House of Commons Hansard #53 of the 37th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was gst.


Motions for PapersRoutine Proceedings

3:25 p.m.

The Speaker

Is that agreed?

Motions for PapersRoutine Proceedings

3:25 p.m.

Some hon. members


The House resumed from May 4 consideration of the motion that Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, be read the third time and passed.

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3:25 p.m.

Canadian Alliance

Leon Benoit Canadian Alliance Lakeland, AB

Mr. Speaker, I am pleased to rise to speak to Bill C-12 today. What the bill is intended to do, which is quite different from what it actually does, is to make amendments to the Criminal Code that are intended to safeguard children from sexual exploitation, abuse and neglect.

Clearly these are issues that should have been dealt with a long time ago. In fact, I have been in the House for over 10 years now, and when I first came here the government promised it would deal with these issues. Legislation has appeared on a couple of occasions before and it was supposed to deal with some very serious problems regarding child exploitation, abuse and neglect, yet nothing concrete has happened.

I can safely say that things are no better now when it comes to protecting our children than they were when I came here 10 years ago. In fact, if we take a careful look at the law and the way the courts interpret the law, I think it is safe to say that things are actually worse now and the law actually does a poorer job now of protecting children than it did 10 years ago.

Now we have Bill C-12, which is supposed to fix these flaws in the law, but clearly Bill C-12 will not do that. There are several clear gaps in this legislation, which really make it clear that it will not do the job that it is intended to do. Again, the stated purpose of the legislation is fine, but what the legislation delivers is not. Frankly, that is a common problem that I have seen over the past 10 years. We have seen legislation that states a noble goal but then once delivered really does not do it.

The government seems extremely weak when it comes to putting forth effective legislation and that is too bad, especially when we are talking about protecting our children. I am going to point out some of the specific areas where this legislation clearly fails.

First, this legislation does not eliminate all defences for the criminal possession of child pornography. That is what the Canadian public wanted. It wanted all defences for the possession of child pornography eliminated.

Second, it does not raise the age of consent for adult-child sex. Since I have been here, I have seen literally tens of thousands and hundreds of thousands, possibly millions--it probably is in the millions--of names presented on petitions from Canadians who have called on the government to raise the age of sexual consent from 14 to 16. What has the government done about these hundreds of thousands and probably millions of petitioners? It has ignored them, and that is really another serious flaw in this legislation. The government did not listen to the people who really understand what has to be done, but I will get to that later.

The third thing this legislation clearly fails to do is institute mandatory sentences for child sexual assault. What more important role has the law than to protect our children? To me the answer is clear: there is none. There is simply no more important role of the law than to protect children, yet this legislation clearly fails to do that.

The laws in the United Kingdom and the United States put in place mandatory sentences for sexual assault against children. Why is this so difficult or why is this government so unwilling to do that in Canada? Quite frankly, I do not have the answer.

I do not have the answer. It has been so frustrating. Several members of our party have taken on this issue with everything they have. We have all spoken to this issue. We have all encouraged the government to get serious about protecting our children. Yet what do we get? We get Bill C-12, which absolutely, certainly and clearly will not do that. Why? I will not try to answer for the motives of the government. I can say that this will not do it.

Because of this, Canada is becoming a global haven for child predators. That is not the kind of reputation I want for our country. One of the things we do not want Canada to be is a haven for sexual predators, yet because of our weak law that is exactly what we have become. It is shameful and it is embarrassing. More important, it is a failure of the Government of Canada to protect our children. It is such an important failure that it has to be corrected. The government has made several attempts to correct this over the years but it has clearly failed.

I want to go back to the issue of who the government listens to when it comes to making laws with regard to this issue. Does it listen to the Canadian public? No. As I have already said, we have had petitions presented in the House that have been signed by hundreds of thousands, possibly millions, of people. I would venture to guess that all of us in this party have presented petitions on this issue. Clearly the government has not been listening to the Canadian public.

This government tends to be elitist and wants to listen to a certain elite group of people that knows better than the general public; that seems to be the way it thinks. If that is what it wants to do, has it listened to front line police officers? That would make sense. Front line police officers know that child abuse takes place and they know how it takes place. They know where they fail in building a case that would stand up in court because of the law put in place by the government. Front line police officers know all these things. They also know the unbelievable damage this predation does to children and their families and their communities. Front line officers have told the government that, but does the government listen? It does not.

Until the government listens to child advocates, to front line officers and to the Canadian public, it will never fix this problem. I just want to say that a Conservative government will. We will. We have been speaking out on this issue and putting forth concrete recommendations for change. We have put amendments to legislation that the government has brought forward. Those amendments by and large have been ignored.

But when we form the government we will fix this issue, because to us the protection of our children is important. It is something we see as one of the most important things a government can do and clearly one of the things government is expected to do. We will do that.

