Debates of Sept. 29th, 1998

Division No. 230

[Some hon. members]

Agreed.

[Steve Mahoney, Liberal, Mississauga West, ON]

Madam Speaker, I must admit that I am somewhat surprised there was unanimous consent, but I am also appreciative of it.

This is really a fundamental Canadian issue and I think we should look at it from that perspective. I appreciate some of the concerns that some of my colleagues have expressed on this side of the House, as well as in opposition, about the timing of the collection of DNA material and the issue surrounding whether or not it should be available upon charge or only upon conviction. I appreciate that there have been concerns expressed about that and much of the debate around this whole legislation has been on the timing issue.

There is something very fundamental about Canada and it is probably one of the main reasons we continually get rated as the best country in the world in which to live. I know some members, particularly members opposite, get tired of hearing us talk about that, but it happens to be a reality. One of the fundamental reasons that we achieve that success, that rating in international circles, is the fairness that exists in our laws.

They are not perfect. There is no question that if allowing the police to gather DNA evidence on every charge would prevent certain crimes from occurring, then one would say, from a common sense perspective, not necessarily from a legal point of view or a constitutional point of view, that that might have some merit. I understand that. But when one balances that with the basic premise that innocence is clearly one of the rights in our justice system, until proven guilty, how far does one go? I guess that is the real issue that the government is wrestling with, that human rights activists wrestle with, that lawyers and obviously parliamentarians wrestle with.

This particular bill will go some distance toward ensuring that at least those who are convicted of a crime—and this is critical—will have information in a data bank. I think that will help in terms of repeat offenders or those who have served their time and paid their penalty to society. The data bank is there to help the police in their investigative process.

I think that one of the most important fundamental aspects of this is that it will provide a balance for police forces, both the national force and local forces right across this country, to access information and to access it quickly.

Who among us would not like the opportunity to prevent some of the tragedies we have seen in the past, such as the Bernardo case and the Homolka case? However, in that particular case would a DNA bank with information filed upon a charge have assisted the police? In fact when hon. members study the entire case they will note that the arrest was not made and that charges were not filed, so there would not have been an opportunity to know in advance or to have this information on file in advance. Upon conviction is a totally different story.

Could we think for one minute about filing this information upon arrest or upon charge? That would be the other point. Should it simply be done upon an individual being detained? What do we do concerning people coming into this country? There is potential for abuse when someone is held in detention and a DNA sample is put in the data base to be compiled in some central bureaucratic computerized storage compartment and used in whatever capacity. The potential for abuse is serious. It is not a step we need to take.

[An hon. member]

That's a red herring.

[Steve Mahoney, Liberal, Mississauga West, ON]

It is not a red herring. The member opposite said that it is a red herring. That is one of the differences in this country. It is one of the reasons we are judged to be such a well balanced country. We do not knee jerk. We do not have an over reaction or a simplistic solution.

The national data bank proposed in this bill will help police to better protect Canadians. Will it solve all the problems? No. But it is time we used the technology and the modern method of collecting this data to help police do their job. We believe that this may not be a panacea, that in a simplistic world members of the Reform Party might think this would be an easy way to target everybody, to number everybody, to put all their data into a file. I do not want to be an extremist or a radical by using terms like police state because I do not think it applies, but I really think that we have to analyze the benefits and the purpose of data collection.

The Criminal Code already allows police to take a DNA sample from a person at the time of charge or any other time as long as they first obtain a warrant to do so.

If we want to talk about red herrings, let us go back to the debate on gun control which members opposite love to do. The issue they like to fly is that the police will be able to knock on doors at any time they want, day or night, because they suspect the person might have a loaded pistol and want to do a full search. Members opposite know that is not true, yet through their association with the American gun associations and the gun lobby in general they continually put out this kind of information. It gets people all excited and whipped up. We saw the demonstration on the front lawn of Parliament Hill last week.

The amount of misinformation about issues like that is quite astounding. Members opposite know there is a requirement for a warrant to be issued, or you open your door and allow them to come in. There is none of this jackboot mentality where police officers can show up at three in the morning, kick the door down and run into the homes of law-abiding Canadian citizens.

In this case there is a definite comparison. The DNA sample could be taken if permission were granted. Perhaps that issue could be dealt with. Clearly, the sample can be taken if police obtain a warrant to do so. What is involved in the process? The police must go before a judge, a man or woman that I presume the Parliament of Canada has some faith and trust in, to seek a warrant to collect the sample at the point of a charge being laid.

I really believe that innocent until proven guilty is one of the fundamental tenets of democracy and freedom in Canada. That does not mean that in any way whatsoever we would condone or be soft on crime. Quite the opposite. Some of the changes in the justice ministry of this government are absolutely groundbreaking, precedent setting and are saying to criminals that we are not prepared to allow them to take control of our streets and our communities. We are going to be tough.

