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.