Part of this problem has come about as a result of the artistic merit defence. How many people have called the offices of every single member of Parliament, including Liberal members, to say they were upset with the Sharpe decision? In that case, the Supreme Court interpreted artistic merit and said that in the law it should be interpreted in the broadest sense possible.

While members of Parliament on both sides of the House have heard about this again and again, the government has done nothing to fix the artistic merit problem in Bill C-12. It simply is not going to change in that regard, but this has to be fixed. That is a big part of the reason why this problem has been allowed to carry on for so long. It simply has to be fixed. I have very little faith that this will happen, but I hope it will before Parliament is dissolved. If the government does not fix it, we will.

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3:35 p.m.

Canadian Alliance

Brian Fitzpatrick Canadian Alliance Prince Albert, SK

Mr. Speaker, I want to relate to the House an experience I had in my lifetime. I practised law in rural Saskatchewan for 23 years, in the great community of Nipawin, Saskatchewan, a community of 5,000 to 6,000 people. When people have lived in a community as long as I have, everybody knows one another.

I must say, too, that when one practises law, the law sometimes leaves something to be desired. From time to time we encounter things that just make us just shake our heads and wonder why the people who make the laws in the land, in Parliament and so on, do not remedy them.

A couple I knew quite well came to my office in tears. They had a great family. I knew some of the kids. Some of them were in university and some out of university and so on. Their daughter, who had just turned 14, had them weeping in my office. The problem was that the girl had taken up with a man who was 48 years of age. The parents were very concerned about this situation. They believed that it was an abusive and exploitive situation. The girl was too immature, in their minds, to make decisions like that herself, and she was in this situation. Quite frankly, I found it appalling.

I told them that there must be something we could do in this land, that there had to be a law that would allow parents to be parents and take care of their young children and protect them from those sorts of situations. In the peace and quiet of my own law office that evening, I went through everything I had, including the Criminal Code, the provincial laws and so on.

I found that under the provincial laws it is the parent's responsibility to provide children with schooling and the necessaries of life and so on until they are of legal age. That was clearly in the law. As well, there are custody disputes between parents who are splitting up as to who would have actual guardianship of these of 14 year old children so they can see them through their teen years and make sure they come out as good, solid young Canadian adults.

Then I went to the Criminal Code. I said, “There has to be something missing here. I cannot believe the law would not empower parents”. I went through the Criminal Code and found the provisions that this government is responsible for and refuses to do anything about. It basically gives a 14 year old the right to have sexual relationships as if she is a full adult. There is no help for the parents. It occurred to me that every sexual predator, especially those with a pedophiliac background, knows that this is the law of this land. And in this Internet age, boy, is that a huge opportunity. It is not a crack in the door. It is opening the barn door right up for a whole pile of exploitation.

One of the difficult things I had to do in that particular situation was to phone those people the next day to be the messenger for the law. Quite often as a lawyer one gets shot for being the messenger. One of the reasons I am here is that I hope I can influence the law sometimes so that we can be a better messenger when advising people and telling them what the state of the law is. It was a very painful experience for me to let those good folks know that there was nothing in the law that would help them. The police could not do anything; their hands were tied. The whole thing was just total nonsense.

There are 301 of us who were sent here. We are supposed to bring our common sense to this House and deal with matters like that. It seems to me that this is not a complicated issue. If we had questions and comments now, I would once again like to ask members opposite to give me one single reason why 14 year olds should not be protected and under the care of their parents and not left to be exploited by sexual predators and pedophiles in our society. This is shameful.

This is shameful; if only there were one ballot question on this in the next election when people go to mark their ballots. The Liberals mention things like artistic merit to defend the right of people who exploit young children to hide behind some sort of bogus argument like public good or artistic merit. Another thing that the Liberals hang their hats on is these sorts of defences.

Some say there has to be a youth offenders act because these people are not responsible for their actions and cannot be dealt with in criminal court and we have to treat them differently. However, when it comes to sexual relationships with 48-year-old men, then they are old enough to make those decisions, the state has no interest and neither do their parents and they can get out of the picture. This is appalling.

We talk about the culture of corruption and incompetence. I would say that one of the appalling things is the mentality to defend these kind of laws which falls within the parameters of corruption as well. Where are people's ethics and values when they can honestly stand behind these sorts of protections afforded to these sexual predators and people that prey upon our youth?

Every Canadian would want this House to stand up for 14-year-old people and support the parents who are trying to help their kids out, instead of letting them down like this.

I was not planning on speaking to this issue, but I am certainly glad I took the opportunity to do so. I wish there were questions and comments because the last time this bill came before us, I never heard a member from the opposite side come up with one intelligent reason why we could not change this law.