This bill will put in place a data collection system for DNA samples taken appropriately, taken in fairness and taken in justice. It will ensure that Canada is still a wonderful, safe, free and democratic country but with strict rules. We will fight crime with this legislation and other bills as they are needed.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Madam Speaker, does the member understand what is in the bill? I believe I heard him just say that the bill would allow for DNA samples to be taken at the point of the charge being made. In fact the problem with the bill is that the DNA sample, as he should know, will be taken at a time of conviction.

The reason I said red herring a couple of minutes ago is very straightforward. He was trying to make out that anybody who is held, like for example the student who was held by the RCMP at the APEC fiasco for 14 hours, would have his DNA taken. I believe the example he used was that when somebody comes into the country, perhaps through the refugee process and is being detained, the DNA sample would be taken. That is why I said his comments were a red herring.

What we are asking for, what the Canadian Police Association is asking for and what any responsible, reasonable Canadian is asking for is that the DNA sample be taken at the time of a charge, not as the member was putting forward as though there would be a DNA sample taken just because a person was taken into custody and held for a period of time.

The conclusion of his speech was quite enlightening when he referred to the concerns there are about Bill C-68. I am saying that there will not be a jackboot mentality and that the police will need some probable cause for the terribly onerous law and the provisions in Bill C-68. His justification of that is exactly the justification that we make for having the DNA sample taken at the time of charge. I believe the police forces in Canada are typically very responsible in the way they enforce the law.

For him on one side of the coin to say it is bogus, that the police will not be doing things under Bill C-68, under the so-called gun control law, and make a case for that is to make a case for our point that in this instance the samples should be taken at the time of charge.

How can the member square the round peg he has created?

[Steve Mahoney, Liberal, Mississauga West, ON]

Madam Speaker, I appreciate the comments but as usual the member and some of his colleagues tend to be rather selective in their hearing process.

I did not say at any time—and Hansard will so record—that this bill allows the police to take DNA samples. I said the Criminal Code of Canada already allows police to take a DNA sample from a person at the time of charge if they have a warrant. That is the critical distinction the member so easily overlooked.

The point is that we are creating a framework for storing DNA samples and for using that information in the investigation of serious criminal offences. If a convicted criminal—and I emphasize the word convicted—reoffends and his DNA samples are in a database, the police will be able to identify the perpetrator at the crime scene through the use of modern technology and the database of DNA samples. They will know who they are looking for. If that person was convicted, is now out either on parole or has completed a sentence and reoffends, it will allow the police to use this facility to expedite their investigation dramatically.

The member opposite should not try to interpret my comments in this place in any way other than the spirit in which they were given, which is that innocent until proven guilty is a fundamental tenet of the Canadian justice system and one that I support.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Madam Speaker, this bill is very interesting in that it has direct connection to Bill C-68 and section 745, which was to change the whole issue as to when a convicted murder could apply for parole. Bill C-68, section 745 and DNA are all inextricably linked in a pattern. The government has shown us that it is weak-kneed when it comes to making streets safe for law-abiding Canadian citizens and to protecting Canadian citizens and their property.

In my judgment the most contentious part of this bill lies in the comments of the solicitor general when he was before committee. He said:

Taking samples after an offender has been convicted of designated offence balances our concern for the safety of all Canadians with our need to respect the rights protected by Canada's Charter. We cannot ignore that the accused has the right to be presumed innocent and protected from unreasonable search and seizure.

The speakers this morning have been waxing rather eloquent. They have said that taking these samples would “undermine human dignity”. I am not sure what that meant, but that is what they said. Another speaker said that it would not only be unconstitutional but un-Canadian.

Hyperbole or extreme statements are sometimes part of the rhetoric in the debates that happen in the House, but for Liberal members to pretend for a split second that we are making extreme statements and calling this un-Canadian when they should be taking action to create safer streets and protect victims and society at large is a bit thick.

Let us take a look at the connection between Bill C-68, section 745 and DNA. In the Bill C-68 issue I note that Liberals go out of their way to constantly quote the Canadian Police Association. At the time when debate on Bill C-68 was at its peak, the Canadian Police Association, after much internal wrangling, decided that it would come out in favour of and in support of Bill C-68.

It was interesting that at exactly the same time there was also a debate with the former justice minister who is now Canada's Minister of Health. The former justice minister also had on his plate demands from Canadians at large that section 745 of the Criminal Code be repealed. Section 745 permits a judge to say, as a consequence of a first degree murder, that the person has been convicted of first degree murder—we must remember it is premeditated murder—and as a consequence sentenced to 25 years or life.

The public at large assumes that means 25 years. How wrong they are. The judge may even say as a result of a particularly heinous crime that it is with no chance of parole for 25 years. Again wrong. Because of the historic soft-headed approach of the Liberal government going back to the time of Warren Allmand who brought this in during the late sixties, the whole approach has been to say maybe the presiding judge did not know what he was talking about or maybe the person has changed over this last period of time.

Under section 745 the murderer convicted of first degree murder is permitted to apply for parole after 15 years. The justice minister at that time brought forward a half-hearted motion, which unfortunately was passed, where if persons were convicted of more than one first degree murder they could not apply. However, if it was just one first degree murder they could apply.

