Debates of Sept. 29th, 1998

Dna Identification Act

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And more than five members having risen:

[The Deputy Speaker]

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Division No. 230

[The Deputy Speaker]

I declare the motion carried.

The House resumed from September 21, of the motion that Bill C-3, an act respecting DNA identification and to make consequential amendments to the Criminal Code and other acts, be read the third time and passed; and of the amendment.

[The Deputy Speaker]

Order, please. Perhaps hon. members who are carrying on discussions in the Chamber could have them outside so the business of the House could resume. I am sure there are hon. members who wish to debate this bill.

[Lynn Myers, Liberal, Waterloo—Wellington, ON]

Mr. Speaker, I will be sharing my time with the Parliamentary Secretary to Minister of Labour.

I have been closely following both sides of this debate and I rise today to speak in support of Bill C-3. As the former chairman of the Waterloo regional police I have a keen interest in this area and in this debate.

We have heard from several hon. members that a DNA bank will increase public protection for all Canadians. The police community has told us that a data bank will help law enforcement agencies identify suspects where they have no leads, that it will assist in identifying offenders who commit serious crimes across all police jurisdictions in Canada, and that it will help prevent future violent crime.

To ensure the police have the most effective tool possible Bill C-3 has been drafted in accordance with the Constitution. Bill C-3 will authorize the courts to order persons convicted of designated offences to provide DNA samples for inclusion in the data bank. Upon conviction for a primary designated offence or a serious violent offence the court will issue an order requiring the offender to provide a DNA sample for the data bank, except in the most exceptional circumstances.

In the case of a conviction for a secondary designated offence which includes robbery and break and enter, offences that Clifford Olson for example was convicted of in his early criminal career, the court upon application by the crown may issue an order for the DNA sample to be taken for data banking purposes.

[Some hon. members]

Oh, oh.

[The Deputy Speaker]

Order, please. An hon. member has the floor and it is very difficult for the Chair to hear the hon. member because of the loud conversations that are being carried on in the House.

I remind hon. members that there are lobbies where these discussions can take place. I invite members who are having discussions to please carry them on outside the Chamber so those who wish to hear the debate will be able to do so. The hon. member for Waterloo—Wellington has the floor.

[Lynn Myers, Liberal, Waterloo—Wellington, ON]

In deciding whether to make an order in this instance the judge will consider the offender's criminal record, the nature of the offence and the circumstances surrounding its commission which are all relevant factors in identifying violent predators at a very early stage.

The data bank will capture penitentiary inmates who pose a high risk of future violent reoffending. Bill C-3 will authorize DNA samples to be taken retroactively from designated dangerous offenders, repeat sex offenders and serial murderers. The last group of offenders was added to Bill C-3 by the Standing Committee on Justice and Human Rights in response to concerns that offenders like Clifford Olson should be captured by the data bank.

By targeting offenders already in custody the data bank will offer the hope of solving long outstanding crimes where police have no leads. It will make the most dangerous offenders think twice about committing a violent offence again because their genetic imprints will be in the data bank for future and quick identification.

The Standing Committee on Justice and Human Rights studied Bill C-3 in depth and supported it. Members of the House have closely examined it and have had an opportunity to study the expert legal opinions concerning its constitutionality. The legal experts have advised us that Bill C-3 in its current form is consistent with Canada's Constitution. However some members continue to discount this fact. They insist on delaying passage of the bill by repeatedly arguing that it can be easily amended. In so doing they are forgetting about the supreme court and the Canadian Charter of Rights and Freedoms.

Amending the bill to permit the taking of DNA samples at the time of arrest or charge is a radical proposal that disregards the basic rights and freedoms guaranteed by the charter. Any accused person in Canada has the right to be presumed innocent and protected from unreasonable search and seizure. Bill C-3 reflects a clear statement from our highest court that the taking of DNA samples constitutes a search and seizure which requires prior judicial authorization. Before the police can search anyone's home or business premises they must first obtain judicial authorization to do so.

A search of a person's bodily substances is much more serious than searching a home or business because it interferes with bodily integrity and undermines human dignity. Therefore the taking of a DNA sample for law enforcement purposes demands high standards of justification. Taking a sample on the off chance that it might help the police crack an old and cold case simply does not meet those standards.

I emphasize that the requirement for prior judicial authorization before DNA samples can be seized following conviction is one of the key features of Bill C-3. It ensures that the charter rights of all Canadians are protected. We must not overlook the fact that the police already have authority to take a DNA sample from a person for investigative purposes at the time of arrest or charge, or at any other time, as long as they first obtain a warrant allowing them to do so.