In fact, I want to raise an issue. When the question was raised the last time, a member of the Bloc actually stood up and said he thought the age should be lowered. He said that in his riding people want it lowered. I think he mentioned 12 years of age.

It made me scratch my head. Maybe I am from the wrong planet or the wrong part of the country. I am from rural Saskatchewan and people there are out of touch with this modern world. It has passed me by very quickly. I cannot actually believe that the member's constituents in the riding that he represents in that province would actually believe there would be anything good coming from lowering the age to 12 years from 14 years.

Once again, if people are scratching their heads and cannot find a reason to vote in this election, I would say this issue alone should get all Canadians out to vote, if they cannot figure out a reason to vote in the next election. Parliament should be a force for good. We should not be defending those people who are not there to do good things for our young people.

This is something that the lawmakers could do. It could be very effective. It would certainly help the police. It is appalling that police officers do extensive investigations on pedophiles. They set their trap only to find out that the victim of the pedophile was a 14 year old.

In my riding last summer there were two men in their twenties charged with sexual assault of a 12-year-old girl. They were acquitted. If I can believe the newspaper accounts in this case, they picked up an aboriginal girl 12 years of age and I guess they gave her liquor and so on and had a sexual situation with this young girl. It was a very painful thing; there was a lot of publicity in my province of Saskatchewan.

What was their lawyer's defence when it came to arguing the case before the judge? They thought she was over 14. Guess what happened? The judge acquitted them. The assaults had taken place. The girl had clearly been assaulted. The sexual relations had taken place. The judge acquitted the two men in their twenties because there was a reasonable doubt. Maybe someone thought there was a chance she was be 14.

I find this whole area very disturbing. This should not be a partisan issue. It should be a common sense issue, but common sense does not seem to be a strong point for the members opposite.

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3:45 p.m.

The Acting Speaker (Mr. Bélair)

Is the House ready for the question?

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3:45 p.m.

Some hon. members


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3:45 p.m.

The Acting Speaker (Mr. Bélair)

The question is on the motion. Is it the pleasure of the House to adopt the motion?

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3:45 p.m.

Some hon. members


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3:45 p.m.

Some hon. members


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3:45 p.m.

The Acting Speaker (Mr. Bélair)

All those in favour of the motion will please say yea.

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3:45 p.m.

Some hon. members


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3:45 p.m.

The Acting Speaker (Mr. Bélair)

All those opposed will please say nay.

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3:45 p.m.

Some hon. members


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3:45 p.m.

The Acting Speaker (Mr. Bélair)

In my opinion the nays have it.

And more than five members having risen:

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3:45 p.m.

The Acting Speaker (Mr. Bélair)

Call in the members.

And the bells having rung:

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3:45 p.m.


Diane St-Jacques Liberal Shefford, QC

Mr. Speaker, I am requesting that the division be deferred until this evening, after government orders.

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3:45 p.m.

The Acting Speaker (Mr. Bélair)

At the request of the assistant whip of the government, the vote has been deferred until after government orders tonight.

Bill C-35. On the Order: Government Orders

May 7, 2004--The Minister of Justice--Second reading and reference to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness of Bill C-35, an Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act.

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3:50 p.m.

Wascana Saskatchewan


Ralph Goodale Liberalfor the Minister of Justice

moved that Bill C-35, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

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3:50 p.m.

London West Ontario


Sue Barnes LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, in proposing a series of changes that come within the existing structure of the DNA data bank legislation, the government is building upon legislation that has been upheld by the courts every time it has been challenged.

I am not an expert but I understand that a particular pattern of DNA will only appear in one out of billions of samples taken. There are few things harder to explain than the presence of an accused's DNA in or on the body of a victim of a sexual assault. The courts are well aware that DNA evidence provides a virtual guarantee against convicting the innocent, and the miscarriages of justice that have been brought to light by the testing of old exhibits for DNA. Convictions that preceded the development of DNA evidence have been overturned and the real perpetrators identified.

The national DNA data bank contributes to the administration of justice and the safety of Canadians by ensuring that those who commit serious crimes are identified more quickly across all police jurisdictions in Canada, while innocent people are eliminated from suspicion. It assists law enforcement agencies in solving crimes by linking crimes together where there are no suspects, helping to identify suspects, eliminating suspects where there is no match between crime scene DNA and a DNA profile on the national DNA data bank, and determining whether a serial offender is involved.

The Criminal Code establishes the process that can lead to a judicial order authorizing the taking of samples of bodily substances from certain convicted offenders for analysis and inclusion in the DNA data bank. Where a person has been convicted or discharged of a primary designated offence committed after the DNA Identification Act came into force, the judge is required to make a data bank order except in the most exceptional circumstances. The judge must be satisfied that the impact on the offender's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. The court is also required to give reasons for its decision to make or to deny making a DNA data bank order.

