Mr. Speaker, despite the terrible way I sound this morning, I would like to be able to give you my message to the end. I am counting on the co-operation and indulgence of yourself as well as my colleagues so that I may manage to do so properly.
Bill S-10, with which we are dealing today, addresses a most interesting and timely subject, DNA evidence.
DNA is located in the nucleus of human cells and contains each human being's genetic code. In fact, each of us has a personal genetic code, with the exception of identical twins. A person's DNA yields his or her genetic fingerprint. For law enforcement officers and lawyers, the advancement of science in the area of genetics is an indispensable tool for solving crimes, that is for finding the guilty parties and clearing innocent ones.
Before addressing the main thrust of Bill S-10, an act to amend the National Defence Act, the DNA Identification Act and the criminal code, I would like to provide a brief overview of Canadian legislation as it applies to the sampling of bodily substances.
Before 1995, the criminal code included no provisions allowing bodily substances to be sampled for genetic analysis on individuals suspected of a crime. Police officers did, nevertheless, collect bodily substances for genetic analysis purposes on accused individuals. This practice was challenged before the courts under the provision of the Canadian Charter of Rights and Freedoms, which provides protection against unreasonable search and seizure.
The decision in Borden by the Supreme Court of Canada in 1994 is an example of this. In this decision, the Supreme Court of Canada clearly says that the taking of bodily substances constitutes a search and seizure. Unless permitted under the law or unless the accused validly agrees to it, it is to be considered abuse. In this instance, hair and blood samples were taken from an accused in connection with an offence involving sexual assault. Since no legislative provision authorized this seizure and the agreement of the accused had not been obtained validly, the supreme court declared the seizure illegal.
This decision moved parliament to legislate in this area in order to respond to the constitutional requirements set by the Supreme Court of Canada. At the time, Bill C-104 added a section entitled Forensic DNA Analysis to the criminal code. These provisions have established the conditions and procedure to be followed for obtaining a warrant to entitle a Canadian peace officer to collect bodily substances for forensic analysis purposes from individuals suspected of having committed certain serious offences.
In 1997 the government decided to go further in the area of collecting bodily substances by introducing Bill C-3. The bill was passed by the House of Commons on September 19, 1998 and the new provisions contained in it are to come into effect in June 2000.
In the future, in addition to the taking of bodily substances when an individual is suspected of a crime, samples of bodily substances may be obtained from people already found guilty of designated offences in order to include them in the DNA data bank.
Indeed, Bill C-3, the DNA Identification Act, created a national DNA data bank administered by the RCMP. That bank will include a crime index containing genetic information collected at the scene of a crime.
It will also include an index containing the genetic identification profiles of adults and teenagers convicted of specific offences under the criminal code. This will help police compare DNA information found at a crime scene with the profiles of suspects and convicted offenders, the objective being to find the guilty party as quickly as possible, with the smallest possible margin for error.
Offences for which the taking of a sample may be authorized are called designated offences in the act. These offences are included in the criminal code and they are classified in the act as primary designated offences or secondary designated offences.
For example, for the purpose of the taking of a sample, murder, manslaughter and sexual assault are primary designated offences, while piracy, assault and dangerous driving are secondary designated offences.
When this bill comes into effect, the justice system will have an effective tool to solve crimes. Only one group had been left out in the previous legislation, namely the military.
Bill S-10, which is before us today, complements the legislation on the taking and the storing of DNA data. There were no reasons to exclude military personnel from the system established for civilians, and this is why the Bloc Quebecois supports Bill S-10.
I will now comment on the main amendments to Bill S-10. Bill S-10 essentially adds to the National Defence Act provisions that will authorize a military judge to issue a warrant authorizing the collection of bodily substances for DNA testing on military personnel who are suspected of having committed a designated offence, or who have been found guilty of such an offence.
First, the classification of offences for which a sample may be authorized is the same as in Bill C-3. It was quite rightly decided to include in this list certain offences specific to the military and covered under the National Defence Act, such as mutiny with violence, endangering a person on an aircraft, and negligence in the handling of dangerous substances.
A military judge may now issue a warrant authorizing the taking of a sample in a case where a member of the military is suspected of having committed a designated offence. The military judge will issue the warrant if there are reasonable grounds to believe that a designated offence has been committed and that a bodily substance has been found at the place where the offence was committed or on the body of the victim.
The results of forensic DNA analysis can be destroyed if the sample of the bodily substance taken does not match that obtained at the place where the offence was committed, if the person is acquitted of the offence, or if the charge is withdrawn.
In addition, when a member of the military is found guilty of a designated offence, the court martial may make an order for the taking of a sample in order to include the accused's DNA profile in the DNA data bank.
The distinction between primary and secondary offences is relevant here because it determines whether the taking of a sample will be ordered. When a member of the military is found guilty of a primary offence, the court martial must order the taking of a bodily substance sample. However, if he is found guilty of a secondary offence, the court martial is not required to make such an order.
In the latter case, a series of guidelines are given to assist the court martial in deciding whether or not to order a sample. The court martial must take into account the impact taking a sample would have on the privacy and security of the person. It can also take into consideration any previous convictions as well as the nature and circumstances under which the offence was committed.
Bill S-10 also contains the provision that, when samples of bodily substances are ordered, they shall be taken as soon as possible, even if there is an appeal. Results of the DNA analysis of bodily substances taken when a member of the Armed Forces is convicted of an office are transmitted to the Commissioner of the RCMP for entry in the convicted offenders index of the national DNA data bank.