The DNA warrant legislation has been commended by the Supreme Court of Canada and has survived all constitutional challenges to date. The most important reason the scheme has survived is that it provides for judicial oversight of the collection of DNA samples.

We must be mindful that the police have never had an automatic right to search and seize in Canada. This is because we have placed a high premium on our reasonable expectation of privacy, on the security and the dignity of the person, and on the right to be free from unnecessary state interference with those rights. It is these basic rights that make Canada one of the best countries in which to live.

Bill C-3 builds on the solid foundation of the DNA warrant scheme and provides the police with the added capacity to compare DNA samples obtained from crime scenes with DNA samples from convicted offenders.

Last week, for example, we heard the misguided suggestion that taking samples upon charge would be constitutionally defensible. It is not. On the contrary, the legal experts have clearly and emphatically stated that this is not true.

Last May the government publicly released independent legal opinions on this issue from three of the most experienced legal minds in the country: former Justice Martin Taylor of the British Columbia Court of Appeal, former Chief Justice Charles Dubin of the Ontario Court of Appeal and former Chief Justice Claude Bisson of the Quebec Court of Appeal.

These opinions are comprehensive and fully consistent with the views of the Canadian Bar Association and representatives of the Ontario attorney general, the New Brunswick attorney general, the Privacy Commissioner of Canada and the federal Department of Justice.

I would now like to turn to what these eminent judges had to say about the proposal being put forth by the police community. I quote the hon. Martin Taylor when he said:

—I am of the opinion that legislative extension of police authority under Bill C-3 to sanction the taking of DNA samples without judicial warrant in the case of persons charged or arrested but not tried and convicted would be held contrary to the guarantees contained in one or more of ss. 7, 8 and 11(d) of the charter, would not be saved by s. 1 of the charter, and would therefore be found unconstitutional and of no force or effect under s. 52 of the Constitution Act.

The hon. Claude Bisson said the following in his legal opinion:

An enactment authorizing—the taking of bodily sample without a prior judicial authorization will not be, under the charter, a reasonable exercise of the power of parliament.

Therefore, the guaranteed rights of a person by the charter having been infringed, the legislation would be invalidated because section 1 of the charter would not save such legislation—.There is no equation to be made between the—taking of fingerprints upon arrest and the taking—also upon arrest and without judicial authorization—of bodily samples.

Fingerprinting is not a search and seizure; the taking of bodily substances and samples is and, as such, should not be performed without the greatest safeguards, the first of it being a judicial intervention.

Finally, this is what the hon. Charles Dubin concluded: “the proposal to allow automatic seizure of bodily samples for DNA analysis upon arrest appears to me to serve little social purpose”.

The fingerprinting and DNA warrant provisions that already exist allow proper identification of arrested persons and provide police with the ability to obtain samples for DNA analysis from an individual who they reasonably believe is a party to a designated offence.

The only additional purpose of automatic seizure of bodily samples on arrest would appear to be to increase a pool of contributors to the DNA data bank.

However the significance of this law and the enforcement interest, based on the chance of a match between a person arrested and an unsolved crime, pales when compared with the intrusive nature of a seizure of bodily samples and does not outweigh the need for prior judicial authorization.

As parliamentarians we cannot dismiss these legal opinions as being overly cautious, paranoid or even out of touch with the frontline police objective to better protect the public.

Let me conclude by saying we all share the goal of better public protection for all Canadians. We also recognize the need to implement the DNA data bank quickly to prevent violent crime. Through the comprehensive review of Bill C-3 by the standing committee, our review of the legal opinions of the eminent judges and the extensive debate in the House the government has listened to all sides of the debate. In the end the government has carefully balanced the competing views we have heard to develop proposals that will uphold the Constitution.

We have a responsibility to give the police a tool they can work with, but we also have the responsibility to put forward a balanced piece of legislation that will not be thrown out after the first constitutional challenge. Bill C-3 strikes this proper balance.

I would encourage all members of the House to join me in supporting Bill C-3 so we can move forward in implementing an effective DNA data bank for all Canadians.

[Ghislain Lebel, Bloc, Chambly, QC]

Mr. Speaker, I listened with great interest to what my colleague said, still I have a major concern about this bill.

The principles put forward are genuine, right and straightforward. The problem with this kind of evidence is that it is hard to contradict or rebut by ordinary citizens or lawyers defending themselves. This engineering evidence is so elaborate and complicated that it has to be made by a scientific consulting firm. Such means of rebuttal are generally not available to the defence. That is the danger presented by this kind of legislation.