Where a person has been convicted or discharged of a secondary designated offence, the order may be granted if the judge, on application by the Crown, is satisfied that it is in the best interests of justice to do so. In granting or refusing an order with respect to a secondary designated offence, a judge must consider the criminal record of the individual, the nature of the offence, and the circumstances surrounding its commission and the impact such an order would have on the person's privacy and security of the person. Again the court is required to give reasons for its decision to make or to deny making a DNA data bank order.

The legislation contains important protection against the misuse of DNA profiles. It is an offence to use them for any other purpose than the investigation of crimes.

I understand that the Royal Canadian Mounted Police, which operates the national DNA data bank, has developed a system of separating the DNA profile from the identifying information. The bodily sample that is to be analyzed and the identifying information on the offender, which is based on finger prints, are identified by the identical bar code. The DNA data bank keeps the sample and sends the identifying information to the criminal identification branch. The analysis is tracked by the bar code, and the DNA data bank does not know who the offender is.

When there is a match, it advises the criminal identification branch of the bar code, and the criminal identification branch identifies the convicted offender. Moreover, the DNA data bank only analyzes so-called junk DNA, that is, strands of DNA that do not provide any information regarding the personal characteristics of the offender, such as hair or eye colour. The committee, I am sure, will want to hear from the management of the DNA data bank regarding these privacy protections.

With such strong protections for the offender's privacy and the great value of DNA evidence, the courts have welcomed the legislation. I am advised that there has not been a single trial or appellate court judge who has found a violation of the charter in the existing legislation. In this charter sensitive era, when many claim that judges are activists and are eager to strike down legislation, this unanimous support for the legislation is little short of amazing.

In Briggs, a decision of the Ontario Court of Appeal handed down in August 2001, the DNA legislation was unanimously endorsed. Its reasoning has since been endorsed by several other provincial courts of appeal. The court dealt with many of the issues that may arise in considering the legislation and held that:

One, whether or not there is evidence at the scene of the crime of which the offender was convicted that would likely yield a DNA profile of the perpetrator is not necessarily a relevant consideration.

Two, the phrase “best interests of the administration of justice” does not import as a prerequisite to making the order that there be reasonable and probable grounds to believe a further offence will be committed.

Three, the state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by the offender. Rather, the provisions have much broader purposes including: deterring potential repeat offenders; promoting the safety of the community; detection when a serial offender is at work; assisting in the solving of cold crimes; streamlining investigations; and most important, assisting the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.

Four, provisions in the Criminal Code and the DNA Identification Act restricting the use that could be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender's privacy.

Five, the procedures for obtaining bodily substances authorized by the provisions are of short duration and involve none or minimal discomfort. There is a minimal intrusion with no unacceptable affront to human dignity.

Six, a person convicted of a crime has a lesser expectation of privacy.

Seven, the trial judge is entitled to look at the offender's entire record, not just the crimes that may be designated offences.

In Hendry, another decision of the Ontario Court of Appeal that has been widely quoted in decisions in other provinces upholding the legislation, the court held that:

In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender, the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender, there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order.

With no judge dissenting, it seems that this legislation may never make it to the Supreme Court. However, members should be aware that in R. v. S.A.B. decided on October 31, 2003, the Supreme Court of Canada unanimously upheld the constitutional validity of the DNA warrant scheme. It found that:

Generally, the DNA provisions appropriately balance the public interest in law enforcement and the rights of individuals to dignity, physical integrity, and to control the release of personal information about themselves.

As the DNA data bank scheme is based on the same designated offences as the DNA warrant scheme and has many of the same safeguards, R. v. S.A.B. provides strong support for the constitutionality of the data bank legislation.

I believe we need have no concern about the constitutionality of Bill C-35, although the committee will undoubtedly want to hear from experts on that particular point.

Across Canada judges are deciding every day whether to make an order against an individual offender. Bill C-35, by expanding the number of offences and by clarifying procedures, will make the law even more effective. It will continue to be based on the same protections that have already led to its endorsement by the courts.

I urge all members of the House to support the motion to refer the bill to committee.

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3:55 p.m.

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, I too would like to add a few comments on the motion. I am a little concerned about why the government has at this late date brought this bill forward.

As the member who just spoke knows, the justice committee has been mandated to review this legislation in 2005. This appears to be no more than an election ploy designed to garner a few votes indicating that maybe the government is, after all, serious about fighting crime at this late date in its tenure.

Having read the bill I am concerned that what will happen, if the bill is brought forward in the next Parliament, is that it will tie the hands of the committee rather than allowing the committee to take a good strong look at the legislation and determine what needs to be done.

This is a direct contradiction of what the government has stated, that the committee is to be the master of its own process. This seems to be a direction by the government saying “this is as far as you go and no further”.