I believe the leaders of the Canadian Police Association at that time were really upset by this half-hearted measure to take away section 745. I believe they were influenced by the justice minister saying that if the association would give him its unqualified support for Bill C-68 he would see what he could do about section 745.

That is pure speculation on my part because I am sure I do not know what was going on behind closed doors. It strikes me as passing strange that no matter whom I spoke to in the Canadian Police Association, particularly members in the lower levels, they were all saying that the application of Bill C-68 and the cost of the useless registry was a stupid way to spend money. Yet they flipped and said they supported Bill C-68.

Historically the government has said its support for Bill C-68 comes from the Canadian Police Association. The Canadian Police Association knows what it is talking about. Whether the Canadian Police Association was influenced or not by some behind the scenes talk about section 745 we will never know.

It is interesting that the same Canadian Police Association which the government quotes in support of Bill C-68 had this to say about Bill C-3 in a letter dated September 16 to members of parliament. The signatory, Neal Jessop, the president of the Canadian Police Association, wrote:

I am writing to you in relation to Bill C-3 and the creation of a national DNA data bank. As you know, Bill C-3 is awaiting third reading and it is our understanding that it will likely pass such a stage shortly after parliament resumes this fall.

The Canadian Police Association represents approximately 35,000 frontline police officers across Canada. It is because of our practical, hands on experience that the government has come to rely on our advice on issues such as gun control, search warrants and parole reform. It is the same experience that leads us to the conclusion that Bill C-3, as currently drafted, is seriously flawed, and will needlessly allow Canadians to be put at risk.

The CPA has lobbied for the creation of a DNA data bank for many years. Since the beginning, we stressed the important impact a bank could have on public safety, a goal that we worked towards every day whether it be on the streets or on Parliament Hill. We said then, as we say now, that for this initiative to work samples must be taken from suspects when arrested. In doing so, we will maximize the potential crime prevention aspects of the bill which is a goal we all share.

Let us be clear. A properly structured DNA data bank will save billions of dollars, but more importantly it will save lives and significantly reduce victimization. This, in our opinion, should be the goal of any criminal justice legislation the government passes. As an elected official, this should be your main consideration when you are called upon to vote on Bill C-3.

Consider the following scenario. In the Ottawa area, there are currently a number of unsolved outstanding cases of homicide or sexual assault. Assume that a person is arrested for a break and enter and, unknown to the police, is responsible for some of those unsolved crimes. Like 90% of all offenders, this individual is released on bail without DNA samples being taken (if C-3 is enacted). Knowing that he faces detection on the other charges if he returns, the offender flees to B.C. and a warrant for break and enter is issued by the Ottawa court. Two months later he is picked up on other matters by police in B.C. who check CPIC and discover the existing B and E warrant. When they check with Ottawa to see if he should be returned, the answer according to today's practices will be no. Remember that police do not know whom they are dealing with.

Any woman this individual encounters will be at risk. This is unacceptable because it is entirely preventable. While this may be a mere anecdote for some, it is a reality for us.

This issue is paramount to Canadian police officers, and by virtue the CPA. We have obtained an independent (unlike the hand picked judges who wrote decisions supporting the government's position) legal decision that states our position on this issue is constitutionally sound. We attempted to work with the Department of Justice and they were unable to understand the significance of our position, perhaps because they have never had to look into the eyes of a sexual assault victim or a grieving family member. We now turn to you, our elected representatives, to do what is right for Canadians. If you choose not to, we as police officers will be forced to explain to that grieving family member that his or her government had the information and the ability to prevent such an act of violence, but they chose not to.

Do not underestimate the importance of this issue to the CPA. We are not, and never have been, averse to take every public opportunity to inform the public when the government creates and passes flawed legislation. We will do that again regarding Bill C-3. We will make sure that Canadians understand that their government is risking their lives. We will make sure that if one of your constituents is harmed because of this flawed legislation, they will know who to ask for an explanation.

Please accept our offer to work with you and develop legislation that would enhance public safety and still remain constitutionally valid. Despite contradictory rhetoric from the Department of Justice, it is an achievable goal. As an MP, we urge you to take this opportunity to come to your own conclusion, not that as dictated by the Prime Minister.

This is the same organization that this government chooses to quote in support of its flawed Bill C-68. I ask members very simply, if the CPA is right, and I do not believe it is, but if the CPA is right in its support of Bill C-68 and if the government is going to continue to quote that source, why will the government not quote the source, the CPA, and the CPA's position on Bill C-3?

It is because the Minister of Justice and the Solicitor General, working under the Prime Minister of Canada, are taking directions from him. He has said that this bill will pass as it presently is. It is a real shame that there is not the ability within our parliamentary process as currently constructed by the Prime Minister for there to be legitimate dissent within his own ranks. It is a real shame that the Liberals are whipped into a position by the party whip to make sure that they vote that this ineffective bill will end up passing.

For someone to say the bill is unconstitutional is an opinion that may be backed up with some fact. But to call the bill un-Canadian when the purpose of the bill, of taking the DNA sample upon charge, is going to give us the opportunity to interdict people and create a situation where we can return them from various jurisdictions as required, is beyond my ability to comprehend.