I am totally in favour of the principles, but we must ask the question. Recently, in Quebec, evidence was fabricated by crooked cops in the well-known case of the Matticks brothers. So, I wonder how the defence could rebut evidence like what would be required under Bill C-3 if it were dealing with, say, officers like the ones involved in the case I just referred to. That is my only concern. As for the rest, the principles, I am in favour.

I would therefore ask for reassurances concerning the tools available to an honest defence to rebut evidence made by the crown on the basis of Bill C-3.

[Lynn Myers, Liberal, Waterloo—Wellington, ON]

Mr. Speaker, I thank the hon. member opposite for the question. I certainly agree with his premise that this is a very complex issue and one that requires real balancing on the part of the government in this important area.

Sometimes it is very tricky to ensure the competing interests are balanced in a way that is fair and equitable, but I think in the great scheme of things we as a government have been able to do this.

In response to part of the hon. member's question, through my experience of 10 years with the Waterloo regional police I can say that the police of the country are great professionals who do a great job on behalf of all Canadians, wherever they may be. The police do the type of work that all of us should be proud of not only as parliamentarians but as people who live in this great land of ours, Canada.

It is absolutely crucial that we support the police whenever and however possible, knowing full well that they put their lives on the line for each and every one of us.

[Brenda Chamberlain, Liberal, Parliamentary Secretary to Minister of Labour]

Mr. Speaker, I rise today to lend my support to Bill C-3, the DNA identification act.

Bill C-3, as it stands now, is a good first step in increasing public safety for all Canadians. Protecting Canadians is and always has been a priority for this government. I feel that the DNA database that will be created as a result of this bill will help police fulfil both aspects of their jobs. It will help them to protect Canadians while upholding the law.

Extensive consultation went into the creation of this bill. Law enforcement officers, legal experts and those concerned with the protection of privacy all contributed to Bill C-3. The bill has been drafted to reflect their contributions and their concerns.

Granted, there are those who argued and who continue to argue that Bill C-3 needs to be stronger, that DNA samples should be taken at the time of arrest. I have felt this way too. However, in responding to this argument there are a few things to keep in mind.

First, in order for this DNA databank to be effective in increasing public safety, it must be developed in accordance with the Constitution. One former justice and two former chief justices all agreed that taking DNA samples on arrest or charge without prior judicial authorization would be unconstitutional. These legal experts and others have all said that if Bill C-3 were amended to allow DNA samples to be taken at the time of arrest or charge the legislation would be found to be unconstitutional.

If this bill were to violate the Constitution it would fail, criminals would go free and this entire process of researching, drafting, amending and debating Bill C-3 would have been a complete waste of our time and of taxpayer money.

Second, we must remember that the Criminal Code already allows the police to take a DNA sample from a person at the time of charge or any other time as long as they obtain a warrant to do so. This legislation introduced in 1995 has been praised by the Supreme Court of Canada and has survived constitutional challenges to date.

Bill C-3 builds on the existing legislation by allowing samples to be taken from individuals once they are convicted of serious offences, including murder, sexual assault or break and enter, all heinous crimes.

The bill also allows for samples to be taken retroactively from those deemed to be dangerous offenders and from those convicted of more than one sexual offence or murder. These are the criminals who could very well have committed crimes other than those they were convicted for.

We owe it to the victims and to their families to explore every single option in catching the criminals who hurt them. The retroactive taking of samples will enable us to see if the criminal responsible has already been caught. Just think of the peace of mind that victims and their families would have once they knew that the criminal responsible for hurting them or their loved ones had already been convicted and was behind bars.

Third, taking fingerprints and the collection of DNA samples are not the same. We all know that police take fingerprints at the time of arrest. However, the Supreme Court of Canada considers the taking of bodily samples to be a search. To allow a sample to be taken based on a police officer's belief that a person is guilty of a given crime without the permission of a judge would be a warrantless search or seizure and therefore unconstitutional.

Finally, Bill C-3 is an important first step. This is ground breaking legislation that requires a cautious approach. Once this has been put into practice and tested we may be able to proceed further. Taking samples for the databank when a criminal is convicted as opposed to when a suspect is charged will not prevent the police from doing their job. On the contrary, it will provide them with an important and effective investigative tool that will allow them to do their job which is, as I mentioned previously, to protect Canadians and public safety and to uphold the law.

Bill C-3 is a good start. Under this legislation young offenders will be treated in the same way as adults with the exception that their DNA profiles will be retained for a shorter period of time. This is in keeping with the length of time for which their police record is retained.