I noted with interest some of the comments by the member suggesting that the legislation was great legislation as it was because the courts had upheld the legislation. Frankly, I do not think that is a test of good legislation at all. The test of good legislation is not whether the court agrees with the legislation but whether it is effective in carrying out its purpose. Its purpose, of course, is to reduce crime by apprehending offenders.

Instead, we have a bill that simply has the lowest common denominator. Therefore it is no surprise that courts uphold the legislation. The reason there is no interference with constitutional rights is because there is no effective legislation in terms of apprehending individuals.

The government has chosen to depart from a constitutionally sound process. Let us look at the fingerprint situation. For a long period of time we have accepted that if people are charged with an indictable offence they are fingerprinted. There should be no difference with the DNA if it is done in an unobtrusive way. Similarly, there is no problem with the Constitution.

However, what the government is doing is limiting the powers of the police, not in a way that is in any way mindful of constitutional liberties but in a way that simply ties the hands of the police officers.

I have yet to hear a valid argument presented by the government on why we do not take the same approach with DNA as we do with fingerprinting. If someone has been charged with an indictable offence, DNA testing should take place in the same way as we do it with fingerprinting.

However it would not be automatic that the DNA is taken even where there are convictions. What the Liberal bill would do is divide the offences into different types of offences. There are three different types of DNA data bank orders: retrospective, prospective and retroactive.

In respect of the retrospective, the designated offence must have been committed before June 30, 2000 and the offender was convicted after that date. Prospective means that the designated offence was committed after June 30, 2000 and retroactive. In the retroactive situation, there needs to be an order of a judge in respect of the individual who was convicted before June 30, 2000 and is still under sentence.

One of the problems with the legislation is resourcing. If a crown attorney is required to go to the courts for these kinds of orders, given the burden on these crown attorneys and other justice officials to actually proceed to court, the chances that these orders will actually be taken are virtually nil.

This is very reminiscent of the Liberal sex offender registry. The Liberals said, after years of pressure from the Conservative opposition, that they would bring forward a sex offender registry but that the sex offender registry would not include anyone who had been convicted prior to the date of the registry coming into force. In fact, we would have had a registry with absolutely no names on it. It is quite disgusting that after a dangerous sex offender goes through a trial and is convicted by a judge or a jury that somehow there would be a violation of the offender's rights. That is just so much nonsense.

It is time the government balanced, not only the rights of a convicted accused, but the rights of the victim. It seems that the victims are consistently forgotten in the legislation and, indeed, the ability of police officers to effectively protect potential victims, never mind those who have already been violated by offenders.

The legislation brings forward all kinds of procedural matters that would hinder the ability of police officers and other justice officials to do their job.

I will not oppose the referral of the legislation to a committee but I am concerned with it. I am concerned that the government is trying to bind the hands of the committee and that the committee will not look at effective options for dealing with these problems because it will consider itself bound by the direction of the government as set out in the bill.

I would like to hear from the Prime Minister and the Minister of Justice that in no way will the legislation bind the legislatively mandated review that will take place of the DNA registry in 2005.

With those comments I am prepared to allow this to proceed forward to committee. I trust that the Minister of Justice will be giving the House and all Canadians some assurance that the committee will be entitled to look at the broader scope of the issues involved here.

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4:05 p.m.


Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, the Bloc Quebecois has examined the bill and we are generally in agreement with referring the whole debate to committee because the committee stage is always an important one. Often, in fact, we reserve judgment until afterward.

In fact, at second reading stage people often appear to appreciate the amendments proposed; then they can be gone into in greater depth in committee. If something is discovered, then we can ask for amendments to a bill or for certain points to be taken out of it or added, and so on. So the whole aspect of the committee stage is of some consequence.

Many people no longer have any doubt about the usefulness of genetic fingerprints.

I will say a few words about how investigative methods have evolved over the years. I recall, when we were younger, all the police novels we read and all the police movies we watched, and how amazed we were when someone ended up being convicted on the strength of a single hair or some other court evidence.

The way science has evolved since then has made it possible for investigative methods to be fine-tuned, so it is important to bring the Criminal Code up to date to reflect that. Today we are dealing with bodily substances. In the old days, it was hard to connect a hair or a nail with the person who had committed the crime.

Now if a hair is found, thanks to the genetic profile we have of people in our DNA banks, the person can be identified perfectly. We cannot, therefore, be opposed to the idea that all investigative tools must be brought up to date.

This is most certainly a very technical bill, and can be gone into in somewhat more detail in committee. I might point out, incidentally, to those listening, that we are perhaps wasting our saliva and its DNA today, because of the impending election. If an election is called, this bill will merely get deferred until some distant date, likely next fall. Considering where it is in the process at this time, barring unanimous consent to speed it through, it is very obvious that it cannot get passed in this session.