Any portions of samples of bodily substances that are not used in forensic DNA analysis are also transmitted to the Commissioner.
Finally, I believe it is worth pointing out that the bodily substances which can be sampled are hair, saliva and blood. The foregoing were the main points of the new provisions to be added to the National Defence Act by Bill S-10 in order to allow the sampling of bodily substances for purposes of DNA analysis.
Bill S-10 goes still further, by also amending the Genetic Identification Act and the Criminal Code. I will therefore present the amendments to the act proposed by Bill S-10.
First of all, there is provision for the DNA profiles, as well as samples of bodily substances from which the profiles are derived, to be used only for law enforcement purposes in accordance with this Act, and not for any unauthorized purpose.
This addition provides additional protection to those who have had samples of bodily substances taken. In fact, these substances may in no case be used to develop a psychological profile or for medical research purposes. The DNA Identification Act will help solve crimes, convict the guilty and avoid legal errors.
We must remember however that every person has the right to privacy and must be assured that DNA information gathered will not be used for experimentation. The law provides penalties for those failing to meet these objectives.
Bill S-10 adds to the DNA Identification Act the requirement that the Commissioner of the RCMP responsible for administering the data bank report to the Solicitor General annually on the national DNA data bank.
Provision has already been made for a committee of the Senate or the House of Commons or a joint committee to examine the application of the law in the five years following its coming into effect. This is why this amendment does not seem crucial to me.
However, in the light of the financial problems the RCMP seems to be facing these days, this requirement may draw the attention of parliamentarians to the problems of implementing the law more quickly and, therefore, resolve them right away.
However, Bill S-10 also amends certain provisions of the Criminal Code concerning the collection of bodily substances. It involves permitting an order for sampling obtained following conviction to be executed in another province.
Let us take the example of an individual who is convicted and sentenced in Quebec of an offence for which the law permits a sample to be taken. The Quebec judge hands down a sentence and orders the taking of a blood sample, to include the DNA profile of the individual in the DNA data bank.
Under the new provision proposed in Bill S-10, if the individual is transferred to a penitentiary located in Ontario before the sample is collected, an Ontario judge can confirm the order issued in Quebec, thus making it possible to collect the sample in Ontario.
In other words, it would not be necessary for an Ontario judge to receive a new application and to issue a new order. This will help avoid having multiple and useless proceedings, thus allowing those who work in criminal law to save money and time.
The second change concerns a criminal code provision allowing the crown prosecutor to obtain the authorization to collect samples for a designated offence under the act on young offenders who are already serving a sentence when the act comes into effect.
These are ex parte applications, which means they are submitted without the offender being present. Under the current act, these applications must be accompanied by a certificate attesting that the offender is indeed serving a sentence for a designated offence, and a notice must be sent to the offender to inform him that the crown will submit the certificate. Since this is an ex parte application, the notice of filing is not necessary and Bill S-10 removes that obligation, which, in my opinion, is something quite acceptable.
A third amendment concerns a section in the criminal code dealing with the execution of the warrant. This section lists the formalities to be observed by a peace officer taking a sample of a bodily substance. One paragraph in this section requires the peace officer taking the sample to inform the offender that he or she may express a preference as to the substance to be sampled.
This requirement, if maintained, would place the peace officer taking the sample in a dilemma. If the judge ordered a sample of hair and the offender preferred to give a blood sample, the peace officer would be unable to enforce the judge's order. Bill S-10 repeals this requirement. I am sure this will avoid many impossible situations.
Under the fourth amendment, a peace officer taking a sample of a bodily substance in accordance with a court order may take fingerprints from the person at the same time. This is not stipulated in the legislation.
The purpose is to allow a comparison with fingerprints already taken at the time of arrest and to ensure solid identification of the offender. I am not convinced of the usefulness of such a procedure. It seems to me to hamper the process, when the fingerprints are already available, when the RCMP is overburdened and unable to keep up. Would this be another sign of a lack of communication between the various departments? Time will tell.
Finally, according to the present criminal code, the court does not have to issue a sampling order when this is not required for application of the law. This was unclear, and has been replaced in Bill S-10 by unequivocally stating that an order shall not be made if the national DNA data bank already contains a DNA profile of the person.
These then are the main changes to the DNA Identification Act and the criminal code by Bill S-10. I would like to close by reminding hon. members that the use of DNA has had spectacular effects on the lives of certain individuals.
We might refer to the case of David Milgaard, who spend 23 years behind bars for a crime he did not commit. In 1997, he was fully exonerated through DNA testing. The tests made it possible to charge a certain Larry Fisher, a repeat sex offender.
Then there was the high-profile case of Guy-Paul Morin, who was sentenced to life imprisonment in 1992 for a murder that he had not committed. Once again, DNA evidence came to the rescue and provided proof that he was not the murderer.
Undeniably, the use of DNA evidence can virtually work miracles. One cannot help but agree with the results. The sampling of bodily substances for forensic purposes, however, also raises some concerns. Some people fear that holding substances taken from individuals may result in the unjust marginalization and abuse of certain individuals. The profiles must absolutely not be used for such purposes.
This is why it is imperative for vigilance to be maintained in connection with this technology, which is invasive to say the least, and has the potential to allow countless information on an individual to be obtained.
Overall the Bloc Quebecois supports Bill S-10, with some reservations. It is pleased with the provision offering additional protection against the use of profiles obtained for purposes other than those allowed by the law.