To show how the spin works, it was interesting that about six weeks ago the spinmeisters for the Liberals were going on about the fact that if we take the sample and we actually conduct the lab tests, it is going to be far too expensive. It is going to cost $5,000 each.

I find this number to be somewhat suspicious. I say that because this is the same government that told us in order to come up with the registry program on Bill C-68 that the cost was only going to be $85 million, whereas now it is actually admitting that it will cost at least a quarter of a billion dollars.

The Liberals got everyone on side with the $85 million. For Liberals a million here, a million there pretty soon adds up, but it was only $85 million. They got a fair number of people on side with that lowball number.

Either the government was incompetent and did not realize how much this useless registry is actually going to cost, or it was not giving Canadians the facts required to know that it will cost at least a quarter of a billion dollars. As a matter of fact, estimates are in the neighbourhood of $1 billion to $1.2 billion for this registry program.

If the government can fudge and exaggerate the figures on the justification for the registry program under Bill C-68, I can imagine what it is doing to scare people off with a high figure on being able to actually conduct the lab work when the sample is taken. We can see there is within Canada, as there should be, a fair lack of trust of the numbers the government chooses to use to justify its actions from time to time.

It is a shame when Canadians who the justice minister herself said are concerned about their safety on the streets. The justice minister herself has said that Canadians are losing confidence in Canada's justice system. As a matter of fact I choose to call it Canada's legal system. We have to get some justice back into it.

Canadians have lost faith. To those who still believe there is some hope the Liberals will come around and actually work to put the protection of law-abiding Canadian citizens, their well-being and their property ahead of the rights of criminals, I have a bridge in Brooklyn I would like to talk to them about.

This bill will be passed today because the Prime Minister has said so. Shame on the Liberals for being whipped into shape to pass this bill as presently constructed.

[Marlene Catterall, Liberal, Ottawa West—Nepean, ON]

Madam Speaker, the member is probably right that this bill will be passed. However it will be passed today not because someone has dictated from on high but because Liberals want to see a DNA bank in this country to improve the enforcement of the laws against criminals who perform acts that are contrary to all decency and humanity.

The Reformers obviously do not want to see that type of a system because they have made it clear they intend to vote against the bill.

I would like the hon. member to make a comment. I too have discussed with the Canadian Police Association that it would like the legislation to allow samples of blood to be taken before someone is convicted. I have a big concern with this and would like the member to comment on it.

What do we tell Canadians 10 years down the road if this legislation, with that provision in it which is constitutionally risky, is challenged and defeated in the Supreme Court of Canada? The result would be that 10 years of convictions of possible murderers and sexual assaulters would be overturned. There would be nothing we could do to go back and recoup those convictions which had been based on what the courts in ten years might decide was tainted evidence.

I want a DNA bank so we can deal with those horrendous crimes. I am not prepared to risk 10 years of convictions. And I am not prepared to vote against the bill because it does not have a provision in it that would do that.

I wonder if the hon. member would comment on that.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Madam Speaker, I really respect the intervention by the member. I know she feels very strongly that way. I commend her for her conviction and I know she is sincere.

It strikes me that within the criminal justice system many aspects of it are handcuffed by virtue of our Canadian Charter of Rights and Freedoms. The vast majority of Canadians highly value that document, as they should.

The difficulty is that the Canadian charter in some instances does get in the way not only of good law, such as this would be in strengthening this DNA data bank, it even gets in the way of Corrections Canada. The inmates are running the show as a result of the charter of rights. There is going to have to come a day when, and perhaps this bill would be as good a one as any, whether we call it the notwithstanding clause or whatever is brought into effect.

The charter with all of its good points has unnecessarily handcuffed the ability of peace officers, whether they are in Corrections Canada or are police officers, from being able to do what is fair and reasonable. We therefore have a charter industry populated by some very expensive, hundreds of dollars an hour lawyers who are constantly digging this thing up and taking things apart.

It strikes me that the safety of the people of Canada, their families and their property should come before these other considerations. I realize and admit that this is a rather extreme statement, but we have to reach a point where we are going to have to ask who comes first, the criminal or the law-abiding citizen?

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Madam Speaker, I listened to the previous question with great interest, even more so than the response by the hon. member.

This ongoing government position really astounds me. It reflects the charter constipation that seems to exist on the government side of the House when it comes to certain important pieces of legislation.

There is a fear that somehow these judges may decide to strike down a piece of legislation because hypothetically a lawyer out there somewhere in Canada lurking in the bushes might decide to challenge based on a constitutional infringement. That is absolutely asinine. I can guarantee that it will happen because that is what lawyers do. In this instance, with regard to this particular bill, to fear that this might somehow be challenged under a charter infringement is ridiculous.

My question for the hon. member is with regard to the use of DNA data banks and when and at what point in time should the police be permitted to take this piece of evidence and use it not only in the investigation they are pursuing but also use it in comparison to the DNA data bank that will eventually come into fruition.