Bill C-3 allows law enforcement officers in Canada to co-operate with their colleagues in other countries for the purpose of criminal investigation. This will allow Canadian police to access information in foreign DNA databanks to help solve crimes committed here in Canada and vice-versa.

As a parent I would never support a piece of legislation that I felt would put my family at risk. As the member of parliament for Guelph—Wellington I would not support Bill C-3 if I thought it would not protect my neighbours and my community. I am not one to be soft on crime or on criminals. I firmly believe that people who are guilty should serve hard time if they have committed a serious offence.

However, I also believe that a person is innocent until proven guilty. Canada is a democracy based on the principles of peace, order and good government. The UN has recognized our great nation as being the best country in the world because of the wide range of opportunity and high standard of living we provide to our citizens. To create a law that would violate someone's basic human rights would not only be unconstitutional, it would be un-Canadian. That is something I could not support.

This is a good piece of legislation, one that will work to further protect public safety for all Canadians and one that will withstand legal scrutiny. It will make the streets of Guelph—Wellington safer for my family, my neighbours and my entire community. It will do the same for all communities right across this great land of ours.

It is an important first step, one that I hope the government will build on and I look forward to all members of parliament supporting the legislation.

[Deepak Obhrai, Reform, Calgary East, AB]

Mr. Speaker, I rise today to voice my opposition to Bill C-3, an act respecting DNA identification.

This morning we saw a very sad spectacle in the House of Commons where a closure motion was put on Bill C-3. If I remember correctly, when those members were on this side in opposition they were the ones screaming the loudest when the former Tory government did the same thing with closure motions. Today what do they do? The same thing, they put closure. No wonder Canadians find respect for politicians at the bottom of professions.

The parliamentary secretary did mention certain things as being the first step. She said Bill C-3 was just a first step. However, as with Bill C-68, it will be watered down to where it actually becomes ineffective. She says this bill if thrown out would be a waste of taxpayer money. This watered down bill is a waste of taxpayer money because was does it do? It does a half job. It does not give our law enforcement agencies the full tools they need to fight crime.

She has taken the position that she is tough on crime. The record of being tough on crime is not there. The Young Offenders Act is watered down. Bill C-68 is watered down. Bill C-68 has been changed to a degree where it is supposed to stop crime but it is not, it is infringing on the rights of Canadians.

The government transforms simple legislation into the most complicated legislation costing Canadian taxpayers a lot of money and does not do the job it is supposed to do.

The parliamentary secretary said Canada is the best place to live in the world as stated by the United Nations. Yes, when you look at other factors, but Canadians today are demanding that streets be safe. On that this government has a terrible record.

I am firmly committed to restoring confidence in our justice system. Canadians need to know what it is to have a true sense of security. This can be achieved only by strengthening our law enforcement agencies. How do you do that? By giving them all the tools they need to protect and apprehend the perpetrators of the most violent crimes.

DNA identification is an example of one of those desperately needed tools. If this process is used to its full potential, DNA identification could very well be the single most important development in fighting crime since the introduction of fingerprinting.

We fully support the concept of DNA identification because it gives our law enforcement authorities one more weapon in their battle to combat crime. However, if Bill C-3 is passed unamended it will give Canadians a false sense of security and therefore I cannot support this inadequate piece of legislation.

The bottom line is that Bill C-3 has such limited scope that I cannot in good conscience support it. Bill C-3 requires those convicted of certain designated offences to provide samples of bodily substances for DNA analysis. The problem with this is that the offender must be convicted prior to the processing being instituted. This will result in the databank being of limited use to police for suspects and persons charged.

The Canadian Police Association has raised concerns over this specific issue too. Police officers rightly point out that offenders arrested and charged with an offence would likely flee while on bail if they knew that DNA linking them to other offences would be obtained on conviction.

The government has stated this is within the charter of rights and the Constitution. I say it is more important to give tools to ensure that victims have more rights than criminals. That is extremely important to recognize. I say to the Supreme Court of Canada as well remember it is more important to recognize the rights of Canadians and victims than it is to recognize the rights of criminals which this government keeps doing time after time and destroying a good piece of legislation dealing with that problem.

Bill C-3 has offences that are split into two groups. The first group automatically leads to DNA testing. Crimes listed under the first category include sexual assault, murder and sexual exploitation. The second group permits seizure only if the court is satisfied that to do so is in the best interests of the administration of justice.

Here is the problem. This is left to the courts again and we know the courts have been lenient with criminals. The courts have been looking at the rights of the criminals over the rights of the victims and Canadians to make the streets safe.

We see that Bill C-3 has limited applicability in that it applies only to certain offences. However, even for this limited list it is not guaranteed that the taking of DNA will be authorized. It is clear that an effective, no-nonsense system of DNA identification is desperately needed in this country. Does Bill C-3 under the current act fulfil this needed desire?

