Mr. Speaker, it is not the first time I have been interrupted on this bill. I have no difficulty with that.
I find myself as do other opposition members in the unfortunate situation that we, along with members of the policing community and other Canadians, are anxious to see the legislation come to fruition. We want to see it before the Canadian people and entrenched in our criminal law in a way that the police can use it effectively.
As I indicated before we are in support of the bill in principle. It is fair to see that almost everyone without exception is supportive of the bill, but there are serious problems with the legislation that we in the House have the golden opportunity to fix. Yet the government has chosen to refuse pleas from a non-partisan group as the Canadian Police Association.
If the government proceeds with the legislation in its present form it will lose a significant and real opportunity to put into the hands of the law enforcement community the ability to fight crime, which is ultimately the task with which it has been charged, a tool that would give it the ability to effectively investigate and would assist it in its ability to combat serious crime.
It is not political posturing, I would suggest, by any opposition member who states this is the case. Everyone agrees the Canadian Police Association is an excellent organization that represents the concerns of frontline police officers, those individuals who form the thin line between the criminal element in society which exists, a rust and a cancer in our communities, and those individuals who are day to day out there risking their lives and putting themselves in harm's way to combat crime.
I quote from the Canadian Police Association's most recent publication in the context of the legislation: “Getting this bill straightened out should be the government's priority when parliament returns unless the Liberals yearn for more embarrassment in the criminal justice field”.
This opportunity is being put forward to get it right and to get it right the first time. The Solicitor General and Minister of Justice have talked incessantly about the importance of crime prevention and about it being a priority of government. Yet by refusing to amend the bill to allow the use of DNA at the time of charge, the Liberals are removing a key tool to help law enforcement officers and their communities to prevent crime.
If a DNA sample could be collected at that point in time and used in the same investigation in which the police were involved, it would be a very important way to match a DNA crime scene sample to the DNA crime bank that would be in existence. The evidence of that investigation could be used to see if there was a match with unsolved crime or crime scenes from other unsolved matters.
It goes without saying that this would be very useful in the approach to ongoing or unsolved crimes. Again I would suggest that the emphasis here is on serious serial rapists, murderers, crime at the very high end, at the very top echelon of the Criminal Code.
For example, a DNA sample that was taken from an individual charged with an armed robbery or a break and enter could be cross-referenced with the data in the databank that would be in existence to see if there had been a match and consequently uncover an individual in question who may have left a DNA sample at a previous crime scene. It would be a preventive method, a proactive ability by the police to prevent further crime and in essence hold a person in custody and hold a person later accountable if that match proved consistent with other evidence.
We should consider the high frequency of flight of individuals on bail. A person who is being held on evidence in relation to a particular offence goes through a process of judicial interim release or a bail hearing and is released from custody after an analysis has taken place. Having that DNA sample and the ability to make a match, in a very straightforward and simple process which I hope to address later in my remarks, between the offender being held in custody and the DNA bank that exists for outstanding criminal offences might be the pivotal piece of evidence to prevent the person's release.
I would adamantly reiterate to the House the experience of the courts, police officers and prosecutors throughout the land. If individuals being held in custody for relatively minor offences—and I say relative when we are talking about crimes of violence, invasion of a person's bodily integrity, rape, murder or such offences—were to be released and a DNA sample could be taken at that time to see if they were involved in more serious unsolved or outstanding offences about which there is crime scene analysis evidence available through the DNA bank, if we have the physical ability to make those matches, why would the government not take that opportunity? It seems absolutely asinine that we would pass up this opportunity. This is the position that the CPA and other law enforcement agencies have been seriously and adamantly suggesting to the government.
As I was suggesting, when one considers the frequency of individuals who flee when out on bail, it becomes a penetrating statement of the obvious to say that this is an opportunity to prevent crime and to prevent a person fleeing not only the jurisdiction but possibly the country. Unfortunately in this country there is a very low frequency of jurisdictions that will then return a person to face prosecution in a jurisdiction.
Without the provision in this legislation to collect at the time of charge, Bill C-3 is seriously flawed and will create a databank that fails to meet the full potential in the prevention of crime.
Is that not what it is all about? Is that not something all of us in the Chamber as Canadians should be concerned about in our justice system? Should we not be doing everything in our power to try to prevent crime?
There has been mention by other members, and other members in opposition in particular, of the exculpatory nature of this type of evidence. As other hon. members would agree from a defence perspective exculpatory evidence is that again which has an immense purpose and an immense importance in our justice system.
One only has to conger up the names of Milgaard, Morin and Donald Marshall in my home province of Nova Scotia to recall that if the ability to take a DNA sample and if the ability to use that type of technology existed, perhaps these abominations of justice where individuals were wrongly accused, wrongly convicted and spent a good part of their young lives behind bars for crimes they did not commit could have been avoided.
There are strong arguments to be made on both sides of our justice system which is often very adversarial in nature, but from a defence perspective as well. We are talking about the use of exculpatory evidence.
I would suggest that if a person found himself in the unfortunate position of being charged with an offence that he did not commit that individual would be rushing to come forward and give a sample of his DNA. If the person has nothing to hide, by all means he would want to clear himself of that cloud of doubt and that criminal charge. He would by all means ask to have his blood taken or a sample of his hair or saliva taken because he would want to prove his innocence. Why would we want to discourage that from happening?
Certainly the solicitor general and this Liberal government should be able to recognize that. Certainly the Department of Justice should be able to recognize that in its drafting of this bill. Then again the solicitor general has displayed here today in question period that he does not necessarily recognize the difference between a criminal investigation and a judicial proceeding in relation to the hearings that the RCMP Public Complaints Commission is going through. I realize I digress but there appears to be an apparent contradiction in the approach.
