Madam Speaker, I am pleased to speak today to Bill C-13 that proposes a number of improvements to the DNA data bank legislation, which was passed by Parliament in 1998, came into force in June 2000 and appears to be working very well. Since that time the DNA data bank has been a boon to Canadian police.
Since that time, the DNA data bank has been a boon to Canadian police. 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 the DNA profiles of convicted offenders in the national DNA data bank.
DNA evidence also has been a great benefit to the courts. We all know that there have been miscarriages of justice in the past. The courts have become more comfortable with the science behind DNA matches. They are aware that a particular DNA profile will only appear in one out of billions of persons. It is not, however, definitive. There may be an innocent explanation, but if the person's DNA has been found, for example, in or on the body of a victim of a sexual assault and that person is a stranger to the victim, there is some explaining to do. Often the DNA match results in the person pleading guilty, which saves a great deal of court time and spares the victim additional trauma.
I believe all members want to make the legislation even more effective. Bill C-13 would accomplish that goal, and members can be certain that Bill C-13 would do so in a way that would respect the charter and privacy rights of Canadians. 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 that it has been challenged.
The Criminal Code establishes the process that can lead to a judicial order authorizing the taking of samples of bodily substances for analysis and inclusion in the DNA data bank from persons who have been convicted of certain designated offences. The most serious offences such as murder and sexual assault are primary designated offences. Where a person has been convicted or discharged of a primary designated offence, the judge is required to make a data bank order unless the judge is satisfied that the impact on the offender's privacy and security of the person would be grossly disproportionate to the public interest, the protection of society and the proper administration of justice. The courts have consistently held that this is a very high burden for the offender to discharge, and so DNA orders for primary designated offences are almost automatic.
Secondary designated offences are less serious offences, for example assault or leaving the scene of an accident. 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 deciding whether to grant the order, the 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 person.
The court is required to give reasons for its decision to make or to deny making a DNA data bank order. The courts have consistently found that the impact on a person's privacy and security of the person is minimal. Although DNA can reveal a great deal about a person, the DNA data bank only analyzes what is known as “junk” DNA, that is, chromosomes that do not reveal anything, like hair colour, about the person.
Moreover, the legislation has strict protections on the use of both the bodily substances and the resulting DNA profile. They can only be used for forensic DNA analysis or other uses specified in the DNA Identification Act. It is an offence to use them for any other purpose than the investigation of crimes. The DNA profiles cannot, for example, be used in any research.
The Royal Canadian Mounted Police, which operates the national DNA data bank, has developed a system of tracking the DNA profile and the identifying information. The bodily sample that is to be analyzed and the identifying information on the offender, which is based on fingerprints, are tracked by the identical bar code. The DNA data bank keeps a sample and sends the identifying information to the RCMP's Canadian Criminal Records Information Services. 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 Criminal Records Information Services of the bar code and that service identifies the convicted offender.
With such strong protections for the offender's privacy and the great value of DNA evidence, the courts have welcomed the legislation. In Briggs, a decision of the Ontario Court of Appeal handed down August 2001, the DNA legislation was found to comply with constitutional requirements. The reasoning of the Ontario Court of Appeal in Briggs has since been endorsed by several other provincial courts of appeal in Canada. The decision in Briggs dealt with many of the issues that might arise in considering the legislation and pointed out that the purpose of obtaining a DNA profile from an offender was not simply to detect further crimes committed by this offender. Rather the provisions have much broader purposes, including the following: to deter potential repeat offenders; to promote the safety of the community; to detect when a serial offender is at work; to assist in the solving of what could be called cold crimes; to streamline investigations; and to assist the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.
In another decision of the Ontario Court of Appeal that has been widely referred to 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”.
The House 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 warrants scheme and has many of the same safeguards, Regina v. S.A.B. provides strong support for the constitutionality of the data bank legislation.
I believe we need to have no concern about the constitutionality of Bill C-13, although the committee will undoubtedly want to hear from the experts on that point. By expanding the number of designated offences and by clarifying procedures, Bill C-13 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. Therefore, I urge members in the House to support the motion to refer the bill to committee.