By having a system that only applies to convicted felons who commit a narrow definition of listed crimes, we are truly doing a disservice to all Canadians seeking safer streets. The fact of the matter is that DNA is a modern identification tool which is to the 1990s what fingerprinting was to the early 1900s.

Many American states have DNA data banks, including South Dakota which takes DNA testing once a charge has been laid. A few years back Great Britain implemented a system that called for DNA seizure after a charge had been laid and the list of offences is far wider than what Bill C-3 covers.

We should never allow ourselves to be so stubborn that we could not turn our backs on a good idea simply because it is not a made in Canada idea. Today we fingerprint all those who are charged for a crime.

The government has been saying, and this is where I differ, that a fingerprint is not a seizure. A fingerprint is from our body. In here it is saying that taking bodily fluids is a seizure. For the sake of crime and making streets safe, it is a justifiable seizure. If this is the case then why can this government not expand the very little role it has given to the DNA collection? While it may be true that DNA seizure involves the invasion of personal privacy, it does serve a greater role in solving and controlling crime.

At the end of the day parliamentarians must be able to look Canadians straight in the eyes and tell them that we have done everything in our power to protect them. I do not see how we can do this by voting in favour of this legislation.

[Brenda Chamberlain, Liberal, Parliamentary Secretary to Minister of Labour]

Madam Speaker, the past speaker referred to the fact that the Reform Party cannot support this piece of legislation. That makes me very sad. This group of people claim to be law conscious and believe that we must move forward to try to do what we can to protect society. I understand this has been a very big plank in the Reform Party's platform. Again we see it breaking promises and moving away from the good of Canadians. That is a very sad thing.

As a government we know we have to enact laws that will withstand constitutional challenges. We are told that at this time this bill will do that. It is important to do that. The Reform Party says to go ahead. It will do anything. It does not matter. It does not matter if it is legal. As a government we cannot behave like that. We must work within a legal framework. We must be respectful of the law. We must be respectful of Canadian citizens whom we represent.

It is strange that the hon. member talked about the best place in the world to live. However he said it with such disdain and negativity. The Reform Party has made it also a plank in its platform to deal with the dark side, to fearmonger, to not move ahead. That is unfortunate because we cannot continue to do that. We have to move ahead. We have to do things that are right for Canadians and that will help them.

Reform says that this is a false sense of security. My question for the hon. member is, how could Reform possibly not support DNA identification for criminals?

[Deepak Obhrai, Reform, Calgary East, AB]

Madam Speaker, it looks like my speech went over the top of my colleague's understanding.

We said yes, we believe in this concept. We agree that we need tools to fight crime. The problem with the DNA bill is that it is a watered down bill that will not give us these tools. We support this concept. We want the government to make this bill tougher so that Canadians feel protected.

It is interesting that my colleague on the other side says that we should stay within the law. In the last week and a half we have seen the Prime Minister and the Minister of Finance not obeying the law of the land, specifically the Minister of Finance when he—

[Brenda Chamberlain, Liberal, Guelph—Wellington, ON]

Madam Speaker, I rise on a point of order. That statement is unfounded and untrue.

[Deepak Obhrai, Reform, Calgary East, AB]

Madam Speaker, we have seen the Minister of Finance trying to go into the EI fund to use it for other purposes even though that is not allowed under the law and is illegal. It is quite surprising that my colleague on the other side would not recognize that.

In answer to the hon. member's question, I repeat again that the Reform Party supports the concept of DNA testing but it has a problem with this bill. If this legislation is made really tough, then the government will get our support.

[Nick Discepola, Liberal, Vaudreuil—Soulanges, QC]

Madam Speaker, over the last few months, I have followed this debate with great interest. As members of this House were told last week, Bill C-3 will help the police in a number of ways, across the country and even internationally.

Having a DNA data bank will provide police with a strong tool in its fight against crime. It will also allow Canada to be a leader in the use of DNA identification technology and to then establish a national DNA data bank.

The Solicitor General of Canada deserves to be congratulated for the caution he showed in asking that the bill be carefully reviewed by a committee of the House made up of members from all parties. Personally, I also congratulate him for involving Canadians in the process, through a public debate on the subtleties and scope of this legislation.

It is very important that Canadians be allowed to express their views and have a say in how their government operates. This is why the government held public consultations right across the country, before drafting and tabling its legislation last year. When the bill was referred to the Standing Committee on Justice and Human Rights before second reading, the committee heard over 30 witnesses and diligently reviewed all the information submitted. Since it was introduced, Bill C-3 has been examined openly and transparently. It really reflects Canadians' viewpoints.