Why would we in this House not pursue the goal to arm the police rather than to give them a toothless piece of legislation, one that goes to some degree in the direction that we want? Why would we not go all the way with DNA? Why would we in this House not like to give the police an opportunity to do their jobs, to do the very best they can to protect Canadians in their communities and to do the very best they can to raise the alarm and work toward a justice system that truly does reflect the will and desire to protect people in their communities?

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Madam Speaker, that is a very good question but I do not have a clue what the answer is. Look at the window dressing about Bill C-68 for example where the government keeps on claiming that it is going to make the streets safer. I am sure I do not know how.

Look at the chagrin, the problems and the pressure there was on the families of the victims of Clifford Olson when he went through that circus and those families were put through the excruciating parole hearing under 745. Just to keep the record straight, if the justice minister of the day had done his job in a timely manner, Clifford Olson would not have been able to put those victims on the spot the way he did.

I lay that completely at the feet of the former justice minister. Now we take a look at this DNA databank which is another half measure. I have absolutely no idea.

Let me state our position very clearly. The protection of the people of Canada, the law abiding citizens, their persons and their property must be the primary and paramount objective of this Chamber. Until we get rid of this bunch on the other side, I do not have any hope that is ever going to happen.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Madam Speaker, I could not help but notice that in the remarks by the hon. member there was reference made to Bill C-68. That bill can be compared to the faint hope clause because it really should be called the false hope clause. In fact, this bill is not going to do exactly what we are talking about here, protect law abiding citizens, because it is aimed specifically at law-abiding citizens.

What does the hon. member think or what is his party's position with respect to the application of the infrastructure that is now in place with respect to gun registration, the computer terminals, the hook-ups, the incredible spiralling cost that we now know exceeds $135 million or $134 million and is going to perhaps double again by the time that this is actually implemented, even with the delay that we have seen in anticipation that the Alberta Court of Appeal will strike it down some time within the next few days?

I wonder what the hon. member would say to the suggestion of applying this infrastructure, the computers, to the use of registering criminals under this new Bill C-3.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Madam Speaker, I think that is an outstanding idea, absolutely. There is going to be at least a quarter of a billion dollars uselessly spent according to the numbers provided by the Liberals on this useless so-called gun control program.

Taking even a small portion of that money and putting say, $100 million toward a proper DNA registry program is clearly the route to go. That is an effective and intelligent use of Canadian taxpayer money.

[Paul Devillers, Liberal, Simcoe North, ON]

Madam Speaker, I will be sharing my time. I am pleased to speak in support of Bill C-3 which proposes the creation of a national DNA databank which will be maintained by the RCMP.

There has been some discussion recently about the timing of the taking of bodily samples in order to supplement the databank. In my view this is an area which clearly demonstrates the great care that has been taken to ensure that the national DNA databank meets all constitutional requirements.

The focus of my remarks today will be on that one aspect of the bill, the timing of the collection of the DNA samples for the purpose of the national DNA databank.

Nowadays, law enforcement officials, both in Canada and throughout the world, are turning increasingly to DNA identification in the fight against crime.

But as the Ontario Court of Appeal recently observed in Terceira, it is important to remember that matching DNA profiles in the context of a criminal proceeding does not resolve the ultimate question of the accused's guilt.

It does, however, make it possible to establish important circumstantial evidence that can be considered along with other evidence in support of the crown's contention that the accused was at the scene of the crime and committed the offence.

DNA sampling is an important and powerful investigative tool. However, its intrusive nature has been clearly recognized by the highest courts in the land. As such, Bill C-3 must reflect the state of our constitutional law. In other words, the taking of bodily substances must be done in accordance with constitutional principles.

As originally introduced in the House, Bill C-3 stipulated that bodily substances would be taken after the person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act of a designated offence. Some organizations came before the committee to urge that the bill be amended to provide the police the authority in legislation to take DNA samples on arrest or at the time charges are laid similar to the authority they have to take fingerprints without prior judicial authorization under the Identification of Criminals Act. In their view there should not be the intervention of a judge to decide whether it is appropriate to seize the bodily samples.

The proponents of this proposal believe that if the police could take DNA profiles from persons charged with designated offences, the databank would be more effective simply because it would hold more DNA profiles. They question why it was necessary to wait for a conviction to take the DNA samples for inclusion in a national DNA databank when this was not the case in the United Kingdom. They also contended that the collection of bodily substances for forensic DNA analysis is no more intrusive on a suspect's privacy than is the collection of fingerprints.

At the same time, other parties came before the committee seriously questioning the constitutionality of this proposal and they presented firm views that the taking of bodily samples without prior judicial authorization constitutes a seizure that is likely to be unconstitutional.

On March 11, 1998 the committee heard from officials of the Department of Justice who had carefully reviewed the legal issues relating to this proposal and they stated that the taking of bodily samples from an accused constitutes a search.

Department of Justice officials also stressed that the supreme court has established a clear distinction between fingerprinting and the taking of physical evidence for DNA analysis. They argued that the court had assigned great importance to the invasiveness of the second type of procedure and had expressed its great respect for physical integrity and the individual's right to retain control over his or her bodily substances. in Borden, 1994, and Stillman, 1997.

