Mr. Speaker, I rise to speak to Bill C-13 from the perspective that we are dealing with relatively new technology and some amendments would normally cause us a good deal of concern.
DNA samples have been gathered only since 2000. It should have been done much earlier, but the current government was very slow in moving the bill through the House to final fruition. Once in place, it became quite obvious that there were some significant limitations in it, and the government is now attempting to address those. We will not know whether it has been successful until we hear from the criminal defence bar, prosecutors, some police associations and some victims' rights groups. That is why we are supportive of the legislation going to committee prior to second reading. If the government were looking for support in principle for the bill at second reading, my party would not be able to support it.
There are several points in the bill that cause us particular concern. Overall we believe the direction in which it is moving is the appropriate direction. Certain charges are being moved from the secondary list to the primary list and we believe that is appropriate.
On the other hand, we are quite concerned about the bill being made retroactive. There has been a great deal of debate in the House and across the country over this issue. Certain individuals currently in prison will be paroled shortly because they have served their entire time. It would be quite desirable for society as a whole to obtain a DNA sample from them and have it in the data bank on an ongoing basis. On the other hand, whether it is appropriate for retroactivity to apply to all people who will be released shortly still gives us some cause for concern.
It almost goes without saying that under common law, the history in England and Canada, all legislatures have been reluctant to ever pass legislation that is retroactive. That aspect of the bill will require some close attention by the justice committee when Bill C-13 gets there.
Members of the Conservative Party are concerned about when the DNA sample should be taken. We have heard from some police associations that they are pressing quite strongly for the sample to be taken, as fingerprints are, at the time the individual is charged. That is generally being done in England at this time, as opposed to other alternatives such as upon conviction, upon sentencing or after all appeals have been exhausted. Those are all possibilities. They will have to be canvassed in front of the committee which will be hearing from people who work in this area such as police associations, bar associations and, in particular, the criminal defence bar.
We know from some of the wrongful conviction cases, which have been in the news in the last few years, that DNA samples could be an excellent tool to acquit people. However, they are also quite widespread in convicting people. As I said in my opening comments, this is a new technology. I know from some of the work I did in private practice, that in the initial stages the assessment of these samples left something to be desired. Even though experts on the stand said that it was an absolute, that it was 99.99% perfect, reality was that it was not specific as we began to understand the technology better and understand what was needed to get proper assessments.
In terms of the use of the DNA data bank, we must be conscious of the fact that it is a new technology. We must be conscious of the fact that we may see somewhere down the road someone challenging its validity and its accuracy on a scientific basis. We must be very careful when we are imposing the types of pressure and the types of law on convicted criminals. We have to be very careful with that.
There are charges that are being moved, and these would be after conviction, from the secondary list up to the primary list. Those will have to be looked at closely as well, as to whether that is also all appropriate, or whether in fact there should be additional charges moved on to the primary list.
That is important because if the charge and the conviction are based on a criminal offence that falls into the primary list, the DNA sample must be ordered by the judge convicting the individual unless that person can show, for privacy or personal security reasons, why it should not be taken. That has not happened in the past. I cannot imagine it happening other than in very rare occasions in the future.
If the charge is on that primary list and the person is convicted of that charge, it is almost a certainty that the sample will be ordered and taken.
If it is on the secondary list the onus is reversed. The prosecutor in that situation must establish why the sample should be taken. The defence can argue, but the primary responsibility lies with the prosecution to establish that.
So we do have to be careful. First, have we put enough charges on the primary list? Have we put too many charges on the primary list? That has to be canvassed and again I am looking forward to the committee looking into that to some degree.
The question is the same with regard to the secondary list. Should we be adding additional charges or should we be taking some of them off that are being proposed or already on?
Bill C-13 is a relatively modest bill. The provisions that also bother us are those sections in the act that move the gathering of DNA samples under the National Defence Act in the court martial situation. I am not clear and I really do want to investigate whether the full protection of the law will be meted out under the defence act as it is under the code, both in terms of what we already have and the amendments that are being proposed. That is an additional item that has to be looked at.
Let me conclude by saying that the use of the technology is new. It has obviously been a boon to the prosecutor in a number of cases establishing proof of guilt beyond a reasonable doubt. Similarly, in a number of well known cases and a number of others that are not as well known, it has been a substantial benefit to those accused. Their defence counsel are able to establish little or no likelihood of them having been the perpetrators of the particular offence.
It is there, but it is a new technology. We need to look at it very closely. It is one of the bills that will require some expert witnesses from perhaps other jurisdictions, but certainly from the scientific and legal community in order for us to get an accurate appraisal of where this legislation should be going, and whether in fact we have achieved it with this bill or whether significant amendments will be required.