Genetic analysis is a powerful investigative tool, and the bill provides strong measures to protect against its possible abuse. The government has heard testimony from top experts, who said that genetic evidence can reveal much more about an individual than a breath sample, a finger print or even a blood sample. Given the power of genetic analyses, the issue of privacy is of considerable concern to our government. We must therefore act with the utmost care.

As regards the protection of privacy, I would like to explain what the government considers to be the problems and how Bill C-3 represents, in my opinion, a solid and balanced approach.

I would first like to raise the issue of keeping the samples. Scientists have put forward solid arguments showing that biological samples must be kept for the genetic data bank to take advantage of future technological progress.

In addition, a forensic science expert from the RCMP told the committee last March that significant progress had been made in recent years in DNA identification technology. Smaller samples, including those found in decayed matter, can now be examined.

These technological advances prove that genetic analysis is clearly one of the most active and rapidly evolving scientific areas. With developments in the technology, today's DNA profiles could become outmoded.

Bill C-3 provides therefore that samples will be kept. Canada's national DNA data bank will thus mirror the technological progress made the world over, and Canada will be able to send DNA information for medical and legal purposes to other laboratories and data banks throughout the world.

The question of who will have access to the samples and to the DNA profiles arises. Drawing on the bill passed in July 1995 on warrants authorizing samples to be taken for DNA analysis, Bill C-3 includes protective measures and provisions on these samples.

Up to now, statutory provisions on warrants have withstood all legal challenges under the charter and have provided a solid basis for the creation of the DNA data bank.

Bill C-3 therefore contains strict rules on biological sampling and DNA identification and on the retention of DNA profiles in order to protect personal information.

I repeat, personal information will be protected under this law. The RCMP will be responsible for the secure storage of all biological samples. Access to DNA profiles and samples will be limited strictly to those responsible for the operation and maintenance of the data bank.

So that information is not misused, the bill provides explicitly that only the name associated with the profile will be supplied to police authorities during criminal investigations.

The bill also makes it an offence under the Criminal Code and the DNA Identification Act to misuse any profiles or samples and provides for criminal sanctions against offenders.

The DNA data bank will respect the right to privacy of all innocent people at the crime scene or of law-abiding citizens who volunteer to provide DNA samples to the police.

In fact, the bill contains provisions for the destruction of information in the crime scene index pertaining to a victim or individual no longer considered a suspect after a police investigation.

This is an important safeguard designed to ensure that the data bank does not contain the DNA profiles of innocent people.

The bill also allows those required to give samples to state their preference as to the bodily substance to be taken.

The police must take these preferences into account, but are not in any way obliged to act on them, being required to consider other factors as well.

For instance, the Ontario Court of Justice ruled that the taking of hair samples violated charter provisions, and forensic experts said that blood was best suited to DNA analysis.

Bill C-3 accordingly leaves it up to the police to decide on the most suitable samples to be taken.

Clearly, the bill has been drafted with extreme care. The Government of Canada is convinced of its ability to strike a balance between public safety on the one hand and the protection of privacy on the other. In addition to the protective measures and sanctions set out in Bill C-3, there are other mechanisms aimed at guaranteeing that the bill will be applied in such a way as to maintain that balance.

Once the data bank is in operation, the Privacy Commissioner will be able to carry out an audit at any time. He is already authorized by the Privacy Act to monitor the use of personal information in the hands of the federal administration.

In addition, Canadian forensic laboratories are in the process of drawing up accreditation standards. Once these standards are in effect, forensic laboratories can be audited by an independent body as well, in order to guarantee compliance with internationally recognized quality assurance standards.

There are already provisions, such as those in the Privacy Act, to ensure that information, including DNA information, cannot be provided to another country unless an agreement is in place with that country. The Privacy Act also prevents personal information from being provided to another country for any purpose other than law enforcement or investigation.

When the RCMP becomes responsible for the DNA bank, its operations will have to comply with RCMP internal standards, and these, I am proud to say, are among the most stringent in the world. In addition, the RCMP works in close collaboration with a number of international groups and committees in this area, including the FBI-sponsored Technical Group on DNA Analysis Methodology which provides Canada with state of the art technology and makes it possible for our country to ensure that its standards are in line with those in effect elsewhere in the world.

I would now like to explain to you why sampling must be done at the time of sentencing, not at the time the person is arrested or charged, as some have proposed.