The Liberals as well as my hon. colleagues in the Bloc and the NDP have expressed their concern with the standard for the collecting of DNA samples at the time of charge. They feel, and perhaps fairly, that there needs to be a very high standard applied. I would like to address that momentarily.
As a former crown attorney I would like to echo the assertion of many, including a noted criminal defence lawyer, Tim Danson, that at the time of charge there must be a certain standard. However, that standard must be based on reasonable and probable grounds to hold a person in custody. This is the standard that is applied universally in our justice system. There has to be enough evidence coupled with the appearance of DNA at the scene before a person would be held. Surely that standard is not going to be subverted by the additional use of DNA in any judicial hearing.
I understand the trepidation and perhaps some reluctance on the part of the NDP to have full use of DNA at the time of charge. But I again suggest that it is not only for the use of the state in the prosecution of offences. It would surely be of great significance and assistance in the defence of those who are wrongly accused.
I want to further refer to the comments of Mr. Danson who was solicited by the Canadian Police Association to give an independent opinion with respect to the use of DNA and the fear, and I would even suggest constitutional constipation, that this government has repeatedly displayed when it comes to the use of DNA. Mr. Danson stated that if Bill C-3 were amended to allow for the collection of DNA samples at the time of charge, it would withstand a constitutional challenge under the charter of rights and freedoms.
During justice committee hearings on this bill the government was urged to provide its legal opinions that collecting DNA samples at the time of charge would endanger the legislation, endanger meaning that it might result in the legislation or parts thereof being struck. The Liberal government refused to do that.
The Liberal government chose, after the committee had completed its hearings and deliberations, to then go out and seek a legal opinion from three retired—and to quote the government speaker—eminent jurists in this country, who gave a contrary opinion to Mr. Danson's. I am not going to cast aspersions on that opinion. Suffice it to say that within our justice system time and time again we have seen differences of opinion not only from other lawyers but certainly from the judiciary itself otherwise we would not have a court of appeal, we would not have the Supreme Court of Canada. Time and time again we have seen differences of opinion with respect to this piece of legislation.
I ask rhetorically whether we in this House and the government should be curtailed in our passage of laws that would apparently be of benefit to the law enforcement community in their combating of serious crime and of great benefit to all Canadians. Should we be curtailed, so paranoid as to what the courts might or might not do?
I challenge the government to give us a substantial example of where that abuse of DNA is going to take place. Its drafters of this legislation have within its body included serious ramifications for any sort of misuse or misappropriation of DNA evidence. There are safeguards in place. There are very definite and very serious ramifications for the misuse of this type of DNA technology.
I would emphatically suggest that we have to move forward. We have to move into the 21st century with the technology that is available to us. Why on earth would we hesitate to do so when it comes to such a critical issue as the use of DNA in the combating of serious crime.
Although the timing of the release of the opinion is suspect, that is the contrary opinion to Mr. Danson's, I do not intend to delve into why that contrary opinion came back from the jurists. It would not surprise me if the opinion had come back the other way. A difference of opinion in our justice system, which is an adversarial system, is healthy. It is to be expected. However, juxtaposed positions taken by those involved in our justice system is the way that things currently work. This is part of the process. It is part of a healthy debate and part of the practice of law as you well know, Mr. Speaker.
The government should not hide behind the fears about a potential charter challenge especially in light of the considered opinions submitted by other legal minds, like Mr. Danson. The government should not hide behind legal opinions submitted by retired jurists who, though well-intended no doubt, I would suggest have been given an incomplete and inaccurate term of reference by the Department of Justice. It was also a rather rushed opinion given the amount of debate and the amount of in-depth analysis that took place at the justice committee.
At the risk of being redundant, I repeat that Bill C-3 is a golden opportunity to optimize the use of this new technology. The Liberal government has done a disservice to the law enforcement community and to all Canadians by holding back on the use of this type of legislation. It treads with caution and tables legislation which hampers the ability of law enforcement agencies to effectively do their jobs.
Let us let parliament act in the name of public safety and not out of constant fear of judicial intervention. We have an opportunity to use legislation to the full degree of the law, not treading on the rights of innocent individuals, not crossing the line when it comes to civil liberties. There are safeguards in place within this piece of legislation.
As I said earlier, I am fully in support of this initiative taken by the government. I commend it for its decision to introduce DNA. I do not want to over emphasize it, but in my former life as a crown attorney I was involved in cases that involved DNA evidence. It is extremely useful. It is absolutely vital to furthering the cause of justice in this country.
This legislation in its current form does not go far enough. It is an opportunity that we have now to right a wrong and to make a relatively minor adjustment as to the timing of the taking of the sample and the use thereafter.
I suggest that we in this chamber and we as members of parliament should not be held back. If we pass this legislation with this fear, this somewhat unrealistic and perhaps paranoid fear that the legislation would not survive judicial scrutiny, we are doing a tremendous disservice and we are holding back at a time when we should be moving forward.
This is not a rational fear that exists on the part of government. It is certainly something worth deliberating. It is something worth discussing in this chamber, in this public forum.
On behalf of the Progressive Conservative Party, that is why we are supportive of this motion. If it means delaying the passage of this legislation by a relatively short time, by six months as suggested by the hon. member, I am in support of that. I would suggest that all law enforcement officers and all Canadians would want to get it right in the first analysis, in the first instance.
On behalf of our party, we support this amendment. We suggest that the government and this House be provided with another six months to examine this piece of legislation and make sure that we provide a piece of legislation that is going to best serve Canadians and best serve our judicial process.