Fingerprinting and taking bodily samples for the purpose of DNA testing are simply not the same and they cannot be equated. In other words, one should not contend that the taking of bodily substances upon arrest is constitutional on the basis that the taking of fingerprints in those circumstances has been ruled constitutional.

To permit the taking of such bodily samples simply on the basis of a police officer's belief that the person has committed a designated offence without complying with the requirements that there be prior judicial authorization would constitute a classic example of a warrantless search or seizure which would prima facie be unconstitutional.

Justice officials were not the only ones raising the point that there was a very strong possibility sampling at the time a suspect was arrested would be considered unconstitutional. The same reservations were expressed by the criminal section of the Canadian Bar Association, and representatives of the solicitors general of Ontario and New Brunswick, among others.

The opponents of the proposal were clear that it would have been inconsistent with existing constitutional authorities and would have jeopardized the viability of the national DNA databank. In the end on this issue the committee approved the bill as it had been originally drafted. The taking of samples would occur only following conviction.

However, that did not end the matter. The proponents of the collection at charge option continued to press for amendments to the bill at report stage to provide for the collection of DNA samples at the time of charge. In an attempt to make this more palatable it was suggested that the samples would not be analyzed until a person was convicted or unless that person failed to appear at trial.

Unfortunate statements were made suggesting that if the bill was not amended the legislation would be useless. Similarly it was stated that without these changes long unsolved crimes would never be solved. These arguments were intended to scare Canadians and could of course lead to the worst excesses all the way to the end justifies the means.

Not only was this wrong, it seemed to miss the point. Bill C-3 is not meant to allow warrantless searches for the purposes of supplementing the databank. Bill C-3 is meant to create a databank through appropriate, legitimate and constitutional means. It is a databank which can produce leads which the police can pursue in order to solve serious crimes without fearing any evidence resulting from such information would be found inadmissible at trial because it had originated from an unconstitutional search.

I said that these kinds of statements were exaggerated because they imply that the large number DNA profiles from dangerous criminals would be lost to the databank if they were not taken at the time of charge. There is a considerable difference between being charged with an offence and being convicted of an offence. Moreover, the very same DNA samples could be taken later in the criminal justice process under Bill C-3 from those persons convicted of a designated offence. The only advantage, therefore, considering that under Bill C-3 or the new proposal the bodily samples would not be analyzed until after the person was convicted, would be administrative convenience. This would not be sufficient justification to permit the violation of one's privacy and of a seizure of one's genetic material.

The truth is that under the scheme set out in Bill C-3 the police will be equally able to solve long unsolved crimes because the DNA analysis would occur only following the conviction in either case.

[Jim Hart, Reform, Okanagan—Coquihalla, BC]

Mr. Speaker, I listened with interest to the member's speech. The people of Okanagan—Coquihalla strongly support the taking of fingerprints in criminal cases. They also strongly support a relatively new technology, the taking of DNA samples when it comes to the possibility of solving a crime.

I challenge the member on the issue that these measures are intrusive. There are literally hundreds of unsolved cases of rapes and murders in Canada that police could go now and find the evidence if they were able to use the DNA system to solve these crimes. As the member has pointed out, that would work only if they are a felon or if they have had a criminal record before. That is the only way the Liberal DNA databank system is going to work, if it is a previously convicted felon.

I had to jump up when I heard another Liberal member stating that the Paul Bernardo case could have been solved sooner. Paul Bernardo did not have a criminal conviction. He would not have been in the DNA databank.

I challenge the Liberals on this. They are afraid of a constitutional challenge in the supreme court. The Government of Canada, if it did happen, should on behalf of the people of Okanagan—Coquihalla and other Canadians fight for a simple and very understandable rule, that the rights of law abiding citizens of Canada outweigh the rights of the perpetrators of crime or those accused of crime. Taking a hair sample or a saliva sample or a blood sample is not out of the question. To think it is is totally irrational and not serving Canadians.

[Paul Devillers, Liberal, Simcoe North, ON]

Mr. Speaker, it is exactly the rights of law-abiding Canadian citizens that the charter of rights is there to protect. Those are the rights of innocent people we are trying to protect from the invasion or intrusion of the taking of samples without any conviction and on suspicion only of a police officer or a crown attorney. The government is proposing in this bill that the samples be taken only after conviction so that the rights and liberties of those innocent law abiding Canadians are protected.

[Randy White, Reform, Langley—Abbotsford, BC]

Mr. Speaker, as we try to put some logic and common sense into some of the bills before the House, I hear once again from the government side the argument about the legal community and the Canadian Bar Association, but I do not hear the argument on behalf of victims, victims' rights and the law-abiding Canadian citizen.

I wonder what the member opposite thinks about the notwithstanding clause in the Constitution. Notwithstanding the comments he has made about the Constitution, why could this government not stand up for a change and say “Notwithstanding what we perceive might be a problem, we are going to proceed in this way and we are going to take DNA samples at the time we have an accused”?