We have looked into this matter in great detail, both in the Standing Committee on Justice and Human Rights and as a government. During consultations on the bill, and during the committee hearings, many individuals and groups of experts told our government most emphatically that sampling at the time of arrest was problematical.

DNA identification alone rarely leads to a conviction. In fact, crime scenes do not always yield DNA evidence. A number of factors—alibis, motives, fingerprints and eyewitness statements—are taken into consideration in criminal cases. However, in the face of insistence by the police community, which asked it to consider the possibility of amending the bill, the government consulted legal experts to find out whether samples could be taken without a warrant when an arrest is made or when charges are laid without contravening the provisions of the Canadian Charter of Rights and Freedoms.

Three eminent former justices of the courts of appeal of Quebec, Ontario and British Columbia considered the matter in an independent investigation.

They unanimously upheld the government's position. Under the law, taking samples during arraignment would contravene the provisions of the charter.

I repeat, taking samples when charges are laid would contravene the provisions of the charter. In Canada, the accused is presumed innocent and must be protected from all unreasonable searches or seizures.

Let there be no doubt on this point. The government must continue to act cautiously and with forethought in this matter. We want to take the approach most favourable to all Canadians.

It serves no purpose to intrude in the personal privacy of everyone arrested, when genetic imprints may not even be necessary. There is no point pondering this question further when the legal experts have told us on many occasions that there would be too great a risk of a challenge under the charter.

Finally, we cannot endanger the establishment of a genetic data bank—whose purpose is to better serve Canadians—by being over zealous.

Sampling at sentencing will permit the effective application of legislation and protect individual rights during a criminal investigation.

Let us therefore pass a bill that will be effective rather than a text that will surely not stand up to court challenges. The police know how easily the Constitution is used to dismiss charges.

I think that all members will share my view that it is contrary to public safety to have cases thrown out on technicalities.

It is therefore up to all members to play a constructive role in creating a DNA bank that will strike a balance between protection of the public and privacy rights under the charter.

We are obviously on the right track in our fight to protect Canadians against crime. With Bill C-3, I believe that our government has struck the right balance.

I therefore have no hesitation in supporting this bill and I recommend that all my colleagues in the House do likewise.

[Judi Longfield, Liberal, Whitby—Ajax, ON]

Madam Speaker, I am pleased to rise and speak on Bill C-3, an act respecting DNA identification and to make consequential amendments to the Criminal Code and other acts. I would also like to commend my colleague, the hon. member for Guelph—Wellington, the Parliamentary Secretary to Minister of Labour. I agree with almost all the comments she made during her presentation this morning.

This bill represents the second phase of the government's DNA strategy. The first phase, Bill C-104, was put in place two and a half years ago when amendments were made to the Criminal Code to create a DNA warrant system. That system provides for a provincial court judge to issue a warrant allowing police to collect samples of bodily substances when a person is suspected of committing a designated offence.

We heard from those on the front lines who tell us that the use of DNA evidence has been a very powerful investigative tool. It is already proven to be one of the most accurate methods of obtaining solid identification in criminal investigations.

The warrant system is working well. I remind members opposite that it can be obtained on arrest and charge. With reasonable and probable grounds warrants will be issued.

The second phase of the DNA initiative further demonstrates that the government is committed to fighting crime, especially violent crime, as described in our safer communities agenda. For the benefit of those who may not be familiar with this bill I would like to take the opportunity to outline some of its major components.

This bill provides the legal authority for the RCMP to set up and maintain a national DNA bank. I know that all members of this House support the maintenance of a DNA bank.

This DNA databank will consist of two indices or databases. The first database is called the crime scene index and will contain DNA profiles from bodily substances found at the scene of a crime.

The second database which is known as the convicted offenders index will contain the DNA profiles obtained from persons convicted of certain crimes. Police will be able to cross reference information in one index and help one another to solve the unsolved crimes. Hundreds of victims and their families who thought they would never see justice done will find the justice they seek through this legislation.

I am supporting this legislation because it is preventive in nature. At the committee hearings Chief Brian Ford, chair of the law amendments committee of the Canadian Association of Chiefs of Police, said:

Madam Chair, members of the committee, we support Bill C-3. This is important legislation and we encourage you to favourably recommend its passage to parliament. Bill C-3 is unlike other criminal legislation because it is fundamentally preventative in nature. This makes Bill C-3 very special.

The theory of prevention in Bill C-3 is that when a person actually knows that his or her DNA has been recorded this person is unlikely to reoffend, knowing that the prospects of detection and conviction are so high. This deterrent is pure prevention.

So in passing this bill, parliament should know that it is preventing crime, not just giving police more tools to investigate.

