identifies me but DNA is a part of me”. If that is the argument then in fact he should support this amendment. At the present time if this DNA data is being used for purposes anything beyond what a fingerprint is used for, we are saying there should be a punishment for that. That punishment should fit the crime. I applaud the NDP representative who brought forth the amendment. I am glad to see they did it. If in fact what he said is a valid argument then he should be supporting the amendment. He said that “DNA is a part of me”.

Let me give a little science lesson here. When you leave a fingerprint behind the technology is going to be there in the next year or so to take from that fingerprint the same information that you could get if you took a hair or a saliva sample from someone. We need to have appropriate punishments in place if someone uses that. The government should be supporting this amendment.

We will have the technology soon to do all kinds of things and we should be protecting the public from misuse of this information. The DNA data should be used in the same way as a fingerprint is used to identify the person; no more, no less. We would support that.

I agree with what the NDP has done here. It is interesting and it is almost historic that the NDP recognizes the severity of a penalty does send a signal to society on the severity of a crime. I think we need to do that. If people can devise some kind of method in the future to misuse the DNA samples and invade people's privacy, we should be looking forward and making sure there are appropriate punishments in place.

Maybe we do not see the big picture, but the question that is before us in regard to this amendment is should or does the length of a sentence send a signal to the public as to the seriousness of a crime. That is what we are debating and that is why the government should support this. There is the potential to commit some serious crimes with the misuse of these data.

The public also has a concern that the courts are not using the provisions of the law to send a signal to society on the severity of some of the crimes. I may be off on a little tangent here but in my riding we had some very serious crimes committed, murder in fact, and the courts dealt very lightly with them. Some of the penalties were less than eight years. One penalty was four years. They were out in less than two years on parole. That sends the wrong signal to society. It is abundantly clear that we need to send the kind of a signal that this can be very serious.

In conclusion I want to talk a little bit about the contradictions that this government is making by not supporting an increase in the penalty.

The government put in place legislation that if you make a mistake on the gun registration certificate, the little piece of paper you fill out when you are supposed to register your gun in a few years, you could get up to 10 years in prison for making a mistake on that. Here you could do something much more serious, misuse DNA data, and you only get two years. I find that ironic. If find it unbelievable that this government would do something like that. It is a real contradiction and that is why the government should change its mind and support the amendment that the NDP MP has put forward.

[The Acting Speaker (Ms. Thibeault)]

It being 6.30 p.m., the House stands adjourned until 10 a.m. tomorrow, pursuant to Standing Order 24(1).

(The House adjourned at 6.30 p.m.)