[Paul Devillers, Liberal, Simcoe North, ON]

Mr. Speaker, once again I can see the Reform Party is engaging in lawyer bashing. It was joined by the hon. member for Pictou—Antigonish—Guysborough in a similar practice.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

I am a lawyer.

[Paul Devillers, Liberal, Simcoe North, ON]

That gives you a prerogative.

That is not the point. The point is that the rule of law applies, that due process applies. That may be inconvenient and it may get in the way of the plans and aspirations of the Reform Party in certain cases, which is joined by the Tories in this case. However, that is what the charter of rights is there to protect. Those are the rights of all Canadian citizens whom we are trying to protect.

Once a person is convicted, then certainly the DNA would go into the data bank. That will be a very effective tool for police in future crime solving.

[John Bryden, Liberal, Wentworth—Burlington, ON]

Mr. Speaker, I am glad to have the opportunity to speak in this debate. It gives me occasion to raise with all members what I think is quite an important issue which spins off from the debate about DNA sampling.

I will first address the DNA sampling issue as I see it. If I were on the other side of the Chamber and if I were listening to groups like the Canadian Police Association, I would indeed take the stand I hear from those on the other side. Fair is fair.

There are some good grounds for believing that if DNA samples were taken on charge there would be advantages in tracking down criminals and bringing more safety to our streets. I do not think there is any doubt that the more tools we can give our law enforcement officers, tools which they demand and want, the better they can carry out their jobs.

However, I must be frank with members opposite and tell them why I cannot support that position. I sympathize with what they are saying, but I cannot support it. And this is me speaking, not the government. The reason is that DNA sampling takes personal identification to a much higher level than just fingerprinting.

We heard people say earlier in the House that DNA sampling on charge is not much different from taking fingerprints. They said that taking fingerprints had not been a problem with respect to the charter of rights. Actually, there had been a problem. When the breathalyzer test procedure was first introduced it was challenged before the supreme court, which found that while on the surface it would appear that forcing people to give breath or blood samples appeared to be contrary to their charter rights, there was an element of reasonableness in the procedure, the good it did for society, which permitted the courts to uphold the principle of taking a breathalyzer test or a blood sample at the time of charge, or at least forcing them to be taken.

If we go from fingerprinting to breathalyzer testing to DNA sampling, we go into an enormous domain that goes much beyond simply blowing into a container. The problem with DNA sampling is that it is the ultimate fingerprint.

DNA sampling is based on the fact that each one of us as individuals contains unique sets of DNA markers on our chromosomes. Consequently, any sample is believed, at least so far science tells us, to be uniquely identifiable with an individual. One can see where this could be an enormous crime fighting tool.

But a DNA sample is like a tattoo that we all carry. All that has to happen is for an authority to peel away a tiny bit of skin, reveal the tattoo, put it on the record and there it remains.

This is where the difficulty comes about. It was only 55 years ago that a similar tattooing procedure existed in Europe. I do not want members opposite to get excited about this because I am not casting aspersions on their position. But the reality is that at one time in European history tattooing became a useful tool of the police forces to keep track of undesirables in society. These undesirables were Jews, gypsies and the mentally infirm.

We know where that led in the end. That led to a genocide that this world has not forgotten and I hope never will. It was a systematic genocide. It was conducted with the agreement of the state, using police forces.

The problem is that when we come to something like the absolute identification of us as individuals, we become that much closer to that type of state interference in our personal and private lives which led to the atrocities that finally occurred in Nazi Germany.

I am not saying that this could happen in Canada, although we have to always remember in a democracy that there is always the danger that if we allow the state too much intrusion into the privacy of the individual, into the identity of the individual, we run the very serious risk of becoming a cipher, of becoming a tattoo, and if the state or the police get a little out of control, then the rights of citizens can indeed be destroyed.

It is an ethical issue that disturbs me. I am not saying that a DNA sampling at charge is necessarily not the thing to do. What I am saying is that it is too early for us as as a parliament to make that grand a decision. We have to go out into the community and, over time, talk to the people who are concerned about ethics in society: talk to the church, talk to all those who are worried about the human dignity of being an individual, rather than a number. When we look back at the tattooing that was done during the period of Nazi Germany, what distresses us most is not just the death it led to, it is the fact that human beings were reduced to numbers.

I say that DNA itself is nothing more than a human bar code of the 1990s. Before we engage in using this as a tool for the police we have to have a very serious debate, not just with parliamentarians, not just with the police, but also with church leaders and others. I would think the Jewish community might have something to say about this whole question.

Nevertheless, the real point that I came before the House to discuss was not the DNA sampling because it is an ethical issue. I did not expect to change the minds of those opposite because they are charged to be in the opposition and to speak in opposition to government bills. But one of the things that disturbs me in this whole debate is that I, like every MP, received correspondence from the Canadian Police Association, lobbying heavily to have DNA sampling accepted at charge rather than after conviction. I have no problem with the Canadian Police Association lobbying for this because it is very concerned about successful law enforcement.

