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.