The bill centers to a large extent on designated offences. For the benefit of those watching, there are two types of designated offences; these are either primary or secondary. The primary designated offences are more serious offences, normally requiring the court to issue an order authorizing the taking of samples of bodily substances.

The bill adds offences to the list of primary designated offences. I have no objection to a number of them.

The first one concerns sexual exploitation of a person with a disability. Obviously, as someone who worked with persons with disabilities for 20 years, I understand that many might abuse their intellectual superiority over a person with a disability. I therefore agree with the inclusion of this primary designated offence.

The second one concerns the causing of bodily harm with intent, using an air gun or a pistol. Clearly, as my target training days with Canadian Forces have taught me, a rifle can cause a lot of damage. Air rifles can also cause a lot of damage.

If it is demonstrated that a person intentionally shot an air rifle, that ought to be considered a primary designated offence.

Third is administering a noxious thing—I checked in the dictionary, and noxious means harmful to the health—with the intention to endanger life or cause bodily harm. It seems obvious to me that this ought to be a primary offence.

Fourth is overcoming resistance to the commission of an offence, for instance, by suffocating one's victim. Obviously, I have no objection to now consider this as a primary offence.

The same goes for robbery and extortion. These two offences, however, have just graduated from the secondary to the primary offence category. Under the Criminal Code, robbery and extortion are now primary designated offences.

I would also like to say that even the court is obliged to order sampling for a primary offence, making it important to identify exactly which kinds of offences should be on the list of primary offences.

For secondary offences, it has usually been the court that considered the relevance of taking samples, in order to improve the administration of justice, and based solely on that criterion. Now, the court must ask the plaintiff's opinion. A victim may object and may also require the court to order a genetic sample.

That is an important aspect, since the victim now has a say. The administration of justice is important, but it is also important to give the victim the opportunity to decide where he or she wants to go with the case, as the victim.

I have always sided with those who say that the accused do have rights but that victims must have more rights than the accused. In this bill, that is a rather interesting addition, that the plaintiff can require the court to take or not take a genetic sample. The court must take the plaintiff's decision into consideration.

New secondary designated offences have been added, which we could say are less serious than primary designated offences. They include criminal harassment, uttering threats and breaking and entering a place other than a dwelling-house. This bill makes the distinction. Under the Criminal Code and the bill, breaking and entering a dwelling-house is more serious than breaking and entering a business at a late hour, for instance. The residents' safety is not necessarily in danger in that case. This needs to be looked at in committee, but I have the impression that is why it was considered a secondary designated offence.

The secondary designated offence category also includes intimidation. There has long been intimidation, but there has never been any legal action or provisions in the Criminal Code to pursue the guilty parties. Now, with the bill before us, intimidation is rightly becoming a secondary designated offence.

Arson causing damage to property and arson for fraudulent purpose are also secondary designated offences and are on the list. We are not surprised to see participation in activities of a criminal organization on the list. Committing an offence for a criminal organization is important to have on the list as well. Instructing the commission of an offence for a criminal organization is also on the list.

By and large, the Bloc Quebecois is in favour of the principle of the bill. As I was saying earlier, when we are in committee, if we get to that stage, although we have our doubts, we will take the time to look at each one of these offences to see whether they target and will achieve the objective of providing the public with a fairer and safer society.

We agree with the principle of the bill. Let us examine it more closely in committee and come back to third reading for a final decision. We are in favour of the bill as it is currently worded provided that it is sent to committee for future study.

Criminal CodeGovernment Orders

4:15 p.m.

The Acting Speaker (Mr. Bélair)

Before we hear from the next speaker, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Peterborough, Gasoline Prices; the hon. member for Ottawa West—Nepean, Maher Arar Inquiry.

Criminal CodeGovernment Orders

May 12th, 2004 / 4:15 p.m.


Lorne Nystrom NDP Regina—Qu'Appelle, SK

Mr. Speaker, we in the NDP support Bill C-35 being sent to committee. I assume, like everyone else, that the Prime Minister will probably drop the writ for an election campaign very shortly and this debate will not continue until the fall sitting of the next Parliament.

However, I do want to make a few comments on the substance of the bill even though the motion before us today is to refer it to the standing committee for greater study. That is important because it will give the committee a chance to call in some expert witnesses. It will also give the committee a chance to see whether or not it is a useful bill for the prevention of crime and for the common good of the people of this country.

The bill itself would add certain criminal offences relating to criminal harassment to the list of designated offences to which a DNA data bank order can be made. In other words, the police can make a DNA data bank order for offences that are not now available for DNA orders. In principle, that is a good thing to do.