Where I have the problem is that the letter I received from the Canadian Police Association contained a threat. What it basically said was that if I as a parliamentarian did not agree with the Canadian Police Association, that if I chose not to—that is, not to support the position of the Canadian Police Association—the letter tells me that “we as police officers will be forced to explain to the grieving family members that his or her government had the information and the ability to prevent such an act of violence but chose not to”.

What is happening is that the Canadian Police Association has taken it upon itself, in this instance and in other instances, to apply political pressure on the people in this Chamber to do what the Canadian Police Association thinks is right.

Also I refer to the campaign that was conducted by the Canadian Police Association during the last election in which it took out huge billboards showing pictures of known murderers and compared those people to the local Liberal MPs who rejected the private member's bill that would have made retroactive the legislation regarding the faint hope clause. It would have made it retroactive so that no convicted killers could go before the early parole procedure which then existed. Our justice minister changed that provision but did not make it retroactive. The billboards occurred during the election campaign. They were propaganda and they lied.

During an election we accept a bit of stretching the truth. It occurs not only among politicians during an election, but among the special interest groups that back one political party or another. We accept that. However, what was happening in this case was that we had a police body engaging in an attempt to influence politicians.

This is an issue of great concern to parliamentarians. The British parliamentary tradition is that the legislators, the courts and the police are supposed to be separate. I cannot interfere in a police investigation or with the courts. The courts cannot interfere with the politicians, and so it should have been with the police. It has always been our tradition that the police do not attempt to put direct pressure on politicians.

This is now occurring in Toronto as well. The Toronto police association is attacking local politicians over their attitude toward the special investigation unit.

I suggest that this is a serious threat to our fundamental democracy in parliament and every parliamentarian has to be very concerned. The reason we have our own police force in the House of Commons and not a state police force, the RCMP or any other body, is because of the tradition that parliament has to keep the police and the military separate from politics. I hope the police association hears my remarks and considers very carefully what it has been doing in the past.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, it is very interesting to hear the hon. member opposite from the Liberal Party talking about the arm's length independent relationship between the RCMP and the Prime Minister's Office and government given the facts that are now being examined regarding the APEC summit.

My question specifically relates to this legislation. I was a member of the justice committee when we debated the bill at that level. We know that DNA evidence is inculpatory as well as exculpatory. It is evidence that can be used to free individuals, not only to convict them.

The debate over intrusiveness has drawn a lot of fire from both sides of the House. Intrusiveness for whom? Intrusiveness for an individual charged and arrested? I would think that many individuals in this country, given the opportunity to clarify the situation, would voluntarily want to give their DNA if they truly felt they had nothing to do with a particular criminal matter.

My question specifically surrounds the assertion that this type of evidence is going to protect Canadians to the full extent that it could, given the fact that if an individual is picked up on a charge in one part of the country, this legislation, in its current form, will not allow the police to take a DNA sample to cross-reference it to an outstanding matter to which there may be DNA evidence at the crime scene that was entered into the DNA data bank. This hypothesis was brought forward by the police community.

If an individual is picked up in one part of the country and charged with an offence, the police cannot take the DNA. If there is existing DNA at another crime scene, a murder or a rape, the individual will be released because presumably there will be no evidence to hold him based on the seriousness of that particular crime. We do not have returnable warrants in most parts of the country, so the person can then flee the jurisdiction and therefore be held unaccountable.

This scenario is a real one. It is something that will happen without a doubt.

I ask the hon. member to address that situation and tell us how that gives any assurance whatsoever to Canadians that this legislation goes far enough to address that.

[John Bryden, Liberal, Wentworth—Burlington, ON]

Mr. Speaker, the hon. member was so lengthy in framing his question it was difficult for me to follow it. The danger with extending the legislation as proposed by the opposition to taking samples upon charge is that it would encourage police to go on a fishing expedition.

We have to protect the rights of the people who may be assumed to be the type that would commit crimes. We believe in this country that you are innocent until convicted and we must not lose sight of that. We must be very careful on how wide a mandate we give the police as far as their powers of arrest are concerned.

[Jim Hart, Reform, Okanagan—Coquihalla, BC]

Mr. Speaker, I think Canadians in general listening to the member's comments that somehow Nazi Germany and tattooing are associated with DNA testing would think that is a stretch. I think it is totally irrational.

On this side of the House we will continue to fight for increased health care so people can get the help they so desperately need. I think that is a principle we can all agree with.

I question whether seizing DNA is really an invasion of a person's privacy. DNA samples is like the member said, it is using a series of numbers from the chromosomes to make an identification.

It is very similar to fingerprinting, for instance. The difficulty here is that you cannot see that it is very similar to fingerprinting in that sense because it is more precise. It is the new technology we have available today and Canadians believe it should be used to solve crime. It is probably one of the best tools we have.

Why does this government continue to mislead the public in suggesting that this is an invasion of a person's privacy when it is not? It is a sample of hair or saliva. It is not going to give any information except whether that person matches the DNA found at a crime scene. It does not talk about their mental health, their health in any other way or release any other personal—

[The Deputy Speaker]

I am afraid the time for questions and comments is about to expire. The hon. member for Wentworth—Burlington can have a brief reply.