I agree with Chief Ford. Should the prevention of crime not be our first responsibility as law makers? Our police forces need this bill. I am an ardent supporter of the police and I am supporting this legislation because it gives them the tools necessary to fight crime and keep Canadian communities safe. I know, and as I have said before, all Canadians agree that we need a DNA databank in Canada.

I quoted Chief Ford and I would not want to mislead members of the Canadian public. While Chief Ford indicated that this bill was worthy of support, he also was very forceful in indicating that the police associations feel it does not go far enough. I have felt this also. I believe there is some merit to what they are saying but as the member for Guelph—Wellington pointed out earlier, have to be very mindful of our Canadian Constitution. I am not willing to put the excellent aspects of this bill in jeopardy through a constitutional challenge. I think that is something we need to work out.

The main disagreements that have been articulated by Chief Ford, Scott Newark, Neal Jessop, members of the Canadian police associations arise when we are talking about when DNA samples are collected. I think there is a certain amount of merit in being able to say that when there is probable cause, whether the person has been convicted or not, the collection of DNA samples may be proper.

I remind members of the House that currently as a result of the first part of legislation talking about DNA, this is available to police. It is not automatic as they would wish but if they could show probable cause, then the police are able under the current warrant system to collect the DNA samples they feel they need. They can be run with the inclusion of this new bill through a DNA bank.

Currently police will tell us that the warrant system is working very well but it lacks one major component and that is the actual creation of a database. Bill C-3 creates this database that will allow police to take what has already been working well, the warrant system of collection, one step further.

Members of the police association and others, most particularly members of the Reform Party, argue that the scope of offences for automatic DNA data banking should be expanded. I think they have valid concerns. I would like to see the scope of those offences for which automatic DNA testing is done expanded.

While I have a great deal of sympathy, I do not feel that the concerns raised are enough to provide opposition to the bill. The creation of the data bank is vital and this bill brings it to fruition. We need to support it and, as legislators, we need to work with the police and other law enforcement agencies to strengthen the bill in the future. However, I think we have to do it one step at a time. I would hate to see the bill thrown out simply because it does not go as far as some people would hope.

I would like to examine the proposal that DNA sampling is no different than collecting fingerprints. I would argue very fundamentally that while the actual process may not seem intrusive, the data collected is very different from that of a fingerprint. A fingerprint is one form of identification and it is very narrow in its scope. Once we have collected a DNA sample, then a person's entire genetic make-up is available for one and all.

This also raises other concerns. I have reviewed much of the testimony that went on at the committee meetings. I would remind members that this debate is not one day in the House of Commons. This has been going on for a long period of time. The scope of the committee has made it possible for all members from all parties to talk to the minister and to cross-examine witnesses.

They have raised some very valid points, but I continue to say that as much as I support many of the points and would like to see this bill go a lot further, that is not sufficient to delay passage of a very important tool in the hands of police authorities.

Madam Speaker, how much time do I have left?

[The Acting Speaker (Ms. Thibeault)]

Eleven minutes.

[Judi Longfield, Liberal, Whitby—Ajax, ON]

Madam Speaker, I will not be using all of the 11 minutes remaining.

The results of DNA testing could bring some very difficult questions forward. If as a result of DNA testing it was discovered that someone had AIDS or another communicable disease, what is the liability of police enforcement agencies or those taking the samples to then get that information out? This raises some questions that need to be dealt with.

There have been some very critical issues raised. I am a strong supporter of giving police the tools they need to protect us because that is the role of law enforcement agencies. However, I would remind members that as legislators it is important that we also protect the rights of the innocent. One of the pillars of our justice system is that everyone is innocent until they are proven guilty. We have to remember that.

This is something that we need to continue to monitor. I think it is worthy of continued debate as we go along. I would like to congratulate the members of the committee. I hope that all members of Canadian society realize that we on the government side are very concerned and want to see things progress in a fair and logical way.

I will now turn over the remainder of my time to my colleague, the hon. member for Mississauga West.

[The Acting Speaker (Ms. Thibeault)]

Colleague, I am afraid it is too late for you to ask for that privilege as you went over the 10 minutes allotted to you, unless you would like to ask the House to agree unanimously.

[Judi Longfield, Liberal, Whitby—Ajax, ON]

Madam Speaker, when I asked how long I had and you said 11 minutes, I assumed you thought I was taking 20 minutes. I have 10 minutes left in the 20-minute allotment, the other 10 to go to my colleague. If it requires unanimous consent, then I would ask for unanimous consent.

[The Acting Speaker (Ms. Thibeault)]

Is there unanimous consent to proceed as such?