Bill C-35 would permit a data bank order to be made against a person who has committed an offence but found not criminally responsible on account of a mental disorder. If someone with a mental disorder is found not criminally responsible, the police can apply for a data bank order to be made against that individual.

Bill C-35 would expand the list of sexual offences under the retroactive scheme for persons prior to June 30, 2000 by adding historical sexual offences like indecent assault and committing a sexual offence, and the offence of break and enter.

A new class of offender would be added to the list of offenders who may be candidates for the retroactive scheme, for example, those who have committed one murder and one sexual assault at separate times.

The legislation would create the means to compel an offender to appear at a certain time and place to provide a sample of DNA evidence. Bill C-35 would create a procedure for a review of DNA data bank orders that appear to have been made for a non-designated offence and the destruction of samples taken from those offences.

Those are five examples of different things Bill C-35 would do to change the law. The NDP certainly supports the bill being referred to committee. In principle, it looks like we are going in the right direction. On behalf of the New Democratic Party of Canada, I want to reserve our final position on this legislation until we have had a chance to examine witnesses, study it further, and look at possible amendments.

Our party does have some concerns about any changes made to criminal law, particularly when it comes to something like DNA and fingerprinting. We are concerned about an individual's right to privacy. We want to ensure that an individual's privacy is not going to be violated by the suggested changes. We are also concerned about the individual's security. We want to ensure that there will be no violation of fundamental rights that are guaranteed under the Charter of Rights and Freedoms.

In principle, many positive things appear to be happening with the bill in terms of increasing the effectiveness of DNA samples as an investigative tool to be used by the police. Providing it is not a violation of people's security or an infringement on their civil liberties, it is certainly a step in the right direction.

The potential of DNA evidence is enormous. It has great power toward solving crimes, and ensuring that the guilty are convicted and the innocent are exonerated. It is one of the miracles of modern justice. We must ensure however that DNA evidence is accurate and is gathered without infringement on the rights of all Canadians to be free of unreasonable search and seizure. Bill C-35 should be sent to committee for further study.

I want to make one comment on the miracle of DNA evidence. It was brought home very clearly to a lot of us in my Province of Saskatchewan a few years ago. I am referring to the case of David Milgaard.

David Milgaard was convicted for a 1969 murder of a young Saskatoon nurse named Gail Miller. My recollection is that he spent 22 to 23 years in prison for a crime which was later proven he did not commit. David Milgaard might be still in prison had it not been for DNA evidence and DNA technology 10 or so years ago that proved that he was not the person who committed this gruesome and unfortunate act of murder. Someone else is now serving time, having been convicted for the murder of Gail Miller.

This is something that is a miracle of modern technology in terms of convicting those who should be convicted and ensuring that those who are innocent are not wrongfully convicted.

Over the sweep of history in our country, and indeed around the world, there have been many people who have been wrongfully convicted. There have been many cases in this country. I think of the Marshall case and many other cases that I do not want to get into at this particular time.

However, David Milgaard stands as a very good example of this. I commend the courage of his mother, Joyce Milgaard, for the fight to free her son. They came from rural Saskatchewan and one time lived in the Town of Langenburg which was part of my former riding of Yorkton--Melville. David Milgaard then moved around after that to Regina and other parts of Saskatchewan. This is a good example where DNA evidence has freed an innocent man and helped convict a guilty man of a murder.

We certainly support the reference of the bill to committee. The committee will have hearings and cross examine witnesses. I assume we will be making some amendments, after we hear the expert witnesses, and come out of this with something that is positive for the protection of Canadian society in order to bring individuals to justice, convict those who have done wrong, and ensure those who are innocent are not falsely convicted.

Criminal CodeGovernment Orders

4:25 p.m.

Anjou—Rivière-Des-Prairies Québec


Yvon Charbonneau LiberalParliamentary Secretary to the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness (Emergency Preparedness)

Mr. Speaker, I am very pleased to rise to recommend that Bill C-35 be referred to a committee, as suggested by my colleagues. I think that all the parties in the House support the national DNA data bank and want to make it a tool that is as effective as possible to implement the act.

As hon. members know, DNA evidence has had what some are calling a revolutionary impact on the legal system. Canada can be proud of its DNA data bank. Indeed, our country is a world leader in this area and it has developed methods to protect privacy which, apparently, are being copied all over the world. However, while the DNA data bank is a success, it must be recognized that some difficulties have been encountered when using it, and the implementation of the act has also run into problems in court.

As hon. members know, the legislation that initially established the DNA data bank provided for a parliamentary review within five years of the coming into effect of this measure, that is by June 30, 2005. This is why I think the government acted responsibly by introducing Bill C-35 at this point in time. Indeed, we do not know when the review will actually begin and, more importantly, when it will be completed.

The problems that we are trying to solve with this legislation were raised by the Uniform Law Conference of Canada, by the provincial governments, which deal with the overwhelming majority of cases involving a DNA data bank order, and by the RCMP, which is responsible for the bank.

Every year, the criminal justice section of the Uniform Law Conference of Canada brings together federal and provincial government officials and also defence counsel to discuss various resolutions on changes to the Criminal Code and other acts relating to criminal law.

In August 2001, the criminal law section of the Uniform Law Conference of Canada adopted a number of resolutions that called on the Department of Justice to consider, in consultation with the provinces, the territories and other interested stakeholders, amendments relating to the scope and application of the DNA data bank legislation in the Criminal Code. In particular, it recommended that seven issues be addressed on a priority basis. Subsequently, these proposed amendments were studied thoroughly by the Department of Justice, particularly during its legislative consultations in the fall of 2002. The amendments were discussed with the provinces and they urged the federal government to make the changes.I am pleased to advise the House that all seven of the priority items have been addressed in Bill C-35.

The bill will make significant amendments to the DNA Identification Act which governs the operation of the DNA data bank. While these changes are important, I will restrict my remarks to the main proposals for change in the Criminal Code, which, in my view, are the most significant: the inclusion of the offences of indecent assault female, indecent assault male and gross indecency in the list of designated offences and the list of sexual offences.

Moreover, there are persons who should be in the DNA data bank as a result of having committed a series of these offences prior to the legislation coming into force. The Criminal Code does allow for persons convicted of two or more sexual offences to be sampled so this change to the definition of sexual offence will allow the Crown to apply to a judge to have them included.

The Uniform Law Conference and the provinces also proposed the inclusion of those individuals found not criminally responsible by reason of mental disorder within the DNA data bank scheme. We currently have in the House Bill C-29 which proposes important changes to the provisions of the Criminal Code dealing with the mentally disordered offender.

While those accused are not convicted of the crime, the court has found beyond a reasonable doubt that they have in fact done the act that constitutes the physical element of the offence. While they should not be sentenced to jail, it is clear they may be very dangerous. They are therefore put under the jurisdiction of a provincial review board. By making it possible for a judge to order that they DNA profiles be included in the DNA data bank, we may be solving crimes that they committed in the past. More importantly, if they should be released and commit a crime where they leave their DNA, we may solve that crime.

Members should remember, however, that having their DNA in the data bank could be a benefit to a mentally disordered offender who has been released into the community. These offenders are likely to be suspects, but if their DNA does not match the DNA from the crime scene, the police will know they are innocent.

The bill also contains a process, which the Criminal Law Section and the provinces wanted, for compelling the offender to attend in court at a hearing to determine whether a DNA data bank order should be made. Usually, this hearing takes place as part of sentencing, but there are occasions where the parties are not ready and the matter should be set over to another date. The bill contains a provision which ensures that the judge retains jurisdiction to order the person to show up for the hearing and, if the person does not show up, for a warrant for the person's arrest to be issued.

The Criminal Law Section and the provinces also recommended creating a process that would permit a judge to make, upon request, a second DNA data bank order, where the national DNA data bank has declined to process the first one because of police error in completing the forms that must accompany the bodily substances submitted for analysis.

The Criminal Code contains a provision permitting such a second sample if, for some reason, a DNA profile cannot be derived from the bodily substance. It is entirely appropriate if there has been a clerical error, for example in mixing up bar codes making identification of the offender impossible, that it should be possible to seek another order. Again, this bill will make this possible.

The provinces also wanted a mechanism to require the offender to appear for the purpose of providing a DNA sample. The law, as it currently stands, only makes provision for the DNA sample to be taken when the order is made. This has proven to be impractical. The police simply cannot have trained personnel in every criminal courtroom in the land. It is far more practical for the court to order the person to go to the police station at a fixed time. The bill provides for such an order and enables the judge to issue an arrest warrant, where necessary.

The bill also proposes changes in the list of designated offences covered by the DNA data scheme. Probably the most important additions to the list will be uttering threats and criminal harassment. As these will be secondary offences, the crown will have to apply for the order. People who engage in these activities present an elevated risk of subsequent violence, particularly to the victim of the offence. Having their DNA in the data bank may assist in deterring them.

The bill also proposes to move robbery and break and enter into a dwelling house from the list of secondary designated offences to the list of primary designated offences. This should increase the likelihood that a court would make a DNA data bank order in the case of these very serious offences.

I believe this review of the highlights of Bill C-35 shows clearly how important it will be in promoting the safety of the public and how it responds to the suggestions made by the provinces.

Of course, identical changes are being made in the National Defence Act to ensure that the military justice system remains consistent with the Criminal Code.

The sooner that review begins, the better. Therefore, I urge members to send Bill C-35 to committee.